Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales - [2021] FCA 169 - FCA 2021 case summary — Zoe

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Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales

[2021] FCA 169

Federal Court of Australia|2021-03-05|Before: Griffiths J

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Court

Federal Court of Australia

Decision date

2021-03-05

Before

Griffiths J

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Original judgment source is linked above.

Judgment (274 paragraphs)

[1]

INTRODUCTION 1 This proceeding concerns nine series of separate questions which arise for determination in the context of an application for the determination of native title under the Native Title Act 1993 (Cth) (NT Act). That application relates to a relatively large area of land, affecting 26,714 parcels of land, which is located in parts of New South Wales (which are referred to as the Central Division and the Western Division respectively). The claim is for both exclusive and/or non-exclusive possession. 2 The parties are in dispute in respect of relatively small parts of the claim area (approximately 1.2 percent of the total claim area and representing about 51 square kilometres at the time the original separate questions were formulated) as to whether any native title rights and interests have been wholly extinguished under either relevant provisions of the NT Act or at common law. Given the present stage of the native title claim, no determination has yet been made as to the nature and extent of any native title rights and interests in the claim area. 3 With one exception, the separate questions relate to various types of statutory leases relating to Crown land in the State. The exception, which is the subject of Sch 9, relates to a reservation relating to a temporary common. Various Aboriginal Land Councils, including the New South Wales Aboriginal Land Council, were additional active participants in respect of this particular matter. 4 The applicant in the proceeding is the applicant in the application for the native title determination under s 61 of the NT Act. The Attorney General of New South Wales is the primary respondent (the State). 5 As will emerge, the issues which arise for determination in respect of some of the leases are complicated by the fact that one or more extensions were granted to some of the leases and additional conditions were imposed, sometimes reflecting legislative or executive acts which occurred after the original or previous grant or dedication. 6 It is desirable to say something more about some procedural aspects of the proceeding.

[2]

Some procedural matters 7 On 28 March 2019, the Court made orders under rule 30.01 of the Federal Court Rules 2011 (Cth) for the hearing and determination of ten separate questions, which were reflected in Schs 1-10 to those orders. The parties were subsequently able to agree all of the subject matter of Sch 10, thus it no longer requires determination. The ambit of Sch 9 was substantially narrowed after the relevant parties reached agreement such that the questions requiring determination in respect of this particular Schedule relate to only one parcel of land. The parties were also able to reduce the number of parcels of land which required determination in some of the other Schedules. 8 As will shortly emerge, the parties provided detailed written contentions and submissions in respect of the remaining separate questions. In the applicant's written submissions dated 29 May 2020, the applicant raised a question as to whether the State was seeking to raise matters which did not fall within the terms of the separate questions. The applicant claimed that the State was seeking to have the separate questions relate not only to the issue of extinguishment of native title under relevant provisions of the NT Act, but also at common law separately and apart from the operation of that legislation. (It may be noted that s 23B(9C) invites, where it applies, consideration of whether native title has been extinguished apart from under the NT Act). This matter was raised by the Court at the outset of the hearing. The parties agreed that they would work together to reformulate the present separate questions so that all relevant matters requiring determination were clearly covered by the terms of those questions. The parties came to an agreement as to the terms of the reformulated separate questions, which are reflected in the questions as described below. 9 Although the reformulated questions do not explicitly refer to extinguishment of any native title according to principles of common law and independently of the operation of any relevant provision of the NT Act, I understood that they were intended to reflect the parties' agreement that this separate matter should also be determined so that the parties would have certainty. As the State pointed out in its written submissions in reply at [7], the question whether a lease has the effect of wholly extinguishing any native title in the leased area "necessarily requires the Court to consider whether the lease conferred rights and interests inconsistent with the native title rights and interests claimed". 10 I have proceeded on the basis that determination of the separate questions requires consideration and determination of the issue whether any native title rights and interests have been extinguished by operation of common law principles. It should be interpolated, however, that neither the State nor the applicant gave much attention to extinguishment at common law. The central focus of the case was very much on the application of relevant principles arising from the NT Act itself. 11 On the first day of the hearing the applicant raised an additional and separate issue relating to the ambit of the separate questions as originally formulated. It relates to the fact that the State's written submissions addressed an issue which the applicant said was not squarely raised by the terms of the separate questions as originally formulated, namely whether any legislative or executive act which occurred subsequent to the grant or vesting of the relevant lease or dedication meant that exclusive possession was subsequently granted and wholly extinguished native title rights. The parties subsequently provided revised reformulated separate questions which were made the subject of orders dated 18 August 2020. 12 The applicant maintained its primary position that, as a matter of law and having regard to the terms of s 23B(2)(c) of the NT Act and the reference therein to an act being a "previous exclusive possession act" (PEPA) if inter alia it consists of the grant or vesting of various specified matters, no consideration should be given to legislative or executive acts after the original grant or vesting of a lease. In the event that this primary position was not upheld, the applicant's secondary position involved it responding to the State's submissions regarding the legal effect of subsequent legislative and executive acts relied upon by the State as having the effect of wholly extinguishing any native title rights and interests. 13 I will explain in the consideration of Sch 2 why I reject the applicant's primary position. In any event the issue is largely academic in the context of the present proceeding having regard to the parties' ultimate acceptance that the Court was also required to consider extinguishment at common law. 14 As noted, the reformulated separate questions comprise nine separate schedules (Schs 1-9), each of which deals with the following particular kinds of land tenure: Sch 1 - Scrub Leases Sch 2 - Settlement Leases Sch 3 - Improvement Leases Sch 4 - Homestead Leases Sch 5 - 18th Section Leases Sch 6 - Western Lands Leases for a Term Sch 7 - Special Leases for a Term Sch 8 - Special Leases for Grazing Sch 9 - Reservations. 15 The Court is asked to determine a series of separate questions with reference to various identified parcels of land in respect of each of the relevant land tenures.

[3]

Some introductory observations 16 The NSW Crown lands legislation which is relevant to these proceedings is complex and has had many iterations. The complexity has been heightened by the numerous amendments which have been made to that legislation. The onerous task faced by the Court in answering the separate questions is further highlighted by the fact that the parties referred to, or relied upon, no less than 117 different pieces of State or Commonwealth primary legislation and no less than 62 pieces of secondary legislation in support of their respective positions. 17 I will seek to describe the history of the primary NSW Crown lands legislation before addressing each of the separate questions. I will also provide, by way of introduction, an overview of relevant case law. 18 Before doing so, however, it is desirable to outline in very general terms the nature of the separate questions for determination. Putting to one side for the moment the claims concerning extinguishment at common law, the issues of extinguishment by operation of the NT Act essentially relate to the following two matters. First, whether some of the land tenures (i.e. Settlement Leases and some of the Special Leases for a Term and some of the Western Lands Leases for a Term) constitute a "Scheduled interest" within s 23B(2)(c)(i) of the NT Act. Secondly, whether or not all the relevant land tenures conferred "a right of exclusive possession over particular land or waters" within s 23B(2)(c)(viii) of the NT Act. If the answer to either of those questions is yes, the Court is also asked to determine whether the effect of granting the relevant land tenure was to wholly extinguish all native title in relation to the land or waters covered by the tenure, in accordance with s 23E of the NT Act and s 20(1) of the Native Title (New South Wales) Act 1994 (NSW) (NSW NT Act). 19 As noted above, the Court is also asked to determine whether the relevant tenure was otherwise wholly inconsistent with the continued existence of native title rights and interests under the common law and independently of the NT Act or NSW NT Act (see Western Australia v Brown [2014] HCA 8; 253 CLR 507 (Brown High Court) at [31]).

[4]

(a) Some primary provisions of the NT Act 20 It is convenient at this point to set out some of the relevant primary provisions of the NT Act commencing with s 23B, which defines what is a PEPA and noting that there are two separate limbs to s 23B(2)(c): 23B Previous exclusive possession act (1) This section defines previous exclusive possession act. Grant of freehold estates or certain leases etc. on or before 23.12.1996 (2) An act is a previous exclusive possession act if: (a) it is valid (including because of Division 2 or 2A of Part 2); and Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2. (b) it took place on or before 23 December 1996; and (c) it consists of the grant or vesting of any of the following: (i) a Scheduled interest (see section 249C); … (viii) any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters. … 21 "Scheduled interest" is defined in s 249C of the NT Act. A "Scheduled interest" is anything set out in Sch 1 to the NT Act, other than a mining lease or anything whose grant or vesting is covered by certain specified exceptions in s 23B(9)-(10). That Schedule identifies numerous statutory leasehold interests which the Parliament considered to have conferred a right of exclusive possession and, accordingly, extinguished native title (see ss 23B(2) and 23C). Section 23E of the NT Act (which recognises that a State or Territory law may in the specified circumstances make provision to the same effect as s 23C regarding confirmation of extinguishment of native title by PEPAs attributable to the State or Territory) is set out at [42] below. Section 20(1) of the NSW NT Act (which is a provision as contemplated by s 23E of the NT Act) is set out at [43] below. 22 With a few exceptions, the parties were agreed that there was no dispute that the relevant land tenures were both valid (for the purposes of s 23B(2)(a)) and took place on or before 23 December 1996 (see s 23B(2)(b)) (which is the date the High Court published its decision in Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1 (Wik)).

[5]

(b) An anachronism or artificiality presented by the separate questions 23 It is desirable at this early stage to highlight a central anachronism and related artificiality which is exposed by the terms of the separate questions. As has been highlighted, many of the relevant land tenures are of some antiquity. For example, some were granted under the Crown Lands Act 1889 (NSW) (CL Act 1889) and others were granted under the Crown Lands Consolidation Act 1913 (NSW) (CLC Act 1913). In determining whether the land tenures granted under either of those Acts involved a PEPA for the purposes of s 23B(2)(c)(viii) of the NT Act, it is necessary to determine whether there was an act which involved the grant or vesting of a lease which conferred a right of exclusive possession over particular land or waters. 24 The anachronism relates to the fact that, at the time all the relevant land tenures were granted, native title rights and interests were not recognised at common law. This did not occur until the High Court delivered its landmark decision in 1992 in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (Mabo (No 2)). Necessarily therefore, both when the relevant legislation was enacted and the relevant land tenures were granted (or extended), common law native title rights and interests were not recognised. The task of now determining whether or not a particular act is a PEPA with the meaning of s 23B(2)(c)(viii) of the NT Act is therefore a somewhat artificial exercise in the sense that determining whether, for example, a particular lease is a PEPA because it conferred a "right of exclusive possession" over particular land or waters, falls to be determined by reference to times and events when native title rights and interests were not recognised at common law. This serves to highlight what Professor W E H (Bill) Stanner described in the Boyer Lectures in 1968 entitled "After the Dreaming" as the "great Australian silence", namely the failure of Federal and State Governments over many years to acknowledge the traditional laws and customs of Aboriginal people. 25 This "artificiality" was touched upon by Gleeson CJ in Wilson v Anderson [2002] HCA 29; 213 CLR 401 at [12]. There, the then Chief Justice said that, depending on the circumstances, "it may be unlikely in the extreme that either party to [a] lease paid any attention to the subject of native title". His Honour made clear that the subjective intentions were not relevant in determining whether or not, for example, a grant of an estate in fee simple extinguished native title, because the issue had to be "objectively considered". Justice Callinan addressed the issue of artificiality in even stronger terms in Anderson at [194] where he reiterated the views he had expressed in Western Australia v Ward [2002] HCA 28; 213 CLR 1: … I would reject the notion that has unnecessarily complicated and, if unchecked, will continue to complicate the resolution of claims for native title: the imputation to the parties to pastoral and other leases of an entirely artificial intention, contrary to the known facts, that native title was or was not to subsist. ... 26 The artificiality of the task which presents itself for determination in the present proceeding is highlighted even further by the fact that questions arise for determination before any determination has been made as to whether or not the applicant holds any native title rights and interest in respect of the relevant land. As Toohey J observed in Wik at 103, this has the consequence of clothing questions for separate determination "with a certain unreality". His Honour further observed at 131 that, by formulating questions for decision in advance of a trial, an attempt has been made to: … reduce to straightforward propositions what are in truth complex issues of law and of fact. [The questions] look for a certainty in the answers which, in the circumstances of the present appeals, is a mirage. There have been no findings as to whether native title rights even exist in connection with the land, let alone the content of any such rights. 27 There is another consequence of the antiquity of all the land grants or reservations in the present proceeding which pre-date Mabo (No 2). Although the parties have gone to considerable lengths (particularly the State, which carries the evidentiary burden), to adduce relevant evidence concerning those tenures, there are unavoidable gaps. It is not suggested that these gaps reflect upon the diligence or thoroughness of the searches which have been conducted by the various parties into the historical records. The volume of material which has been provided to the Court testifies to the contrary. Rather, my point is to emphasise that the task of fact finding is rendered more difficult in a proceeding such as this where relevant events span more than a century and Government and other official record keeping over that period may not be as thorough, or accessible, as is the case with more recent materials.

[6]

Summary of general principles concerning extinguishment of native title 28 The State accepted that it carried the evidentiary burden of proving the relevant extinguishing acts and any associated issue of whether a particular lease (or reservation/dedication) conferred exclusive possession. The State submitted, however, that the significance of the burden it carried diminished when it came to the question whether any legislative or executive actions had the effect of extinguishing any native title rights and interests because that was essentially a legal rather than an evidentiary question. 29 In general terms, the parties were also agreed as to the relevant general principles regarding extinguishment, both under Pt 2, Div 2B of the NT Act and also at common law. There was no dispute that the NT Act did not exhaustively identify each and every act which might extinguish native title. Section 23B(9C) expressly provides that, where it applies, consideration needs to be given to whether native title has been extinguished "apart from this Act". Justice Bennett made the following observations in Brown v Western Australia (No 2) [2010] FCA 498 at [58]-[62], (which were adopted by Mansfield J in Brown v Western Australia [2012] FCAFC 154; 208 FCR 505 (Brown Full Court) at [24]): The primary judge explained in detail the scope and operation of the NT Act and its interplay with the common law, and its relevance to the facts in the proceeding. I respectfully adopt those observations of her Honour in Brown No 2 at [58]-[62]: Part 2 Division 2 of the Native Title Act 1993 (Cth) (the NTA) is concerned with the validation of past acts which, were it not for the NTA, would be invalid. Section 228 defines a "past act" as an act that took place before 1 January 1994 (or 1 July 1993 in the case of legislation) which is invalid, but would have been valid but for native title. Invalidity would have arisen by reason of the Racial Discrimination Act 1975 (Cth) (the RDA). Where an act took place before the commencement of the RDA on 31 October 1975, the act would not have been rendered invalid by reason of the RDA. Hence, it is not a "past act" under s 228 for which it is necessary to have regard to Pt 2 Div 2. Pt 2 Div 2 of the NTA provides not only for the validation of past acts but also for the extinguishing effect of those acts. Some past acts extinguish native title (see also ss 229 to 232). Relevantly, Pt 2 Div 2B confirms the extinguishing effect of "previous exclusive possession acts" and "previous non-exclusive possession acts", which are not confined to "past acts". If Pt 2 Div 2B of the NTA applies to a particular act, the extinguishment regime of Pt 2 Div 2 is put aside and any overlap between the two extinguishment regimes is resolved in favour of Pt 2 Div 2B and its corresponding State and Territory provisions (State of Western Australia v Ward (2002) 213 CLR 1 at [10]). Accordingly, Pt 2 Div 2B provides the analytical starting point. If an act extinguishes native title under Pt 2 Div 2B, it is unnecessary for the Court otherwise to examine extinguishment under the NTA (ss 23C(3), 23G(3)). Nonetheless, acts that do not fall within either category of "previous exclusive possession acts" and "previous non-exclusive possession acts" may still extinguish native title apart from the provisions of Pt 2 Div 2B. The NTA does not constitute a comprehensive code of extinguishment (see, for example s 23B(9C)(a)) and an act to which Pt 2 Divs 2, 2A or 2B of the NTA do not apply may still have been effective to extinguish native title under the common law. Where the act is the act of the State of Western Australia and a "previous exclusive possession act" within s 23B of the NTA, it only extinguishes native title if it is also a "relevant act" under s 12I of the TVA [Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)], which is, relevantly, a freehold grant whenever made and whether or not still in force, and Scheduled interests and leases when the interest created remained in force on 23 December 1996. The question of extinguishment is not wholly determined by the characterisation of the relevant grant as conferring exclusive possession. As the applicants point out, the NTA recognises "previous exclusive possession acts" (s 23B) and "previous non-exclusive possession acts" (s 23F). The former wholly extinguish native title (s 23C), the latter generally partially extinguish native title (s 23G). What is described as a "lease" under the NTA may or may not confer a right of exclusive possession (Wilson v Anderson (2002) 213 CLR 401 at [59] per Gaudron, Gummow and Hayne JJ). Pt 2 Div 2B of the NTA expressly declines to provide for extinguishment, under that division, of native title by the grant of a mining lease, whether or not it confers a right of exclusive possession over land (ss 23B(2)(c)(viii), 249C(1)(a)). Further, certain Scheduled interests extinguish native title, without regard to whether, as drafted, they confer exclusive tenure. 30 Before proceeding to summarise other general relevant principles it is important at the outset to emphasise that the issues which fall for determination in the present proceeding cannot be resolved by a "tick the box" exercise. Although helpful guidance is provided by various authorities, particularly Wik, Ward and Anderson, careful attention needs to be paid to the terms of legislation which is the source of the grant or vesting of a relevant land tenure, as well as the individual terms of any instrument concerning such a tenure. 31 Each case necessarily turns on its own individual facts, including the relevant terms and conditions of any particular land tenure, the relevant terms of the legislative regime and any relevant preceding legislative history. There is a grave danger of falling into error if the relevant issues are sought to be resolved simply by "cherry-picking" certain aspects of decided cases and transposing those individual aspects into a different factual and statutory context. 32 This fundamental point is well illustrated by Anderson. As is the case here, the proceedings there involved the determination of separate questions prior to the determination of the existence or contents of any native title rights and interests in the subject land. Expressed in very general terms, the primary issue was whether a "lease in perpetuity" granted by the Crown under s 23 of the Western Lands Act 1901 (NSW) conferred on the lessee a right of exclusive possession of the leased land and whether any native title rights were wholly extinguished by the grant of such a lease. Other issues arose concerning the appropriateness of the separate questions and how they should be answered but it is unnecessary to say anything further about that aspect of the case. 33 For present purposes, it is sufficient to focus on the joint reasons of Gaudron, Gummow and Hayne JJ in Anderson and the approach their Honours adopted in concluding that the grant of a "lease in perpetuity" conferred on the lessee "the essence of a freehold" and that the conditions and obligations attached to the grant were not inconsistent with the incidents of a grant of a determinable fee simple. 34 Their Honours traced the history of the Western Lands Act 1901 and associated legislation at [64]-[108]. This highlights the need in some cases to pay close attention to the history of particular legislation in determining whether or not particular land tenures created by such legislation had the effect of wholly extinguishing native title rights and interests. Their Honours also referred to various leading academic writings on the nature and character of perpetual leases as opposed to a determinable fee simple. This detailed analysis, coupled with a close examination of the relevant conditions and obligations imposed by the particular lease in perpetuity provided the basis for their Honours' ultimate conclusions at [109]-[119], which it is desirable to reproduce despite their length (footnotes omitted): 109 The interest conferred under s 23(1)(a) of the Western Lands Act and identified as a "lease in perpetuity" was a creature of statute forming part of the special regime governing Crown land. That regime included the various tenures provided for in the Consolidation Act, some of which also were identified as a "lease in perpetuity". Legislation establishing these perpetual tenures in New South Wales predated the introduction of the "lease in perpetuity" into the Western Lands Act by the 1932 Act and the 1934 Act. 110 The evident purpose of the introduction to the Western Lands Act of the perpetual tenure already established in other respects in the Consolidation Act was to strengthen the position of settlers in the Western District, particularly by giving them an asset more likely to attract the provision and continuation of finance. The character of the lease in perpetuity derived from that of the tenures established by the earlier legislation in New South Wales. 111 There had been a history in colonial New South Wales of Crown grants of freehold for which no purchase price was paid but with the reservation to the Crown of annual quit‑rents. Conditions also were imposed, upon pain of cancellation or revocation of the grant and determination of the fee simple. These conditions included requirements of residence and improvement of the land. By the time of the development in New South Wales of the legislative system of Crown land tenures in the second half of the 19th century, there was developing the popular perception of freehold as a tenure without risk of forfeiture for breach of tenurial incidents, a perception of which legislators would have been conscious. Yet it was in the interests of the Crown to achieve the economic and social goals of land settlement with the assistance of the controls imposed by conditional grants. 112 The legislative solution began with the "perpetual" obligations imposed upon the holders of homestead grants by the 1895 Act. As Sir Joseph Carruthers later was proud to declare, the inspiration for this legislation lay in the old common law notions of tenurial incidents. The legislative regime was developed with the appearance, in the 1912 Act, of the "lease in perpetuity". By this means there was created a tenure which, like freehold tenure, was to last "for ever" but the term "lease" indicated that the continued retention of title by the grantee was dependent upon the performance of many tenurial incidents imposed to further the objectives of the legislature with respect to land development. 113 The number and scope of those incidents developed as time passed. The Lease contains a number. Reference already has been made to the requirement of residence (cl 2) and the stipulations respecting use for the purpose of grazing stock (cll 3, 4). Further, the lessee was obliged by cl 14 not to transfer, convey, assign, sub‑let or mortgage the Leased Land without the written consent of the Minister; cl 20 provided that the Lease was not to be transferable except by way of mortgage for 10 years following its commencement, save to certain members of the armed forces. 114 The Lease stipulated an "unrestricted" right to proclaim travelling stock routes, camping places and other reserves (cl (l) of Sched A to the Western Lands Act) without payment of compensation and to withdraw land for the purposes of such reserves. The Lease was also expressed (cl 23(d)) to be subject to the withdrawal of land for any public purpose mentioned in the Consolidation Act. A lessee was placed under obligations with respect to fencing (cl 5), destruction of vermin (cl 7), improvements (cl 12) and stocking levels (cl 15). There was an obligation to allow authorised persons to enter the Leased Land to examine improvements (cl 12) and to search for and remove minerals (cl 16). The lessee also was obliged to permit authorised persons to enter for purposes connected with soil conservation and erosion mitigation (cl 22). 115 The point of present importance is that these conditions and obligations, whether imposed directly by the Western Lands Act or permitted by the statute to be attached to the grant, were not inconsistent with the incidents of a grant of a determinable fee simple. The right of forfeiture for failure to pay rent or non‑observance of conditions is equivalent to the right of re‑entry on breach of a condition subsequent attached to a determinable fee simple. 116 However, in other respects, the legislative creation of the lease in perpetuity was to have the attraction, both for leaseholders and those financing their operations upon mortgaged security, of a tenure with, as the Secretary put it in 1912, "all the advantages and essence of a freehold". Save where statute otherwise provided, that essence denied to anyone else the enjoyment of any right or interest in respect of the land. For the purposes of the NTA, this included a right in the grantee of a lease in perpetuity of exclusive possession. 117 The question in this litigation thus differs from that considered with respect to the legislation in cases such as Wik. The pastoral lease tenures there considered lack the historical and conveyancing background from which the lease in perpetuity was derived as a substitute for the old Crown grant of the determinable fee simple. 118 The restraints upon alienation which applied to the Leased Land and the requirement to allow entry by certain persons for particular purposes and the other restrictions which we have described were consistent with the attachment of conditions to what in substance was a freehold. Their existence did not deny what otherwise was involved in the comprehensive statutory grant of a "lease in perpetuity", including the right to exclusive possession. 119 It has been pointed out earlier in these reasons that it is unnecessary to determine whether the "lease in perpetuity" under the Western Lands Act is a "freehold estate" for the purposes of the NTA. The grant here was of a "lease" within the meaning of s 242 of the NTA which, upon the true construction of the Western Lands Act, conferred upon the lessee "the essence of a freehold", including a right of exclusive possession, within the meaning of pars (iv) (with s 248A) and (viii) of s 23B(2)(c) of the NTA. Section 20 of the State Act then mandates extinguishment of any native title, with effect from the grant of the Lease. 35 The approach of Gaudron, Gummow and Hayne JJ in Anderson provides important guidance for the present proceeding. It highlights how each case needs to be determined not simply by reference to whether or not there are common features with land tenures in other decided cases, but rather by a careful examination of all the relevant conditions and obligations associated with a particular land tenure, as well as the relevant features of related legislation. In Anderson, the lengthy history of legislation associated with the development of "leases in perpetuity" was also important in their Honours' analysis and ultimate conclusions. The history relating to leases was also prominent in Wik, as is reflected in Toohey J's helpful historical survey at 108 ff of pastoral leases in Queensland (primarily) (see [37] below). That historical survey provides helpful guidance to some of the leases in the present proceeding but that is not to say that every relevant land tenure here has such a rich legislative history. 36 The applicant emphasised the significance of the principle that the exercise of power (either legislative or executive) to extinguish native title must reveal a clear and plain intention to do so (see Mabo (No 2) at 110-111 per Deane and Gaudron JJ, at 138 per Dawson J and at 192-193 per Toohey J). The application of that principle of construction to many of the relevant legislative and executive actions in the present proceeding is not without inherent difficulty having regard to the anachronism and artificiality referred to at [24] ff above. As Brennan CJ stated in Wik at 85, a legislative or executive act which creates rights in third parties which are inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, "irrespective of the intention of legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title" (to similar effect, see Ward at [78] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and Anderson at [4] and [7] per Gleeson CJ). 37 Helpful guidance was provided by Toohey J in Wik concerning the approach to be taken in considering and determining whether or not pastoral leases (in that case) extinguished native title rights. His Honour's observations, although pre-dating the 1998 amendments to the NT Act, are also relevant to the task at hand in the present proceeding. At 108, his Honour said: At the heart of the argument in the present case -- that the grant of each pastoral lease extinguished native title rights -- is the proposition that such a grant conferred exclusive possession of the land on the grantee, and that entitlement to exclusive possession is inconsistent with the continuance of native title rights. Expressed with that generality, the proposition tends to conceal the nuances that are involved. The first step is to consider whether the relevant grants did in truth confer possession of the land on the grantees to the exclusion of all others including the holders of native title rights. That question is not answered by reference only to general concepts of what is involved in a grant of leasehold. The language of the statute authorising the grant and the terms of the grant are all important. The second step is to determine whether, if such a grant did confer exclusive possession, native title rights were necessarily extinguished. This second step has within it two elements. The first looks at inconsistency, that is, whether and to what extent native title rights are inconsistent with the exclusive possession which the grant of a pastoral lease is said to carry. The second asks whether native title rights are thereby truly extinguished or whether they are simply unenforceable while exclusive possession vests in the holder of the pastoral lease. Because of the answers I propose to the questions asked, this second element does not arise for consideration. 38 Justice Toohey's judgment in Wik provides further helpful assistance in answering the separate questions in the present proceeding with reference to what his Honour said about the notion of "co-existence" of native title rights and interests and other rights and interests created by legislative or administrative schemes relating to land tenures. As his Honour explained at 126, after referring to Canadian case law, there is an (emphasis added): … emphasis on inconsistency between native title rights and rights created by legislation or by some administrative scheme authorised by legislation, that is, the inability of the two to co-exist. It is that inconsistency that renders the native title rights unenforceable at law and, in that sense, extinguished. If the two can co-exist, no question of implicit extinguishment arises and it is implicit extinguishment with which these appeals are concerned.

[7]

(a) The 1998 amendments to the NT Act 39 With those introductory observations in mind, I shall now summarise some relevant general principles regarding "previous exclusive possession acts" and "previous non-exclusive possession acts". 40 Part 2, Div 2B of the NT Act was introduced in 1998 in response to, and substantially on the basis of, the High Court's decision in Wik. The primary features of Div 2B were explained in Ward at [8]-[10], [41]-[45] and [135]-[140] and also in Anderson at [44]-[61]. 41 In brief, Div 2B characterises certain acts as "previous exclusive possession acts" (see s 23B). A PEPA extinguishes all native title in relation to land or waters covered by the relevant act (see s 23C). The term "extinguish" is defined in s 237A of the NT Act as follows: 237A Extinguish The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect. 42 Under s 23E, States and Territories are empowered to legislate so as to replicate the effect of s 23C in respect of PEPAs which are attributable to the State or Territory, as opposed to the Commonwealth. It provides: 23E Confirmation of extinguishment of native title by previous exclusive possession acts of State or Territory If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory. 43 In the case of New South Wales, s 20 of the NSW NT Act picks up acts which are PEPAs under s 23B of the NT Act that are attributable to that State. Reflecting the terms of s 23C of the NT Act, s 20(1) of the NSW NT Act provides that an act which is a PEPA extinguishes any native title in relation to the land or waters covered by a freehold estate, a Scheduled interest as defined or a relevant lease and that the extinguishment is taken to have happened when the relevant act was done. Section 20(1) of the NSW NT Act provides: 20 Confirmation of extinguishment of native title by previous exclusive possession acts of the State (NTA, secs 23E and 23C) (1) Acts other than public works If an act is a previous exclusive possession act under section 23B(2) (including because of section 23B (3)) of the Commonwealth Native Title Act and is attributable to the State: (a) the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned, and (b) the extinguishment is taken to have happened when the act was done. … 44 For an act to be a PEPA, the act must be "valid" and have occurred on or prior to 23 December 1996 (see s 23B(2)(a) and (b) respectively) of the NT Act. The issue of validity arises in respect of only a few of the acts which are the subject of the separate questions in the present proceedings. 45 A third and significant requirement for an act to be a PEPA is that it consists of the grant or vesting of an interest which falls within any of eight specified categories set out in s 23B(2)(c). Only two of those eight specified categories are relevant here. The first, which is the subject of s 23B(2)(c)(i), is whether the lease is a "Scheduled interest" as defined in s 249C of the NT Act (which relevantly includes anything set out in Sch 1 of the NT Act, other than a mining lease and certain specified exceptions in s 23B(9)-(10)). The question whether or not a lease is a "Scheduled interest" arises under Schs 2, 6 and 7 of the separate questions, which involve Settlement Leases, Western Lands Leases for a Term and Special Leases for a Term respectively. 46 The second relevant category is whether the leases the subject of the separate questions are leases (other than a mining lease) which confer "a right of exclusive possession over particular land or waters", as specified in s 23B(2)(c)(viii). For the purposes of the NT Act, the term "lease" is defined in s 242(1) to include a lease enforceable in equity; a contract that contains a statement to the effect that it is a lease; or anything that, before it was created, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease. As the plurality observed in Anderson at [58], this definition is wide enough to encompass statutory interests for the purposes of the NT Act which may not necessarily amount to a lease as understood by the common law. Their Honours further observed at [59] that the scheme of Pt 2, Div 2B of the NT Act is premised upon the fact that a "lease" under that Act may or may not confer a right of exclusive possession. 47 There is no dispute that the rights conveyed by the grant of a freehold or fee simple interest are wholly inconsistent with the existence of native title and wholly extinguish such rights at common law (see Mabo at 68-70 per Brennan J and at 89-90 per Deane and Gaudron JJ).

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(b) Leases and the extinguishment of native title 48 It is desirable to say something more generally about leases which have the effect of wholly extinguishing native title. As noted, a lease which confers a right of exclusive possession has that effect. At common law, that is because a right of exclusive possession conferred on a lessee is inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests. 49 Native title is also wholly extinguished where a lease confers a right of exclusive possession, by operation of s 23B(2)(c)(viii) of the NT Act. As Brennan CJ stated in Wik at 84-85 and prior to the 1998 amendments to the NT Act (footnotes omitted): …. The strength of native title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. Native 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 it. Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title. A law or executive act which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect "unless there be a clear and plain intention to do so". Such an intention is not to be collected by enquiry into the state of mind of the legislators or of the executive officer but from the words of the relevant law or from the nature of the executive act and of the power supporting it. The test of intention to extinguish is an objective test. A law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title. In reference to grants of interests in land by the Governor in Council, I said in Mabo [No 2]: "A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title." Third party rights inconsistent with native title can be created by or with the authority of the legislature in exercise of legislative power but, as the power of State and Territory legislatures is now confined by the Racial Discrimination Act 1975 (Cth), a State or Territory law made or executive act done since that Act came into force cannot effect an extinguishment of native title if the law or executive act would not affect the extinguishment of a title acquired otherwise than as native title. 50 Whether or not a lease confers a right of exclusive possession is a matter which is to be "objectively considered" (see Gleeson CJ in Anderson at [12]). 51 The following general principles are established by Ward: (1) Whether or not the grant of a tenure to a third party has the effect of wholly extinguishing native title requires identification of, and comparison between, the claimed native title rights and interests and the legal nature and incidents of the grant to the third party. Subjective intentions are not relevant but are to be determined by an objective inquiry (at [78] and [468]). (2) The relevant inquiry focuses on inconsistency of rights and not inconsistency of use or exercise of rights - while also acknowledging that use of land may suggest or demonstrate the creation of rights (at [215] and [234]). (3) Evidence of how land has been used may be relevant to the extent that it focusses attention upon the right pursuant to which the land is used (at [78]). (4) The object of the inquiry is to identify whether there is any inconsistency between two sets of rights, being rights derived from traditional laws and customs, and rights deriving from the exercise of sovereign authority (at [82] and [177]). (5) In Ward, the rights obtained under a pastoral lease granted under the Land Act 1933 (WA) (which repealed the Land Act 1898 (WA)) were viewed as being limited and not extinguishing native title rights and interests having regard to the following matters (at [170]-[176]): (a) the pastoral lease did not grant to the lessee a right to the soil and the lessee's right to take timber was limited to such timber as may be required for domestic purposes or the constructions of improvements, such as buildings, fences and stockyards on the land; (b) the lessee's interest was "precarious" because it could be forfeited for non-payment of rent or for non-compliance with terms and conditions and the land could then be reserved, sold or otherwise disposed of under relevant State legislation; (c) by s 107 of the Land Act 1898 (WA) the Minister had extensive rights over pastoral leasehold land, including the right to make roads, cut timber and to quarry, as well as to access the land for depasturing horses and cattle and there was a right for any person to pass over the land (if unenclosed or if enclosed but otherwise unimproved) on "all necessary occasions"; (d) pastoral leases could be transferred with the Minister's consent or could be mortgaged, but the lessee had no pre-emptive right to buy the land; (e) although the form of pastoral lease used language found in a lease between private parties, this was not determinative, particularly where the language used applied not only to a lease but also to a licence; and (f) consideration was also given to various other relevant provisions in State legislation and the Court emphasised at [173] that the significance of any particular provision "must be judged against the whole of the legislative scheme". 52 It is well to set out [177]-[185] of Ward which contains the essence of the plurality's reasons why a pastoral lease granted under the Land Act 1933 did not extinguish native title (footnotes omitted, emphasis in original): 177. What emerges from this recitation of statutory provisions is that the interest in land which was obtained by the holder of a pastoral lease under the Land Act 1898 or earlier Land Regulations was very different, in many respects, from the interest that a lessee would obtain under a lease for a term of years granted to the lessee by the freehold owner of the land. The differences between a pastoral lease and some archetypal form of "ordinary" or "typical" lease of land are, however, of importance to the present inquiry only to the extent that they assist in considering the question of extinguishment of native title. For the reasons given earlier, that inquiry requires attention to whether the rights given under a pastoral lease are inconsistent with the native title rights and interests which are asserted. As Toohey J said in Wik, at the heart of the argument in that case, and in the present - "that the grant of each pastoral lease extinguished native title rights - is the proposition that such a grant conferred exclusive possession of the land on the grantee, and that entitlement to exclusive possession is inconsistent with the continuance of native title rights". But as Toohey J went on to point out, "[e]xpressed with that generality, the proposition tends to conceal the nuances that are involved". 178. On no view did a pastoral lease granted under the provisions examined so far, give the holder a right to exclusive possession of the land. There were extensive reservations permitting entry not only on behalf of the Crown but also by others in many different circumstances and for many different purposes. It is enough to notice the widest of these, reserving a right to any person "to enter, pass over, through, and out of any [unenclosed or enclosed but otherwise unimproved part of the land] while passing from one part of the country to another, with or without horses, stock, teams, or other conveyances, on all necessary occasions". 179. Of most immediate relevance, for present purposes, is the reservation in each pastoral lease which was issued under the Land Act 1898 or previous Land Regulations and s 106(2) of the Land Act 1933 which applied to pastoral leases issued after 1934. The majority of the Full Court concluded that when that reservation ceased to apply (upon the land being, as the case required, enclosed, improved or both enclosed and improved) native title to that land was wholly extinguished. That conclusion depends upon the premise that, but for the reservation, the holder of a pastoral lease had the right to exclude Aboriginal people from the land. 180. As was pointed out in Wik, the fact that both the instrument by which a pastoral lease was granted and the legislative instrument pursuant to which it was granted used language that might be used in or in relation to a lease between private individuals does not conclusively demonstrate that the holder of a pastoral lease was granted a right to exclusive possession of the land. Putting aside, for the moment, the provision about Aboriginal access, the following features may be noticed about the pastoral leases with which we are concerned in this matter: (a) Pastoral leases are a creature of statute or regulation, not the common law. (b) Pastoral leases were but one of several forms of interest in land for which provision was made by the Acts and Land Regulations, and not all of those interests find close analogy with interests that could be created at common law. (c) Although the Acts and Land Regulations provided for both leases and licences as different kinds of interest, various provisions of the Acts and Land Regulations treated leases and licences without distinction as, for example, in provisions dealing with their transfer, their forfeiture and the periodic payment to be made under each as "rent". (d) The holder of a pastoral lease was entitled to use the land only for the limited purposes referred to as "pastoral purposes" and the holder obtained no right to the soil or the timber except to the extent required for certain limited purposes. (e) As has been noted earlier, the interest obtained under a pastoral lease was precarious. 181. Unlike the legislation considered in Wik, no provision was made for the holder of a pastoral lease to bring action for removal of persons in "unlawful occupation" of the land the subject of the pastoral lease. There were the successive penal provisions prohibiting unlawful or unauthorised use or occupation of Crown lands. 182. It was not, nor could it be, submitted that these penal provisions should be understood as working an extinguishment of native title. The provisions were generally applicable to all Crown land, that is, to all waste lands of the Crown, and are not to be understood "as intended to apply in a way which will extinguish or diminish rights under common law native title". That is to say, the penal provisions which operated in respect of persons found in the "unlawful or unauthorised use or occupation" of Crown lands did not extend to persons exercising native title rights and interests. The exercise of native title rights and interests did not constitute an unlawful or unauthorised use or occupation of the land. Did the grant of a pastoral lease over Crown land prohibit the continued use or occupation of that land, in accordance with native title rights and interests, by the holders of those rights? Did it make use or occupation of the land by those persons for those purposes "unlawful or unauthorised"? 183. That would be so only if a pastoral lease gave the holder the right, either absolutely, or contingently upon the taking of certain steps (enclosure, improvement or both), to exclude native title holders from the land. Pastoral leases granted under the statutes and Land Regulations in issue in these matters did not grant that right. There are several reasons why that is so. 184. Chief among those reasons is the recognition of the fact that the exercise of native title rights and interests on Crown lands was not an unlawful or unauthorised use liable to penalty under the penal provisions of the then applicable Land Act or Land Regulations. The grant of a precarious interest in Crown land, for limited (pastoral) purposes, subject to extensive reservations and exceptions permitting entry on the land in a wide variety of circumstances and, in some circumstances, by anyone, is not to be understood as rendering unlawful what was previously a lawful use of the land by native title holders. 185. The reservation or statutory provision in favour of Aboriginal people requires no different conclusion. Neither the reservation nor the later statutory provision is to be read as confining the circumstances in which access to the land by native title holders was to be permitted to the purpose of seeking subsistence in the accustomed manner and prohibiting access in all other circumstances. Nor is either to be read as suggesting that, despite the great generality of the other reservations in the pastoral lease, and the limitations on the purposes to which the land may be put, the holder was granted a right, in all other circumstances, to exclude not only other citizens but also the grantor of the interest. 53 Ward also establishes some important general principles regarding the effect of reservation of land and whether that extinguishes native title rights and interests. I will defer consideration of those principles to Sch 9. 54 In Wik, Gummow J described the content of the expression "exclusive possession" at 194-195 (footnotes omitted): ... at common law the term "exclusive possession" is used as a touchstone for the differentiation between the interest of a lessee and that of a licensee, who has no interest in the premises. "Exclusive possession" serves to identify the nature of the interest conferred upon the lessee as one authorising the exclusion from the demised premises (by ejectment and, after entry by the lessee, by trespass) not only of strangers but also, subject to the reservation of any limited right of entry, of the landlord. As Windeyer J put it, a tenant cannot be deprived of the rights of a tenant by being called a licensee. 55 In Brown High Court, the plurality (French CJ, Hayne, Kiefel, Gageler and Keane JJ) at [33]-[35] emphasised that, in addressing the issue of inconsistency of rights and extinguishment at common law, a comparison is made between the rights and interests at the time of, and by reference to, the actual grant of those rights and not by the potential exercise of the rights and/or interests granted. Their Honours then explained at [36]-[38] (footnotes omitted): 36 It is important to recognise that particular considerations apply to the identification of native title rights and interests. In examining the "intersection of traditional laws and customs with the common law" (or, in this case, the intersection with rights derived from statute), it is important to pay careful attention to the content of the traditional laws and customs. It is especially important not to confine the understanding of rights and interests which have their origin in traditional laws and customs "to the common lawyer's one‑dimensional view of property as control over access". Yet it is no less important to recognise that, as Fejo v Northern Territory made clear, a right of exclusive possession affords the holder the right to "use the land as he or she sees fit and [to] exclude any and everyone from access to the land" (emphasis added). The grant of a right to exclude any and everyone from access to the land for any reason or no reason is inconsistent with the continued existence not only of any right in any person other than the grantee to gain access to the land but also of any right which depends upon access to the land. Determining inconsistency 37 The determination of whether two or more rights are inconsistent is also an objective inquiry. The question of inconsistency of rights can always be decided at the time of the grant of the allegedly inconsistent rights. And it must be decided by reference to the nature and content of the rights as they stood at the time of the grant. At that time, were the rights as granted inconsistent with the relevant native title rights and interests? As these reasons will later demonstrate, to the extent to which the decision in De Rose [No 2] countenances a notion of contingent extinguishment (contingent on the later performance of some act in exercise of the "potentially inconsistent" rights granted), it is wrong and should not be followed. In the present case, then, the question of inconsistency is to be determined at the time of the grant of the relevant mineral leases. What the joint venturers did or did not do in exercise of the rights granted under the mineral leases is important only to the extent to which it directs attention to the nature and content of the rights which were granted. 38 There cannot be "degrees of inconsistency of rights". "Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment." As counsel for the native title holders put the point in argument in this Court, inconsistency is that state of affairs where "the existence of one right necessarily implies the non‑existence of the other". And one right necessarily implies the non‑existence of the other when there is logical antinomy between them: that is, when a statement asserting the existence of one right cannot, without logical contradiction, stand at the same time as a statement asserting the existence of the other right. 56 The plurality in Brown High Court confirmed at [55] that both Wik and Ward established that the grant of rights to use land for particular purposes (whether pastoral, mining or other purposes), if unaccompanied by the grant of a right to exclude anyone from the land for any reason or no reason, is not necessarily inconsistent with and does not necessarily extinguish native title rights and interests such as rights to camp, hunt and gather, conduct ceremonies on land and care for land. 57 In Brown High Court, the plurality concluded that the mineral leases in issue in that case did not give the mining joint venturers a right of exclusive possession. Their Honours said at [57]: … In this respect, the mineral leases were no different from the pastoral leases considered in Wik, the mining leases considered in Ward or the Argyle mining lease also considered in Ward. The mineral leases did not give the joint venturers the right to exclude any and everyone from any and all parts of the land for any reason or no reason. The joint venturers were given more limited rights: to carry out mining and associated works anywhere on the land without interference by others. Those more limited rights were not, and are not, inconsistent with the coexistence of the claimed native title rights and interests over the land. (No party submitted that any distinction should be drawn between the several native title rights and interests that were claimed.) That the rights were not inconsistent can readily be demonstrated by considering the position which would have obtained on the day following the grant of the first of the mineral leases. On that day, the native title holders could have exercised all of the rights that now are claimed anywhere on the land without any breach of any right which had been granted to the joint venturers. That being so, there was not then, and is not now, any inconsistency between the rights granted to the joint venturers and the claimed native title rights and interests. 58 The importance of paying close attention to the rights conferred by the instrument which are said to be inconsistent with native title rights and interests is emphasised by the plurality in Brown High Court at [63], where the Court responded to the State's argument that the mineral leases in that case gave the mining joint venturers the right to mine anywhere on the land and the right to build improvements anywhere on the land. Their Honours rejected that this was determinative: … But the mineral leases did not provide that the joint venturers must use the whole of the land for mining or associated works. Had the mineral leases provided that the whole of the land must be used in a way which would not permit any use of the land by native title holders, it may have been open to construe the mineral leases as providing for the joint venturers to exclude any and everyone from the whole of the land for any reason or no reason. But, as has been explained, that is not what these mineral leases provided. 59 Even if the grant of a right does not in its original terms extinguish native title rights and interests, a subsequent modification of those rights during the term of the grant may do so, such as where amending legislation comes into force during the term of the grant. Under s 226 of the NT Act, an "act" is defined to include the making, amendment or repeal of legislation and the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument (see the discussion in Ward at [265]-[267]).

[9]

(c) Some general observations 60 As was the case in both Wik and Ward, in the present proceeding no determination has yet been made as to the content of the native title rights and interests which are the subject of the application for a native title determination under s 61 filed on 14 March 2012. The claimed native title rights and interests are described in Sch E to that application. 61 Cases such as Wik and Ward demonstrate that, in determining the question of inconsistency, it is sufficient to focus on the native title rights and interests which are claimed in a particular application for determination of native title (see also Brown High Court at [55]). Relevantly, the claimed native title rights and interests in the present proceeding include a claim of exclusive possession (so far as possible) and, where exclusive possession cannot be recognised, various rights such as the right to hunt, fish, gather and use natural resources, the right to protect the land and use and enjoyment of the claim area. 62 It is uncontroversial that native title rights and interests may be exclusive or non-exclusive rights. Examples of non-exclusive rights are rights to access and camp on land, to take flora, fauna, fish, water and other traditional resources other than minerals from the land, to engage in traditions and ceremony on the land and to care for, maintain and protect from physical harm particular sights and areas of significance to the native title holders (see Brown High Court at [2]). 63 Finally, it is important to emphasise at the outset the danger of over-simplifying the task of determining the separate questions. The danger of "cherry-picking" has already been mentioned. There is a similar danger of over-emphasising the significance of nomenclature or terminology, including the use of terms such as "lease" or "demise" (see Brown High Court at [43] and Wik at 117 per Toohey J). For example, merely because the present proceedings relate in part to land tenures which are described as "pastoral leases" and "special leases", does not mean that the questions for determination are resolved by the fact that leases with similar names have been addressed in other cases, such as in Wik and Ward. Such an approach would be naïve because it would pay insufficient attention to the particular legislation under which such leases are granted, noting that there are some significant variations in legislation on that subject matter among State jurisdictions. 64 A related point is that the resolution of the kinds of questions which arise for determination in the present proceeding is not achieved by resorting to and applying pity slogans or aphorisms. Such slogans or aphorisms disguise the nuances and complexities of the task. The point is well illustrated by the statement by the High Court in Brown High Court at [36] where, in reiterating what was said in Fejo v Northern Territory [1998] HCA 58; 195 CLR 96 at [47], the Court stated that "a right of exclusive possession affords the holder the right to "use the land as he or she sees fit and [to] exclude any and everyone from access to the land'" (and see Brown High Court at [46]). 65 As will emerge, the applicant placed particular emphasis on that statement in contending that the grant of a right to "exclude any and everyone from access to the land" for any reason or no reason is inconsistent with the continued existence not only of any right in any person other than the grantee to gain access to the land, but also of any right which depends upon access to the land. Viewed in isolation that contention is hardly uncontroversial. The difficulty with it, however, is that it provides only limited assistance in determining whether or not exclusive possession is conferred by any particular grant of a statutory lease or reservation of land. The limitations which are inherent in the statement is reflected in the fact that even the holder of freehold land has no absolute and unqualified right to exclude any and everyone from access to their land for any reason or no reason having regard to the range of statutory rights of entry conferred upon authorised third parties. As Callinan J stated in Ward at [694] "[e]xclusive possession, as it may once have existed, is, in practice, now non-existent or almost completely so, and has been for a long time". That is because local authorities, public utilities and various governmental officials are authorised by various primary and secondary legislation to enter upon privately held land, including land held in fee simple, for many purposes. 66 The decided cases demonstrate that the issue is invariably not so simple. Any particular case will require a close examination of the range of rights which are conferred upon a lessee with a view to determining whether those rights gave the lessee exclusive possession of the land and are inconsistent with the existence or enjoyment of native title rights. That is not to say, however, that a right of exclusive possession would not be established if there was an express provision in a lease which had the effect of empowering the lessee to exclude any and everyone from access to the leased land, for any reason or no reason. In general, however, the issue is unlikely to be so simple. An evaluative exercise will normally be required which involves a weighing of competing considerations. 67 These points are well illustrated by the questions raised for determination in the present proceeding. As will emerge, the resolution of those questions requires careful consideration of what might aptly be described as an "impenetrable jungle of legislation". The task is formidable and demanding, both for the parties and the Court. It is unsurprising that others have questioned the efficacy of resolving disputed native title matters by what often turns out to be protracted and expensive legal proceedings, as has occurred here. The following observations of Kirby J in Anderson at [126] resonate loudly (footnotes omitted): … It would be easy for the judicial explorer to become confused and lost in the undergrowth to which rays of light rarely penetrate. Discovering the path through this jungle requires navigational skills of a high order. Necessarily, they are costly to procure and time consuming to deploy. The legal advance that commenced with Mabo v Queensland [No 2], or perhaps earlier, has now attracted such difficulties that the benefits intended for Australia's indigenous peoples in relation to native title to land and waters are being channelled into costs of administration and litigation that leave everyone dissatisfied and many disappointed. (To similar effect, see Ward at [561] per McHugh J who aptly decried the "costly and time-consuming" system for determining native title claims).

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(a) The State's primary submissions outlined 71 In brief, the State contends that each of the statutory leases which are identified in Schs 1-8 wholly extinguished native title in relation to the lands and waters covered by the relevant lease because, having regard to the legislative scheme and the terms of each lease, those leases were true common law leases and conferred on the lessee a right of exclusive possession or otherwise conferred rights which are inconsistent with native title rights and interests (as mentioned, the issue of whether a particular lease is a "Scheduled interest" also arises in respect of various leases in several Schedules). 72 The State's primary submissions on central issues of general legal principle may be summarised as follows. First, in the case of each of the relevant statutory leases, it submitted that the relevant statutory scheme governing the grant of each lease used language which was commensurate with the grant of a true common law lease. While acknowledging that the distinct nomenclature differentiating licences and leases was not determinative, the State submitted that the adoption of such language at least provided an indication that when the relevant statute referred to the grant of a "lease", the intention was that the grantee would hold a true lease in the traditional common law sense. 73 Secondly, in the case of Scrub Leases, Settlement Leases, Improvement Leases, Homestead Leases, 18th Section Leases, Western Lands Leases for a Term and Special Leases for a Term, the State submitted that the intention was that the lessee would hold a true lease in the traditional common law sense because this was reflected in the purpose for which the lease either was, or could be, granted. In each such case, an important purpose for the grant was the facilitation of an intensive use and working of the land over long periods and in an enduring manner. The State submitted that this necessarily implied the grant of exclusive possession, or at least reinforced the proposition that such a right was conferred because, without exclusive possession, the purpose of the leases could not be realised either at all or not without great difficulty and conflict. 74 Thirdly, the State submitted that the rights conferred on each of the statutory lessees revealed several indicia which supported the conclusion that each of them conferred a right of exclusive possession or, alternatively, rights and interests which were inconsistent with the continued existence of native title rights and interests. Those indicia were said to include the following: (a) the lessee had a right to bring an action in trespass or to remove persons present on their land without consent or specific statutory authority; (b) concomitantly, the lessee was required to erect fencing around the boundary of the land which necessarily reflected an implicit recognition of the lessee's right to exclude or remove strangers from the land; (c) the lessee's interest could be transferred to a third party, albeit with ministerial consent; and (d) with all these leases, there were provisions for land to be withdrawn for public purposes or provisions authorising entry by public officials for specified persons and provisions which precluded the lessee from interfering with the use of identified reserves, roads or tracks within the land. The State submitted that these kinds of provisions provided implicit confirmation that a right of exclusive possession was otherwise conferred upon the grantee in the sense that, absent such statutory provisions or conditions, the lessee could exclude third parties. 75 Fourthly, the State relied upon case law in support of the proposition that at least some of the types of leases under consideration in the present proceeding were true leases in the common law sense. 76 Fifthly, in respect of Sch 9, the State submitted that the reservation of land for use as a temporary common and the creation of powers and rights in that land is inconsistent with the continuation of any native title rights and interests. 77 Finally, the State accepted that it carried the evidentiary burden of proving the extinguishing acts and the rights or powers exercisable. It also made submissions as to the relevant general principles relating to the extinguishment of native title rights and interests, with particular reference to relevant provisions of the NT Act and the NSW NT Act and relevant case law.

[12]

(b) The applicant's primary submissions outlined 78 The applicant emphasised the State's evidentiary burden and the presumption against extinguishment. The applicant also made detailed submissions on relevant case law, including Wik, Ward, Anderson, Akiba v Commonwealth [2013] HCA 33; 250 CLR 209; Brown High Court and Queensland v Congoo [2015] HCA 17; 256 CLR 239. It drew attention to the following passage from Toohey J's judgment in Wik at 122 where his Honour explained why the pastoral lease in that case did not confer rights to exclusive possession and did not wholly extinguish native title: A pastoral lease under the relevant legislation granted to the lessee possession of the land for pastoral purposes. And the grant necessarily gave to the lessee such possession as was required for the occupation of the land for those purposes. As has been seen, each lease contained a number of reservations of rights of entry, both specific and general. The lessee's right to possession must yield to those reservations. There is nothing in the statute which authorised the lease, or in the lease itself, which conferred on the grantee rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title. In so far as those rights and interests involved going on to or remaining on the land, it cannot be said that the lease conferred on the grantee rights to exclusive possession. That is not to say the legislature gave conscious recognition to native title in the sense reflected in Mabo [No.2]. It is simply that there is nothing in the statute or grant that should be taken as a total exclusion of the indigenous people from the land, thereby necessarily treating their presence as that of trespassers or at best licensees whose licence could be revoked at any time. 79 The applicant's submissions also included detailed contentions as to why inter alia it said that none of the relevant leases the subject of Schs 2, 6 and 7 are Scheduled interests for the purpose of s 249C of the NT Act, as well as detailed submissions as to why the leases in those Schedules were not common law leases and did not confer a right of exclusive possession, nor confer any other rights which were inconsistent with native title rights and interests.

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(a) History of Scrub Leases 85 The Crown Lands Act 1884 (NSW) (CL Act 1884) effectively consolidated legislation regulating all Crown land dealings, reservations, dedications and land sales in the State. All future grants of land would contain a reservation of minerals and the Governor could reserve or exempt land to safeguard public interest. Under the CL Act 1884, NSW was divided into three districts, namely the Central Division, the Eastern Division and the Western Division. 86 The CL Act 1884 created a range of landholding leases, including: conditional leaseholds, which were for a maximum term of five years in the Eastern Division, ten years in the Central Division and fifteen years in the Western Division; occupation licences for the occupation of land for grazing for one year; homestead leases; annual leases for pastoral purposes; scrub land leases; scrub land conversion leases; wharf, jetty, pier or floating dock leases; and special purpose leases for dams, tanks, irrigation works, punt houses, ferries, bathing places, landing places, sawmills, brick kilns etc. 87 Crown leases over scrub lands were first introduced by ss 86 and 87 of the CL Act 1884 in a subpart of the statute headed "Special Leases" within Part IV. The long title of the CL Act 1884 was "[a]n Act to regulate the Alienation Occupation and Management of Crown Lands and for other purposes". "Crown Lands" was defined in s 4 as meaning "lands vested in Her Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple under this Act or any of the Acts hereby repealed". A "Pastoral Holding" was defined in s 4 as meaning "the area included within the continuous boundaries or reputed boundaries of any station worked or used for grazing purposes whether such station includes more than one run or includes land held by or in the interests of the runholder otherwise and under pastoral or pre-emptive lease or not". "Run" was defined in s 4 to mean Crown Land "held under pastoral lease at the commencement of this Act and also any land which by the operation of this Act may have reverted or may revert to such lease". Section 5 provided that Crown Lands shall not be sold, leased, dedicated, reserved or dealt with except under and subject to the provisions of the Act. Section 6 empowered the Governor to grant, dedicate, reserve, lease or make any other disposition of Crown Lands but only for some estate, interest or purpose authorised by the Act. 88 Part IV of the Act included ss 70-100 and was headed "Occupation". Under s 71, every runholder was entitled within a stipulated period to lodge with the Minister a written application for a Pastoral Lease. Section 78 empowered the Governor to grant a Pastoral Lease. The term of any Pastoral Lease varied depending upon whether the lease was in the Western, Central or Eastern Division of the State. Under s 78(vii), the Governor was empowered to withdraw from lease any land required for any public purpose and, if that occurred, the lessee was entitled to compensation for the unexpired term of the lease and for improvements lawfully made by the lessee upon the land. 89 Under s 82 of the CL Act 1884, the Governor was empowered to grant Homestead Leases in the Western Division, subject to various limitations set out in that provision. 90 Under s 85 of the CL Act 1884, the Governor was empowered to lease Crown Lands in areas not exceeding 1,920 acres if such lands were not by the Act specially exempted from being so leased or were not under Pastoral, Homestead or Conditional Lease. 91 As noted above, Part IV of the CL Act 1884 also contained provisions relating to "Special Leases". "Special Leases" were distinguished from other leases and licences provided for in that legislation, such as "Pastoral Leases", "Occupation Licences" and "Homestead Leases". Section 86 provided that the Minister could, on the recommendation of the Local Land Board, declare any Crown Lands wholly or partly covered by scrub or other noxious undergrowth to be Scrub Lands. Section 87 provided that Scrub Lands could be leased in areas not exceeding 10,240 acres nor less than 640 acres and for a term not exceeding 15 years, subject to such conditions as to clearing and destruction of scrub as may be defined by regulations. Provision was also made for the payment of an annual rental, which varied over the terms of the lease. Lessees were also required to satisfy the Local Land Board that they had commenced and were continuing to fulfil the conditions of their Scrub Lease concerning clearing and destruction of scrub on the leased land. Section 87 further provided that if any lessee shall fail to pay rent or satisfy the Board as required, the Minister was empowered on the recommendation of the Board to declare the lease to be forfeited. 92 It was made clear in the second reading speech to the Bill leading to the enactment of the CL Act 1884 that the purpose of Scrub Leases was to clear land which was harbouring "all kinds of vermin". Scrub Lands were leased at a lower rent than Pastoral Leases and Scrub Leases imposed greater obligations on the lessee to improve the land. 93 Provisions such as these concerning Scrub Leases were retained with some modification in the CL Act 1889, particularly s 35 (pursuant to which Scrub Lease No. 287 was granted) and also in the CLC Act 1913, particularly s 77 (pursuant to which Scrub Lease No. 416 was granted). 94 Section 35 of the CL Act 1889 provided: The Minister may, upon the recommendation of the Local Land Board, by notification in the Gazette, declare any Crown Lands wholly or partly covered by scrub or noxious undergrowth to be scrub-lands; and may, on the recommendation of the Local Land Board, and notwithstanding anything in the "Prickly Pear Act" contained, grant leases of such lands on application, or sell the same by auction or tender at such times and places and under such conditions and for such terms not exceeding twenty-one years as he may deem desirable. Lands so declared to be scrub-lands shall not until leased in accordance with this section be withdrawn from any lease or license under which they may at the time be held; and no scrub-lease of lands within the outside boundaries of land held under pastoral lease or homestead lease shall be granted to any person but the holder of such pastoral or homestead lease, in which case such scrub-lease shall not be for a longer term than the unexpired term of such pastoral or homestead lease, and the term of a scrub lease may be divided into such periods as the Minister shall fix, and the rent for the second or any succeeding period shall be determined in accordance with section six of this Act. And the Minister, notwithstanding anything in this Act or in the Principal Act contained, may, on the recommendation of the Local Land Board, either before or after granting any such scrub-lease, cause the rental of the remainder of the land held under pastoral or homestead lease to be reappraised and redetermined. Provided that no pastoral or homestead lessee shall hold or cause to be held on his behalf, or in his interest, any scrub-lease, except within the land held under lease by himself. The applicant for any scrub lease shall pay the cost of survey thereof, or in the event of his withdrawing his application, all costs of survey, reports, or inquiry incurred in dealing therewith. And all such leases of scrub-lands and any scrub-leases granted after the commencement of this Act in pursuance of applications made under the Principal Act shall be subject to the general provisions here following - (I) Every such lease shall, if granted in pursuance of an application or by tender, commence from the date of the notification in the Gazette of the Minister's approval of the application or acceptance of the tender; and, if sold at auction, shall commence from the date of sale. And the land held thereunder shall (subject to the provision for withdrawal contained in section seventy-eight, subsection (vii) of the Principal Act, which shall be held to apply to scrub-leases) during the whole currency thereof be unavailable for purchase or lease. (II) Rent for the first year of the lease shall together with the cost of survey, be paid within one month from the date of the notice in the Gazette specifying the amount thereof; and the rent shall for succeeding years be paid annually in advance on or before the last day of the current year of the lease. (III) Every holder of a scrub-lease shall, as conditions of his lease, be required to take all such steps as the Local Land Board shall from time to time, subject to appeal, direct, for the purpose of destroying such scrub as may be specified in his lease or promise of lease, in and upon the land under scrub-lease, or in and upon any land within the boundaries of the lease, or in and upon any reserves or roads within such boundaries; and when so destroyed to keep such land free from the same; and shall commence to destroy the same within three months after the commencement of the lease. And if rent thereon shall not be paid within the time allowed, or if in the opinion of the Minister, after report by the Local Land Board, subject to appeal, the holder shall have failed to comply with any condition of his lease, the Minister may, by notification in the Gazette, declare such lease to be forfeited; and all improvements on such lands shall be the property of the Crown. (IV) Any land held under scrub-lease shall, on the forfeiture or surrender thereof, be added to the lands held under lease or license within the boundaries of which it may be situated, and rent therefor shall be payable at such rate per acre as may be determined by the Local Land Board, and shall form part of the rent payable for such lease or license, which shall be liable to forfeiture if the rent for the added lands be not paid as prescribed. (V) If a pastoral lease or homestead lease be held in conjunction with a scrub lease, neither of such leases shall be transferred separately. 95 Section 77 of the CLC Act 1913 provided: On the recommendation of the local land board the Minister may declare by notification in the Gazette any Crown lands - wholly or partly covered by scrub or noxious undergrowth - to be scrub-lands; lands so declared to be scrub-lands shall not until leased in accordance with this section be withdrawn from any lease or license under which they may at the time be held. On the like recommendation (and notwithstanding anything contained in the Prickly-pear Destruction Act, 1901), the Minister may grant leases of such lands (not being in the Western Division) upon application or sell the same by auction or tender at such times and places and under such conditions and for such terms not exceeding twenty-one years as he may deem desirable. The term of a scrub lease may be divided into such periods as the Minister shall fix, and the rent for the second or any succeeding period shall be determined by the local land board. The applicant for any scrub lease shall pay the cost of the survey of the land within three months after the date of demand, or in the event of his withdrawing his application all costs of survey reports or inquiry incurred in dealing therewith. And all such leases of scrub-lands shall be subject to the provisions hereunder specified: - (1) Every such lease shall, if granted in pursuance of an application or by tender, commence from the date of the notification in the Gazette of the Minister's approval of the application or acceptance of the tender; and if sold by auction shall commence from the date of sale. (2) Rent for the first year of the lease shall be paid within three months after the date of a demand made as prescribed for such rent specifying the amount thereof; and the rent for succeeding years shall be paid annually in advance before the recurring date of the commencement of the lease. (3) Every scrub lease shall be subject to the conditions that the holder thereof shall take all such steps as the local land board shall from time to time, subject to appeal, direct for the purpose of destroying the kinds of scrub specified in his lease in and upon the land included under the lease, or in and upon any land within the external boundaries of the lease, or in and upon any reserves or roads within such boundaries-and, when so destroyed, to keep such lands free from the same-and shall commence to destroy the same within three months after the commencement of the lease. (4) If it should appear to the satisfaction of the Minister, after report by the local land board, that the holder of a scrub lease has failed to comply with any condition thereof, the lease shall be liable to be forfeited: Provided that no such report shall be necessary in any case of non-payment of rent. (5) Any land held under scrub lease shall, on the forfeiture or surrender thereof, be added to the lands held under lease or license within the boundaries of which it may be situated, and rent therefor shall be payable at such rate per acre as may be determined by the local land board, and shall form part of the rent payable for such lease or license, which shall be liable to be forfeited if the rent for the added lands be not paid as prescribed. (6) Nothing in this section shall affect the operation of the provisions (set out in Part VIII of this Act) as to withdrawal of land from the lease, extension of the term of the lease, granting of tenant-right in improvements, right to apply for a homestead grant of portion of the leasehold, or otherwise.

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(b) Some earlier legislative history 96 The State relied upon the "historical approach" adopted in State legislation which preceded the CL Act 1884, with particular reference to the distinction between licences and leases. This was said to be reflected in Orders in Council dating back to 1847 and the following matters. 97 For the period 1788 to 1847, although the Governor of the Colony was empowered to grant land in fee simple; there was no power to grant a lease of Crown land. By an Imperial Act of 1842 entitled An Act for regulating the Sale of Waste Land belonging to the Crown in the Australian Colonies (Waste Lands Act 1842), provisions were enacted which applied to what were described as the "Waste Lands of the Crown". The Sale of Waste Lands Act 1842 provided for the disposal of Waste Lands in the colony and permitted lands to be reserved from sale for purposes which included the benefit of Aboriginal people (see s 3). 98 A further Imperial Act was passed in 1846. It was entitled "An Act to amend an Act for regulating the Sale of Waste Land belonging to the Crown in the Australian Colonies, and to make further Provision for the Management thereof" (Waste Lands Amendment Act 1846). Section 1 of that Act made it lawful for the Crown to demise, or grant a licence for the occupation of, "Waste Lands of the Crown" for certain specified terms. Under s 6 of the Sale of Waste Lands Amendment Act 1846, provision was made for the Crown, by Orders in Council, to make rules and regulations concerning such matters as term, rents and forfeiture. In addition, under s 10, the Crown was permitted, by Orders in Council, to delegate the powers described in the Act to the Governors of the relevant colonies. 99 Orders in Council were made on 9 March 1847 (1847 Orders in Council) which provided among other things for: (1) the Colony of NSW to be divided into three classes, namely Settled Districts, Intermediate Districts and Unsettled Districts (s 1); (2) the identification of the parts of the Colony comprising each class of lands (ss 2-4); and (3) the enforcement of particular rules, including rules concerning the grant of leases for "pastoral purposes" in the respective areas comprising each class of land (which in the case of Unsettled Districts and Intermediate Districts were leases of runs of land) (Chapters 2, 3 and 4). 100 There was a delay in the terms of the 1847 Orders in Council reaching the Colony. On 18 June 1847, a notice was published in the Government Gazette which indicated, amongst other things, that from 1 July 1847 the Government would be in a position to grant leases of runs under the then expected 1847 Orders in Council. 101 The 1847 Orders in Council were proclaimed in the Colony and published in the Government Gazette on 7 October 1847. They commenced on that day. As mentioned, land in the Colony was divided into three classes. With respect to the "Unsettled Districts", s 1 of Ch 2 provided that leases of runs of land could be granted to such persons as the Governor thought fit, for any term not exceeding 14 years, for "pastoral purposes". It was explicitly stated in s 1 that such leases "shall in no case prejudice, interact, or interfere with the right of the Governor or other Officer for the time being administering Government of the said colony to enter upon any of the lands comprised in the said leases for any purpose of public defence, safety, improvement, convenience, utility, or enjoyment, agreeably to the provisions for those purposes contained in [s 9 of Ch 2] of this Order in Council, or otherwise". Section 9 of Ch 2 dealt with grants for public purposes. 102 Section 11 of Ch 2 was headed "Mode of acquiring leases of existing runs". In its terms, it allowed occupants of Crown Lands by "licensed occupation" to demand leases of their respective runs, subject to certain specifications. It provided: All occupants of Crown Lands who shall have been in licensed occupation of the same for at least one year at the time when this Order in Council shall come into effect, are to be entitled to demand leases of their respective runs under the present regulations, within six months from the date of the publication of this Order in Council by the Governor or other Officer administering the Government of the said colony, but not afterwards; and all occupants who have been in licensed occupation of their lands for a shorter period than the term of one year, shall be entitled, upon the expiration of the same term of one year, without having forfeited their respective licenses, to demand leases of their respective runs under the regulations herein contained; provided such lease shall be lawfully demanded within six months after the expiration of the said term of one year, but not afterwards. 103 In the present proceeding, the State emphasised that the power conferred upon the Governor under s 1 of Ch 2 of the 1847 Orders in Council was "confined to the granting of leases". It submitted this was significant because the power was not expressed in terms of granting "tenures" or "licences". It submitted that express use of the word "lease" in s 1 was significant in defining the scope of the Governor's power. That is because it contended that the term "lease" was used to describe the kind of instruments that might lawfully be granted under the 1847 Orders in Council and that s 1 "was intended to, and had the effect of circumscribing the extent of the Governor's power", in that that power was confined to the granting of leases. It then submitted that, for a valid exercise of the power to grant a lease under s 1, the grant was required to be a lease in the common law sense. 104 The State submitted that the Imperial Acts and 1847 Orders in Council remained in force after the Colony attained self-government in 1855, at which time the entire management and control of the Crown's Waste Lands were vested in the legislature. 105 In 1861, the NSW Parliament passed two Acts. The first was the Crown Lands Occupation Act 1861 (NSW). The second was the Crown Lands Alienation Act 1861 (NSW). The 1847 Orders in Council were repealed. In s 1 of both Acts, "Crown Lands" was defined as all lands vested in Her Majesty which have not been dedicated to any public purpose or which have not been granted or lawfully contracted to be granted in fee simple. The Crown Lands Occupation Act acknowledged that Crown Lands may have previously been granted in the form of a lease or licence. This is reflected in the definition of "Run" in s 1, which was defined as: Any portion of Crown Lands comprised in any lease or license granted or lawfully contracted to be granted on or after [22 February 1858]. 106 It was provided in s 4 that existing leases of Crown Lands shall not be renewed except under the Crown Lands Occupation Act. The Act contained numerous provisions relating to the grant and renewal of leases. Leases for pastoral purposes in either the Settled Districts or in the Unsettled Districts were subject to significant limitations. For example, although under s 20 lessees for pastoral purposes in either of those Districts was permitted to cut and use such timber and material for building and other purposes as may be required by them as tenants, such lessees did not have power to restrict other persons who were duly authorised to cut or remove timber of material for building or other purposes or from searching for any metal or material within the leased land (s 21). Under s 13(5), the Governor was entitled to resume land from any lease in Second Class Settled Districts and Unsettled Districts for the site of any city, town or village or for commonage or for any public purpose whatsoever. The lessee of any such resumed land had no right to compensation for such resumption save for repayment of rent proportionate to the area withdrawn and the period unexpired (see s 13(5)). 107 It was acknowledged in s 33 of the Crown Lands Occupation Act that there were subsisting leases or licences granted under either Orders in Council or earlier legislation. This provision is inconsistent with any suggestion that there was no power to grant a licence under the 1847 Orders in Council. Section 33 imposed penalties on any person found occupying any Crown Lands unless entitled to do so by a subsisting lease or licence.

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(c) Some additional factual matters 108 Scrub Lease No. 287 was granted pursuant to s 35 of the CL Act 1889, for a term commencing on 23 September 1909 and ending on 22 September 1930. The leased area was 6,000 acres at the time the lease was granted, but in 1922 the leased area was reduced by approximately 50 acres when that area was surrendered. On 9 November 1923 an additional 1,640 acres were added to the leased area and, in 1926, the term of the lease was extended to 22 September 1937. Scrub Lease No. 287 expired on 22 September 1937. 109 Scrub Lease No. 416 was granted pursuant to s 77 of the CLC Act 1913, for a term commencing 12 May 1933 and ending on 11 May 1954. The area was approximately 9,700 acres when the lease was granted. This Scrub Lease was forfeited in 1942. 110 The conditions which attached to Scrub Lease No. 287 derived from various sources, including the CL Act 1889, regulations and the terms of the lease instrument itself. Scrub Lease No. 287 contained the following conditions (which the applicant submits indicate that the lessee held a "precarious interest" similar to the case with a pastoral lease): (a) The lessee was required to destroy box ironbark and gum seedlings and suckers, specified wattle and other scrubs. (b) The lessee was required to preserve emu, warrior, cherry, dwarf, oak, and currant bush scrubs. The lessee was also to preserve currajong, belar, wilga, she-oak, berrigan, and rosewood trees. The Minister could give permission to the lessee to cut, lop, or whip any of those scrubs for stock-feeding purposes. (c) The lessee was required to preserve pine box and iron bark trees of a certain dimension and useful for fencing, mining, or building, or railway sleepers, but was entitled to cut and use any timber for fencing or other improvements in the lease area. (d) The lessee was otherwise to destroy all trees and saplings by ringbarking or otherwise. (e) The lessee could not cut or remove any timber for sale. (f) The lessee was to begin operations within 3 months, doing a particular amount each year, and once cleared, was to keep the lease clear. (g) The lessee was to take effective steps to destroy rabbits, wallabies, wild dogs, dingoes, wild pigs, foxes and other noxious animals, and to continue to do so during the term of the lease. (h) The lessee was not to overstock the land either wholly or in part. (i) The lessee was required to fence the eastern boundary of the land with a substantial netting fence. (j) The lessee was to provide a sufficient water supply for the full stocking of the land by the excavation of a tank or the construction of a tank or dam. (k) The lessee was to maintain all Crown improvements. (l) The Governor could at any time withdraw any land from the lease required for mining, mining purposes, residential lease, saw-mill site or for any public purpose. The Governor could withdraw the whole or any part of the lease at any time for the purposes of settlement in the event of a railway or tramway being constructed within 20 miles of the lease. After 10 years, the Governor could withdraw the whole or any part of the lease for settlement. Subsequently, after the term of the lease was extended, the Governor could only do so if the Minister was of the opinion the land could be profitably occupied for agricultural purposes. In no case was the lessee entitled to compensation, other than for improvements on the land withdrawn. (m) Any holder of a miner's right following the occupation of a miner or prospector could graze on the lease horses or other animals necessary for their subsistence and for carrying on mining or prospecting. (n) The lessee could not sublet without the Minister's consent in writing. (o) The lessee could not cultivate the land without the Minister's consent in writing. (p) All public rights in roads were preserved. (q) The lease was deemed to be a lease for pastoral purposes within the meaning of the Mining Act 1906 (NSW) and as such was subject to the operations of that Act. (r) All persons authorised to do so were to have full right to enter the land for the purpose of cutting and removing timber, without interference by the lessee, and the lessee was to provide convenient gateways and openings where required. The lessee was to permit timber getters to camp and graze their teams over the lease. (s) Any person authorised by the Survey Branch of the Lands Department could access Trigonometrical Reserve 39,226 in the lease area. (t) If any condition was not complied with the lease was liable to forfeiture. 111 The conditions attached to Scrub Lease No. 416 (which also derived from various sources, including the CLC Act 1913, regulations and the terms of the lease instrument itself) were also extensive as is reflected in the following matters (which the applicant also submits indicate that the lessee held a "precarious interest" similar to the case with a pastoral lease): (a) The lessee was required to preserve warrior, quandong, and currant bush and other edible scrubs. The lessee was also to preserve sufficient trees for shade and shelter and all currajong, wilga, and other edible trees. The Minister could give permission to the lessee to cut, lop, or whip any of those scrubs or trees for stock-feeding purposes in times of drought. (b) The lessee was to preserve all straight white and Lachlan pine of a certain dimension and useful for fencing, mining, or building, or railway sleepers, but was entitled (except on the Wood Lot or Forest reserve) to cut and use any timber for fencing or other improvements in the lease area. (c) The lessee was required to destroy box gum and ironbark seedlings, budda, wattle, camomile, sifting bush and other noxious undergrowth, plants and weeds. (d) The lessee was otherwise to destroy all trees and saplings by ringbarking or otherwise. (e) The lessee could not cut or remove any timber for sale. (f) The leased land was to begin operations within 3 months, doing a particular amount each year, and once cleared, was to keep the lease clear. (g) The lessee was to take effective steps to destroy rabbits, wallabies, wild dogs, dingoes, wild pigs, foxes and other noxious animals, and to continue to do so during the term of the lease. (h) The lessee was not to overstock the land either wholly or in part. (i) The lessee was to fence the unfenced boundaries. (j) The lessee was to provide a sufficient water supply by the excavation of a tank or the construction of a tank or dam, or the sinking of a well. (k) The lessee was to maintain all Crown improvements. (l) The Governor could withdraw the whole or any part of the lease at any time for the purposes of settlement in the event of a railway or tramway being constructed within 15 miles of the lease. The Governor could withdraw the whole or any part of the land for the purposes of settlement if the Minister was of the opinion the land could be profitably occupied for agricultural purposes. After 10 years, the Governor could withdraw the whole or any part of the lease for settlement. In no case was the lessee entitled to compensation, other than for a proportion of the payment for improvements from an incoming tenant. (m) The Governor could withdraw at any time any land required for mining or mining purposes, residential lease, sawmill site, or for any public purpose without any compensation, except for the lessee's interest in improvements on the land withdrawn. (n) Any holder of a miner's right following the occupation of a miner or prospector could graze on the lease horses or other animals necessary for their subsistence and for carrying on mining or prospecting. (o) The lessee could not transfer, assign, sublet, or grant agistment rights, without the Minister's consent in writing. (p) The lessee could not cultivate the land without the Minister's consent in writing. (q) All public rights in roads were preserved. (r) The lease was deemed to be a lease for pastoral purposes within the meaning of the Mining Act 1906 and as such was subject to the operations of that Act. (s) All persons authorised to do so were to have full right to enter the land for the purpose of cutting and removing timber, without interference by the lessee, and the lessee was to provide convenient gateways and openings where required. The lessee was to permit timber getters to camp and graze their teams over the leased land. (t) If any condition was not complied with the lease was liable to forfeiture.

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(d) State's primary contentions summarised 112 In addition to its submissions concerning general principles as summarised in the Introduction above, the State made the following primary contentions regarding the two Scrub Leases. First, it emphasised that the intensity with which the Scrub Lessees were required to use the land and the obligations imposed upon them to improve the land (including by building dams and insuring a water supply) supported the conclusion that exclusive possession was granted because, without that, the purpose was unlikely to be realised. 113 Secondly, the State drew attention to the fact that each of the two relevant Scrub Lessees was required to erect a fence around the leased area. 114 Thirdly, the State emphasised that an important object of a Scrub Lease was to facilitate land clearing to enable it to be used for other purposes and that the statutory regime entitled Scrub Lessees to apply for a "Homestead Selection" (see s 27 of the Crown Lands Act 1895 (NSW) (CL Act 1895) and s 193 of the CLC Act 1913). In this context, the State relied upon the following extract from the second reading speech for the Bill which became the CL Act 1895, made by the Secretary for Lands, as set out in Anderson at [104] (emphasis added by the State): I introduce a new principle - a principle which has tended to build up the greatness of the United States, which is building up the greatness of the Anglo-Saxon community of Canada, the principle of homestead selection, a principle which will enable a man to acquire a homestead in surveyed and subdivided areas which are found suitable for the purpose on terms which will not cripple his resources in the early stages … I cannot go so far as some of my friends and use the term 'perpetual leasehold,' but I will tell you what I do. I give them perpetual leasehold in all its incidents, in perpetual rent, which must be paid year by year. I give them the incidents and obligations of a leasehold tenure. Always having the Crown as the landlord I preserve the old title of freehold … Whilst I attach to these holdings the elements and incidents of perpetual leaseholds, I keep the old name of freehold because it will be more valuable to the holder, and it will be less likely to lead to complications which must arise in conveyancing if there is introduced a strange and hitherto unknown tenure, which may become a fertile source of litigation by its operation. 115 The State added that a Homestead Selection was a form of tenure which had "all the advantages and essence of a freehold", citing Anderson at [107]. The State contended that a Homestead Selection is a "pathway" to freehold and that a Scrub Lease is an earlier pathway to Homestead Selection. The State submitted that a Homestead Selection was therefore wholly inconsistent with native title rights and interests (as was said to be further confirmed by the fact that Homestead Selection or grant (whether an original or an additional holding) under the CL Act 1895 or the CLC Act 1913 is a Scheduled interest under s 249C and cl 3(2) of Sch 1, Pt 1 of the NT Act). 116 Fourthly, the State contended that the conditions attaching to the two Scrub Leases confirmed that they were true leases in the common law sense because each lease could be assigned or sub-leased with Ministerial consent. 117 Fifthly, the State drew attention to the fact that in the case of both Scrub Leases, the withdrawal of any parts of the leased areas by the Crown for settlement or public purposes entitled the Scrub Lessee to at least some form of compensation. 118 Finally, the State contended that there was little utility in approaching the relevant issues by reference to the question whether a Scrub Lessee's rights were "precarious" or by application of the notion that exclusive possession refers to a landholder's right to exclude everyone and anyone for any reason or no reason. This was because, in the modern world, virtually all land tenures are subject to third party rights, some held by private parties and others held by Government agencies, which erode a landholder's level of control. This particular contention should be accepted (see the Introduction at [65]), at least at the level of generality at which it was put.

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Resolution 120 For the following reasons, I do not accept the State's proposition that the two Scrub Leases granted each lessee exclusive possession or otherwise conferred rights which are inconsistent with any native title rights and interests, with the consequence that native title rights and interests were wholly extinguished. 121 First, under both the CL Act 1884 and the CLC Act 1913, the purpose of granting a Scrub Lease was to facilitate the elimination of scrub, with a view to the land being used more profitably, most likely for grazing purposes. Significantly, there was no limitation on the area covered by a Scrub Lease. When originally granted, the two Scrub Leases here were for 6,000 and 9,700 acres respectively. Those are extensive areas and, stated generally and at an abstract level, the rights conferred on such lessees are likely to co-exist with any native title rights in contrast with significantly smaller leased areas, particularly where dwellings are involved. Holders of pastoral leases or homestead leases could not apply for Scrub Leases unless the relevant land was within the boundaries of the existing pastoral or homestead lease. In such a case, the term of the Scrub Lease was the unexpired term of the pastoral or homestead lease. In the event that a Scrub Lease was forfeited, the land was added to the pastoral or homestead lease surrounding it, and was subject to the same rent (and no longer at the substantially reduced rent). That is not to say, however, that Scrub Leases could only be granted to the holder of a pastoral or homestead lease (see CL Act 1884, ss 86-88; CL Act 1895, ss 26-27; and CLC Act 1913, s 77 and 193). 122 Secondly, neither lessee had a right of exclusive possession or otherwise had conferred upon them rights which are inconsistent with any native title rights and interests. I accept the applicant's submission that an analysis of the relevant conditions and limitations of both Scrub Leases (which is an essential task) reveals that they are hardly consistent with the notion of either lessee having exclusive possession. In particular, I accept its submissions that the precarious nature of the interests held under those Scrub Leases is indicated by the fact that the leases were "in respect of land with little to no worth, and could be granted within the outer boundaries of pastoral and Homestead Leases, for little to no rent, in order that the lessee might improve the grazing quality of the land". Equally significantly, each lease was susceptible to resumption at any time for any public purpose under s 78(vii) of the CL Act 1884 and s 233 of the CLC Act 1913, in the same way as pastoral leases. 123 In addition, it is notable that third parties enjoyed various rights of entry onto the land the subject of the two Scrub Leases, as is reflected in the conditions summarised at [110] and [111] above. Those third party rights of entry went well beyond the kinds of rights of entry applicable to freehold land. They included rights of entry by a person holding a mining right (including to graze horses on the leased land) and the right of entry of authorised persons to enter the lease to cut and remove timber (including camping and grazing horses on the leased land). 124 Of course, each case necessarily turns on its own particular facts (with particular reference to the legislation from which the lease is derived as well as the terms of the lease instrument) so as to determine the nature and extent of the particular rights and interests held by an individual leaseholder. But it is worth repeating the following observations of Toohey J in Wik at 122 that are generally apposite to the two Scrub Leases here: A pastoral lease under the relevant legislation granted to the lessee possession of the land for pastoral purposes. And the grant necessarily gave to the lessee such possession as was required for the occupation of the land for those purposes. As has been seen, each lease contained a number of reservations of rights of entry, both specific and general. The lessee's right to possession must yield to those reservations. There is nothing in the statute which authorised the lease, or in the lease itself, which conferred on the grantee rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title. In so far as those rights and interests involved going on to or remaining on the land, it cannot be said that the lease conferred on the grantee rights to exclusive possession. That is not to say the legislature gave conscious recognition to native title in the sense reflected in Mabo [No 2]. It is simply that there is nothing in the statute or grant that should be taken as a total exclusion of the indigenous people from the land, thereby necessarily treating their presence as that of trespassers or at best licensees whose licence could be revoked at any time. 125 The significance of the reservation of the right of a person holding a miner's right to enter upon and do other things on the leased land is evident if one goes to the relevant provisions of the Mining Act 1906 as in force at the time both leases were granted. Under s 9, a miner's right was issued on the application of any person. Section 15 then described the extensive and substantive rights which were conferred upon the holder of a miner's right, all of which cast strong doubt on the proposition that the Scrub Lessees had a right of exclusive possession: Rights conferred by a miner's right. 15. (1) Except as against His Majesty, a holder of a miner's right, or any number of persons being each the holder of a miner's right, may, subject to the regulations and to the exemptions in this Part- (a) take possession of and exclusively occupy as a claim any Crown land for mining purposes, and mine therein; (b) have and possess any gold or other minerals found in such land whilst so occupied; (c) erect any building, structure, or machinery upon land so occupied, and remove the same at any time during such occupation; (d) exercise any rights of the nature of easements in connection with land so occupied; (c) occupy Crown lands, and construct and use thereon races, dams, reservoirs, roads and tramways for mining purposes; (f) take or divert water from any lake, pool, spring, or stream, situate in or flowing through Crown lands not exempted from occupation under a miner's right or business license, and use such water for mining or domestic purposes; (g) procure and remove for mining, smelting, building, or other purposes for his or their personal use only, any bark, or live or dead timber, or any stone or gravel from any Crown lands not (i) exempted from occupation under a miner's right or business license; or (ii) within the operation of any proclamation or notification prohibiting the cutting or removal of such timber, bark, stone, or gravel: Provided that this right to procure and remove bark or timber may be exercised only by persons (not being corporations) actually holding miners' rights; (h) while following the occupation of a miner or prospector, graze upon Crown lands not exempted as aforesaid such horses or other animals as may be necessary for his or their subsistence and for the carrying on of prospecting or mining. (2) Provided that for the purposes of taking possession of more than one tenement of any specific class, the person so taking possession must hold an additional miner's right for each additional tenement after the first of the same class. The different classes may be prescribed by the regulations. 126 Moreover, under s 16(1) of the Mining Act 1906, the holder of a miner's right was empowered (subject to any exemption), to take possession and occupy Crown Lands as a residence area for the purpose of residing thereon (which, under s 16(2) was limited to a maximum area of two acres if the Crown land was outside the boundaries of a town or village). These particular provisions of the Mining Act 1906 applied to both Scrub Leases the subject of this Schedule. This is because they contain conditions which reserved all or any rights conferred by any Act relating to mining (see the proviso to s 14(1)), which meant that lease land under Scrub Leases was subject to occupation under a miner's right. 127 The significance of both leases being subject to such provisions of the Mining Act 1906 is further highlighted when attention is given to the definition of "Crown lands" in s 3 thereof. Except for Pt V (which dealt with dredging leases), such lands were defined there as land vested in His Majesty and included (relevantly) lands under lease apart from lands subject to a conditional lease, conditional purchase lease or lease granted under the Act itself, as well as conditional purchases or homestead selections. Land held in fee simple did not fall within the definition of "Crown lands". Part IV of the Mining Act 1906 dealt with mining on "private lands" (which were defined in s 45 as lands other than Crown lands but not including lands situated within the boundaries of a town or village unless there was a gubernatorial proclamation to the contrary). Thus land held in fee simple was not subject to Pt IV. 128 Importantly, under s 23(1)(c) (which dealt with the Governor's power to grant mining leases), it was provided that the surface of Crown land held under lease from the Crown for purposes other than pastoral purposes shall only be leased subject to the payment of compensation. Accordingly, leases for pastoral purposes did not attract this statutory right to compensation which arose where a mining lease was granted over land otherwise leased from the Crown. This highlights the significance of the relevant conditions in both Scrub Leases here, which deemed them to be leases for pastoral purposes within the meaning of the Mining Act 1906 (see the conditions at [110(q)] and [111(r)] above), thereby attracting certain exceptions applying to leases for pastoral purposes in provisions such as s 23. This serves further to demonstrate the precarious nature of the interest held under a Scrub Lease (and, indeed, other leases granted for pastoral purposes). The State did not suggest that there were any relevant amendments following the commencement of the Mining Act 1906 which would affect the analysis above. 129 Thirdly, I reject the State's submission that the "intensity" with which a Scrub Lessee was entitled to use the land is a characteristic supporting a right to exclusive possession or otherwise constituting a right which is inconsistent with any native rights and interests in the particular circumstances of these leases. The central question is whether the rights and interests conferred by the particular leases are inconsistent with the continuation of any native title rights and interests in the relevant land. As Brown High Court well illustrates, even the rights and interests conferred by mineral leases on the joint venturers there were held not to be inconsistent with native title rights notwithstanding that the mining operations were intensive. The position may be different where the lease area is relatively small and the activities on it are intensive. 130 Fourthly, the requirement that a Scrub Lessee provide water supply or a dam was to enable the "full stocking" of the land, as is reflected in special condition 16 of Scrub Lease No. 287 (see [110(j) above]. That requirement was similar to the situation under a pastoral lease for grazing. Even extensive grazing on leased land which is of substantial acreage is, as a general proposition, unlikely to be inconsistent or incompatible with any applicable native title rights, absent some special feature. 131 Fifthly, I do not accept the State's submission that the entitlement of a Scrub Lessee to apply for a Homestead Selection under the CL Act 1895 and CLC Act 1913 is an important indicia of exclusive possession or a right which is inconsistent with native title rights and interests. A pastoral lessee also had such an entitlement. Moreover, the right of a Scrub Lessee to apply for a Homestead Selection was far from unqualified. Under s 27 of the CL Act 1895 and s 193 of the CLC Act 1913, it applied only in the following limited circumstances: (a) the Scrub Lease must not have been within a pastoral or homestead lease; (b) the application for conversion could only be made in the last year of the term of Scrub Lease, noting that both relevant Scrub Leases had terms of 21 years; (c) the Scrub Lessee must have a dwelling house on the land; (d) the application could only be for the area around the dwelling house; (e) the area applied for could not exceed 640 acres; and (f) the holder must have improved the area applied for with permanent, fixed and substantial improvements to the value of one pound per acre and own the improvements. 132 Sixthly, it is true, as the State pointed out, that under both Scrub Leases, if the lessee wanted to transfer, assign, or sublet the lease or grant agistment rights, the Minister's consent in writing was required (see special condition 25 of Scrub Lease No. 416 and special condition 15 for the extension of the term of Scrub Lease No. 287 in 1926). But that requirement does not suggest that the lessees had a right of exclusive possession. In any event, it is far outweighed by other considerations. 133 Seventhly, I reject the State's contention that its position with respect to the two relevant Scrub Leases is supported by the "historical approach" adopted in State legislation which preceded the CL Act 1884 and the CLC Act 1913, including the 1847 Orders in Council. As noted above, the 1847 Orders in Council themselves contemplated the possibility of Crown land being the subject of a licence. It is also relevant to note that under Pt VIII, Div 9 of the CLC Act 1913, various general and miscellaneous provisions in ss 226-233 applied equally to leases and licences in the Eastern or Central Division. This included s 226(1)(b), which provided that no lease or licence, apart from a special lease (which was distinct from a Scrub Lease under the CLC Act 1913), shall confer any right on the landholder "to remove material from the land under lease or license or to sublet such land for other than grazing purposes or to prevent the entry and removal of material by persons authorized in that behalf." 134 Finally, and more generally, the State's submissions regarding the two Scrub Leases were inclined to cherry-pick particular incidents or conditions of the leases and overstate their significance by reference to the weight given to those or similar incidents or conditions in other cases (see the general observations in the Introduction concerning that approach). A good example is the State's submissions in reply regarding the conditions in the Scrub Leases which required Ministerial consent to assign or transfer the lease or to sublet the lease. The State submitted that such conditions did not have the effect of prohibiting transfer, assignment or subletting and added that it was "apt to recall that the lease considered in Wilson v Anderson… was also subject to similar conditions, which required the lessee to obtain Ministerial consent to transfer, assign or sublet: see at [114]". The State then added that "similar provisions are unexceptional in most private common law leases". 135 There are several problems with these submissions. The first (and minor problem) is that the reference to [114] of Anderson is in error. The correct reference is to [113] where the plurality identified the requirement of Ministerial consent to transfer, convey, assign, sublet or mortgage the land the subject of a "lease in perpetuity" as one of a number of incidents which developed over time and which caused the plurality to conclude that the "lease in perpetuity" was akin to freehold tenure and was intended to further the legislative objectives with respect to land development. Other incidents which were referred to in this context and under the particular lease considered there included the requirement of residence (cl 2) and the stipulations respecting use for the purpose of grazing stock (cll 3, 4). Reference was also made at [113] to the restriction under cl 20 that the lease was not to be transferrable except by way of mortgage for ten years following its commencement, save to certain members of the armed forces. The plurality in Anderson then referred to several other clauses in the lease before expressing the following conclusion at [115]: The point of present importance is that these conditions and obligations, whether imposed directly by the Western Lands Act or permitted by the statute to be attached to the grant, were not inconsistent with the incidents of a grant of a determinable fee simple. The right of forfeiture for failure to pay rent or non‑observance of conditions is equivalent to the right of re‑entry on breach of a condition subsequent attached to a determinable fee simple. 136 The point of summarising these aspects of Anderson is to highlight the important fact that the Court's analysis and characterisation of the lease in perpetuity in that case, with a view to determining whether it granted exclusive possession, turned on a consideration of all relevant conditions and obligations. In my respectful view, there is a danger in cherry-picking particular incidents of a lease. It is critical that proper consideration be given to all the relevant terms of a lease and all relevant aspects of the relevant legislative regime. As emphasised in the Introduction, an evaluative exercise is unavoidable. 137 To avoid any misunderstanding, the requirement of Ministerial consent in the Scrub Leases is not determinative in its own right, but is one of several features of the Scrub Leases which supports a conclusion that those leases did not grant exclusive possession and were not wholly inconsistent with native title rights and interests. The different rights and interests were well capable of co-existing.

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(a) Legislation concerning Settlement Leases 156 Part III of the CL Act 1895 is headed "Homestead Settlement Provisions". Under s 13, the Governor was empowered to set apart any tract of Crown lands for disposal by way of Homestead Selection. There are also detailed provisions concerning eligibility and applications for a Homestead Selection. The Governor was empowered under s 17 to grant a Homestead Selection in specified circumstances. I will return below to elaborate upon relevant legislative provisions concerning Homestead Selections. Part III also included provisions relating to Settlement Leases. Section 24 is headed "Settlement Leases for Agriculture and Grazing". All of the five relevant Settlement Leases were granted under this Act. 157 Section 24 of the CL Act 1895 empowered the Government to set apart Crown lands which could then be the subject of a grant of lease under various provisions of the Act, including s 25, which dealt with Settlement Leases. 158 Section 24 also imposed requirements and procedures concerning the subdivision of Crown lands which were set apart by the Governor for settlement by Settlement Leaseholders. Those requirements included the following: (a) Such land was required to be subdivided into farms. (b) Where land appeared suitable for agriculture, the farm could not contain more than 1,280 acres. (c) Where land appeared suitable chiefly for grazing, the farm could not be more than 10,240 acres. (d) The determination of the extent of a farm required application of a standard that "the extent of each such farm shall be that the lessee thereof may be able to establish and maintain a home thereon by the use of the land". (e) Land that was so set apart was to be valued according to the perceived capabilities and situation of the farm. Any improvements on the land were also to be valued. 159 Under s 25 of the CL Act 1895, the Governor could grant a Settlement Lease to an applicant, but only if their application had been confirmed by the Local Land Board. Section 25 provided: Settlement Leases. 25. The Governor may grant to an applicant whose application has been confirmed by the Local Land Board, a settlement lease of the farm applied for; and upon the issuing of the lease, the applicant may take possession of the farm, and any occupation license or annual lease shall thereupon cease and determine in so far as it affects the said farm. The term of the lease shall be twenty-eight years, and the lease shall be in the prescribed form, and shall contain provisions to secure: - (a) That the lessee shall pay an annual rent of one and one quarter per centum on the capital value of the farm as fixed under this Act. (b) That the lessee shall pay the value of the improvements as appraised, and interest on such value at the rate of four pounds per centum per annum, the payment being made in one instalment or at his option in three equal yearly instalments at the dates and in the manner prescribed. (c) That the lessee shall reside on the farm and make it his bona fide residence during the whole term, or if the lease have been transferred by way of bona fide mortgage, then that the owner, subject to such mortgage, shall so reside. (d) That the lessee shall fence the farm within five years. (e) That the lessee shall conform to any regulations made by the Minister relating to keeping the farm clear of rabbits and other noxious animals, and also to clearing the farm of scrub and noxious weeds. (f) That the lessee shall not assign or sublet without the Minister's consent. (g) That the Governor may forfeit the lease upon breach of any of the conditions, covenants, and provisions therein contained. The lease may also contain such additional provisions, conditions, and covenants as to the Governor may seem expedient in the public interest. Upon the expiration of the full term of the lease the last holder thereof shall have tenant right (as the same is hereinafter defined) in the improvements thereon. 160 Initially an applicant was only entitled to take possession of the farm upon issue of the lease, and any occupation licence or annual lease thereupon ceased insofar as it affected the farm. On 15 June 1896, the position changed with the enactment of s 2 of the Crown Lands (Homestead Selections and Settlement Leases) Act 1896 (NSW), which had the effect of permitting applicants for Settlement Leases to take immediate possession of the land from the date of a valid application (as title commenced from that date). The references by the parties in the agreed facts to each of the five Settlement Leases being executed and "thereupon" taking effect must therefore be read taking into account that at least some of the leases commenced prior to their execution date (as set out in the additional facts below). 161 Under the Crown Lands Act Amendment Act 1903 (NSW) (CLA Act 1903), the original term for a Settlement Lease of 28 years was extended to 40 years (s 5). Such a term was divided into four periods each of ten years. 162 Following the enactment of the CLA Act 1903, a mortgagee or judgment creditor over a Settlement Lease was able to go into possession of the land the subject of the lease (s 12).

[52]

(i) Settlement Lease No. 1895/16 Coonamble 164 Settlement Lease No. 1895/16 Coonamble (ID Area 10) was executed on 16 November 1896. The area had been set aside for Settlement Lease by notification on 26 October 1895, amended 30 October 1895, which provided that the lease would be available on and after 12 December 1895. The lease, which was in the same form as Form 51 (being the relevant Form under the CL Act 1884 that recorded the terms of typical Settlement Lease) was granted for a term of 28 years. The leased area was 2,910 acres. It was located in the Parish of Allamurgoola, County of Ewenmar, 6 miles from Galargambone and 63 miles from Dubbo railway station. At the time the lease was granted, there were tanks on the leased area and fencing on at least some of the leased area. Part of the lease area was acquired for the construction of the Dubbo to Coonamble railway, which commenced operation in 1903. In 1910, a proposal was put forth by the Acting District Surveyor to acquire at least part of the leased area from the lessee for the purposes of establishing a Village and providing a Camping Reserve at Armatree Railway Siding. The lease was deemed surrendered to the Crown on 14 July 1911 when an application to convert it to Conditional Purchase No. 1911/17 Coonamble and Conditional Lease No. 1911/11, Coonamble was made and confirmed pursuant to s 5 of the Crown Lands (Amendment) Act 1908 (the land now known as ID 10 (Lot 7300, DP114911) was evidently excluded from the conversion and did not form part of either the Conditional Purchase or the Conditional Lease). The grant of the lease was published in the NSW Government Gazette notice dated 13 September 1911 and recorded in Tenure Card CL 1911/11 Coonamble. The village of Armatree was proclaimed in 1912. The proclamation, and the boundaries of the village, were recorded in the notification published in the New South Wales Government Gazette No 36, 13 March 1912, p 1761. By reason of the CL Act 1889 (s 30), land within the leased area that was within the boundaries of the Village of Armatree and was not already surrendered to the Crown was withdrawn from 13 March 1912, being the date of the proclamation.

[57]

(c) State's primary submissions summarised 169 In support of its contention that all five Settlement Leases were a Scheduled interest, the State made the following submissions. First, the State claimed that all these Settlement Leases fell within cl 3(3) of Sch 1, Pt 1 of the NT Act, which provides that the following is a Scheduled interest: (3) A settlement lease (whether an original or an additional holding) under the Crown Lands Act 1895 or the Crown Lands Consolidation Act 1913, other than a lease that: (a) permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and (b) does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose. 170 The evident intention of the exemption in cl 3(3) is to exclude from the concept of a Scheduled interest any Settlement Lease which was solely or primarily for grazing or pastoral purposes and did not permit the leased land to be used solely or primarily for more intensive farming, such as agriculture, horticulture and cultivation. 171 The first limb of the State's claims regarding Scheduled interests was that all five Settlement Leases were a Scheduled interest within the meaning of cl 3(3) because the exemption in that provision had no application (assuming that what is stated at [132] of the State's Outline of Written Submissions is poorly expressed and fails to reflect the State's position concerning the non-application of the exemption). 172 The second limb of the State's claims regarding "Scheduled interest" was that three of the five Settlement Leases fell within cl 3(5) of Sch 1, Pt 1 of the NT Act. It is well to set out cl 3(5), the effect of which is to specify the following kind of lease as a Scheduled interest: … (5) A conditional lease under the Western Lands Act 1901 or the Crown Lands Consolidation Act 1913. … 173 I will elaborate upon the State's two limbed argument concerning Scheduled interests shortly. 174 The State urged the Court not to accept the applicant's claim that each of the five Settlement Leases was invalid. Its reasons for doing so may be summarised as follows. First, the effect of s 24 of the CL Act 1895 was that the extent of a farm created by a subdivision under that provision: (a) could be greater than 1,280 acres in size but this was not permitted if the leased area appeared to be suitable, in its entirety for agriculture; (b) could be a size up to 10,240 acres where the land appeared to be suitable "chiefly" for grazing; and (c) was in any event to be of a size determined to be sufficient for the lessee to establish and maintain a home thereon by the use of the land. 175 Secondly, the State submitted that s 24 should not be construed as including a requirement which precluded the use of a farm of more 1,240 (sic) acres in size, leased under s 25, solely or primarily (in whole or in part) for the purpose of agriculture. Nor, so it submitted, did s 24 include a requirement that a farm of 1,240 (sic) acres in size, leased under s 24, be used solely or primarily only for the purpose of grazing. (Presumably the correct acreage figure is 1,280 acres as stated in s 24). 176 Thirdly, the State emphasised that s 24 operated at the time the relevant land was subdivided and was based on how the land "appeared" at that particular time. Section 24 did not impose any conditions on the use that an eventual lessee may make of land subdivided under s 24. 177 Fourthly, the State criticised the applicant's position regarding the proper construction of ss 24 and 25 on the basis that its construction of these provisions contemplated "an economically and socially illogical legislative intent to condemn a lessee of any parcel greater than 1,280 acres to pastoral usage even where some or most of the land has greater capabilities". 178 The State's submissions in support of its more general and alternative claim that each Settlement Lease conferred a right of exclusive possession or rights inconsistent with native title rights and interests may be summarised as follows. 179 First, the State relied on its submissions on general legal principles summarised in the Introduction to these reasons for judgment. 180 Secondly, it submitted that an important purpose of Settlement Leases was to facilitate the expansion of permanent settlement and productive use of Colonial lands. This was reflected not only in the terms of s 25, but also in the following extract from the second reading speech to the Bill preceding the enactment of the CL Act 1895: The provision for settlement leases I think is a very good one. But here again, I would like to point out, it is only provided that these leases shall be granted within special areas. I fail to see why the advantages of settlement leases should not be extended outside these special areas. We want to encourage, amongst others, a class of small graziers, grazing farmers, selectors who partly by grazing and partly by cultivation, or altogether by grazing, should be able to make a comfortable living. There are many parts of the eastern division and also the central division where this provision might be taken advantage of with benefit to the state; otherwise these lands will simply remain idle, as they are now, being no good to the state or to anybody. 181 The State emphasised that, consistently with that purpose, each of the five Settlement Leases related to land that was in reasonably close proximity to settled populations. 182 Thirdly, the State emphasised that, under s 42 of the CL Act 1895, applications for Settlement Leases were required to be made in good faith in order that the applicant "may hold and use the land for his own exclusive benefit according to law" and that the lease could be forfeited if it was found that this requirement was not met (s 43). 183 Fourthly, the State pointed to the conditions of each Settlement Lease which required the lessee to pay for existing Crown improvements and to keep the leased area free of noxious animals and noxious weeds, as well as the requirement imposed by s 25 of the CL Act 1895 that the lessee reside on the land and make it his or her bona fide residence for the terms of the lease. Other conditions which were said to be facilitative of long term occupation of Settlement Leasehold land included the fact that s 25 conferred on lessees a "tenant right" (as defined in s 51 of the CL Act 1895) in improvements made on the land. 184 Fifthly, the State submitted that these incidents supported its position that exclusive possession was granted because, without the same, the purpose of Settlement Leases could not be realised, at least without great difficulty and conflict. 185 Sixthly, the State relied upon its claims that the language of the Settlement Lease instruments was consistent with a true lease in the common law sense and that each Settlement Lease used expressions consistently with that proposition. 186 Seventhly, the State submitted that the substantive nature of the interest granted under a Settlement Lease was reflected in the fact that such leaseholders: (a) were required to pay for existing improvements on the land (s 25 of the CL Act 1895). (b) were able to assign or transfer the lease by way of security or mortgage (e.g. see the conditions of the leases in issue, s 12 of the CLA Act 1903 and s 263 of the CLC Act 1913, noting the various time limitations for doing so under the latter provision). (c) at the time they applied for the lease, were under an obligation to ensure that their sole object in applying for a lease was to hold and use the land for his or her "exclusive benefit": CL Act 1895, s 42 (see also s 43). That was the basis on which the leases could be granted: note Pincham v Minister for Lands (1946) 46 SR (NSW) 393, at 404, per Davison J. (d) were required to erect a "substantial stock-proof" fence around the boundary of the leased area. (e) in each case, was entitled to apply for a Homestead Selection over the portion of the leasehold which contained the dwelling-house: CL Act 1895, s 27 (see also CLC Act 1913, s 193(2)). The State submitted a Homestead Selection was a form of tenure which had "all the advantages and essence of a freehold" (citing Anderson at [107]), i.e. it was wholly inconsistent with the continuation of native title rights and interests. (f) in each case, was or became, entitled to convert the lease to a conditional purchase: Crown Lands (Amendment) Act 1908, ss 5-9 (see also CLC Act 1913, ss 184-185). Some of the Settlement Leases were converted to a conditional purchase (i.e. Settlement Lease Nos. 1895/16 Coonamble, 1898/39 Nyngan and 1911/2 Nyngan). A conditional purchase was, at the time the application was accepted and a deposit paid, akin to a grant in fee simple: e.g. see Chisholm v Macauley (1868) 7 SCR (NSW) 312, Drinkwater v Arthur (1871) 10 SCR (NSW) 193 and Flood v Monash (1873) 12 SCR (NSW) Eq 65. (g) in accordance with the CLC Act 1913, s 101(2), as amended by the CLA Act 1932 (presumably referring to s 10(j)), any lessee whose settlement lease still existed at the commencement of the CLA Act 1932 could apply to extend the lease to perpetuity (which occurred with Settlement Lease No. 1909/3 Coonamble). 187 Eighthly, the State submitted that s 55 of the CL Act 1895 reinforced that Settlement Leases were true leases of the kind known to the common law because that provision meant that Settlement Leaseholders could bring an action in trespass against third parties (reference was made to Fergusson v Mackinnon (1912) 12 SR (NSW) 406). 188 Ninthly, the State submitted that the entitlement of a Settlement Leaseholder to apply for a Homestead Selection or to convert the lease into a conditional purchase (or for those leases which were still in effect at the commencement of the CLA Act 1932 to apply for an extension to a lease in perpetuity) underlined the substantive nature of a Settlement Lease. 189 Tenthly, the State submitted that although there was provision for parts of the leased area to be withdrawn by the Crown for public purposes, this would give rise to a right to compensation by the lessee. 190 Eleventhly, the State contended that the effect of extending Settlement Lease No. 1909/3 Coonamble in 1936 to a lease in perpetuity had the effect of conferring exclusive possession on the lessee, which wholly extinguished any native title rights and interests (citing Anderson). 191 Finally, on the second limb of the State's position regarding "Scheduled interest", the State made the following additional and separate submissions in respect of two of the five Settlement Leases which were converted to higher levels of land tenure after they were initially granted. The State contended that the effect of these subsequent conversions was to make each of those two Settlement Leases a "Scheduled interest" within the meaning of cl 3(5) of Sch 1, Pt 1 of the NT Act. 192 The State's contentions in respect of this aspect of the two Settlement Leases which were converted to conditional leases may be summarised as follows.

[61]

Validity of the five Settlement Leases and Scheduled interest issue 201 The applicant claimed that all five Settlement Leases were invalid because they involved grants over areas larger than the size allowed for farms of land suitable for agriculture. It drew attention to s 24 of the CL Act 1895, which required the Governor to subdivide land which had been set aside to be disposed of by way of lease "… which in cases where the land appears suitable for agriculture, shall not contain more than [1,280] acres…" (s 24(i)). In circumstances where each of the five Settlement Leases comprised a farm larger than 1,280 acres, the applicant submitted that the subdivision of Crown land into farms of that size could only be valid if the land was suitable chiefly for grazing. This submission relied upon the distinction between land being suitable for agriculture, as opposed to land which was suitable chiefly for grazing and the fact that there were different maximum areas depending upon that distinction. 202 The applicant advanced an alternative argument concerning the validity of the five Settlement Leases. That argument was to the effect that because a Settlement Lease could only be granted over land suitable chiefly for grazing, it must by implication have included a condition that the Settlement Leaseholder used the land for grazing only or, at least, chiefly for grazing and that, by similar implication, there was a condition that the land could not be used for agriculture, or solely for agriculture. 203 The applicant added that the five Settlement Leases could not be Scheduled interests within the meaning of ss 23B(2)(c)(i) and 249C of the NT Act because they permitted the Settlement Leaseholders to use the land solely or primarily for grazing or pastoral purposes and did not permit the lessee to use the land solely or primarily for agriculture. In brief, therefore, the applicant contended that the five Settlement Leases could only qualify as Scheduled interests if they were granted on condition that the land could be used solely for agriculture. If this was the case, however, the applicant submitted that the grant was necessarily invalid (citing Daniel v State of Western Australia [2003] FCA 666 at [624] per Nicholson J for the proposition that the grant of a lease was not a valid use of a power if the lease was granted over an area that exceeded the maximum area allowed). 204 At one point in oral address, Mr Hughston SC (who appeared for the applicant together with Mr Gregory) raised the possibility that the applicant might concede that the three Settlement Leases which had subsequently been converted to higher levels of land tenure as described above in respect of Special Lease No. 1898/39 Nyngan and Special Lease No. 1911/2 Nyngan (conversion to conditional leases) and Special Lease No. 1909/03 Coonamble (extension to lease in perpetuity) should be viewed as wholly extinguishing any native title rights and interests. On the final day of the hearing, Mr Hughston SC acknowledged that if the Court found that these Settlement Leases were valid, the applicant acknowledged that their subsequent conversion would have the effect of wholly extinguishing any native title rights and interests.

[63]

(a) Validity of the five Settlement Leases 206 As noted, the applicant advanced two arguments in support of its claim that none of the five Settlement Leases was valid. The first argument was based on the distinction drawn in s 24(i) of the CL Act 1895 between the maximum areas for a subdivision of farming land depending upon whether the land appeared suitable for agriculture (maximum of 1,280 acres) or appeared suitable chiefly for grazing (10,240 acres). The second argument was that because a Settlement Lease grant could only relate to land which appeared suitable chiefly for grazing, there was an implied limitation that the leased land could not be used for agriculture, or at least solely so. 207 For the following reasons, both arguments are rejected. As to the first argument, it is rejected for the following two reasons, one legal and the other evidentiary. The legal point is that the applicant's position involves a misconstruction and misunderstanding of the inter-relationship between ss 24 and 25 of the CL Act 1895. On its proper construction, s 24 contained provisions which regulated and limited the Governor's power to subdivide farming land with maximum areas depending on whether the land appeared at the time of the subdivision to be suitable for agriculture or, alternatively, appeared to be suitable chiefly for grazing. The point in time when the Governor subdivided land was prior to the grant of a particular Settlement Lease. A smaller maximum subdivision area was stipulated for land which appeared suitable for agriculture presumably because of the more intensive activity and likely higher return in farming such land, compared with less valuable land which appeared suitable chiefly for grazing. A farm created by such a subdivision could be greater than 1,280 acres in size but not if the area for farming appeared to be suitable in its entirety for agriculture. Although the expression "in its entirety" does not appear in s 24, it is necessarily implicit in that provision having regard to the distinction draw therein between "suitable for agriculture" and "suitable chiefly for grazing" in s 24(i) (emphasis added). 208 I accept the State's contention that, properly construed, s 24 focussed on the prior act of subdividing land for farming based upon the way the land "appeared" at the time that the subdivision occurred. Section 24 did not impose any conditions or limitations on the use by a Settlement Leaseholder on the whole of the leased land. The relevant terms and conditions of the lease were not sourced in s 24, but rather elsewhere, including in s 25, the regulations and the lease instrument itself. 209 The evidentiary answer to the applicant's first argument is that the evidence before the Court provided no basis for any finding that the area the subject of any of the five Settlement Leases involved more than 1,280 acres of land which appeared to be suitable for agriculture or otherwise comprised land which was not suitable chiefly for grazing. As noted, each of the five Settlement Leases was in respect of an area greater than 1,280 acres. 210 As to the applicant's second argument concerning validity, it too is predicated on the misconstruction and misunderstanding of ss 24 and 25 of the CL Act 1895. The grant of a Settlement Lease in respect of land which had been subdivided on the basis that it appeared suitable chiefly for grazing did not mean that the Settlement Leaseholder was prevented from using some of the land for agriculture. 211 For these reasons, I reject the applicant's claim that each of the five Settlement Leases was invalid.

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(d) Exclusive possession, inconsistent rights with native title rights and extinguishment 218 My reasons for rejecting the State's claim that each of the five Settlement Leases, as originally granted, entitled the leaseholder to rights of exclusive possession or other rights which were wholly inconsistent with any native title rights and interests are as follows. 219 First, each of those leases was a lease granted for the purpose of grazing and required the lessee to live on the subject land. It is evident that the purpose of Settlement Leases was to promote closer settlement by graziers in the Eastern and Central Divisions of NSW, broadly similar to Homestead Leases in the Western Division. The CL Act 1895 created two new land tenures, being the Homestead Selection and the Settlement Lease, both of which were created with a view to facilitating closer settlement in the Eastern and Central Divisions. That is not to say, however, that these land tenures were the same. The Homestead Selection was a tenure available for agricultural land and might generally be regarded as similar to a fee simple. The Homestead Selection created an interest over land whereby a holder could, using agriculture (whether alone or together with another pursuit), establish a home (see CL Act 1895, s 13(i)). As long as an applicant had performed the conditions precedent as required by ss 15-16, five years after the application was confirmed (s 14), the Local Land Board would issue a certificate under s 16 and the Governor would then grant a Homestead Selection, which was known as a Homestead Grant (s 17). The Homestead Grant obliged the grantee to live on the land forever (s 17(b)) and pay a rent (s 17(a)), which were incidents in perpetuity of the particular tenure (s 17), and the grant was liable to forfeiture if these two conditions were not met (s 17(c)). A Homestead Grant could not be sold by writ issuing from a Court, nor could it vest or be conveyed upon bankruptcy, nor be taken to satisfy a debt or liability (s 23). 220 It is generally accepted that Sir Joseph Carruthers was the architect of the CL Act 1895. In a speech in the Legislative Council in 1912 (i.e. more than a decade after the CL Act 1895 was enacted), Sir Joseph described what he intended by creating the tenure called Homestead Selection (in a passage referred to by the plurality in Anderson at [108]): I tried to ingraft the homestead lease of Canada and the United States of America on to our statute-book, and I associated with it the good principles of the old feudal system … I brought in the system of homestead selection, whereby men entered into covenants in perpetuity. I made one covenant the paying of rent, a second covenant the improvement of the land, and the third covenant residence upon the land … Bearing in mind that the feudal system originated in the attachment of duties and obligations to be performed by the subject to the Crown, I attached those conditions to the homestead selection tenure, and the only objection has been that it does not enable a man to borrow as freely as he otherwise would. 221 In contrast, Settlement Leases were created for agriculture or grazing pursuits and for the settlement of larger areas of inferior land which the Government considered could not, or should not, be alienated. Absent special considerations, and expressed at a level of generality, leases for grazing are likely to be able to co-exist with native title rights and interests. As was made clear in Parliamentary debates over the Crown Lands Bill on 27 September and 10 October 1894, the object of Settlement Leases over grazing land was to encourage the development of "small pastoralists" or smaller pastoral holdings over land which were not suitable for agriculture. The leases were intended to encourage graziers to make a comfortable living by grazing alone (or by part-grazing and part-cultivation) in the Central and Eastern divisions. It is evident that the legislature took the view that it was wrong to allow large areas to be taken up for agriculture and that they should instead be available for grazing. 222 Secondly, all five Settlement Leases were granted under ss 24 and 25 of the CL Act 1895. The former provision is headed "Settlement Leases for Agriculture and Grazing". Under s 24(i), if the land appeared "suitable for agriculture" the farm was to contain no more than 1,280 acres whereas if the land appeared "suitably chiefly for grazing", the farm was to contain no more than 10,240 acres, (which incidentally is the same size available for Homestead Leases in the Western Division under s 82(i) of the CL Act 1884). 223 I accept the applicant's submission that the terms of s 24 confirm that the legislature intended that no lands suitable for agriculture would be available in areas larger than 1,280 acres and that this would be the maximum size of any land which was suitable for agriculture. That was also the maximum area of land for Homestead Selections, which also had the purpose of facilitating closer settlement of agricultural land. There was a clear legislative intention that agricultural farms be limited in size, notwithstanding that as noted above s 24 focussed on the way the land "appeared" at the time that a subdivision occurred and that provision itself did not impose any conditions or limitations on the use by a Settlement Leaseholder on the whole of the leased land. 224 It is significant that all five Settlement Leases in Sch 2, related to lands which were well in excess of the maximum of 1,280 acres allowed for land suitable for agriculture. 225 Thirdly, it may be noted that s 25 of the CL Act 1895 is headed "Settlement Leases" and that, under that provision, such a lease could be granted for up to 28 years (which was subsequently extended in 1903 to 40 years). The conditions applicable to a Settlement Lease indicate that this particular land tenure conferred no greater interest than a pastoral lease (see, for example, ss 71, 78-80 and 96-100 of the CL Act 1884 and ss 29-31, 33 and 43 of the CL Act 1889). This is reflected, for example, in many of the conditions which applied to each of those five Settlement Leases, as highlighted in the summary of those conditions below. 226 Fourthly, under the CL Act 1895, the lessee: was required to pay for the value of the improvements on the farm (s 25(b)); to reside on the farm and make it the lessee's bona fide residence for the whole term (s 25(c)); to fence the farm within five years (s 25(d)); to conform to any regulations relating to keeping the farm clear of rabbits and other noxious animals and clearing the farm of scrub and noxious weeds (s 25(e)); could not assign or sublet the farm without the Minister's consent (s 25(f)); and the Government could forfeit the lease upon breach of any of the lease's conditions, covenants or provisions (s 25(g)). 227 Fifthly, as was the case with a Pastoral, Homestead, Scrub or inferior land lessee whose dwelling house was on the leased land, the holder of a Settlement Lease could in the last year of the lease make an application for a Homestead Selection in respect of the leased land (s 27). The maximum area that could be applied for was 1,280 acres in the case of a holder of Settlement lease or 640 acres in the case of the other categories of lease (s 27). Upon grant, the Homestead Selection would be withdrawn from the ambit of the original lease, and the original lease would otherwise continue (s 27(v)). The position changed in 1903, when it became possible for a Settlement Leaseholder to apply for a Homestead Selection after the expiration of the first five years of the Settlement Lease (CLA Act 1903, s 25). Further evidence of the relationship between Settlement and Pastoral, Homestead and inferior land lessees is that the same application form had to be used when applying for a Homestead Selection (see regulation 70 in NSW Government Gazette, 3 June 1895). 228 Sixthly, as detailed further below, a Settlement Lease could be resumed for any public purpose and was subject to various reservations in favour of third parties. A Settlement Leaseholder could not assign or sublet the farm without consent and could not interfere with timber in a forest reserve. 229 Seventhly, the conditions applicable to Settlement Leases were set out in the original Form 51 (see regulation 153 in NSW Government Gazette, 3 June 1895), but those conditions could be modified at any time by the Governor. This occurred, for example, in 1896 when Form 51 was amended and contained the following conditions (see NSW Government Gazette, 5 September 1986): Any person authorised by the Secretary of Mines and Agriculture could go on the farm to work, win and remove any minerals. Any person authorised by the Governor could go on the farm to view and inspect the land. The lease was subject to, and incorporated, all the provisions of the Crown Lands Acts to the extent they applied to Settlement Leases. The lessee had to reside on the farm and make it his bona fide residence during the whole term of the lease. The lessee had to within five years from the date of the execution of the lease fence the external boundaries of the farm with a substantial stock-proof fence, and repair and keep repaired the fence during the term of the lease. The lessee was required to clear the farm of rabbits and all other noxious animals, and of scrub, prickly pear, Bathurst burr, suckers, and all other noxious growths and weeds. If the lessee desired to assign or sublet the farm the lessee was required to give to the Secretary for Lands particulars of the person, the part of the farm and the term, and if required produce the person to the Secretary for Lands. The lessee could not assign or sublet the farm without the consent in writing of the Secretary for Lands. The lessee was required to keep and preserve sufficient timber on the farm for shade and firebreaks. Any travelling stock route or reserve or camping reserve included in the farm was not affected by the granting of the lease. The lessee could not interfere with the timber in any forest reserve in the farm without the permission in writing of the Secretary for Mines and Agriculture. Any stock not owned by the lessee and found depasturing on the farm (other than stock found depasturing on a part of a travelling stock route) was prima facie evidence of subletting of the farm. The Governor could resume any portion of the farm for mining purposes if any part of the farm was found to be auriferous or to contain minerals, on three months' notice and on payment to the lessee of the value of any improvements on the portion resumed. The Governor could resume any portion of the farm required for a road, railway, canal or any like public purpose, without compensation except for actual value of any improvement on the part of the farm resumed. 230 Subsequently, regulations made under the CLA Act 1903, effective from 1 January 1904, provided that the following conditions could be attached to a Settlement Lease (in addition to conditions that could otherwise be imposed under the Crown Lands Acts and regulations) (see NSW Government Gazette, 23 December 1903, p 6528): That the lessee shall within a time specified undertake and carry out works necessary for the conservation of water or for the irrigation of a part of the original or additional holding. That the lessee shall maintain in good order and repair any buildings, works, and improvements of any kind on the original or additional holding. That the lessee shall clear, plough, and cultivate a specified area of the original or additional holding. That the lessee shall destroy and eradicate noxious weeds, scrub, prickly-pear, burr, and any other plant or tree detrimental to the use of the land for pastoral or agricultural purposes. That the lessee shall thin out saplings or young trees or do any other act necessary to promote the growth of trees for firewood or timber. That the lessee shall plant any trees whether indigenous or not on any specified acreage, for the production of timber or for any other purpose. That the lessee shall sow or plant any grass or fodder plant whether indigenous or not, and do any work necessary to promote the growth of the same. That the lease may be determined upon breach by the holder of any of the foregoing conditions. 231 In addition, each of the five Settlement Leases in Sch 2 had their own particular conditions, all of which highlighted the precarious nature of the interest held by the lessee. It is convenient to describe those particular conditions with reference to each Settlement Lease, some of which were provided for by the regulations made under the CLA Act 1903 as described immediately above.

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(ii) Settlement Lease No. 1898/39 Nyngan 233 The following conditions attached to Settlement Lease No. 1898/39 Nyngan support the submission it was a precarious interest subject to various reservations entitling entry by third parties, in line with that of a pastoral lease granted under either CL Act 1884 or CL Act 1895: The area of the farm was 4002 acres. The land under lease had been within the leasehold area of the Eenaweena Holding, which was declared a resumed area on 7 September 1898. The lessee could not assign or sublet without the Minister's consent, and if any stock not owned by the lessee (other than bona fide travelling stock) were found depasturing on the lease, it was prima facie evidence of subletting. The power was reserved to the Crown and to any person authorised by the Minister for Mines to enter upon the farm and search for and win minerals. The power was reserved to the Crown to resume any portion of the farm that was required for mining purposes, upon giving one month's notice, and upon payment of the value of the improvements on the portion resumed, not to exceed their cost and the rent was to be reduced proportionately. The farm was to be kept free from rabbits and other noxious animals, and from undergrowth, noxious weeds, scrub (except edible scrub), suckers, box seedlings, and prickly-pear, subject to any regulations which could be made by the Minister. The right of the public and travelling stock to the legitimate use of any travelling stock reserve within the area was not to be interfered with. The term of the lease was 28 years. The lessee was required to enter into residence within three months of the execution of the lease. 234 As noted, in 1928, the parcel of land ID 309, which comprised land within the area covered by Settlement Lease No. 1898/39 Nyngan, was converted into a conditional lease (being Conditional Lease No. 1927/15 Nyngan). For the reasons set out in the Introduction, I reject the applicant's contention that events post the initial grant of a lease are irrelevant. I accept the State's submissions at [193]-[195] that as a result of the conversion, ID 309 was a Scheduled interest within the NT Act, Sch 1, Pt 1 cl 3(5), and therefore wholly extinguished any native title rights and interests with respect to that land.

[71]

(iii) Settlement Lease No. 1911/12 Nyngan 235 The following conditions indicate the precarious nature of the interest held by the Settlement Leaseholder, broadly similar with a position concerning a Pastoral Lease granted under either the CL Act 1884 or the CL Act 1895: The original area of the farm was 7,986 acres ("ex. road"). On 11 June 1926, the lessee applied to subdivide the lease and a new lease instrument was issued for the continued lease over 7,086 acres. The lessee could not assign or sublet without the Minister for Lands' consent, and if any stock not owned by the lessee were found depasturing on the lease, it was prima facie evidence of subletting. The power was reserved to the Crown and to any person authorised by the Minister for Mines to enter upon the farm and search for and win minerals. The power was reserved to the Crown to resume any portion of the farm which was required for mining, mining purposes, or any other public purpose upon giving notice in the Gazette (one month's notice in the case of a mine or mining purposes, and three months' notice in any other case), and upon payment of the value of the improvements on the portion resumed and a reduction in rent proportionate to the area resumed. The farm was to be kept free from rabbits and other noxious animals, and scrub (except edible scrub) and from noxious weeds, subject to certain specification under the relevant regulation. Box, yarran and pine timber of three inches or over in diameter at three feet from the ground could not be ringbarked or destroyed without permit, provided that the lessee could clear any land to be cultivated within 12 months from the date of clearing, and could cut any timber required for the purpose of erecting any necessary buildings or other improvements. No timber could be cut or removed for sale, except subject to the Forestry Act 1909 (NSW) and regulations thereunder. The lessee was to preserve emu bush, currant bush, ironwood, currajong, and other fodder trees. All travelling stock and camping reserves, or travelling stock reserves, in Portion 1 (Portion 1 was within the area covered by Settlement Lease No. 1911/12 Nyngan, and it included travelling stock reserve 26459) were during the whole currency of the lease to be open to the use of bona fide travellers, travelling stock, teamsters, and carriers, without interference or annoyance by the lessee. The lessee was to post in a conspicuous place notice-boards indicating the purpose of the reserves. In fencing any such reserve, the lessee was to provide gates and other facilities for the entrance and exit of travelling stock. The Minister for Lands could withdraw from the lease at any time the whole or any part of the land within the travelling stock or camping, reserves for any public purpose, and the lessee was not entitled to any compensation whatsoever, either for any land withdrawn or any improvements on the land. The lessee was not entitled to overstock the part of the land covered by a travelling stock or travelling stock and camping reserve, either wholly or in part. All persons authorised to do so had the full right to enter the land at any time within reasonable hours for the purpose of cutting and removing timber without interference by the lessee, and the lessee was to provide convenient gateways or openings where required for that purpose. The lessee was to permit timber-getters to camp and graze their teams within the lease, subject to s 20 of the Forestry Act 1909 and the payment of agistment fees under that section. The character of the land was described as "Climatic conditions are against profitable agriculture… Carrying capacity one sheep to 4½ acres, improvable to one sheep to 4 acres". The lessee was required to enter into residence within three months of the execution of the lease. The term of the lease was 40 years, in four terms. 236 As noted, the parcel of land ID 4917 (TR 44175), being part of the land within the area covered by Settlement Lease No. 1911/2 Nyngan, was converted into a conditional lease (being Conditional Lease No. 1929/4 Nyngan). For the reasons set out in the Introduction, I reject the applicant's contention that events post the initial grant of a lease are irrelevant. I accept the State's submissions at [196]-[198] that as a result of the conversion, ID 4917 (TR 44175) was a Scheduled interest within the NT Act, Sch 1, Pt 1 cl 3(5), and therefore wholly extinguished any native title rights and interests with respect to that land.

[72]

(iv) Settlement Lease No. 1909/3 Coonamble 237 The following conditions indicate the precarious nature of the interest held by this Settlement Leaseholder, broadly similar with the position concerning a Pastoral Lease granted under either the CL Act 1884 or the CL Act 1895, prior to the lease being extended in 1936 to a lease in perpetuity: The area of the farm was 3,630 acres. The lessee could not assign or sublet without the Minister's consent, and if any stock not owned by the lessee were found depasturing on the lease, it was prima facie evidence of subletting. The power was reserved to the Crown and to any person authorised by the Minister for Mines to enter upon the farm and search for and win minerals. The power was reserved to the Crown to resume any portion of the farm which was required for mining, mining purposes, or any other public purpose upon giving notice in the Gazette (one month's notice in the case of a mine or mining purposes, and three months' notice in any other case), and upon payment of the value of the improvements on the portion resumed and a reduction in rent proportionate to the area resumed. The farm was to be kept free from rabbits and other noxious animals, and scrub (except edible scrub) and from noxious weeds, subject to certain specifications under the relevant regulation. The lessee was required to preserve firebelts three chains wide along each boundary of the lease. The lessee could kill by ringbarking or otherwise all timber, except myall and other fodder trees, and box trees three inches or over in diameter at three feet from the ground which were suitable for building or fencing purposes, and was required to preserve for shade and shelter trees in the proportion of one to ten acres. The lessee could take from the land any timber required for building, fencing or other purposes. All travelling stock or camping reserves within the farm were during the whole currency of the lease to be open to the use of bona fide travellers, travelling stock, teamsters, and carriers, without interference or annoyance by the lessee. The lessee was to post in a conspicuous place notice-boards indicating the purpose of the reserves. In fencing any such reserve, the lessee was to provide gates and other facilities for the entrance and exit of travelling stock. The Governor could withdraw from the lease at any time the whole or any part of the land within the travelling stock or camping reserves for any public purpose, and the lessee was not entitled to any compensation whatsoever, either for any land withdrawn or any improvements on the land. The lessee was not entitled to overstock the part of the land covered by a travelling stock or camping reserve, either wholly or in part. Pending the creation of a trust under the Water and Drainage Act 1902 (NSW), power was reserved to the Crown to enter the land at any time for the purpose of construction, maintenance, or repair of any bore, or any water-distributing channel connected to it. The lessee could not interfere with, injure, or destroy any work, or pollute, or obstruct, or divert, or interfere with any water flowing along the channel. The lessee was to have no right to any water from the bore or distributing channel that might pass through the farm land. The lessee had no right to compensation if the water through those channels was stopped, if the channels were used in conjunction with an extended scheme under the Water and Drainage Act 1902, or for any distributing channels the lessee might construct. The lessee agreed not to avail him or herself of the right to objection under s 8 of the Water and Drainage Act 1902. The right of the public to the legitimate use of Crossing Reserve 21822 (over which Settlement Lease No. 1909/3 Coonamble was granted) was not be interfered with. The land was described as "good grazing land". The lessee was required to enter into residence within three months of the execution of the lease. The term of the lease was 40 years, in four terms. 238 As noted, in 1936, Special Lease No. 1909/3 Coonamble was extended to a lease in perpetuity. For the reasons set out in the Introduction, I reject the applicant's contention that events post the initial grant of a lease are irrelevant. I accept the State's submission that the effect of the grant of the lease in perpetuity conferred a right of exclusive possession on the lessee which is wholly inconsistent with any native title rights and interests in the lease area, as indicated by Anderson.

[73]

(v) Settlement Lease No. 1911/9 Nyngan 239 The following conditions indicate the precarious nature of the interest held by the Settlement Leaseholder, broadly similar with a position concerning a Pastoral Lease granted under either the CL Act 1884 or the CL Act 1895. The area of the farm was 5,870 acres. The lessee could not assign or sublet without the Minister for Lands' consent, and if any stock not owned by the lessee were found depasturing on the lease, it was prima facie evidence of subletting. The power was reserved to the Crown and to any person authorised by the Minister for Mines to enter upon the farm and search for and win minerals. The power was reserved to the Crown to resume any portion of the farm which was required for mining, mining purposes, or any other public purpose upon giving notice in the Gazette (one month's notice in the case of a mine or mining purposes, and three months' notice in any other case), and upon payment of the value of the improvements on the portion resumed and a reduction in rent proportionate to the area resumed. The farm was to be kept free from rabbits and other noxious animals, and scrub (except edible scrub) and from noxious weeds, subject to certain specifications under the relevant regulation. The lessee was to preserve currajong and other fodder trees. Box, ironbark, and pine or other trees three inches or over in diameter at three feet from the ground which were useful, or likely to prove suitable for fencing, building, or railway sleepers, were not to be destroyed by ringbarking or otherwise, except with a permit. The lessee could clear any land, exclusive of firebreaks, which was to be cultivated within 12 months from the date of clearing, and could cut any timber required for the purpose of erecting any necessary buildings or other improvements. No timber was to be cut or removed for the purpose of sale, except subject to the provisions of the Forestry Act 1909. The lessee could destroy all other timber except edible shrubs. Any person authorised would have the full right to enter upon the land at any time within reasonable hours during the currency of the lease for the purpose of cutting and removing timber without interference by the lessee. The lessee was to provide convenient gateways or openings where required for this purpose, or where directed by the Minister or any officer authorised by the Minister. The lessee had to permit timber-getters to camp and graze their teams on the lease, subject to s 20 of the Forestry Act 1909 and the payment of agistment fees under that section. The land was described as "sound fairly grassed country, suitable for breeding sheep; carrying capacity - a sheep to 4 acres, and one herd of large stock to 20 acres". The lessee was required to enter into residence within three months of the execution of the lease. The term of the lease was 40 years, in four terms. 240 For all these reasons, I reject the State's submission that each of the Settlement Leaseholders enjoyed rights of exclusive possession or otherwise had rights which were inconsistent with native title rights and interests and that this had the effect of wholly extinguishing any native title rights and interests in the leased land.

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(a) Improvement Leases 258 All three Improvement Leases were granted under s 26 of the CL Act 1895, which at the relevant time provided as follows: The Governor may, under this section, grant leases of Crown lands, which, by reason of inferior quality, heavy timber, scrub, noxious animals, undergrowth, marshes, swamps, or other similar cause, are not suitable for settlement until improved, and can only be rendered suitable by the expenditure of large sums in the improvement thereof. The granting of the leases shall be subject to the provisions hereunder contained: - (I) The term of the lease shall not exceed twenty-eight years, and shall commence from the date of the execution of the lease. (II) The area included in the lease shall not exceed twenty thousand four hundred and eighty acres. (III) The amount bid at a sale by public auction of the lease or offered by an accepted tender shall be the yearly rent of the lease; but an upset rent may be placed upon any such lease, if offered by auction, and the Governor shall not be bound to accept any tender. (IV) The lease may contain such covenants and provisions as to the Governor may seem expedient according to the circumstances of each case, and all such covenants and provisions shall be notified in the Gazette and in a local newspaper before the lease is offered for sale or tenders called for. The lease shall contain covenants and provisions for the improvement of the land leased and for the expenditure of money thereon, for the payment of rent, and for the determination of the lease upon any breach by the lessee of the covenants and provisions thereof. (V) Upon the expiration of the term of the lease by effluxion of time the lessee shall have tenant-right (as the same is hereinafter defined) in improvements. (VI) The Governor may on application as prescribed extend the term of any scrub or inferior land lease granted under the Principal Acts to a term not exceeding twenty-eight years on such terms and conditions as he may think fit, but such term shall lie computed from the commencement of such lease under those Acts, and may grant to the last holder thereof tenant right as defined in this Act. 259 As the terms of s 26 make clear, an Improvement Lease could only be granted over lands which were in need of significant improvement in order to facilitate future settlement. This was acknowledged by O'Connor J in Minister for Lands v Priestley [1911] HCA 68; 13 CLR 357 at 550. 260 In Hopkins v Minister for Lands (1912) 12 SR (NSW) 215 at 225, Pring J said: Improvement leases under s 26 of the Act of 1895 were a form of tenure devised-as the section itself saysto deal with lands which for various reasons were not suitable for settlement, and to render them suitable for settlement as the section says, "by the expenditure of large sums in the improvement thereof." The rent was fixed once and for all. No increase was provided for. Every encouragement was given to the lessee to improve the land. 261 Section 26 of the CL Act 1895 was located in Pt III, which was headed Homestead Settlement Provisions. That part of the CL Act 1895 contained provisions relating to Homestead Selections, Homestead Grants, Settlement Leases, Settlement Leases for Agriculture and Grazing and Improvement Leases.

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(b) Additional facts 262 Each of the three Improvement Leases was located in the Central Division of the State. Each lease was granted for a term of 28 years. In the case of Improvement Lease No. 1161 Coonamble, the leased area was approximately 11,307 acres and was located approximately 37 miles northwest of Coonamble. At the time of grant, the land had on it various improvements, including a woolshed and yards, a tank and fencing. 263 Improvement Lease No. 581 Nyngan was for an area of approximately 5,249 acres and was located approximately 10.5 miles from the town of Hermidale. 264 Improvement Lease No. 958 Nyngan was for an area of approximately 4,477 acres and was located approximately 40 miles from Nyngan and approximately 11 miles from Hermidale. 265 The conditions of each of the three Improvement Leases were substantially similar albeit not identical. 266 It is desirable to record the following particular features of the terms and conditions of each of the three Improvement Leases. 267 Improvement Lease No. 1161 Coonamble had the following relevant terms and conditions (including special conditions): The lessee was required to destroy all non-edible scrubs and to preserve all edible scrubs. The Minister could give permission to the lessee to cut, lop, or whip any of those scrubs for stock-feeding purposes in times of drought. The lessee was to preserve all straight box trees suitable for fencing or building purposes, but was entitled to cut and use any timber for fencing or other improvements within the lease area. The lessee was otherwise to destroy all trees and saplings by ringbarking or otherwise. The lessee could not cut or remove any timber for sale. The lessee was to begin the operations mentioned in the conditions above within 3 months, doing a particular amount each year (including operating in the first year on not less than one-half of the total leased area and completing the remainder within two years). Once any part of the lease area was cleared, the lessee was to keep it clear. The lessee was within three months of commencement to take effective steps to destroy rabbits, wallabies, wild dogs, dingoes, wild pigs, foxes and other noxious animals, and to continue to do so during the term of the lease to the satisfaction of the Minister. The lessee was not to overstock the land. The lessee was required within three years to fence the unfenced boundaries of the area with a six wire fence, with some exceptions where adjoining land was held in the same interest. The lessee was to sink an artesian well on a site within the leased area nominated by the Minister's representative. The lessee was to maintain all improvements on the land. The Governor could at any time withdraw any land from the lease required for mining purposes or for any public purpose, without compensation save for any improvements by the lessee and a reduction of the annual rent proportionate to the area withdrawn. After 14 years, the Governor could withdraw any part of the land required for settlement without any right to compensation save for lessee improvements. All public rights in roads were preserved and all travelling stock or camping reserves within the land had to be open for the use of bona fide travelling stock. The lease was deemed to be a lease for pastoral purposes within the meaning of the Mining Act 1874 (NSW) and as such was subject to the operation of that Act and all Acts amended or extending the same. All persons authorised to do so were to have full right to enter the land for the purpose of cutting and removing timber, without interference by the lessee, and the lessee was to provide convenient gateways and openings where required. If any condition, provision or covenant was not complied with the lease was liable to forfeiture. 268 Improvement Lease No. 581 Nyngan contained the following relevant terms and conditions (including special conditions): The lease was subject to the provisions of the Rabbit Act 1890 (NSW) and the lessee was required to destroy all rabbits and other vermin, to be commenced within the first 12 months of the lease and continued for its duration. The lessee was required to fence the land within three years from execution of the lease, however, the Minister could grant an exemption from fencing any boundary. The lessee was required to burn off all fallen timber, scrub, and debris, and to keep the land clear of noxious weeds, suckers, scrub and prickly-pear. The lessee was not allowed to assign or sublet the lease without the Minister's consent. The lease was subject to the reservation of all public rights of roads, of camping, and of bona fide travelling stock, and of the right to use designed roads shown on plan when required. The lease was deemed to be a lease for pastoral purposes, and as such was subject to the operation of the Mining Act 1874 and all Acts amending or extending the same. The Governor could withdraw at any time land required for any public purpose, without any compensation other than a pro rata reduction of rent. The lessee was entitled to tenant-right (as defined in s 51 of the CL Act 1895) in improvements on termination of the lease if the lease conditions were fulfilled. Each tenderer for the lease was to state in the tender whether they were willing to be bound by a condition of residence and the conditions of residence they were prepared to submit to. The lease was liable to forfeiture if any of the provisions, conditions, covenants, or reservations were not complied with to the satisfaction of the Minister for Lands. 269 Improvement Lease No. 958 Nyngan contained the following relevant terms and conditions: The lease was subject to the provisions of the Rabbit Act 1890 and the lessee was required to destroy all rabbits and other vermin, to be commenced within the first 12 months of the lease and continued for its duration. The lessee was required to fence the land within three years from execution of the lease, however, the Minister could grant an exemption from fencing any boundary. The holder was required to burn off all fallen timber, scrub, and debris, and to keep the land clear of noxious weeds, suckers, scrub and prickly-pear. The lessee was not allowed to assign or sublet the lease without the Minister's prior consent. The lease was subject to the reservation of all public rights of roads, of camping, and of bona fide travelling stock, and of the right to use designed roads shown on plan when required. The lease was deemed to be a lease for pastoral purposes, and as such was subject to the operation of the Mining Act 1874 and all Acts amending or extending the same. The Governor could withdraw at any time land required for any public purpose, without any compensation other than a pro rata reduction of rent. The lessee was entitled to tenant-right in improvements on termination of the lease if the conditions of the lease were fulfilled. The lease was liable to forfeiture if any of the provisions, conditions, covenants, or reservations were not complied with to the satisfaction of the Minister for Lands.

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(c) State's primary submissions summarised 270 The State adopted its submissions on matters of general legal principle as outlined in the Introduction. Additionally, it submitted that in circumstances where the critical object of an Improvement Lease was to improve the land to make it suitable for settlement, this object was inconsistent with the recognition or protection of native title. It emphasised that the three Improvement Leases were issued over land that was in reasonably close proximity to settled populations. 271 The State submitted that each of the three lease instruments adopted the language of a "true lease in the common law sense", with particular reference to the use of words such as "rental", "rent", "to hold the land", "together with all rights, easements and appurtenances to the same" and "lands hereby demised". The State pointed out that the holder of each Improvement Lease was described as the "lessee". The State acknowledged that these matters of nomenclature were "far from determinative", but said that they lent support for its contention that the Improvement Leases were a true lease of the kind known to the common law. 272 The State emphasised the requirement in each Improvement Lease that the lessee carry out extensive clearing works, including by removing trees and noxious weeds, which involved work which would be of an enduring nature and designed to secure settlement of the land either by the lessee or some other person. 273 In the case of Improvement Lease No. 1161 Coonamble, there was also a requirement for the lessee to sink an artesian bore, as noted above. 274 In further support of its contention that the conditions applicable to each Improvement Lease indicated that the purpose of the lease could not be realised unless exclusive possession was granted, the State pointed to the fact that each lessee was required to erect a boundary fence and each lease could be assigned or sublet with Ministerial consent. Furthermore, the State relied upon the fact that an Improvement Leaseholder could erect improvements on the land, including a residence, which the State claimed indicated the substantive nature of the interest conferred upon the leaseholder. 275 Furthermore, the State pointed to the fact that an Improvement Leaseholder was entitled to apply under s 27 of the CL Act 1895 for a "homestead selection" over that part of the leased land on which the lessee's residence had been constructed, up to an area of 640 acres. Section 27 provided: Homestead Grants out of Leases. 27. The holder of any pastoral or homestead lease in the Western Division, or of any scrub lease not being within a pastoral or homestead lease, or of any lease of inferior lands, whether granted before or after the commencement of this Act, or of any improvement lease, whose dwelling-house may be erected on Crown lands, may, at any time during the last year of the term of the lease, apply for the portion of the leasehold which contains such dwelling-house not exceeding six hundred and forty acres in area, as a homestead selection, subject to the provisions hereunder contained:- (I) The area which may be so applied for shall, before the date of the application for the same, have been improved by the holder of the lease or his predecessors in title with permanent, fixed, and substantial improvements to the value of one pound per acre, and the improvements shall at the date of the application be on the land and be the property of the applicant. (II) The application shall be made in the prescribed manner, and the applicant shall, before the grant is issued, pay the full cost of survey. (III) The land shall be measured in the same form as if it were an original conditional purchase, and the measurement shall be completed before the application is confirmed, and the Local Land Board shall have the same powers of modification, allotting land, and otherwise, in respect of any such application as it has in the case of applications for conditional purchases. (IV) The Governor may thereafter grant to the applicant the land for which the application has been confirmed as a homestead selection, the value of which shall be determined in accordance with the provisions of section six of the "Crown Lands Act of 1889," and be subject to reappraisement as also hereinbefore provided. (V) Upon the issuing of the grant the land granted shall be withdrawn from the lease, but the lease shall otherwise continue in full force and effect. The holder of a settlement lease may make the like application for a homestead selection out of the land leased, and the foregoing provisions (other than that requiring improvements to the value of one pound per acre) shall apply in any such case, except that the maximum area which may be applied for and granted shall be one thousand two hundred and eighty acres. 276 The State contended that a Homestead Selection was a form of tenure which had all the advantages and essence of a freehold, which is wholly inconsistent with the continuation of native title rights and interests. 277 Finally, the State submitted that although the Crown was empowered to withdraw parts of the leased area covered by all three Improvement Leases for particular purposes, each lessee had an entitlement to at least some form of compensation if land was so withdrawn.

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Resolution 279 For the following reasons, I find that none of the three Improvement Leases conferred exclusive possession, nor were they wholly inconsistent with any native title rights and interests in the relevant leased areas. 280 First, the lessee's interest under each Improvement Lease can aptly be described as precarious having regard to the fact that each was subject to the following sorts of conditions: (a) Each of the Improvement Leases contained a condition which deemed the lease to be a lease for pastoral purposes, within the meaning of the Mining Act 1874. Under s 2 of the Mining Act 1874, "Crown Lands" was defined as all lands vested in Her Majesty which have not been dedicated to any public purpose or which have not been granted in fee or lawfully contracted to be granted or which are not under lease for purposes other than pastoral purposes. Thus the deeming of an Improvement Lease to be a lease for pastoral purposes had the effect of attracting the operation of relevant provisions of the mining legislation. Crown Lands were vulnerable to the exercise of miner's rights in gold fields, which entitled a miner to enter and take possession of land for the purposes of mining gold (Mining Act 1874, s 15(6)). Crown Lands were also subject to a miner's rights to enter, occupy and reside on the land for the mining of gold purposes (s 15(1)); to construct water-races, dams, and reservoirs and to take or divert water (s 15(2)); to erect buildings and structures and remove stone or gravel (s 15(4)) and to make tramways and roads for carrying out mining operations (s 15(5)). These are significant third-party rights which are scarcely consistent with the suggestion that an Improvement Leaseholder had a right of exclusive possession or had rights which were otherwise inconsistent with native title rights and interests. (b) Other terms and conditions attached to each of the Improvement Leases support the applicant's position that these leases did not confer exclusive possession. These included the need to obtain consent to sublet or assign the lease and other third-party rights of entry, including the right to enter to cut and remove timber. Moreover, the Governor could withdraw from the lease any land required for any public purpose at any time, with no compensation payable to the Improvement Leaseholder apart from a pro rata reduction in rent. The holder of Improvement Lease No. 1161 Coonamble was in a slightly different position to the other two leaseholders because he or she was also entitled to compensation for improvements on any land so withdrawn. 281 Secondly, while I accept the State's submission that each of the three Improvement Leases contained provisions which indicated that the holder was obliged to use the land with some intensity and that, in some circumstances, this may be an indicia of exclusive possession (particularly where the lease area is relatively small), I consider that this matter is strongly outweighed by the many other terms and conditions of the Improvement Leases which highlight the precarious nature of the interests conferred. It is to be noted that the lease area of each of the Improvement Leases in this Schedule was extensive and ranged from approximately 4,500 acres to 11,000 acres. 282 Thirdly, I accept the applicant's submission that many of the provisions relied upon by the State in support of its "intensity" argument (such as the right to erect fences, to build a residence, to clear the land and the requirement under Improvement Lease No. 1161 Coonamble that the lessee sink an artesian bore), are similar in nature to the rights held under a pastoral lease under CL Act 1895. Although there are serious limitations to the significance to be attached to the nomenclature of the terms and conditions of pastoral leases and Improvement Leases, I accept the applicant's submission that it would be inconsistent with the legislative purpose for the holder of an Improvement Lease to have any greater interest than a pastoral lessee. This is confirmed by extrinsic legislative materials relating to the Bill which became the CL Act 1895 and, in particular, statements concerning the rationale for creating Improvement Leases; namely to enable pastoralists and graziers to improve the carrying capacity of land which otherwise was virtually worthless. In the Parliamentary Debates on 4 October 1894, one parliamentarian, Mr Hassall, described Improvement Leases in the following terms: Now, with regard to improvement leases, dealing practically with the waste scrub lands of the colony which are, at the present time, utterly valueless to the State, which are bringing in no revenue whatever, which are lying idle because people will have nothing to do with them and which are overrun with vermin and scrub and are absolutely useless and also a menace and danger to the State, I contend that the State could do nothing better than let people have these lands, if necessary, at the peppercorn rent for fifty years. 283 Fourthly, as the State correctly pointed out, an Improvement Leaseholder was entitled to apply for a Homestead Selection. That right, however, was subject to several important limitations. For example, the maximum area was limited to 640 acres and had to contain a dwelling house. Any such application could only be made in the last year of the term of the lease and s 27 of the CL Act 1895 contained various other requirements regarding the nature and extent of the improvements which the lessee must have made to the leased area. The right to upgrade to this higher land tenure was far from absolute or guaranteed, nor would the upgrade occur as matter of course given that an application was required. 284 Fifthly, in assessing the extent to which the Improvement Leaseholder's rights were capable of co-existing with any native title rights, it is important to take into account and give substantial weight to the relatively extensive areas the subject of each of the three Improvement Leases here and the intrinsically inferior quality of the leased land the subject of those leases. These features are not incompatible or inconsistent with the existence and continuation of native title rights and interests. 285 Sixthly, as the State frankly acknowledged, the use of particular terminology in the lease instruments, which is shared with common law leases, falls far short of being a determinative consideration. In my view, although there is some shared use of terminology, it should be accorded little weight and, in the present matter, it is overwhelmingly outweighed by other relevant considerations as described above.

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(a) Legislation concerning Homestead Leases 294 Homestead Leases are one of several kinds of leases which could be granted under Pt IV of the CL Act 1884. It is desirable to highlight the following relevant features of that Act not only with respect to Homestead Leases but also other leases which could be granted under Pt IV. 295 It is convenient to start with a summary of some relevant definitions in that Act. Section 4 contained the following definitions: "Pastoral Holding" meant "the area included within the continuous boundaries or reputed boundaries of any station worked or used for grazing purposes whether such station includes more than one run or includes lands held by or in the interests of the runholder otherwise than under pastoral or pre-emptive lease or not". "Run" was relevantly defined to mean "Crown Land held under pastoral lease at the commencement of this Act and also any land which by the operation of this Act may have reverted or may revert to such lease". "Crown Lands" meant "lands vested in Her Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple under this Act or any of the Acts hereby repealed". "Leasehold Area" meant "that portion of a Pastoral Holding for which a Pastoral Lease may be granted under this Act". "Resumed Area" meant "that portion of a Pastoral Holing for which a Pastoral Lease may not be granted under this Act". 296 The importance of the CLA Act 1884 in regulating dealings in Crown land is reflected in s 5, which provided that Crown Lands shall not be sold, leased, dedicated, reserved or dealt with except under and subject to the provisions of the CL Act 1884. The Governor was empowered under s 6 to grant, dedicate, reserve, lease or make any other disposition of Crown Lands but only for some estate interest or purpose authorised by the CL Act 1884. 297 Turning now to Part IV of the CL Act 1884, s 70 provided that all "Pastoral Holdings", as defined in s 4, continued "to be subject to the same rights of occupation by runholders and to the same terms and conditions of occupation as before the commencement of this Act", subject to the provisions of the Act and until such Pastoral Holdings were brought under the legislation via notification in the Government Gazette or otherwise dealt with. 298 Under ss 71-75 of the CL Act 1884, all pastoral leases were required to be surrendered to the Crown and divided into two equal parts. One part was returned to the lessee under a statutory lease for a fixed term of years. The other part was called the "resumed area", as defined in s 4. 299 The expression "Pastoral Lease" was not specifically defined, however, its meaning can be derived from s 78, which provided (copied exactly and noting the lack of punctuation is in the original text): Pastoral Leases. The Governor may grant Pastoral Leases of leasehold areas subject to the provisions following - (I.) In the Western Division every such lease shall be for the term of fifteen years - in the Central Division for the term of ten years - and in the Eastern Division for the term of five years and every such lease in the Western Division shall commence at the date of determination of the existing lease or if more than one lease be held by the same runholder then at a date calculated with due regard to the mean date of determination of such leases. (II.) The rent shall in all cases commence from the date of the notification of the division of the Pastoral Holding and be determined by the Minister after appraisement by the Local Land Board which shall conduct all appraisements in the prescribed manner The yearly rent in the Western Division shall not be less than one penny per acre in the Central Division not less than three half-pence per acre and in the Eastern Division not less than one penny per acre. (III.) In the Western Division the rent so determined shall apply to the first period of five years of the lease and such rent shall be increased by one-fourth for the next period of five years and for the residue of the term by one-half In the Central Division the rent so determined shall apply to the first period of five years of the lease and such rent for the residue of the term shall be increased by one-fourth In the Eastern Division the rent so determined shall apply to the whole term of the lease (IV.) Pastoral Lessees shall have a right at the expiration of their leases to an extension thereof for the term of five years subject to the payment of such annual rent as the Minister after appraisement by the Local Land Board shall determine not being less than the rent paid for the last past five years of the currency of such lease Provided always that no extension shall be given to any such lessee if the Minister shall have notified in the Gazette two years prior to the expiration of the original lease that no such extension shall be given. (V.) Whenever the rent of a Pastoral Lease shall be determined notice thereof shall be published in the Gazette and shall be notified to the runholder in the prescribed manner and if within the time and according to the manner prescribed the runholder shall fail to pay into the Treasury the amount notified to be due under such lease his right thereto shall be liable to forfeiture. (VI.) The holder of a Pastoral Lease may surrender his lease at the end of any term of five years if he shall have given the Minister not less than three months' notice of his intention to surrender the same. (VII.) The Governor may withdraw from lease any land required for any public purpose including for the purposes of settlement for towns and villages and upon publication in the Gazette of such withdrawal the lessee shall be entitled to such compensation in respect of the land so withdrawn for the unexpired term of such lease and for improvements lawfully made by such lessee upon the land so withdrawn from lease as may be determined by the Minister after appraisement by the Local Land Board. (VIII.) The Governor may cancel wholly or in part any reserve within a leasehold area and upon the notification in the Gazette of such cancellation the land described therein shall be added to the leasehold area and payment of rent from the date of such cancellation shall be made for such area at the same rate per acre as for the rest of the Pastoral Lease provided it has not already been included in the rent of such Pastoral Lease together with such additional rent for any improvements thereon as may be determined by the Minister after appraisement by the Local Land Board. (IX.) If it be determined to grant the extension hereinbefore provided of any Pastoral Lease the lessee shall be informed by notice in the Gazette not less than nine months before the expiration of his lease of the terms and conditions under which the new lease will be granted and if on or before the thirtieth day of September next ensuing he shall pay to the Treasury the rent so notified he shall be entitled to such lease. 300 Part IV of the CL Act 1884 provided inter alia for Occupation Licences, Homestead Leases, Annual Leases for Pastoral Purposes (s 85) and Special Leases (which included Scrub Leases - see ss 86-88). It also contained provisions affecting leases, lessees and licensees. As previously mentioned, the State was divided into three districts, namely the Central, Eastern and Western Districts. 301 Section 81 dealt with Occupation Licences, which entitled a licensee to occupy land for grazing purposes. 302 Homestead Leases were dealt with in s 82. It applied to land in the Western District only. Section 82 provided (copied exactly and noting the lack of punctuation is in the original text): Homestead Leases. In the Western Division the Governor may grant Homestead Leases within resumed areas or vacant lands subject to the provisions following: - (I.) The area of a Homestead Lease shall not exceed ten thousand two hundred and forty acres nor be less than five thousand seven hundred and sixty acres and shall be granted for a term of fifteen years with the same right of extension as hereinbefore provided for Pastoral Leases. (II.) Applications for Homestead Leases may be made in the prescribed manner upon any Land Office day and with such application there shall be lodged a sum equal to one penny per acre for the area so proposed to be leased Provided that applications for such leases may after report by the Local Land Board be by the Minister refused or the position and boundaries thereof may be altered varied or modified and where more than one applicant shall apply for the same land or for any portion thereof on the same day the right of lease shall he determined in the prescribed manner and all provisions as to rent and otherwise under which Pastoral Leases in the Western Division may be issued forfeited surrendered extended or otherwise dealt with shall apply to such Homestead Leases. (III.) Every applicant for a Homestead Lease shall after the survey of the land subject to the provisions of the preceding subsection and to the payment in the prescribed manner of the value of the improvements upon the land to be determined by the Local Land Board enter into occupation thereof within ninety days after the notification in the Gazette of the approval of the issue of a lease Provided that within two years after such entry he shall fence the outside boundaries of such land by a fence of the prescribed character But for sufficient cause shown the time for completing such fencing may be extended by the Local Land Board Should the Minister recommend the issue of a lease in a form other than as applied for the applicant may within the period before mentioned notify in writing to the Local Land Board his intention of not accepting it and he shall thereupon be entitled to a refund of the deposit paid but in default of any notice of such intention or of occupation within the time specified for either purpose the deposit shall be forfeited In the event of the non-acceptance of the lease the land shall revert to the holding from which it was taken until leased under this Part. (IV.) The holder of a Homestead Lease shall reside upon the leased land for at least six months during each of the first five years of his lease. 303 If a Homestead Lease expired, or was forfeited or surrendered, the land could again be leased as a Homestead Lease by auction or tender, but the outgoing tenant was not entitled to compensation for any improvements (s 83). 304 Limitations on holding various leases in combination, including Pastoral Leases and Homestead Leases, were imposed by s 84. 305 Every lease or licence was liable to forfeiture if rent was not paid or any condition was breached (s 96). 306 Section 98 of the CL Act 1884 applied to all leases and licences granted under the Act. It provided: The following provisions shall govern all leases and licenses granted under this Act and the holders of such leases or licenses namely: - (I.) No lease or license other than special leases shall confer any right to remove material from the leased land or to sublet such land for other than grazing purposes or to prevent the entry and removal of material by authorised persons. (II.) Lessees and licensees may take from land under lease or license to them not comprised within a timber or forest reserve such timber and other material for building and other purposes upon the land under lease or license as may be required by them as tenants or licensees respectively. (III.) No lessee or licensee shall prevent other persons duly authorised in that behalf either from cutting or removing timber or material for building or other purposes or from searching for any mineral within the land under lease or license Provided that nothing in this subsection shall apply to a Conditional Lease as regards the taking or removal of timber or other material for building purposes. 307 Part VII of the CL Act 1884 also contains some relevant provisions. Under s 118, the holder of a Homestead Lease could transfer the Lease in the manner prescribed, provided that the condition of residence had been fulfilled. 308 Under s 130, the holder of a Homestead Lease was entitled to bring an action in trespass, subject to certain limitations: No person occupying land under a conditional purchase or conditional or homestead lease shall be entitled to bring any action for trespass (other than a wilful trespass) on such land until he shall have fenced such land pursuant to the provisions of this Act. 309 The CL Act 1884 was amended by the CL Act 1889. The amendments included amendments relating to conditional purchases, conditional leases and Homestead Leases. Under s 34, the minimum and maximum size of a Homestead Lease was set generally at 2,560 and 10,240 acres respectively. Provision was made for an existing Homestead Lessee to apply for additional adjoining Homestead Leases, as long as the maximum area limit was not exceeded for the total area (s 34). Homestead Lessees were required to reside continuously on the leased land for at least six months of each year of the prescribed term of residence (s 34). 310 Both pastoral leases and Homestead Leases were affected by s 35, which empowered the Minister to declare land affected by scrub or noxious undergrowth to be "scrub lands". Where declared scrub lands were within the area of an existing pastoral lease or Homestead Lease, the existing lessee (and no one else) could apply for a Scrub Lease over that area (s 35). 311 The CL Act 1889 also contained provisions which enabled a Homestead Lessee or a Pastoral Lessee in the Central or Western Divisions to obtain an extension of their lease (s 43). Upon the expiration of the original or extended term of any Homestead Lease, or of any pastoral lease in the Central or Western Divisions, all improvements made to the leased land became the property of the Crown, with no right to compensation (s 43). 312 Section 21 dealt inter alia with Homestead Leases applied for after the commencement of the CL Act 1889. It provided: In the case of conditional purchases and homestead leases applied for since the commencement of the Principal Act the required term of residence shall not be held to have extended or to extend beyond five years from the date of the application for such purchase or lease, anything in the Principal Act to the contrary notwithstanding; provided that residence has been or shall be commenced within three months from confirmation of the conditional purchase application, or within ninety days from the notification of approval of the lease, and continued in either case until the expiration of the said term. Any holder of a conditional purchase or conditional lease, the application for which may have been confirmed before the twenty-fourth day of July, one thousand eight hundred and eighty-eight, may within two years from the date of confirmation of such application apply under the provisions of section two of the "Crown Lands Act Further Amendment Act," for permission to substitute improvements in lieu of fencing. Holders of conditional leases under the fifty-second section of the Principal Act shall, within two years from the commencement of this Act, or within such extended term as may be granted by the Local Land Board upon application as prescribed, fence the boundaries of the land held thereunder, or may within the two years aforesaid make an application under section four of the "Crown Lands Act Further Amendment Act" to substitute other improvements in lieu of fencing; the period prescribed by the last-mentioned Act for the making or completion of such improvements shall be computed from the commencement of this Act. The mere fact that forfeiture of a conditional purchase has before or after the commencement of this Act been notified shall not bar the issue of the certificate of abandonment referred to in section twenty-two of the Principal Act. 313 Section 21 of the CL Act 1889 was required to be read with s 24 of that Act, which provided: If the holder of any conditional purchase or conditional or homestead lease applied for before or after the commencement of this Act, shall through illness, drought, flood, or other sufficient cause be prevented from fulfilling any conditions of residence, fencing, or improvements attaching thereto, the Local Land Board may, on application as prescribed, and after inquiry in open Court, suspend for a specified period not exceeding six months any or all of such conditions. On the expiration of such specified period the holder shall (if a condition of residence attaches to the purchase or lease) commence and continue to reside thereon for a period which (when taken with the period during which he may have resided thereon since the date of his obligation to do so) shall complete the full term prescribed by the Principal or this or any repealed Act, and shall, during the term extended as aforesaid or otherwise, complete any other conditions, subject upon default in either case to forfeiture. Within three months after the expiration of such term the conditional purchaser shall make a declaration as to fulfilment of conditions. Nothing in the Principal or this Act shall be held to prevent or to have prevented a Local Land Board from extending for more than one year the term for the erection of fencing in respect of any conditional purchase or conditional or homestead lease. 314 Regard should also be had to certain provisions of the CL Act 1895 (s 1(c) required that that Act be read together with, inter alia, both the CL Act 1884 and the CL Act 1889). 315 Section 130 of the CL Act 1884, which dealt with trespass (as noted above), was repealed by s 55 of the CL Act 1895, and was replaced by the following provision: Trespass and Impounding. Section one hundred, and thirty of the "Crown Lands Act of 1884" is hereby repealed. No person occupying land under a conditional purchase, homestead selection, conditional lease, homestead lease, settlement lease, or annual lease, or in virtue of an application for a conditional purchase, or for a conditional lease, or a homestead lease shall - (a) bring an action for trespass committed by stock upon the said land, whether before or after the commencement of this Act; or (b) impound any stock trespassing upon the said land - unless the said land or the portion thereof trespassed upon was, at the date of the trespass, enclosed with a fence reasonably sufficient to keep out stock: Provided always that nothing in this section contained shall - (a) apply to any trespass wilfully caused, or (b) affect any action which is pending at the commencement of this Act, or (c) refer to any conditional purchase or homestead selection, for which a grant has been issued at the date of such trespass. 316 Further significant amendments were made by the CL Act 1895. Part III dealt with Homestead Selections which could be granted by the Governor under s 17 and which grant carried an obligation on the grantee to live on the land and pay rent in perpetuity. 317 Separate provision was made in the CL Act 1895 for Settlement Leases for Agricultural and Grazing (s 24), Settlement Leases (s 25), Improvement Leases (s 26) and Homestead Grants out of certain leases (s 27). The effect of those provisions on other land tenures is discussed elsewhere in these reasons for judgment where relevant. 318 Other relevant provisions relating to Homestead Leases were set out in the Crown Lands Regulations 1889 (NSW) (see regs 108-132 and forms 16 and 30-41) and the Crown Lands Regulations 1895 (NSW) (see regs 161-184 and forms 27, 31 and 53-59).

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(b) Additional facts 319 The following facts, which are supported by the evidence, were not disputed: (a) Homestead Lease No. 1244 (ID Area 3360) was approved by the Governor and the Executive Council on 18 August 1893 for a term of 21 years, commencing on 21 December 1892 and ending on 20 December 1913. The leased area was 9,190 acres. The leased area was identified as Portion "HL 92-10" and depicted on a plan originally numbered Western Lands Catalogue 9222, now renumbered as DP769222 (with amendments). DP769222 has been amended on several occasions. The original portion was labelled "HL 92-10", as marked in the northernmost corner. The size of that original portion changed from the original of 9252 acres to 9250 acres and finally to "9190 ac: ex por: 31". Homestead Lease No. 1244 was granted over the version of Portion "HL 92-10" which, at the time of grant of Lease 1244, excluded Portion 31. The land within Lot 7303, DP1170965 comprises land that was wholly within the external boundaries of the leased area and also includes the area previously described as Portion 31, which was excluded from the leased area. (b) Homestead Lease No. 1478 (ID Areas 4138-4200 and 4203) was approved by the Governor and the Executive Council on 14 March 1896 for a term of 28 years, commencing on 14 August 1895 and ending on 13 August 1923. The leased area was 5,760 acres. The lease was converted to Western Lands Lease No 1446 (WLL 1446), which was executed on 21 February 1906, pursuant to the Western Lands Act 1901, s 13. The land and waters covered by WLL 1446 were the "Crown Lands comprising about 8850 acres more or less within Homestead Leases Nos 1478 and 1547… exclusive of about 886 acres more or less being the land withdrawn from such leases for Public Watering Place, Village Site at Illawong, Roads, Rubbish Depot, and Cemetery as shown on Plan catalogued WLB No 447. The land remaining in dispute is made up of the Rubbish Depot, Cemetery and parts of the Village of Illewong - that is, land which was within Homestead Lease No. 1478 but which was excluded from the conversion to WLL 1446. The Village of Illewong included allotments within the Village, now depicted as lots on Deposited plan DP758534, several of which were granted in fee simple. The land within the Rubbish Depot was reserved for that purpose in 1906 and is depicted in Crown plans which are in evidence. That reservation remains in force. The land within the Cemetery was dedicated for that purpose in 1907 and is also depicted in Crown plans that were in evidence. 320 Nor was it disputed that some of the conditions of both Homestead Leases were set out in the Crown Lands Regulations 1889 (NSW), notified on 2 December 1889 (see regs 108-132), and in the Crown Lands Regulations 1895 (NSW), notified on 3 June 1895 (see regs 161-184). Both leases were also subject to special conditions specified in the relevant lease instrument which, inter alia, required the lessee to enter into occupation of the leased area within 90 days from the date of approval of the granting of the lease. In the case of Homestead Lease 1244, the lessee was also required to pay for existing Crown improvements within 90 days of that date.

[106]

(c) State's primary submissions summarised 321 In brief, the State urged the Court to find that both Homestead Leases conferred exclusive possession on the leaseholder or otherwise conferred rights which were inconsistent with native title rights and interests. In support of that contention, the State emphasised the following matters: (a) The Governor's power to grant Homestead Leases in the Western Division was limited to "resumed areas" which, in substance, were areas previously subject to a pastoral holding granted under the Crown Lands Occupation Act or "vacant land". (b) The area of a Homestead Lease was between 5,760 and 10,240 acres and such a lease was for a term of 15 years, with the same rights of extension as pastoral leases. Further, they were subject to the same statutory provisions relating to rent, forfeiture and surrender as pastoral leases. (c) Section 82 of the CL Act 1884 obliged the holder of a Homestead Lease to reside on the land for at least six months during each of the first five years of the lease. This reflected the fact that holders of Homestead Leases would settle on the leased land and continue to reside there for a long period and also make improvements to the land. (d) It should be inferred that the legislature intended to confer upon the holder of a Homestead Lease an interest in land of a much more substantive kind to facilitate settlement on the land than is the case with, for example, a licence. This was said to be supported by statements in the second reading speech to the Bill which led to the enactment of the CL Act 1884: I consider that the proposal to grant homestead leases is one of the best in the bill. In the old settled districts of the colony there are a large number of farmers who have brought up families of sons who are only waiting an opportunity to settle upon the lands of the country; but they cannot do so under the provisions of the present law. If the provision as to leaseholds becomes law, young men of energy and with a small amount of capital would be able to make a home and a competence for themselves in a few years. If a man wishes to obtain 5,000 or 10,000 acres of leasehold land, he can only do so by paying a small fortune for the goodwill of the lease. In connection with these leasehold areas certain necessary restrictions will have to be imposed whereby no man shall be able to hold more than one lease, and any lessee who may be interested directly or indirectly in two or more leasehold areas will be liable to have the lease of his principal holding forfeited. These restrictions are necessary if the House wishes to encourage medium-sized holdings. Under the law the number of run-holders is becoming less every year. The runs are being bought up by pastoral kings, by banks and financial companies, and are being aggregated into larger holdings worked by one management. We have, I think, in this colony 4,339 runs, which should be held and worked by an equal number of lessees; but we find that they are in the hands of only a few hundred people. The banks hold 875 runs, or one-fifth of the total number, while in the Albert district twenty persons hold 393 runs, and two banks hold ninety-two runs in the same district. In the Darling district Sir S. Wilson holds fifty-two runs, while ten other persons own 176 runs. If this sort of thing continues, in a few years the whole colony will be in the hands of a hundred persons. If we had twenty squatters or small graziers where we now have but one, would it not be an advantage to the whole colony? (e) The State submitted that the substantive nature of the interest granted under the Homestead Leases here is reflected in the fact that the holders: (i) were required to pay for existing Crown improvements on the land; (ii) were able to transfer the Homestead Lease by way of security or mortgage (see s 34 of the CL Act 1889); (iii) when both Homestead Leases were applied for, the applicants were obliged to ensure that their sole object in applying for the lease was to hold and use the land for his or her "exclusive benefit" (see s 42 of the CL Act 1895); and (iv) each lessee was required to erect a substantial "six-wire" fence around the boundary of the leased area and to lodge a declaration attesting to fulfilment of that requirement (see s 34 of the CL Act 1884). 322 The State contended that these incidents of both Homestead Leases supported its claim that each was a true lease of the kind known to the common law. This was said to be further reinforced by the effect of s 130 of the CL Act 1884 and s 55 of the CL Act 1895, which implicitly provided that lessees could bring an action in trespass against third parties, a view which was accepted in Fergusson. This ability to bring an action against third parties was said to be indicative of a grant of exclusive possession.

[108]

Resolution 324 For the following reasons, I consider that neither of the two Homestead Leases conferred a right of exclusive possession or other rights which were inconsistent with native title rights and interests so as wholly to extinguish any native title rights and interests. 325 First, it is beyond dispute that the purpose of creating Homestead Leases was to encourage leaseholders to live on, and improve, the land. That is not necessarily inconsistent with any native title rights relating to the land. 326 Secondly, the structure of the CL Act 1884 is significant. The object of Pt IV was to split up large pastoral runs (which were defined in s 4 as "Crown Land held under pastoral lease" at the commencement of the CL Act 1884). The provisions in Pt IV dealing with Homestead Leases came immediately after earlier provisions dealing with the division of pastoral runs (ss 70-77), the grant of pastoral leases (ss 78-80) and the grant of occupation licences for grazing purposes (s 81). Subsequent provisions in Pt IV provided for annual leases for pastoral purposes (s 85) and special leases (ss 86-92). Significantly, Pt IV also contained general provisions which affected all leases (see ss 96-98), including: liability to forfeiture for non-payment of rent or breach of any condition; a prohibition on lessees and licences taking timber other than for building or other purposes upon the leased land; and a prohibition on any lessee preventing duly authorised third parties from cutting or removing timber or material for building or other purposes or from searching for any mineral. 327 Thirdly, as mentioned above, the scheme of the legislation was to require the holder of a pastoral run to lodge with the Minister a written application for a pastoral lease, which involved splitting the applicant's holding into two areas, one being the leasehold area and the other being the resumed area. The effect of s 77 of the CL Act 1884 was to entitle a runholder, on application, to occupy the resumed area under an occupation licence for the purpose of grazing. Apart from occupation licences, provision was also made for a Homestead Lease to be granted over that part of the pastoral run which was the "resumed area", as well as Crown Land (ss 81 and 82 of the CL Act 1884). Not unimportantly, Homestead Leases could only be granted in the Western Division, being the most remote part of the State with generally the least arable land. 328 Fourthly, the primary substantive differences between a Homestead Lease and a pastoral lease related to the greater maximum size of the former lease under the CL Act 1884 (10,240 acres for the former lease (s 82), compared to 1,920 acres for the latter lease (s 85)); the requirement that the leaseholder enter into residence within 90 days after approval of the Homestead Lease (s 82(iii)); and that the leaseholder reside on the leased land for at least six months of each of the first five years of the lease (s 82(iv)) (amended to "six months of each year of the prescribed term of residence" under s 34 of the CL Act 1889). I accept the applicant's submission that the evident legislative intention was not to provide Homestead Lessees with any greater interest than that of pastoral lessees. 329 Fifthly, as to the similarities between Homestead Leases and pastoral leases, under the CL Act 1884 the Governor was empowered to grant pastoral leases over leasehold areas in all divisions of the State, with a term of 15 years in the case of a pastoral lease in the Western District (s 78(i)). Provision was also made for the Governor to withdraw from a pastoral lease any land required for any public purpose, but with a related right to compensation (s 78(vii)). Once a pastoral lease expired or was forfeited or was surrendered, provision was made in s 79 for the land to be relet or subdivided and then made available again as a pastoral lease or, alternatively, the area could be declared to be a resumed area (s 79). The term of a Homestead Lease was also 15 years (s 82(i)) and, as the applicant correctly submitted, all provisions that applied to pastoral leases in the Western Division applied mutatis mutandis to a Homestead Lease (being terms relating to rent issuance, forfeiture, surrender, extension, "or otherwise" (s 82(ii)). 330 Sixthly, the close connection between Homestead and pastoral leases is reflected in the fact that the form used for the Homestead Leases was the same as those for any pastoral lease (see regs 103 and 132 of the Crown Lands Regulations 1889 and regs 183 and 188 of the Crown Lands Regulations 1895). Furthermore, under both the CL Act 1884 and CL Act 1889, holders of either a Homestead Lease or a pastoral lease could apply for a Scrub Lease over land within the external boundary of the Homestead or pastoral Lease (s 88 of the CL Act 1884 and s 35 of the CL Act 1889). 331 Seventhly, in the case of both a Homestead Lease and a pastoral lease, the Governor could withdraw any land required for any public purpose at any time (s 78(vii) of the CL Act 1884, read together with 82(ii) which, as noted above, applied all provisions pertaining to pastoral leases in the Western Division to Homestead Leases). In such a case, either kind of leaseholder was only entitled to compensation in respect of the land for the unexpired term of the lease and for improvements lawfully made on the land withdrawn (s 78(vii) of the CL Act 1884). 332 Eighthly, while it may be accepted that the legislature envisaged that Homestead Leaseholders would take up settlement and live on the land for lengthy periods, it should not be overlooked that the residency period was for only five years (or the "prescribed period" under s 34 of the CL Act 1889) and could be broken down to six months of each year (s 82(iv) of the CL Act 1884). This contrasts, for example, with the requirement under a Homestead Selection that the holder reside on the land in perpetuity (see s 17 of the CL Act 1895). 333 Finally, as to the State's reliance on the fact that the holder of a Homestead Lease had a right under s 130 of the CL Act 1884 to bring an action in trespass (other than a wilful trespass), the significance of this right should not be overstated. It is notable, for example, that under s 130 of the CL Act 1884, the holder of a Homestead Lease could only bring an action in trespass if the leased land had been fenced as required. Moreover, under s 55 of the CL Act 1895 (extracted above), the holder of a Homestead Lease was not empowered to bring an action for trespass committed by stock or impound stock, unless the land trespassed upon had been enclosed with a fence reasonably sufficient to keep out stock. This strongly suggests that the actions in trespass contemplated by the legislation were directed to stock trespassing onto the land, rather than Indigenous people exercising native title rights. The right of the holder of a Homestead Lease to bring an action in trespass was limited to circumstances where the trespass was wilfully caused.

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(a) Legislation concerning 18th Section Leases 351 18th Section Leases take their name from a provision in the CLA Act 1903 which created this particular land tenure. Section 18 provided: Leases to outgoing pastoral lessees. 18. The registered holder or person entitled to the equity of redemption of any pastoral lease, preferential occupation license, or occupation license may apply for a lease of an area not exceeding one third of the total area of the land comprised within the lease or license or lease and license at the date of expiration of the pastoral lease, and the Minister shall thereupon refer such application to the local land board for report as to the area of and class of all leases held by the applicant or on his behalf, and as to whether the whole or any part of the land comprised in such application is suitable; for closer settlement or to enable present holders not having a living area to add to their holdings. The Governor may, upon a report from the board recommending such lease, grant such application, either wholly or in part, for a period not exceeding twenty-eight years, subject to the rent conditions of improvement and withdrawal for settlement named in such reference, or such other rent and conditions as the Governor may determine. No lease shall be granted under this section of any land in respect of which an earlier or simultaneous application under section three of this Act is pending. A return of every such lease granted shall be laid before Parliament if in session within one month from date of the granting of the same or otherwise within one month after the commencement of the next ensuing session. No extension of any such lease or license held by way of mortgage on or since the first day of January, one thousand nine hundred and three, shall be granted unless and until a common agreement shall have been arrived at between the mortgagor, the mortgagee, and the Minister as to any adjustment or otherwise of the mortgage debt and as to the terms and conditions to be entered into by such mortgagor and mortgagee in respect of such debt; and for the purposes of this section the Minister shall be entitled to inspect or cause to be inspected on his behalf all or any books of account, mortgages, deeds, securities, conveyances, agreements or any documents or instruments relating to the said debt or the security therefor. The acceptance of any such extended leases by any mortgagee and mortgagor shall have the effect of discharging the mortgage debt in connection with such lease or other security worked in conjunction therewith to the extent determined upon in the common agreement referred to. The mortgages and other instruments by which the repayment of the debt is secured shall have endorsed thereon the particulars of such agreement and all parties thereto shall be bound by such agreement: Provided that the area which may be granted under the provisions of this section shall be inclusive of all lands previously granted on such holding to the applicant under improvement lease conditions. Any lease under this section shall be deemed to be a lease for pastoral purposes within the meaning of the Acts relating to mining. 352 In Stewart v Williams [1914] HCA 43; 18 CLR 381 Griffith CJ said the following at 393 concerning 18th Section Leases: After the year 1895 the same course of legislation continued. By an Act passed in 1903 (3 Edw. VII. No. 15) by which outgoing pastoral lessees and some other outgoing Crown tenants were allowed to apply for a lease of part of the area, the applications were (sec. 18) to be referred to the Land Board, upon whose report the application might be granted for a term not exceeding 28 years "subject to the conditions of withdrawal for settlement named in such reference" or such other conditions as the Governor might determine. 353 The purpose of 18th Section Leases was to encourage closer settlement on suitable land or to enable present holders not having a living area to add to their holdings. It appears that 18th Section Leases were granted to existing occupants of Crown lands. It was also envisaged that the lessee would make improvements to the land, for which there was an entitlement to compensation if the land was subsequently withdrawn for a public purpose. 354 The effect of ss 1 and 2 of the CLA Act 1903 was to extend the application of provisions of both the CL Act 1884 and the CL Act 1889 to 18th Section Leases. Consequently, 18th Section Leases became subject to some provisions of those statutes and related regulations which applied to Crown leases generally. 355 Form No 110 was the standard form used for 18th Section Leases (New South Wales Government Gazette, 3 September 1904, p 6782). As will emerge, the State submitted that some aspects of Form 110 supported its position that 18th Section Leases were true leases in the common law sense. 356 Finally, it is to be noted that the effect of the concluding words of s 18 of the CLA Act 1903 is to deem 18th Section Leases to be a lease for pastoral purposes within the meaning of legislation relating to mining. The State submitted that this is a reference to legislation such as the Mining Act 1874 and provisions in that legislation such as ss 13, 34 and 56 (see [280(a)] of the reasons for judgment concerning Schedule 3).

[132]

(b) Additional facts 357 With reference to each of the five relevant 18th Section Leases, and based on the evidence, the following additional facts are found: (a) Lease No. 144 Nyngan (ID Areas 5124, 5125, 5128 and 5129) was executed on 27 April 1908 and was for a term of 28 years commencing on that date and ending on 26 April 1936. Prior to the grant of Lease No. 144 Nyngan, the land within the leased area had been reserved from sale generally as Reserve No. 41725, and from lease other than a lease under s 18 of the CLA Act 1903 as Reserve No. 41726. The lease was granted to The Australian Estates and Mortgage Company (Limited) over part of the resumed area of the Panjee Pastoral Holding No. 175A, in the County of Flinders. The leased area was 43,891 acres. A part of the leased area, which is now Lot 7001, DP1027075 (ID Area 5125), was reserved from sale pending final decision of routes for travelling stock under s 4 of the Crown Lands Alienation Act. On 11 April 1924, the Governor proclaimed that about 30,340 acres of land within the leased area (being the land now known as Lot 7002, DP1024988 (ID Area 5128) and as Lot 1, DP914867 (ID Area 5129)) be withdrawn for the purposes of settlement, pursuant to a condition of the lease. In 1926, the Governor declared that land known as Portion 3 of Parish of Walton, County of Flinders and comprising 125 acres be added to Lease 144 as Crown Land for use of Crown improvements. Also in 1926, the land now known as Lot 7002, DP1027075 (ID Area 5124) was notified to be Travelling Stock Reserve No. 59171. On 15 January 1908, the land now known as Lot 7002, DP1024988 (ID Area 5128) and Lot 1, DP914867 (ID Area 5129) were reserved for trigonometrical purposes as Reserve Nos. 42,366 and 42,364 (Overflow and Kinnear Trigonometrical Stations). Lease No. 144 Nyngan expired at the end of its initial term and was not renewed. (b) Lease No. 146 Nyngan (ID Areas 90, 92, 93 and 2193), was executed on 27 April 1908 and was for a term of 28 years commencing on that date and ending on 26 April 1936. Prior to the grant of Lease No. 146 Nyngan, on 22 May 1907, land within the leased area was reserved from sale or lease other than a lease under s 18 of the CLA Act 1903, as Reserve No. 41,698. The lease was granted to The Australian Estates and Mortgage Company (Limited). The leased area was granted over parts of the resumed areas of the New Babinda Pastoral Holding No 316A and 316, in the County of Flinders, and was 14,732 acres. The part of the leased area which is now known as Lot 7001, DP1026865 (ID Area 90) and as Lot 7300, DP1128577 (ID Area 92) had been reserved from sale for travelling stock as Reserve No. 4,193 under CL Act 1884, s 109, in 1887 (i.e. prior to the grant of the lease). Further, the land now known as Lot 21 in DP727221 (ID Area 2193) was reserved from sale for trigonometrical purposes as Reserve No. 42,365 (Firbank Trigonometrical Station) on 15 January 1908, just before the lease was granted. On 24 September 1926, the Governor proclaimed the lands in Portions 2 and 11 in the Parish of Barrow, County of Flinders and portions 9 and 10 in the Parish of Firbank, County of Flinders be added to Lease No. 146 for use of Crown improvements. On 6 June 1929, an area of about 4,100 acres was withdrawn from the leased area for purposes of settlement pursuant to the terms of the lease. (c) Lease No. 82 (ID Areas 130, 131, 132, 133, 5563, 5564 and 5569) was executed on 8 March 1906 and was for a term of 28 years commencing on that date and ending on 7 March 1934. Prior to the grant of Lease No. 82, on 30 October 1874, an area of land (including the land now known as Lot 7002, DP1059774 (ID Area 5563); Lot 7007, DP1059889 (ID Area 5564) and Lot 7304, DP1165190 (ID Area 5569)) was reserved from sale pending final decision of routes for travelling stock under s 4 of the Crown Lands Alienation Act. On 26 September 1881, also prior to the grant of Lease No. 82, the land now known as Lot 7006, DP1071567 (ID Area 132) and Lot 7001, DP1071568 (ID 133) was reserved from sale for camping under s 4 of the Crown Lands Alienation Act. The lease was granted to The Bank of New South Wales. The leased area was granted over parts of the resumed areas 599 and 599A of Wonbobbie Pastoral Holding and was 10,240 acres, in the County of Ewenmar. On 16 April 1913, the Governor proclaimed that approximately 65 acres were withdrawn from the leased area for the public purpose of a roadway, pursuant to the terms of the lease. On 15 April 1921, the Governor proclaimed that an area of about 8,300 acres was withdrawn from the leased area for the purposes of settlement, pursuant to the terms of the lease. On 23 May 1929, the Governor proclaimed that approximately 430 acres were withdrawn from the leased area for the purposes of settlement, pursuant to the terms of the lease. On 5 December 1930, the land now known as Lot 7002, DP1059772 (ID Area 130) and Lot 7005, DP1060228 (ID Area 131) was reserved from sale for travelling stock under s 28 of the CLC Act 1913. On 14 January 1932, the Governor proclaimed that an area approximately 90 acres in size was withdrawn from the leased area for the purposes of settlement, pursuant to the terms of the lease. (d) Lease No. 15 Coonamble (ID Areas 1958, 1959, 5585, 5587, 5588 and 5591) was executed on 21 November 1904 and was for a term of 28 years commencing on 21 November 1904 and ending on 20 November 1932. At the time of execution, the leased area was 14,016 acres. Prior to the grant of Lease No. 15 Coonamble, on 24 November 1894, the land now known as Lot 7001, DP1055933 (ID Area 1958) and the land now known as Lot 7005, DP1055934 (ID Area 1959) was notified to be a travelling stock reserve. On 9 April 1913, the Governor proclaimed that an area of about 1 acre was withdrawn from the leased area for the public purpose of a roadway, pursuant to the terms of the lease. On 21 April 1915, the Governor proclaimed that an area of about 370 acres was withdrawn from the leased area for the public purpose of a roadway, pursuant to the terms of the lease. On 16 May 1919, the Governor proclaimed that an area of about 3,210 acres was withdrawn from the lease for the purposes of settlement, pursuant to the terms of the lease. On 26 November 1920, the Governor proclaimed that an area of about 1,426 acres was withdrawn from the lease for the purposes of settlement, pursuant to the terms of the lease. On 20 June 1924, the Minister for Lands published notice to the effect that an area of about 6 acres was withdrawn from the lease and was declared by the Minister to be a public road pursuant to s 18 of the Public Roads Act 1902 (NSW). On 14 August 1925, the Governor and the Minister for Lands declared that an area of about 6 acres within the leased area was declared to be a public road pursuant to s 18 of the Public Roads Act, and was withdrawn from the lease. With effect from 7 September 1926, about 668 of acres of the (then) leased area were surrendered. On 19 October 1934, the land now known as Lot 7007, DP1032459 (ID Area 5585) was notified to be a travelling stock reserve. On 1 March 1935, the land now known as Lot 7002, DP1032460 (ID Area 5588) was notified to be a travelling stock reserve. (e) Lease No. 59 Walgett (ID Area 3214) was executed on 21 July 1905 and was for a term of 15 years commencing on 26 July 1905 and ending on 25 July 1920. On 2 September 1905, land over which the lease was granted was reserved from lease other than lease under s 18 of the CLA Act 1903, as Reserve No. 39,688 (within resumed areas Nos. 141 and 141A). The lease was granted to Thomas Britton, Thomas George Britton (executor and trustee), and George William Britton (trustee of the interest of the late Patrick Britton). The leased area was granted over part of the resumed areas Nos. 141 and 141A of the Bogewong Pastoral Holding No. 175A, in the Central Division of NSW, and was approximately 3,330 acres.

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(c) State's primary submissions summarised 358 In addition to its general submissions regarding the claimed extinguishing effect of statutory leases, the State's primary submissions concerning 18th Section Leases may be summarised as follows. First, having regard to the relevant terms of the legislation relating to 18th Section Leases, together with the historical approach adopted in preceding legislation and the 1847 Orders in Council, 18th Section Leases were intended to be true leases within the traditional common law sense of the word "lease" and thus conferred exclusive possession or rights which were otherwise consistent with native title rights and interests. 359 Secondly, Form 110 adopted the language of demise historically associated with the grant of exclusive possession. 360 Thirdly, the lessee's ability to transfer an 18th Section Lease was said to be indicative of the lease being a lease in the traditional common law sense. 361 Fourthly, the State submitted that a conferral of exclusive possession was implicit in s 250(3) of the CLC Act 1913, which empowered lessees to bring an action in trespass against third parties albeit that s 250(3) regulated that right. 362 Fifthly, the State submitted that any legislative provision or lease condition which authorised entry by certain persons onto to 18th Section Lease lands for specified purposes indicated that, absent such statutory rights of entry, the lessee could exclude such persons from entering the leased lands. 363 Sixthly, the State relied upon the fact that an 18th Section Lessee was entitled to some form of compensation for improvements belonging to him or her in the event that land was withdrawn from the lease area for public purposes. It submitted that this suggested that such a lessee's interest was substantive and greater than a mere transient right to occupy the land for a set period. 364 Finally, the State submitted that, where there were travelling stock routes located on lands covered by 18th Section Leases, the reservation of land for such purposes did not confer on members of the public any rights of access, citing Ward at [200].

[135]

Resolution 366 For the following reasons, I reject the State's position that the five 18th Section Leases conferred exclusive possession or rights which were otherwise inconsistent with native title rights and interests. 367 First, it is notable that 18th Section Leases were available to outgoing pastoral lessees but were limited to a maximum of one-third of the leased land. The holder inter alia of a pastoral lease or the holder of a pastoral lease and occupation licence was entitled at the expiration of the pastoral lease to an extended tenure over one-third of the area of the pastoral lease (and occupation licence where relevant, but only if certain prescribed criteria were met). Both pastoral leases and occupation licences were for grazing purposes and not for some more intensive agricultural purpose which might be inconsistent with native title rights and interests (see ss 4, 71, 77 and 81 of the CL Act 1884). Relevant criteria for the grant of a 18th Section Lease included whether the whole or any part of the land in such an application was considered by the Local Land Board to be suitable for closer settlement or to enable present holders not having a living area to add to their holdings (s 18 of the CLA Act 1903). The right to a 18th Section Lease was not absolute. 368 Secondly, it is notable that the areas covered by the five 18th Section Leases were relatively large notwithstanding that such leases were meant only to cover one-third of the prior pastoral holding. For example, 18th Section Lease No. 144 Nyngan covered almost 44,000 acres, Lease No. 146 Nyngan covered approximately 15,000 acres, Lease No. 82 covered approximately 10,000 acres, Lease No. 15 Coonamble covered approximately 14,000 acres and Lease No. 59 Walgett covered approximately 3,300 acres. In principle, leases granted for grazing over such large areas of land, absent relevant conditions or constraints to the contrary, will normally be able to co-exist with native title rights. 369 Thirdly, it is significant that all 18th Section Leases were deemed to be pastoral leases within the meaning of the State's mining legislation. This had the consequences described at [280(a)] of the reasons for judgment concerning Sch 3. 370 Fourthly, I accept the applicant's submission that the interests granted under an 18th Section Lease can appropriately be described as precarious. Each of the five 18th Section Leases, which took the form of Form 110, contained terms which reserved the rights of both the Government and third parties to enter the land, which is not consistent with the leases conferring exclusive possession. For example, each lease: (a) reserved to the Crown all minerals; (b) reserved the right of any person authorised by the Government to enter upon the lands and to view and inspect the lands; and (c) reserved to the Government the power to resume on the giving of no less than three months' notice any part of the land needed for a road, railway, canal, or any like public purpose, without compensation and subject to payment for the value of improvements. 371 Sixthly, as to the significance of s 250(3) of the CLC Act 1913, I do not accept that it supports the Crown's position (see [575(b)] of Sch 7 below). 372 Seventhly, the State's submission at [362] above is, in effect, a claim based on the expressio unius maxim of statutory construction, which is notoriously unreliable. No inference should be drawn that, absent the conferral of express powers of entry to certain persons, the lessee could have excluded such persons from the lease area, let alone extend that submission so that it meant that the lessee could exclude persons exercising native title rights and interests. 373 Finally, I consider that that all these matters well outweigh the incidents relied upon by the State in support of its position.

[146]

(a) Legislation concerning Western Lands Leases 382 By s 2 of the Western Lands Act 1901, the CL Act 1884 and all Acts amending that Act were repealed insofar as they related to "pastoral, homestead, improvement, and scrub leases, leases of inferior lands, and occupation licences and vacant Crown Lands in the Western District". Nevertheless provision was made in the Western Lands Act 1901 for all accrued rights and obligations under the repealed Acts to remain unaffected, subject to any express provisions in the Western Lands Act 1901 (s 2(b)). The history of the Western Lands Act 1901 is traced in Anderson [64]-[108] and some of the key passages from that analysis are set out in the Introduction at [34]. 383 The Western Lands Act 1901 applied to "Crown Lands" within the meaning of the CL Act 1884, including "land held under occupation licence or annual lease" (s 3). By operation of s 4 of the CL Act 1884, "Crown Lands" were lands "vested in Her Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple…". 384 Drawing heavily on the State's amended contentions, the preceding legislative history which is relevant to WLLs may be summarised as follows. 385 The primary provisions of the Sale of Waste Lands Act 1842 and the Sale of Waste Lands Amendment Act 1846 (both being Imperial Acts), which applied to Waste Lands of the Crown and Colony of New South Wales, are summarised in Sch 1 at [97]-[98]. Section 1 of the Sale of Waste Lands Amendment Act 1846 provided the basis upon which leases and licences might be granted: Whereas it is expedient to make further Regulations respecting the Occupation of the Waste Lands belonging to the Crown in the Colonies of New South Wales, South Australia, and Western Australia... it shall and may be lawful for Her Majesty to demise for any Term of Years not exceeding Fourteen, to any Person or Persons, any Waste Lands of the Crown in the Colonies of New South Wales, South Australia, and Western Australia, or to grant to any Person or Persons a licence for the Occupation for any Term of Years not exceeding Fourteen of any such Waste Lands, and to reserve upon such Demise or Licence any such Rent or pecuniary or other Service, and to insert therein such Conditions and Clauses of Forfeiture, as shall in manner herein-after mentioned be prescribed and authorized, any thing in the said recited Act to the contrary in anywise notwithstanding: Provided always, that every such Demise or Licence shall be made or granted subject to the Rules and Regulations herein-after provided for. 386 As noted at [98] of Sch 1, the Sale of Waste Lands Amendment Act 1846 permitted powers in the Act to be delegated to Governors by Orders in Council and provision was also made for the making of rules and regulations concerning the making of demises or licences (see ss 10 and 6 respectively). 387 The history of the making of the 1847 Orders in Council is set out in Sch 1 at [99] ff. 388 As noted in Sch 1 at [105]-[106], leases for various purposes were subsequently provided for in the Crown Lands Occupation Act and the 1847 Orders in Council were repealed. 389 Both the Western Lands Regulations 1906 (NSW) (regs 36-46) and the Western Lands Regulations 1935 (NSW) (regs 51-66) provided for the transfer of WLLs.

[148]

A. WLL No. 3469 391 The evidence supports the following additional findings of fact. 392 WLL No. 3469 (ID Areas 4101 and 4596): (a) was granted to the Willandra Pastoral Company Limited (Willandra PCL); (b) was over an area comprising approximately 109,511 acres; and (c) pursuant to s 18 of the Western Lands Act 1901, was subject to the standard conditions set out in Schedule A to that Act. 393 WLL No. 3469 was the last in a chain of tenure over the lease area as follows: (a) The lease area was within a Papekura No. 4 Run, which was within a pastoral run known as "Willandra". The Willandra pastoral holding map and detail were in evidence. (b) Willandra pastoral holding, including the lease area, was converted to a lease under the Crown Lands Occupation Act by notification in the New South Wales Government Gazette No 230, 30 October 1865, p 2421 at 2440. (c) Willandra pastoral holding was divided into a "Leasehold Area" and "Resumed Area" known as Willandra 245 in accordance with the CL Act 1884. The Papekura No. 4 Run was within the lease area. The division of Willandra pastoral holding was notified in the New South Wales Government Gazette No 311, 31 July 1885, p 4875 at 4926. Pursuant to Pt IV of the CL Act 1884, the holder of Willandra pastoral holding was granted a pastoral lease over the lease area, with such lease identified as Pastoral Lease No. 245 Willandra. (d) Pastoral Lease No. 245 Willandra, including the lease area, was converted to WLL No. 1386 pursuant to s 13 of the Western Lands Act 1901. The conversion was notified in the New South Wales Government Gazette No 596 (Supplement), 18 November 1905, p 7701. (e) WLL No. 1386 was surrendered and subdivided into WLL No. 3301 and WLL No. 3302 pursuant to ss 37 and 39 of the Western Lands Act 1901. The surrender and subdivision was notified in the New South Wales Government Gazette No 2, 7 January 1927, p 79. (f) The lease area was within WLL No. 3302. (g) Willandra PCL was the lessee of WLL No. 3302. (h) WLL No. 3302 was surrendered and subdivided into WLL No. 3468 and WLL No. 3469 pursuant to ss 37 and 39 of the Western Lands Act 1901 (as inserted by s 5(3) of the Western Lands (Amendment) Act 1927 (NSW)). The surrender and subdivision was notified in the New South Wales Government Gazette No 129, 27 September 1929, p 4017. (i) The land now known as Lot 7301, DP1179279 and Lot 7300, DP1179279 are within the lease area of WLL No. 3469, as indicated by Reference Note 22 on the Map of Franklin County, a copy of which was in evidence. 394 Fencing was constructed on the lease area from time to time, and is evidenced by the standard survey marks set out in Appendix U of the Regulations for the Employment of Licensed Surveyors 1914 (NSW) considered together with: (a) the plan of the Willandra pastoral holding, which shows that certain boundaries within the vicinity of the least area were fenced; and (b) diagrams of the lease area submitted to the Western Lands Board in association with certain improvements within WLL No. 3469. 395 On 10 November 1930, an extension of the term of WLL No. 3469 was granted to 30 June 1968. That extension was cancelled on 26 August 1931. 396 By transfer dated 24 August 1932, Willandra PCL transferred its interests in WLL No. 3469 to Freehold & Leasehold Lands Limited. 397 On 28 December 1934, the term of WLL No. 3469 was extended to 20 November 1946 (New South Wales Government Gazette No 232, 28 December 1934, pp 4872-4873. 398 Following the publication of a notification in the New South Wales Government Gazette on 4 December 1936, the lease area was reduced by 29,000 acres (from 109,511 acres to 80,511 acres). On the same day, the term of WLL No. 3469 was extended to 20 November 1971. 399 In 1937, the lease area was recalculated and determined to be 80,097 acres. 400 In or about 1968, Freehold & Leasehold Lands Limited transferred its interests in WLL No. 3469 to Willandra Proprietary Ltd. 401 WLL No. 3469 expired at the end of its term on 20 November 1971.

[149]

B. WLL No. 11935 402 Having regard to the evidence, the Court makes the following additional findings of fact. 403 WLL No. 11935 (ID Area 3887) was granted to The Trustees of the Cobar Pony Club. 404 The area covered by WLL No. 11935 was approximately 950 acres. 405 A boundary fence existed along the boundary of the lease area for at least part of the term of WLL No. 11935. 406 On 5 October 1994, an application was made to register the lease under s 13D of the Real Property Act 1900 (NSW) and WLL No. 11935 was recorded on the Register accordingly. 407 At the time WLL No. 11935 was granted, the lease was subject to the conditions in reg 34 made under the Western Lands Act 1901. The conditions in reg 34 as they applied at the time of the grant were undisputed and included the following: (a) The leased land was to be used only for the specified purpose (cl 2). (b) The lessee was required to maintain and keep in reasonable repair all improvements on the leased land. The lessee was also required to permit the Minister or Commissioner (or an authorised person on behalf of the Minister or Commissioner) to enter on the leased lands for specified purposes (cl 3). (c) The lessee could not, inter alia, transfer, assign or sublet the land without the consent of the Minister (cl 5). (d) The lessee was precluded from obstructing or interfering with "any reserves, roads or tracks, or the lawful use thereof by any person" (cl 6). (e) The lessee was required to keep and preserve sufficient timber for shade, windbreaks and firebreaks (cl 7). (f) The lessee could not interfere with timber upon any forest reserve without the permission in writing of the Commissioner and could not prevent any person or persons duly authorised to do so from cutting or removing timber from any State forest, forest reserve or timber reserve (cl 8). (g) The lessee could not ringbark, cut or otherwise destroy or permit the destruction of any timber or edible scrub without the written consent of the Commissioner (cl 8). (h) The lessee was required to take measures to destroy vermin and weeds to the satisfaction of the Commissioner (cl 9). (i) The lessee was required to cultivate edible plants as the Commissioner "may consider can be advantageously and successfully cultivated" (cl 10). (j) The lessee was required to permit any person "duly authorised" to enter the leased lands to search for, work, win and remove any minerals, metals, gems, stones or coal on the land (cl 11). (k) The lessee could not grant grazing rights or agist stock without the written consent of the Minister (cl 15). (l) The lessee could not overstock the land and the decision of the Commissioner as to what constitutes overstocking was final (cl 16). (m) The Minister could direct the lessee to prevent the use of stock on any part of the land lease for such periods as the Minister considered necessary to permit the natural reseeding and regeneration of the land (cl 17). (n) The lessee was required to take all necessary steps to protect the leased lands from bush fire (cl 18). 408 These conditions were revoked and replaced with new conditions (replacement conditions), when the term of WLL No. 11935 was extended in 1994. Those replacement conditions included the following: (i) The lessee indemnify the Minister against claims and actions arising from injury or accidents occurring on the leased lands: (cl 2(b). (ii) The lessee shall "hold and use the land leased bona fide for the lessee's own exclusive benefit and shall not transfer, convey, assign or sublet the land or any portion thereof without first having obtained the written consent of the Minister" (cl 6).

[150]

(c) State's primary submissions summarised 409 In addition to adopting its submissions on general principles as summarised in the Introduction, the State made the following submissions. 410 First, the State contended that having regard to the language of the Western Lands Act 1901, the historical approach in preceding legislation and the 1847 Orders in Council, together with other contextual matters, both WLLs were intended to be true leases within the traditional common law sense of the word "lease" and thus conferred exclusive possession. 411 Secondly, the State contended that this proposition was supported by other matters relating to the terms of both WLLs, including the size of the leased lands, the intensive nature of the use to be made of the leased land, the obligations imposed on the lessee to carry out clearing works, destroy noxious weeds and vermin and to cultivate edible shrubs and plants (as directed by the Minister) and the requirement imposed by s 18A of the Western Lands Act 1901 (as inserted by s 5(1)(c) of the Western Lands (Amendment) Act 1927) to erect boundary fencing. It submitted that these matters were intended to facilitate the intensive use of the area the subject of both WLLs and the carrying out of substantial work of an enduring nature, consistent with the grant of exclusive possession. It submitted that, without exclusive possession, the purpose for which the WLLs was granted could not be realised, at least not without great difficulty and conflict. 412 Thirdly, the State pointed to the terms of the Inclosed Lands Protection Act 1901 (NSW) as indicating, either alone or in the context of other matters, an intention that both WLLs conferred a right of exclusive possession in circumstances where that Act exposed trespassers onto the lease areas to liability for a penalty. 413 Fourthly, the State relied upon the fact that the WLLs were capable of being transferred as indicative that they were leases in the traditional common law sense. 414 Fifthly, the State submitted that the existence of provisions under both primary and secondary legislation and/or conditions of the WLLs, which authorised entry by certain persons onto the leased lands for specified purposes, revealed that, absent such statutory rights of entry, the lessee could exclude such persons from entering the leased lands. This, the State submitted further indicated an intent to confer exclusive possession. A similar submission was made in respect of provisions under primary and secondary legislation which precluded the lessee from interfering with the use of any reserves, roads or tracks within the land. 415 Sixthly, the State relied upon the fact that under s 17 of the Western Lands Act 1901 a withdrawal of lands the subject of either WLL would have entitled the lessee to a tenant-right which could lead to some form of compensation. Similarly, withdrawal of lands for public purposes under the terms of the lease were said to be subject to compensation. 416 Seventhly, the State relied upon Anderson at [114] and Beaumont J's judgment in the Full Court in Anderson v Wilson [2000] FCA 394; 97 FCR 453 at 489-490. The State submitted that in Anderson the Court concluded that native title rights and interests were wholly extinguished, in circumstances where the leases in that case were also subject to obligations to permit entry by officials for various purposes and an obligation not to obstruct or interfere with reserves, road or tracks or their lawful use by any person. 417 For all these reasons, the State contended that both WLLs were a "previous exclusive possession act" within s 23B(2)(c)(viii) of the NT Act, relying also on s 23E of the NT Act and s 20(1) of the NSW NT Act, or otherwise conferred rights which were inconsistent with native title rights and interests. 418 An additional question also arises in respect of WLL No. 11935, namely whether it was a grant of a "Scheduled interest" within the meaning of s 23B(2)(c)(i) of the NT Act. The State submitted that it was, as was said to be supported by the following matters. It emphasised that the terms of WLL No. 11935 made clear that it was granted for the purpose of "equestrian grounds", "sporting ground" and/or "sporting ground and facilities" as provided for in Sch 1, Pt 1, cl 3(8) of the NT Act. It was common ground that if the lease could be characterised in that way, it would be a PEPA within s 23B(2)(c)(i) of the NT Act and any native title rights and interests in relation to the land would be wholly extinguished. 419 Clause 3(8) of Sch 1, Pt 1 of the NT Act provided that the following kind of lease was a "Scheduled interest": (8) A special lease under section 28A of the Western Lands Act 1901 or section 75 or 75B of the Crown Lands Consolidation Act 1913 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following: … equestrian grounds…. sporting ground; sporting ground and facilities; … 420 The State submitted that cl 3(8) should be construed consistently with general rules of statutory construction, including that the Court may have regard to the ordinary meaning of the expressions in determining whether the stated purpose of WLL No. 11935 fell within one of those expressions. Furthermore, noting that the relevant issue presented by cl 3(8) was whether a lease under s 28A of the Western Lands Act 1901 permitted the lessee to use the land or waters covered by the lease "solely or primarily" for any of the specified purposes, the Court should have regard to the terms of the lease to consider the nature of the activities so authorised. The State added that the matter should be approached pragmatically and not by seeking to identify an identical match between the stated purpose of the lease and the purpose listed in the Schedule of the NT Act, citing Hayes v Northern Territory [1999] FCA 1248; 97 FCR 32 at [81] per Olney J and Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales [2012] FCA 792 at [30]-[32] per Perram J. 421 Relying on the principles in Hayes and Lightning Ridge, the State made the following additional submissions in support of its contention that WLL No. 11935 was a "Scheduled interest": (a) WLL No. 11935 permitted the lessee to use the leased area, at least primarily, for the purpose of a pony club. (b) As a matter of ordinary meaning, the riding of ponies is an equestrian activity. (c) It follows that the lease permitted the use of the leased area (at least primarily) as "equestrian grounds". (d) In the alternative to (b) and (c) above: (i) The riding of ponies is a sporting activity. (ii) The lease permitted the use of the leased area (at least primarily) for the carrying out of that sporting activity. (iii) The expression "sporting ground and facilities", or alternatively, "sporting ground", encompasses the use of land for the carrying out of a sporting activity (and in the case of the former, the use of the land for attendant facilities such as areas and buildings which promote the playing and administration of the relevant sport, citing Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38 at 44 and Peters v Manly Municipal Council [2006] NSWLEC 676; 149 LGERA 321 at [20]). (d) It follows that the lease permitted the lessee to use the leased area solely or primarily for the purpose of one or more of "equestrian grounds", "sporting ground" and/or "sporting ground and facilities" within the meaning of the NT Act, Sch 1, Pt 1, cl 3(8).

[151]

(d) Applicant's primary submissions summarised 422 It is unnecessary to set out in full the applicant's submissions in respect of the issue whether WILL No. 3469 or WLL No. 11935 conferred a right of exclusive possession or other rights which were inconsistent with native title rights and interests, because they are substantially reflected in my reasons for rejecting the State's position on those matters. 423 It is necessary, however, to summarise the applicant's submissions regarding the second part of the separate questions relating to WLL No. 11935, namely whether the grant of that lease amounted to the grant of a "Scheduled interest". As will shortly emerge, I accept the State's claim that this particular question should be answered in its favour. 424 In support of its contention that WLL No. 11935 was not a "Scheduled interest", the applicant submitted, first, that it was significant that WLL No. 11935 covered approximately 950 acres. It submitted that this was a very large area of land. 425 Secondly, the applicant pointed to an internal Memorandum dated 9 September 2003 within the NSW Department of Infrastructure, Planning and Natural Resources. The Memorandum, which was written by a Rangelands Management Officer at Cobar, described an inspection of WLL No. 11935 on 4 September 2003 and discussions with current members of the Cobar Pony Club. The Memorandum said that the land was "currently used as a holding paddock for club members' horses", and that the conditions of the lease were being complied with. After noting that the Cobar Pony Club had a strong membership base and was likely to remain viable for the foreseeable future, the officer recommended that WLL No. 1195 be extended for a further ten years. 426 The applicant added that the only improvements on the leased land were some small holding yards and that, in these circumstances, the area was substantially unimproved and was used as a holding paddock. 427 The applicant submitted that the relevant expression in cl 3(8) "equestrian grounds" referred to such things as dressage arenas or an area where show jumping could occur or horses could be trained. It submitted that the area here of approximately 1,000 acres of unimproved land, where horses were left to graze, could not be characterised as an "equestrian ground". 428 As the Court pointed out in argument, the applicant's reference to "equestrian ground" was incorrect because the statutory provision refers to "equestrian grounds". The use of the plural and more general expression of "equestrian grounds" might indicate that the activity or activities relating to the physical area could extend beyond a single purpose and encompass various activities. Thus, for example, "equestrian grounds" contemplates a range of equestrian and related activities, such as show jumping, event riding, dressage, pony riding and related activities thereto, such as grazing and physically accommodating horses.

[152]

(a) Did the grant of the WLLs involve a right of exclusive possession? 429 For the following reasons, I reject the State's claim that the two WLLs involved a right of exclusive possession such that the act of granting or vesting those WLLs is a PEPA within the meaning of s 23B of the NT Act, or that these WLLs otherwise conferred rights which were inconsistent with native title rights and interests. 430 First, it is appropriate to highlight some aspects of the legislative history to the Western Lands Act 1901. It was introduced following a report of a Royal Commission into the condition of Crown tenants in the Western Division of the State, as referred to by Gaudron, Gummow and Hayne JJ in Anderson at [70]. The Royal Commission made recommendations concerning the special problems surrounding land settlement in the dry western-fringe of the State. As enacted, s 13 of the Western Lands Act 1901 provided for any registered holder (under the CL Act 1884 and succeeding legislation) of a pastoral lease to apply to have their holding brought under the provisions of the Western Lands Act 1901. Control of land in the Western Division was taken from the Lands Department and placed with the Western Lands Commission. 431 The following passage from the second reading speech to Bill which became the Western Lands Act 1901 highlights the problems presented by much of the land in the Western Division which was unimproved, uninhabitable and unsustainable without improvement (see Anderson at [71]): [W]e are told in a way that we cannot doubt that there is hardly a solvent man in the western division. If this be true it means that to bring the western division into a state to carry stock there must be money expended upon it whether in water conservation, clearing, or scrubbing, and if these men [the present settlers] have no money, they must borrow to enable them to carry on. When a man lends money he naturally asks upon what security he is making the loan, and if the applicant can say, 'Here I have an absolute lease for forty-two years, and at the very most I am assessed at three or four acres to a sheep, and no matter what Government comes in or what Parliament may be sitting, the greatest rental they can put upon me is 7d per sheep,' then the man who contemplates lending the money can calculate his security. That is an absolute security, and the man who has money to lend knows what he is lending it upon. 432 In Anderson at [72] ff, Gaudron, Gummow and Hayne JJ traced subsequent legislative developments designed to enhance the security which might be provided in respect of holdings under the Western Lands Act 1901 and other Crown lands legislation. This included amendments in 1932 to the Western Lands Act 1901 which empowered the holder of a subsisting lease to apply for its extension "to a lease in perpetuity". There were further relevant amendments in 1934 which inserted s 23 and the power to grant a "perpetual lease". The extrinsic material made clear that the object of these amendments was to enable owners of leases "to convert them into perpetual leases, with the idea of enabling holders to obtain the necessary finances to carry them on" in circumstances where the leases prior to those amendments were viewed as "merely leases, it is impossible to obtain advances on them, but if they are converted into perpetual leases, advances will be made upon the security of the holding" (see Anderson at [73] per Gaudron, Gummow and Hayne JJ). 433 It may be noted that it was agreed that WLL No. 3469 was initially granted under s 39 of the Western Lands Act 1901 for a terms commencing on 29 August 1929 and ending on 30 June 1943, expressly for pastoral purposes. WLL No. 11935 was granted under s 28A of the Western Lands Act 1901 for a term commencing on 1 February 1974 and ending on 31 January 1994 for the express purpose of grazing and recreation (pony club). 434 Secondly, I accept the applicant's submission that, with the exception of the perpetual leases (which were the subject of Anderson), interests granted under the Western Lands Act 1901 may appropriately be characterised as precarious as is reflected in the following matters: (a) After receiving a report from the Western Lands Commission, the Governor could withdraw any lands held under lease under the Western Lands Act 1901 (other than Perpetual Leases) whenever it was deemed expedient to do so (s 17). (b) Unless the Governor specified otherwise, the same conditions applied to all leases brought under the Western Lands Act 1901 or issued under it (s 18 and Sch A). This included the right of the Minister to resume any land for any public purpose (Sch A, condition (p)). The Minister also had the right to proclaim any reserve over any land (Sch A, condition (l)) and to withdraw from the lease or licence any land required for roads or travelling stock, camping or any other reserve (Sch A, condition (l)). (c) Third parties, the Minister and Western Lands Commissioners, or any person authorised by them, had an unrestricted right to enter upon and examine any land and the improvements on it (Sch A, condition (m)). (d) The Commissioners and all persons authorised by the Minister or the Commissioners had the right to enter and view the whole of any part of a lease or the buildings or other improvements on the land (Sch A, condition (i)). (e) A lessee or licensee was not entitled to obstruct or interfere with any reserves, roads, or tracks, or the use of them by any person (Sch A, condition (e)). (f) All rights were reserved to the Crown necessary for ingress, egress, search, prosecution, and removal, and all incidental rights and powers, in relation to all minerals, metals, gems, precious stones, coal and mineral oils (Sch A, condition (k)). 435 Thirdly, there were significant restrictions on the interests and rights of lessees and licensees under the Western Lands Act 1901. For example, they were not permitted to destroy, or permit the destruction of, any timber without the written consent of the Commissioners, except for the purpose of building, fencing or for firewood (Sch A, condition (d)). They were obliged to destroy any noxious weeds as directed by the Commissioners (Sch A, condition (c)) and to foster and cultivate edible shrubs and plants as directed by the Minister (Sch A, condition (f)). They were required to take steps and measures to destroy rabbits, dogs, and other vermin as directed by the Commissioners and to keep the lease free of vermin during its currency (Sch A, condition (b)). 436 Having regard to all these matters, I accept the applicant's submission that the interest under a WLL was just as precarious as the interest conferred by a pastoral lease under either the CL Act 1884 or the CL Act 1895, albeit subject to distinctive provisions relating to the Western Division. 437 Fourthly, in the case of WLL No. 3469, the following conditions in that lease highlight the precarious character of the interest held under it: The lease was a lease for pastoral purposes. All minerals, metals, gems, precious stones, coal, and mineral oils were reserved to the Crown. The right was reserved to the Crown and anyone authorised to enter upon the land, to search for, work, win and remove all minerals, metals, gems, precious stones, coal and mineral oils. The lessee was to permit any person authorised to do so to enter upon the land for such purposes. The Crown reserved the unrestricted right to proclaim travelling stock, camping, and other reserves within the land. The Crown reserved the unrestricted right to withdraw any land for the purpose of roads, travelling stock, camping, or other reserves. The Crown had the right to reserve from the lease a road not exceeding ten chains in width for the use of travelling stock. All powers and provisions were reserved to the Crown necessary for the resumption of any land or any part for mining purposes, townships, or any public purpose under the provisions of the "Crown Lands Acts". The lessee was required to take such steps as specified by the Commissioners to destroy rabbits, dogs, foxes, and other vermin, and weeds that might be declared noxious. The lessee was to foster and cultivate edible shrubs and plants as directed by the Minister. The lessee was to keep sufficient timber on the land for shade and fire-breaks. The lessee could not interfere with the timber in forest reserves without the permission of the Commissioners. The lessee could not prevent any person authorised to do so going on the land to cut or remove timber from a forest reserve. The lessee could not ringbark, cut or destroy, or permit the destruction of, timber or edible scrub with the written consent of the Commissioners, although the lessee could use in such manner as the Commissioners determined edible trees or scrub for stock feeding purposes. The lessee could also take timber or other material not within a timber or forest reserve as required for building, fencing, or firewood. The lessee could not obstruct or interfere with any reserves, roads or tracks, or the lawful use of these by any person. The lessee was to keep all improvements on the land in reasonable repair, and to permit the Minister for Lands and Commissioners, or any person authorised by them, to enter upon and examine the land or any buildings and other improvements. No public rights existing, or to be created, in any travelling stock or camping reserve within the land were to be affected by the granting of the lease. The Crown could withdraw from the lease any land required for any public purpose under the "Crown Lands Acts", including mining purposes and purposes of settlement of towns and villages, although the lessee was entitled to compensation for the unexpired term and for the improvements owned. The Minister, after report by the Commissioners, could declare the leases cancelled and forfeited for any breach. 438 Fifthly, the precarious nature of the interest held under WLL No. 11935 is reflected in the following lease conditions: The lessee was to hold and use the land bona fide for his own exclusive benefit and could not transfer, convey, assign or sublet the land or any portion without obtaining the written consent of the Minister. The lessee could not erect any buildings on the land without the consent of the Cobar Shire Council. The lessee could not prevent any person authorised under the "Forestry Act, 1916-1946" and regulations made thereunder, from cutting or removing timber. The lessee was to permit the Minister for Conservation, or anyone acting on the Minister's behalf, to enter the land for the purpose of making a survey or investigation, or carrying out work in connection with soil conservation and erosion mitigation. The lessee could not interfere with any transmission or phone line and had to allow access for repair, maintenance, and renewal thereof. The lessee was to use iron or steel posts for fencing unless, in special cases, the Commissioner permitted the use of other posts. If the lessee ceased to use the land for bona fide pony club purposes, the lease was liable to forfeiture. The lessee was to enclose the land within one year with a substantial stock-proof fence to the satisfaction of the Commissioner. The lessee was not to obstruct any roads, reserves, or tracks, or the lawful use of them by any persons. 439 Sixthly, it is relevant to emphasise that the land the subject of WLL No. 11935, which was granted for the purpose of grazing and recreation (pony club), could only be used for that purpose. 440 Seventhly, I reject the State's submissions to the effect that the conditions on WLLs were similar to those attaching to the perpetual lease the subject of Anderson. Anderson is distinguishable, noting that the central feature of that case was the majority's acceptance that there was correspondence between a perpetual lease and a determinable fee simple. That is not the case with respect to the two relevant WLLs here.

[159]

(c) Additional findings of fact 451 Based on the evidence, I make the following additional findings of fact concerning SLT No. 1955/7 Warren. 452 This SLT was granted for the purpose of "Access" and was for a term from 1 February 1958 to 31 December 1985 (when the lease expired, as was agreed by the State and the applicant). The lessee, Mr Walsh, held a conditional purchase over land which was adjacent to the SLT area. The lease area was located between the land the subject of the conditional purchase and a public road known as Marthaguy Road. The SLT area also abutted Marthaguy Creek. The SLT area was approximately five acres and was sought so that the lessee had a more suitable entrance to his property located on the other side of Marthaguy Creek. 453 As at 1 February 1958, when SLT No. 1955/7 Warren commenced, s 75 of the CLC Act 1913 was in the following terms: The Minister may lease by auction or otherwise Crown lands (not being in the Western Division) for any of the purposes hereinafter specified, that is to say, for dams - tanks - irrigation-works - wharfs - bridges - punt-houses - ferries - bathing-places - landing-places - saw-mills - brick-kilns - lime-kilns - slaughterhouses - tanneries - wool-washing establishments - quarries - fisheries - building or repairing ships or boats - tramway purposes - obtaining guano - or for an inn - store - smithy - bakery - or mail station in sparsely populated districts - or for business purposes - or for the erection of buildings - or for any purpose declared by the Minister by notification in the Gazette to be a purpose within this section, and if the letting be by auction, may determine the upset rent thereof (not being less than two pounds per annum), and may annex to any such lease such conditions reservations and provisions as he may think fit. Any such condition reservation or provision annexed to such lease or any purpose as aforesaid for which any such lease has been granted may on application by the lessee in the prescribed manner and on the recommendation of the local land board be varied modified or revoked by the Minister; and this power shall not be affected by anything contained in section one hundred and eighty-two hereof. If it should appear to the satisfaction of the Minister that the land comprised in any such lease is not used and occupied bona fide for the purpose for which the lease was granted, such lease together with any rent paid in respect thereof shall be liable to be forfeited. With any application for a lease under this section there shall be tendered a fee in accordance with the prescribed scale for the survey of the land; and if the lease be let otherwise than by auction or tender the rent shall be determined by the local land board. Provided that the rent shall not be less than two pounds per annum. The term of the lease may be fixed for any period not exceeding twenty-eight years, and if fixed for a less period than twenty-eight years may be extended as provided in section two hundred and twenty-nine hereof. The term of any lease under this section for business purposes or for any purpose declared by the Minister by notification in the Gazette in pursuance of the provisions of section 75A hereof, may be extended as provided in the said section 75A irrespective of whether such term has or has not been extended as provided in section two hundred and twenty-nine hereof. If an applicant so desires, one-tenth of the survey fee only may be paid with the application, in which event the balance, together with interest at the rate of four per centum per annum, shall be paid at such times as the Minister directs. 454 The above version of s 75 contains various amendments made to the CLC Act 1913 as enacted, including the insertion of the penultimate paragraph (see s 2(a) of the Crown Lands (Special Leases) Amendment Act 1952, which also at s 2(b) inserted a new s 75A). 455 When SLT No. 1955/7 Warren was granted, the original Gazette notification published on 28 March 1958 provided that it was subject to subsections 1, 2, 5-16, 18-19, 44, 59 and 63 of Regulation 106 (being the version notified 22 April 1955, as amended 12 July 1957). Those provisions were in the following terms: 1. A breach of any of the conditions will render the lease liable to forfeiture. 2. The rent for each year shall be paid in advance to the Crown Land Agent of the District, or to the Under Secretary for Lands, Sydney, on or before the 31st December of the year preceding that for which it is due. … 5. The land leased shall be used only for the purposes for which the lease is granted. 6. The lessee shall, within one year from the date of notification in the Gazette of the granting of the lease, enclose the land leased, either separately or conjointly with other lands held in the same interest, with a substantial fence, and maintain such fence in efficient repair during the currency of the lease. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than one year's notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, no compensation will be allowed in respect of such termination. 8. Upon forfeiture, surrender, expiration of the period of the lease, or termination of the lease by the Minister, all improvements on the land leased shall become the property of the Crown, and no compensation shall be payable therefor: Provided that on application within one month after such forfeiture, surrender, expiration, or termination, the Minister may permit the former lessee to remove from such land any movable improvements effected by him or at his expense: Provided further that, if directed by the Minister in writing to do so, the former lessee shall remove any structure or material from the land at his own cost and without compensation. In all cases where such permission or direction has been given, the movable improvements or structures or material, as the case may be, shall be removed within such time as the Minister may specify. 9. The lessee shall not remove any fixed improvements from the land leased during the currency of the lease, except with consent in writing of the Minister first obtained. 10. The lessee shall pay all rates and taxes and all fees and charges under the Local Government Act, 1919, as amended by subsequent Acts, upon the land leased during the currency of the lease. 11. All rights (except residence on land under cultivation) which are conferred by any Mining Act or Acts of New South Wales, with respect to Crown lands, are reserved with respect to the land leased. 12. The lessee shall hold and use the land leased bona fide in his or her own interest, and shall not transfer, except by way of mortgage, or release of mortgage, assign or otherwise in any way deal with the lease or sublet or part with the possession of or take stock on agistment on the land leased or any part thereof, except with the consent in writing of the Minister first obtained. 13. The lessee shall keep any improvements, the property of the Crown, upon the land leased, in good repair during the currency of the lease, fair wear and tear excepted. 14. The right is reserved to the Minister to withdraw from the lease at any time, and from time to time, any land required for mining or any mining purpose, or for any public purpose, and the lessee shall not be entitled to any compensation whatsoever therefor, or for severance. In the event of any withdrawal as aforesaid, the lessee shall be entitled, subject to the approval of the Minister, to remove any movable improvements, or to a fair and reasonable compensation for his interest in any improvements belonging to him on the land so withdrawn. The amount of such compensation shall be ascertained by multiplying a sum representing the fair value of the improvements by a fraction of which the numerator shall be the unexpired term of the lease, and the denominator the full term of the lease. In case the Minister and lessee shall not agree as to the amount of compensation as aforesaid the matter shall be submitted for the determination of the Local Land Board; and the decision of the Board or the Land and Valuation Court, on appeal, shall be final and conclusive. 15. All rights conferred upon the public in the terms of any reservation in regard to the land leased are reserved. 16. The lessee shall not interfere with the right of the public to the use of any roads, streets, lanes or tracks within the land leased. … 18. The lessee shall throughout the currency of the lease effectually destroy or cause to be destroyed all of any of the following on the land leased, viz.: Bathurst burr, noogoora burr, African box thorn, Mexican Poppy, prickly-pear, lantana, blackberry, wild tobacco, fireweed, crofton weed, mint weed, St. John's wort, serrated tussock, briars and all scrub (except edible scrub), undergrowth and such plants or weeds as are, or may from time to time be declared noxious under the Local Government Act, 1919, as amended by subsequent Acts, in all municipalities and shires, or in the particular municipality or shire in which the land leased, or any part of it, is situated. 19. The lessee shall take effective steps to keep the land leased free from foxes, rabbits, and other noxious animals during the currency of the lease. … 44. The lessee shall not remove or permit any person to remove gravel, stone, clay, shells or other material for the purpose of sale from the land leased unless he is the holder of a quarry license under regulations made under the Crown Lands Consolidation Act, 1913, and has obtained the special authority of the Minister to operate on such land, but the lessee may with the approval of the District Surveyor, take from the land such gravel, stone, clay, shells or other material for building and other purposes upon such land as may be required by him as lessee. … 59. In the conditions annexed to the lease the expression "The Minister" means the Minister for Lands, and any power, authority, duty or function conferred or imposed upon the Minister by or under such conditions may be exercised or performed either by the Minister or by such officers of the Department of Lands as the Minister may from time to time approve. … 63. The lessee shall not interfere with by ring-barking or otherwise any trees or saplings on the land leased. 456 The original Gazette notification published 28 March 1958 also provided that SLT No. 1955/7 Warren was subject to the following special condition: The rent for the last fourteen (14) years of the term of the lease may be reappraised either upon reference by the Minister or at the request of the lessee made during the first six (6) months of such period.

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(c) Additional findings of fact 460 Based on the evidence, I make the following additional findings of fact concerning SLT No. 1939/1 Warren. 461 According to the Gazette notification dated 20 December 1940, SLT No. 1939/1 Warren was granted for the purpose of "Access and storage" and covered an area of approximately 36 acres. According to the tender card which records the grant of this lease, the purpose was for "Bridge access" and "storage for fodder". The parties conducted the case on the basis that the purpose was "Access and storage". The lease was for the term 1 November 1940 to 31 December 1950, when the lease expired (as was agreed by the State and the applicant). 462 The lessee, John Leahy, owned the Oxley Station homestead which was on the other side of the Macquarie River from the lease area. The relevant Crown plan shows the lease area as being Portion 79 and indicates that the lessee could access the lease area via a private road or track and private bridge which crossed the Macquarie River and linked the homestead within the freehold to a travelling stock route (TSR No. 34261). The Crown plan stated that TSR No. 34261 was notified on 19 April 1902 and "includes Por. 79". The travelling stock route itself is not physically depicted on the Crown plan, nor did the State (who carries the evidentiary onus) adduce any other evidence which identified the precise location of TSR No. 34261. In these circumstances, it is reasonable to infer that the travelling stock route covered the entirety of Portion 79. By way of a transfer dated 10 October 1950, SLT No. 1952/1 Warren was transferred from John Leahy to Berawinnia Pastoral Co. Pty Ltd and subsequently became SLT No. 1952/1 Warren. 463 As at 1 November 1940 when SLT No. 1939/1 Warren commenced, s 75 of the CLC Act 1913 was in different terms to those which later applied when SLT No. 1955/7 Warren was granted. In particular, as at 1 November 1940, the maximum area for a SLT was 1,920 acres (see s 6(a)(i) of the Crown Lands (Amendment) Act 1931 (NSW)). In addition, s 75A (and the references to that section in s 75) were yet to be inserted. 464 The lease was granted on the basis that it was subject to subsections 1, 2, 4, 6-13, 15-20 and 23 of Regulation 106 (being the version notified in the NSW Government Gazette, 2 August 1940, which itself referred to various amendments to an earlier version of Regulation 106 published on 2 June 1922). Those subsections were as follows: 1. The rent for each year shall be paid in advance to the Colonial Treasurer or Crown Land Agent on or before the 31st December of the year preceding that for which it is due. 2. The area leased is exclusive of any roads, streets, or lanes within its boundaries. … 4. The land shall be used only for the purposes for which the lease is granted. … 6. Upon forfeiture, surrender or expiration of the period of the lease, all improvements on the land shall become the property of the Crown, and no compensation shall be payable therefor, but on application within one month after such forfeiture, surrender or expiration, the Minister may permit the former lessee to remove any movable improvements effected by him or at his expense. In all cases where such permission has been given the improvements must be removed within three months after the date of forfeiture, surrender, or expiration. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than one year's notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, no compensation will be allowed; but the lessee may, subject to approval of the Minister, remove any movable improvements effected by or at the expense of the lessee during the currency of the lease, provided he does so within three (3) months after the termination of the lease. 8. No fixed improvements shall be removed from the land during the currency of the lease, unless with the approval in writing of the Minister. 9. The lessee shall pay all rates and taxes and all fees and charges under the Local Government Act upon the land during the currency of the lease. 10. All rights (except residence on land under cultivation) which are conferred by the Mining Acts, with respect to Crown Lands, are reserved. 11. The lessee shall hold and use the land bona-fide in his or her own interest, and shall not transfer, except by way of mortgage or release of mortgage, or otherwise in any way deal with the lease, or sublet or part with the possession of the land leased, or any part thereof, without the consent in writing of the Minister. 12. Any improvements, the property of the Crown, upon the lease must be kept in repair during its currency, reasonable wear and tear excepted. 13. The right is reserved to the Minister to withdraw from the lease at any time, and from time to time, any land required for mining or any mining purpose, or for any public purpose, and the lessee shall not be entitled to any compensation whatsoever therefor, or for severance. In the event of any withdrawal as aforesaid, the lessee shall be entitled, subject to the approval of the Minister, to remove any movable improvements or to a fair and reasonable compensation for his interest in any improvements belonging to him on the land so withdrawn. The amount of such compensation shall be ascertained by multiplying a sum representing the fair value of the improvements by a fraction of which the numerator shall be the unexpired term of the lease, and the denominator the full term of the lease. In case the Minister and the lessee shall not agree as to the amount of compensation as aforesaid, the matter shall be submitted for the determination of the Board, and the decision of the Board or the Land and Valuation Court, on appeal, shall be final and conclusive. … 15. The right of the public to the use of any roads, streets, lanes or tracks shall not be interfered with. 16 With the concurrence of the Board, gates may be erected on any reserved road, and should further access be required, other gates shall be erected wherever and within such period as the Minister may hereafter direct. 17. No trees or saplings shall be interfered with by ringbarking or otherwise, except under permits issued under the provisions of the Forestry Act and Regulations thereunder, but the lessee may take from the land leased to him such timber and other material for building and other purposes upon such land as may be required by him as tenant thereof, provided such land is not comprised within a timber or forest reserve: Where the lease is for agricultural purposes other than the cultivation of natural grasses for grazing, such permit may be dispensed with when ringbarking or destruction of timber is necessary with a view to cultivation over any part or parts of the area leased, provided the area to be cultivated is defined and that not less than three weeks' notice in writing of the intention to ringbark or destroy the timber on that area is given to, and written permission is first obtained from, the local Forestry Officer. 18. If the lease be for grazing purposes only, the land may be cultivated to the extent necessary for the growth and spread of pasture grasses, but no further. 19. The lessee shall, throughout the currency of the lease, effectually destroy or cause to be destroyed all Bathurst burr, Noogoora burr, African box thorn, Mexican poppy, prickly-pear, lantana, blackberry, wild tobacco, brairs and all scrub (except edible scrub), undergrowth and such plants and weeds as are or may from time to time be declared to be noxious under the Local Government Act, 1919, in all municipalities or shires or in the particular municipality or shire in which the land leased or any part of it is situated. 20. The lessee shall take effective steps to keep the land free from foxes, rabbits, and other noxious animals during the currency of the lease. … 23. A breach of any of the conditions will render the lease liable to forfeiture.

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(c) Additional findings of fact 468 Based on the evidence, I make the following additional findings of fact concerning SLT No. 1961/48 Warren. 469 The SLT enabled the lessee to grow irrigated crops on the lease area (which was 24 acres), specifically lucerne to use as fodder, as was confirmed by an internal Departmental memorandum by a Land Inspector dated 4 October 1961 concerning the application for a SLT. That memorandum also confirmed that the applicant held land totalling approximately 750 acres which was located about 2.25 miles from the then proposed lease area. The State did not put into evidence a copy of any plan relating to the lease area. The Memorandum noted, however, that a "new track along Western & Southern boundary of subject land would serve the same purpose as existing track". Accordingly, it may be inferred that there was a track located on the lease area. 470 The State did put into evidence a copy of a document headed "Inspection for Conditions" dated 2 September 1964. It referred to the fact that the lessee's solicitor had advised that the lease area had been fenced "with a high Kangaroo proof fence". 471 As at 1 January 1963, s 75 of the CLC Act 1913 was relevantly in the same terms as those which applied when SLT No. 1955/7 Warren commenced (as set out above). 472 At the time of grant, SLT No. 1961/48 Warren was subject to subsections 1, 2, 5-19, 36, 38, 44, 59 and 60 of Regulation 106 (being the version notified in the Gazette on 22 April 1955). Presumably this also encompassed the amendments made to Regulation 106 up until 12 July 1957, particularly as prior to that time Regulation 106 ceased at subsection 59. Those subsections were as follows: 1. A breach of any of the conditions will render the lease liable to forfeiture. 2. The rent for each year shall be paid in advance to the Crown Land Agent of the District, or to the Under Secretary for Lands, Sydney, on or before the 31st December of the year preceding that for which it is due. … 5. The land leased shall be used only for the purposes for which the lease is granted. 6. The lessee shall, within one year from the date of notification in the Gazette of the granting of the lease, enclose the land leased, either separately or conjointly with other lands held in the same interest, with a substantial fence, and maintain such fence in efficient repair during the currency of the lease. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than one year's notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, no compensation will be allowed in respect of such termination. 8. Upon forfeiture, surrender, expiration of the period of the lease, or termination of the lease by the Minister, all improvements on the land leased shall become the property of the Crown, and no compensation shall be payable therefor: Provided that on application within one month after such forfeiture, surrender, expiration, or termination, the Minister may permit the former lessee to remove from such land any movable improvements effected by him or at his expense: Provided further that, if directed by the Minister in writing to do so, the former lessee shall remove any structure or material from the land at his own cost and without compensation. 9. The lessee shall not remove any fixed improvements from the land leased during the currency of the lease, except with consent in writing of the Minister first obtained. 10. The lessee shall pay all rates and taxes and all fees and charges under the Local Government Act, 1919, as amended by subsequent Acts, upon the land leased during the currency of the lease. 11. All rights (except residence on land under cultivation) which are conferred by any Mining Act or Acts of New South Wales, with respect to Crown lands, are reserved with respect to the land leased. 12. The lessee shall hold and use the land leased bona fide in his or her own interest, and shall not transfer, except by way of mortgage, or release of mortgage, assign or otherwise in any way deal with the lease or sublet or part with the possession of or take stock on agistment on the land leased or any part thereof, except with the consent in writing of the Minister first obtained. 13. The lessee shall keep any improvements, the property of the Crown, upon the land leased, in good repair during the currency of the lease, fair wear and tear excepted. 14. The right is reserved to the Minister to withdraw from the lease at any time, and from time to time, any land required for mining or any mining purpose, or for any public purpose, and the lessee shall not be entitled to any compensation whatsoever therefor, or for severance. In the event of any withdrawal as aforesaid, the lessee shall be entitled, subject to the approval of the Minister, to remove any movable improvements, or to a fair and reasonable compensation for his interest in any improvements belonging to him on the land so withdrawn. The amount of such compensation shall be ascertained by multiplying a sum representing the fair value of the improvements by a fraction of which the numerator shall be the unexpired term of the lease, and the denominator the full term of the lease. In case the Minister and lessee shall not agree as to the amount of compensation as aforesaid the matter shall be submitted for the determination of the Local Land Board; and the decision of the Board or the Land and Valuation Court, on appeal, shall be final and conclusive. 15. All rights conferred upon the public in the terms of any reservation in regard to the land leased are reserved. 16. The lessee shall not interfere with the right of the public to the use of any roads, streets, lanes or tracks within the land leased. 17. If the lease be for grazing purposes only, the land leased may be cultivated to the extent necessary for the growth and spread of pasture grasses, but no further. 18. The lessee shall throughout the currency of the lease effectually destroy or cause to be destroyed all of any of the following on the land leased, viz.: Bathurst burr, noogoora burr, African box thorn, Mexican Poppy, prickly-pear, lantana, blackberry, wild tobacco, fireweed, crofton weed, mint weed, St. John's wort, serrated tussock, briars and all scrub (except edible scrub), undergrowth and such plants or weeds as are, or may from time to time be declared noxious under the Local Government Act, 1919, as amended by subsequent Acts, in all municipalities and shires, or in the particular municipality or shire in which the land leased, or any part of it, is situated. 19. The lessee shall take effective steps to keep the land leased free from foxes, rabbits, and other noxious animals during the currency of the lease. … 36. The lessee shall not interfere with by ringbarking or otherwise any trees or saplings on the land lease except under the authority of a permit issued under the provisions of the Forestry Act, 1916, as amended by subsequent Acts, and Regulations thereunder, but, subject to the next succeeding condition, the lessee, with the approval of the District Surveyor may take from the land leased such timber and other material for building and other purposes upon such land, as the District Surveyor may approve, provided that such land is not comprised within a timber or forest reserve. Where the lease is for agricultural purposes other than the cultivation of natural grasses for grazing, such permit may be dispensed with when ringbarking or destruction of timber is necessary with a view to cultivation over any part or parts of the land leased, provided the area to be cultivated is defined, and that not less than three weeks' notice in writing of the intention to ringbark or destroy the timber on that area is given to, and written permission is first obtained from, the local Forestry Officer. … 38. The lessee shall preserve on the land leased an average of not less than seven matured or semi-matured trees of honey producing value to each acre for shade, shelter and honey provision. … 44. The lessee shall not remove or permit any person to remove gravel, stone, clay, shells or other material for the purpose of sale from the land leased unless he is the holder of a quarry license under regulations made under the Crown Lands Consolidation Act, 1913, and has obtained the special authority of the Minister to operate on such land, but the lessee may with the approval of the District Surveyor, take from the land such gravel, stone, clay, shells or other material for building and other purposes upon such land as may be required by him as lessee. … 59. In the conditions annexed to the lease the expression "The Minister" means the Minister for Lands, and any power, authority, duty or function conferred or imposed upon the Minister by or under such conditions may be exercised or performed either by the Minister or by such officers of the Department of Lands as the Minister may from time to time approve. 60. For the purpose of appraisement of rent the term of the lease shall be divided into four (4) periods, the first of about six (6) years and the second, third and fourth of seven (7) years each. The rent for the second, third and fourth periods may be reappraised either upon reference by the Minister or at the request of lessee made during the first six (6) months of the affected period.

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(c) Additional findings of fact 476 Based on the evidence, I make the following additional findings of fact concerning SLT No. 1958/2 Coonamble. 477 The lease area of SLT No. 1958/2 Coonamble was approximately two acres. The applicant and the State agreed the lease was forfeited on 12 November 1971. 478 As at 1 January 1958 when SLT No. 1958/2 commenced, s 75 of the CLC Act 1913 was relevantly in the same terms to those which applied when SLT No. 1955/7 Warren commenced (as set out above). 479 At the time SLT No. 1958/2 Coonamble was granted it was subject to subsections 1-16, 18, 19, 24, 44, 52, 59 and 63 of Regulation 106 (being the version notified in the Gazette on 22 April 1955 as amended on 12 July 1957), as well as various special conditions. The general conditions were as follows: 1. A breach of any of the conditions will render the lease liable to forfeiture. 2. The rent for each year shall be paid in advance to the Crown Land Agent of the District, or to the Under Secretary for Lands, Sydney, on or before the 31st December of the year preceding that for which it is due. 3. The area leased is exclusive of any roads, streets, or lanes within its boundaries. 4. The lease shall not confer any right to purchase the land. 5. The land leased shall be used only for the purposes for which the lease is granted. 6. The lessee shall, within one year from the date of notification in the Gazette of the granting of the lease, enclose the land leased, either separately or conjointly with other lands held in the same interest, with a substantial fence, and maintain such fence in efficient repair during the currency of the lease. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than one year's notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, no compensation will be allowed in respect of such termination. 8. Upon forfeiture, surrender, expiration of the period of the lease, or termination of the lease by the Minister, all improvements on the land leased shall become the property of the Crown, and no compensation shall be payable therefor: Provided that on application within one month after such forfeiture, surrender, expiration, or termination, the Minister may permit the former lessee to remove from such land any movable improvements effected by him or at his expense: Provided further that, if directed by the Minister in writing to do so, the former lessee shall remove any structure or material from the land at his own cost and without compensation. In all cases where such permission or direction has been given, the movable improvements or structures or material, as the case may be, shall be removed within such time as the Minister may specify. 9. The lessee shall not remove any fixed improvements from the land leased during the currency of the lease, except with consent in writing of the Minister first obtained. 10. The lessee shall pay all rates and taxes and all fees and charges under the Local Government Act, 1919, as amended by subsequent Acts, upon the land leased during the currency of the lease. 11. All rights (except residence on land under cultivation) which are conferred by any Mining Act or Acts of New South Wales, with respect to Crown lands, are reserved with respect to the land leased. 12. The lessee shall hold and use the land leased bona fide in his or her own interest, and shall not transfer, except by way of mortgage, or release of mortgage, assign or otherwise in any way deal with the lease or sublet or part with the possession of or take stock on agistment on the land leased or any part thereof, except with the consent in writing of the Minister first obtained. 13. The lessee shall keep any improvements, the property of the Crown, upon the land leased, in good repair during the currency of the lease, fair wear and tear excepted. 14. The right is reserved to the Minister to withdraw from the lease at any time, and from time to time, any land required for mining or any mining purpose, or for any public purpose, and the lessee shall not be entitled to any compensation whatsoever therefor, or for severance. In the event of any withdrawal as aforesaid, the lessee shall be entitled, subject to the approval of the Minister, to remove any movable improvements, or to a fair and reasonable compensation for his interest in any improvements belonging to him on the land so withdrawn. The amount of such compensation shall be ascertained by multiplying a sum representing the fair value of the improvements by a fraction of which the numerator shall be the unexpired term of the lease, and the denominator the full term of the lease. In case the Minister and lessee shall not agree as to the amount of compensation as aforesaid the matter shall be submitted for the determination of the Local Land Board; and the decision of the Board or the Land and Valuation Court, on appeal, shall be final and conclusive. 15. All rights conferred upon the public in the terms of any reservation in regard to the land leased are reserved. 16. The lessee shall not interfere with the right of the public to the use of any roads, streets, lanes or tracks within the land leased. … 18. The lessee shall throughout the currency of the lease effectually destroy or cause to be destroyed all of any of the following on the land leased, viz.: Bathurst burr, noogoora burr, African box thorn, Mexican Poppy, prickly-pear, lantana, blackberry, wild tobacco, fireweed, crofton weed, mint weed, St. John's wort, serrated tussock, briars and all scrub (except edible scrub), undergrowth and such plants or weeds as are, or may from time to time be declared noxious under the Local Government Act, 1919, as amended by subsequent Acts, in all municipalities and shires, or in the particular municipality or shire in which the land leased, or any part of it, is situated. 19. The lessee shall take effective steps to keep the land leased free from foxes, rabbits, and other noxious animals during the currency of the lease. … 24. The lessee shall not reside nor permit any other person to reside on the land leased. … 44. The lessee shall not remove or permit any person to remove gravel, stone, clay, shells or other material for the purpose of sale from the land leased unless he is the holder of a quarry license under regulations made under the Crown Lands Consolidation Act, 1913, and has obtained the special authority of the Minister to operate on such land, but the lessee may with the approval of the District Surveyor, take from the land such gravel, stone, clay, shells or other material for building and other purposes upon such land as may be required by him as lessee. … 52. The right is reserved to the Minister to at once terminate the lease if he is of the opinion that the purpose for which it is granted is not being carried out in a cleanly manner, or is being carried out in a manner offensive to persons in the neighbourhood, or in a manner such as to be a nuisance or injurious or dangerous to health. … 59. In the conditions annexed to the lease the expression "The Minister" means the Minister for Lands, and any power, authority, duty or function conferred or imposed upon the Minister by or under such conditions may be exercised or performed either by the Minister or by such officers of the Department of Lands as the Minister may from time to time approve. … 63. The lessee shall not interfere with by ring-barking or otherwise any trees or saplings on the land leased. 480 The original Gazette notification published on 5 December 1958 also provided that SLT No. 1958/2 Coonamble was subject to the following special conditions: (a) A conviction of the lessee under the Public Health Act, 1902, as amended by subsequent Acts, will render the lease liable to forfeiture. (b) The lessee may deposit sawdust on the land leased with the object of filling in any depression in the land leased, but shall not otherwise permit the accumulation on the land leased of any sawdust or waste timber. If any such sawdust or waste timber is destroyed by fire such destruction shall be carried out in accordance with the Bush Fires Act, 1949. (c) For the purpose of appraisement of rent the term of the lease shall be divided into four (4) periods of seven (7) years each. The rent for second, third, fourth periods may be reappraised either upon reference by the Minister or at the request of the lessee made during the first six (6) months of the affected period.

[179]

(c) Additional findings of fact 484 This SLT was granted for the purpose of "Accommodation paddock" for the term 1 February 1925 to 31 December 1931, when the lease expired. The lease area was approximately six acres. 485 The lessee was Joseph Lunn. When the SLT commenced, Mr Lunn was the proprietor of the Grand Hotel in the village of Carinda. He sold the hotel in March 1929 and it was subsequently destroyed by fire in November 1931. The hotel licence was surrendered in 1932. 486 As at 1 February 1925 when SLT No. 1924/16 Walgett commenced, s 75 of the CLC Act 1913 was in different terms to those which later applied when SLT No. 1955/7 Warren was granted. In particular, as at 1 February 1925, the maximum area for the grant of a SLT was 320 acres (see s 7(b) of the Crown Lands and Closer Settlement (Amending) Act 1924 (NSW)). 487 When SLT No. 1924/16 Walgett was granted, it was subject to subsections 1-20 and 23 of Regulation 106 (being the version notified in the Gazette dated 24 April 1924, which amended a version of Regulation 106 published on 2 June 1922). Those subsections provided: 1. The rent for each year shall be paid in advance to the Colonial Treasurer or Crown Land Agent on or before the 31st December of the year preceding that for which it is due. 2. The area leased is exclusive of any roads, streets, or lanes within its boundaries. 3. The lease shall not confer any right to purchase the land. 4. The land shall be used only for the purposes for which the lease is granted. 5. The lessee shall, within one year from the date of notification in the Gazette of the granting of the lease, enclose the land, either separately or conjointly with other lands held in the same interest, with a substantial fence, and maintain such fence in efficient repair during the currency of the lease. 6. Upon forfeiture, surrender or expiration of the period of the lease, all improvements on the land shall become the property of the Crown, and no compensation shall be payable therefor, but on application within one month after such forfeiture, surrender or expiration, the Minister may permit the former lessee to remove any movable improvements effected by him or at his expense. In all cases where such permission has been given the improvements must be removed within three months after the date of forfeiture, surrender, or expiration. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than one year's notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, no compensation will be allowed; but the lessee may, subject to approval of the Minister, remove any movable improvements effected by or at the expense of the lessee during the currency of the lease, provided he does so within three (3) months after the termination of the lease. 8. No fixed improvements shall be removed from the land during the currency of the lease, unless with the approval in writing of the Minister. 9. The lessee shall pay all rates and taxes upon the land during the currency of the lease. 10. All rights (except residence on land under cultivation) which are conferred by the Mining Acts, with respect to Crown Lands, are reserved. 11. The lessee shall hold and use the land under lease bona fide in his or her own interest, and shall not transfer, assign, or otherwise in any way deal with the lease or sublet or part with the possession of the land leased, or any part thereof, without the consent in writing of the Minister. 12. Any improvements, the property of the Crown, upon the lease must be kept in repair during its currency, reasonable wear and tear excepted. 13. The right is reserved to the Minister to withdraw from the lease at any time, and from time to time, any land required for mining or any mining purpose, or for any public purpose, and the lessee shall not be entitled to any compensation whatsoever therefor, or for severance. In the event of any withdrawal as aforesaid, the lessee shall be entitled, subject to the approval of the Minister, to remove any movable improvements or to a fair and reasonable compensation for his interest in any improvements belonging to him on the land so withdrawn. The amount of such compensation shall be ascertained by multiplying a sum representing the fair value of the improvements by a fraction of which the numerator shall be the unexpired term of the lease, and the denominator the full term of the lease. In case the Minister and the lessee shall not agree as to the amount of compensation as aforesaid, the matter shall be submitted for the determination of the Board, and the decision of the Board or the Land and Valuation Court, on appeal, shall be final and conclusive. 14. Rights conferred upon the public, in the terms of any reservation in regard to the land leased, are reserved. 15. The right of the public to the use of any roads, streets, lanes or tracks shall not be interfered with. 16. With the concurrence of the Board, gates may be erected on any reserved road, and should further access be required, other gates shall be erected wherever and within such period as the Minister may hereafter direct. 17. No trees or saplings shall be interfered with by ringbarking or otherwise, except under permits issued under the provisions of the Forestry Act and Regulations thereunder, but the lessee may take from the land leased to him such timber and other material for building and other purposes upon such land as may be required by him as tenant thereof, provided such land is not comprised within a timber or forest reserve: Where the lease is for agricultural purposes other than the cultivation of natural grasses for grazing, such permit may be dispensed with when ringbarking or destruction of timber is necessary with a view to cultivation over any part or parts of the area leased, provided the area to be cultivated is defined and that not less than three weeks' notice in writing of the intention to ringbark or destroy the timber on that area is given to, and written permission is first obtained from, the local Forestry Officer. 18. If the lease be for grazing purposes only, the land may be cultivated to the extent necessary for the growth and spread of pasture grasses, but no further. 19. The lessee shall, throughout the currency of the lease, effectually destroy or cause to be destroyed all Bathurst burr, Noogoora burr, African box thorn, Mexican poppy, prickly-pear, lantana, blackberry, wild tobacco, brairs and all scrub (except edible scrub), undergrowth and such plants and weeds as are or may from time to time be declared to be noxious under the Local Government Act, 1919, in all municipalities or shires or in the particular municipality or shire in which the land leased or any part of it is situated. 20. The lessee shall take effective steps to keep the land free from foxes, rabbits, and other noxious animals during the currency of the lease. … 23. A breach of any of the conditions will render the lease liable to forfeiture.

[184]

(c) Additional findings of fact 491 Based on the evidence, I make the following additional findings of fact concerning SLT No. 1952/6 Coonamble. 492 This SLT was granted for the purpose of "Grazing and access to water" for the term 15 January 1954 to 31 December 1981, when it expired (as was agreed by the State and the applicant). The lease covered an area of approximately seven acres and was a strip of land two chains wide. 493 The lessees were Kathleen Horan and Una Marian McDonald, who were also the occupiers of land adjacent to the leased area. The SLT area was located between that land and the Castlereagh River. 494 As at 15 January 1954, s 75 of the CLC Act 1913 was in substantially similar terms to those which applied when SLT No. 1955/7 Warren commenced (as set out above). One notable difference is that, as at 15 January 1954, s 75 specified that the maximum area of a SLT was 1,920 acres (see s 6 of the Crown Lands (Amendment) Act 1931). 495 When it was granted, SLT No. 1952/6 Coonamble was subject to subsections 1, 2, 4-16, 18-20 and 23 of the Regulation 106 (being the version notified in the Gazette on 2 August 1940, which itself referred to various amendments to an earlier version of Regulation 106 published on 2 June 1922). It was also subject to a special condition relating to the preservation of trees and saplings. The Regulation 106 conditions were as follows: 1. The rent for each year shall be paid in advance to the Colonial Treasurer or Crown Land Agent on or before the 31st December of the year preceding that for which it is due. 2. The area leased is exclusive of any roads, streets, or lanes within its boundaries. … 4. The land shall be used only for the purposes for which the lease is granted. 5. The lessee shall, within one year from the date of notification in the Gazette of the granting of the lease, enclose the land, either separately or conjointly with other lands held in the same interest, with a substantial fence, and maintain such fence in efficient repair during the currency of the lease. 6. Upon forfeiture, surrender or expiration of the period of the lease, all improvements on the land shall become the property of the Crown, and no compensation shall be payable therefor, but on application within one month after such forfeiture, surrender or expiration, the Minister may permit the former lessee to remove any movable improvements effected by him or at his expense. In all cases where such permission has been given the improvements must be removed within three months after the date of forfeiture, surrender, or expiration. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than one year's notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, no compensation will be allowed; but the lessee may, subject to approval of the Minister, remove any movable improvements effected by or at the expense of the lessee during the currency of the lease, provided he does so within three (3) months after the termination of the lease. 8. No fixed improvements shall be removed from the land during the currency of the lease, unless with the approval in writing of the Minister. 9. The lessee shall pay all rates and taxes and all fees and charges under the Local Government Act upon the land during the currency of the lease. 10. All rights (except residence on land under cultivation) which are conferred by the Mining Acts, with respect to Crown Lands, are reserved. 11. The lessee shall hold and use the land bona-fide in his or her own interest, and shall not transfer, except by way of mortgage or release of mortgage, or otherwise in any way deal with the lease, or sublet or part with the possession of the land leased, or any part thereof, without the consent in writing of the Minister. 12. Any improvements, the property of the Crown, upon the lease must be kept in repair during its currency, reasonable wear and tear excepted. 13. The right is reserved to the Minister to withdraw from the lease at any time, and from time to time, any land required for mining or any mining purpose, or for any public purpose, and the lessee shall not be entitled to any compensation whatsoever therefor, or for severance. In the event of any withdrawal as aforesaid, the lessee shall be entitled, subject to the approval of the Minister, to remove any movable improvements or to a fair and reasonable compensation for his interest in any improvements belonging to him on the land so withdrawn. The amount of such compensation shall be ascertained by multiplying a sum representing the fair value of the improvements by a fraction of which the numerator shall be the unexpired term of the lease, and the denominator the full term of the lease. In case the Minister and the lessee shall not agree as to the amount of compensation as aforesaid, the matter shall be submitted for the determination of the Board, and the decision of the Board or the Land and Valuation Court, on appeal, shall be final and conclusive. 14. Rights conferred upon the public, in the terms of any reservation in regard to the land leased, are reserved. 15. The right of the public to the use of any roads, streets, lanes or tracks shall not be interfered with. 16. With the concurrence of the Board, gates may be erected on any reserved road, and should further access be required, other gates shall be erected wherever and within such period as the Minister may hereafter direct. … 18. If the lease be for grazing purposes only, the land may be cultivated to the extent necessary for the growth and spread of pasture grasses, but no further. 19. The lessee shall, throughout the currency of the lease, effectually destroy or cause to be destroyed all Bathurst burr, Noogoora burr, African box thorn, Mexican poppy, prickly-pear, lantana, blackberry, wild tobacco, brairs and all scrub (except edible scrub), undergrowth and such plants and weeds as are or may from time to time be declared to be noxious under the Local Government Act, 1919, in all municipalities or shires or in the particular municipality or shire in which the land leased or any part of it is situated. 20. The lessee shall take effective steps to keep the land free from foxes, rabbits, and other noxious animals during the currency of the lease. … 23. A breach of any of the conditions will render the lease liable to forfeiture. 496 The original Gazette notification published 19 March 1954 also provided that SLT No. 1952/6 Coonamble shall be subject to the following special condition: No trees or saplings shall be interfered with by ringbarking or otherwise, except under permits issued under the provisions of the Forestry Act and regulations thereunder, but the lessee may take from the land leased to him such timber and other material for building and other purposes upon such land as may be required by him as tenant thereof, provided such land is not comprised within a timber or forest reserve. Provided also that no tree situated within, or within 1 chain of, the bed or bank of the Castlereagh River (see notifications in Government Gazettes of 9th April, 1948, and 30th September, 1949) shall be ringbarked, cut down, felled or destroyed except with the permission of the Forestry Commission.

[189]

(c) Additional findings of fact 500 Based on the evidence, I make the following additional findings of fact concerning SLT No. 1964/1 Coonamble. 501 This SLT was granted for the purpose of "Grazing and access to water" for the term 9 May 1965 to 31 December 1992, when it expired (as was agreed by the State and the applicant). The SLT was over an area of approximately 35 acres. 502 As at 9 May 1965 when SLT No. 1964/1 Coonamble commenced, s 75 of the CLC Act 1913 was in substantially the same terms to those which applied when SLT No. 1955/7 Warren commenced (as set out above). One difference was that the maximum term for a SLT had increased from 28 to 40 years (see s 5(1)(c)(ii) of the Crown Lands (Amendment) Act 1964 (NSW)). However, SLT No. 1964/1 was in any event granted for a term of less than 28 years. 503 When it was granted, SLT No. 1964/1 Coonamble was subject to subsections 1, 2, 5-12, 14, 15, 17-19, 24, 36, 38, 41, 44, 59 and 60 of Regulation 106 (as amended, with the last relevant amendment having occurred on 4 December 1964). Those subsections provided: 1. A breach of any of the conditions will render the lease liable to forfeiture. 2. The rent for each year shall be paid in advance to the Crown Land Agent of the District, or to the Under Secretary for Lands, Sydney, on or before the 31st December of the year preceding that for which it is due. … 5. The land leased shall be used only for the purposes for which the lease is granted. 6. The lessee shall, within one year from the date of notification in the Gazette of the granting of the lease, enclose the land leased, either separately or conjointly with other lands held in the same interest, with a substantial fence, and maintain such fence in efficient repair during the currency of the lease. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than one year's notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, no compensation will be allowed in respect of such termination. 8. Upon forfeiture, surrender, expiration of the period of the lease, or termination of the lease by the Minister, all improvements on the land leased shall become the property of the Crown, and no compensation shall be payable therefor: Provided that on application within one month after such forfeiture, surrender, expiration, or termination, the Minister may permit the former lessee to remove from such land any movable improvements effected by him or at his expense: Provided further that, if directed by the Minister in writing to do so, the former lessee shall remove any structure or material from the land at his own cost and without compensation. In all cases where such permission or direction has been given, the movable improvements or structures or material, as the case may be, shall be removed within such time as the Minister may specify. 9. The lessee shall not remove any fixed improvements from the land leased during the currency of the lease, except with consent in writing of the Minister first obtained. 10. The lessee shall pay all rates and taxes and all fees and charges under the Local Government Act, 1919, as amended by subsequent Acts, upon the land leased during the currency of the lease. 11. All rights (except residence on land under cultivation) which are conferred by any Mining Act or Acts of New South Wales, with respect to Crown lands, are reserved with respect to the land leased. 12. The lessee shall hold and use the land leased bona fide in his or her own interest, and shall not transfer, except by way of mortgage, or release of mortgage, assign or otherwise in any way deal with the lease or sublet or part with the possession of or take stock on agistment on the land leased or any part thereof, except with the consent in writing of the Minister first obtained. … 17. If the lease be for grazing purposes only, the land leased may be cultivated to the extent necessary for the growth and spread of pasture grasses, but no further. 18. The lessee shall throughout the currency of the lease effectually destroy or cause to be destroyed all of any of the following on the land leased, viz.: Bathurst burr, noogoora burr, African box thorn, Mexican Poppy, prickly-pear, lantana, blackberry, wild tobacco, fireweed, crofton weed, mint weed, St. John's wort, serrated tussock, briars and all scrub (except edible scrub), undergrowth and such plants or weeds as are, or may from time to time be declared noxious under the Local Government Act, 1919, as amended by subsequent Acts, in all municipalities and shires, or in the particular municipality or shire in which the land leased, or any part of it, is situated. 19. The lessee shall take effective steps to keep the land leased free from foxes, rabbits, and other noxious animals during the currency of the lease. … 24. The lessee shall not reside nor permit any other person to reside on the land leased. … 36. The lessee shall not interfere with by ringbarking or otherwise any trees or saplings on the land lease except under the authority of a permit issued under the provisions of the Forestry Act, 1916, as amended by subsequent Acts, and Regulations thereunder, but, subject to the next succeeding condition, the lessee, with the approval of the District Surveyor may take from the land leased such timber and other material for building and other purposes upon such land, as the District Surveyor may approve, provided that such land is not comprised within a timber or forest reserve. Where the lease is for agricultural purposes other than the cultivation of natural grasses for grazing, such permit may be dispensed with when ringbarking or destruction of timber is necessary with a view to cultivation over any part or parts of the land leased, provided the area to be cultivated is defined, and that not less than three weeks' notice in writing of the intention to ringbark or destroy the timber on that area is given to, and written permission is first obtained from, the local Forestry Officer. … 38. The lessee shall preserve on the land leased an average of not less than seven matured or semi-matured trees of honey producing value to each acre for shade, shelter and honey provision. … 41. The lessee shall not overstock the land leased either wholly or in part, the decision as to overstocking to rest with the Minister. Should the Minister deem it necessary for maintenance of pastures or preservation of the fertility of such land or for the prevention of erosion thereon, he may determine the maximum number of stock that may be depastured on such land or any specified part of such land and the lessee shall not permit this number to be exceeded. Such determination may be varied by the Minister for such periods and on such further conditions as he may determine. The lessee shall furnish such returns relative to the stocking of such land as the Minister may require. … 44. The lessee shall not remove or permit any person to remove gravel, stone, clay, shells or other material for the purpose of sale from the land leased unless he is the holder of a quarry license under regulations made under the Crown Lands Consolidation Act, 1913, and has obtained the special authority of the Minister to operate on such land, but the lessee may with the approval of the District Surveyor, take from the land such gravel, stone, clay, shells or other material for building and other purposes upon such land as may be required by him as lessee. … 59. In the conditions annexed to the lease the expression "The Minister" means the Minister for Lands, and any power, authority, duty or function conferred or imposed upon the Minister by or under such conditions may be exercised or performed either by the Minister or by such officers of the Department of Lands as the Minister may from time to time approve. 60. For the purpose of appraisement of rent the term of the lease shall be divided into periods. The first period shall expire on 31st December next after the expiration of nine (9) years from the date of commencement of the lease, and each succeeding period shall be for ten (10) years or for any unexpired term of less than ten (10) years at the expiration of any period. The rent for the second and each succeeding period may be reappraised either upon reference by the Minister or at the request of the lessee made during the first six (6) months of the affected period.

[194]

(c) Additional findings of fact 507 Based on the evidence, I make the following additional findings of fact concerning SLT No. 1952/1 Warren. 508 This SLT was granted over the same land as SLT No. 1939/1 Warren, as discussed at [462] above. The State accepted that there would be no need for the Court to consider the effect of SLT No. 1952/1 Warren if the Court found that SLT No. 1939/1 Warren wholly extinguished any native title. 509 The area the subject of SLT No. 1952/1 Warren was approximately 36 acres and was adjacent to a watercourse. During at least part of the term of the lease, there was a hay shed on the leased area. 510 The lessee, Berawinnia Pastoral Co. Pty Ltd became the owner of Oxley Station by way of a transfer dated 10 October 1950. As noted above, Oxley Station was on the other side of the Macquarie River from the lease area. It is reasonable to infer that the leased area was used in connection with the running of Oxley Station. 511 As at 1 January 1951, s 75 of the CLC Act 1913 (NSW) was in the same form as it had been when SLT No. 1939/1 commenced on 1 November 1940. As noted above, that version of s 75 provided that the maximum area for a SLT was 1,920 acres (see s 6(a)(i) of the Crown Lands (Amendment) Act 1931). In addition, s 75A (and the references to that section in s 75) were yet to be inserted. 512 At the time of grant, SLT No. 1952/1 Warren was subject to subsections 1, 2, 4-16, 18-20 and 23 of the Regulation 106 (being the version notified in the Gazette on 2 August 1940, which itself referred to various amendments to an earlier version of Regulation 106 published on 2 June 1922). The SLT was also made subject to special conditions relating to the bona fide use of any travelling stock or camping reserves within land, as well as the preservation of trees and saplings. The general conditions were as follows: 1. The rent for each year shall be paid in advance to the Colonial Treasurer or Crown Land Agent on or before the 31st December of the year preceding that for which it is due. 2. The area leased is exclusive of any roads, streets, or lanes within its boundaries. … 4. The land shall be used only for the purposes for which the lease is granted. 5. The lessee shall, within one year from the date of notification in the Gazette of the granting of the lease, enclose the land, either separately or conjointly with other lands held in the same interest, with a substantial fence, and maintain such fence in efficient repair during the currency of the lease. 6. Upon forfeiture, surrender or expiration of the period of the lease, all improvements on the land shall become the property of the Crown, and no compensation shall be payable therefor, but on application within one month after such forfeiture, surrender or expiration, the Minister may permit the former lessee to remove any movable improvements effected by him or at his expense. In all cases where such permission has been given the improvements must be removed within three months after the date of forfeiture, surrender, or expiration. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than one year's notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, no compensation will be allowed; but the lessee may, subject to approval of the Minister, remove any movable improvements effected by or at the expense of the lessee during the currency of the lease, provided he does so within three (3) months after the termination of the lease. 8. No fixed improvements shall be removed from the land during the currency of the lease, unless with the approval in writing of the Minister. 9. The lessee shall pay all rates and taxes and all fees and charges under the Local Government Act upon the land during the currency of the lease. 10. All rights (except residence on land under cultivation) which are conferred by the Mining Acts, with respect to Crown Lands, are reserved. 11. The lessee shall hold and use the land bona-fide in his or her own interest, and shall not transfer, except by way of mortgage or release of mortgage, or otherwise in any way deal with the lease, or sublet or part with the possession of the land leased, or any part thereof, without the consent in writing of the Minister. 12. Any improvements, the property of the Crown, upon the lease must be kept in repair during its currency, reasonable wear and tear excepted. 13. The right is reserved to the Minister to withdraw from the lease at any time, and from time to time, any land required for mining or any mining purpose, or for any public purpose, and the lessee shall not be entitled to any compensation whatsoever therefor, or for severance. In the event of any withdrawal as aforesaid, the lessee shall be entitled, subject to the approval of the Minister, to remove any movable improvements or to a fair and reasonable compensation for his interest in any improvements belonging to him on the land so withdrawn. The amount of such compensation shall be ascertained by multiplying a sum representing the fair value of the improvements by a fraction of which the numerator shall be the unexpired term of the lease, and the denominator the full term of the lease. In case the Minister and the lessee shall not agree as to the amount of compensation as aforesaid, the matter shall be submitted for the determination of the Board, and the decision of the Board or the Land and Valuation Court, on appeal, shall be final and conclusive. 14. Rights conferred upon the public, in the terms of any reservation in regard to the land leased, are reserved. 15. The right of the public to the use of any roads, streets, lanes or tracks shall not be interfered with. 16. With the concurrence of the Board, gates may be erected on any reserved road, and should further access be required, other gates shall be erected wherever and within such period as the Minister may hereafter direct. … 18. If the lease be for grazing purposes only, the land may be cultivated to the extent necessary for the growth and spread of pasture grasses, but no further. 19. The lessee shall, throughout the currency of the lease, effectually destroy or cause to be destroyed all Bathurst burr, Noogoora burr, African box thorn, Mexican poppy, prickly-pear, lantana, blackberry, wild tobacco, briars and all scrub (except edible scrub), undergrowth and such plants and weeds as are or may from time to time be declared to be noxious under the Local Government Act, 1919, in all municipalities or shires or in the particular municipality or shire in which the land leased or any part of it is situated. 20. The lessee shall take effective steps to keep the land free from foxes, rabbits, and other noxious animals during the currency of the lease. … 23. A breach of any of the conditions will render the lease liable to forfeiture. 513 The original Gazette notification published on 24 July 1953 also provided that SLT No. 1952/1 Warren was subject to the following special conditions: (a) Any part of the Travelling Stock or Camping Reserve within the land leased shall during the whole currency of the lease, be open to the use of bona fide travellers, travelling stock, teamsters and carriers without interference or annoyance by lessee and the lessee shall post in a conspicuous place thereon notice-boards indicating for public information the purpose of such reserve. In fencing such reserve the lessee shall also provide gates and other facilities for the entrance and exit of travelling stock, teamsters and others , such notice-boards, gates and other facilities shall be erected and maintained to the satisfaction of the Stock Inspector. (b) No trees or saplings on the land leased shall be interfered with by ringbarking or otherwise. 514 SLT No. 1952/1 Warren was extended by a Gazette notification dated 20 April 1965. The extension period was 1 January 1965 to 31 December 1990 and noting that, at the commencement of the extension period, the maximum term for a SLT had increased from 28 to 40 years (see s 5(1)(c)(ii) of the Crown Lands (Amendment) Act 1964). That Gazette notification specified that SLT No. 1952/1 Warren (as extended) was subject to subsections 1, 2, 5-16, 18, 19, 24, 31, 32, 44, 59, 61, 63 and 68 of Regulation 106 (being the version notified 22 April 1955). Presumably this also encompassed the amendments made up until 4 December 1964, particularly as prior to that time subsection 68 did not exist. The relevant subsections were as follows: 1. A breach of any of the conditions will render the lease liable to forfeiture. 2. The rent for each year shall be paid in advance to the Crown Land Agent of the District, or to the Under Secretary for Lands, Sydney, on or before the 31st December of the year preceding that for which it is due. … 5. The land leased shall be used only for the purposes for which the lease is granted. 6. The lessee shall, within one year from the date of notification in the Gazette of the granting of the lease, enclose the land leased, either separately or conjointly with other lands held in the same interest, with a substantial fence, and maintain such fence in efficient repair during the currency of the lease. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than one year's notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, no compensation will be allowed in respect of such termination. 8. Upon forfeiture, surrender, expiration of the period of the lease, or termination of the lease by the Minister, all improvements on the land leased shall become the property of the Crown, and no compensation shall be payable therefor: Provided that on application within one month after such forfeiture, surrender, expiration, or termination, the Minister may permit the former lessee to remove from such land any movable improvements effected by him or at his expense: Provided further that, if directed by the Minister in writing to do so, the former lessee shall remove any structure or material from the land at his own cost and without compensation. In all cases where such permission or direction has been given, the movable improvements or structures or material, as the case may be, shall be removed within such time as the Minister may specify. 9. The lessee shall not remove any fixed improvements from the land leased during the currency of the lease, except with consent in writing of the Minister first obtained. 10. The lessee shall pay all rates and taxes and all fees and charges under the Local Government Act, 1919, as amended by subsequent Acts, upon the land leased during the currency of the lease. 11. All rights (except residence on land under cultivation) which are conferred by any Mining Act or Acts of New South Wales, with respect to Crown lands, are reserved with respect to the land leased. 12. The lessee shall hold and use the land leased bona fide in his or her own interest, and shall not transfer, except by way of mortgage, or release of mortgage, assign or otherwise in any way deal with the lease or sublet or part with the possession of or take stock on agistment on the land leased or any part thereof, except with the consent in writing of the Minister first obtained. 13. The lessee shall keep any improvements, the property of the Crown, upon the land leased, in good repair during the currency of the lease, fair wear and tear excepted. 14. The right is reserved to the Minister to withdraw from the lease at any time, and from time to time, any land required for mining or any mining purpose, or for any public purpose, and the lessee shall not be entitled to any compensation whatsoever therefor, or for severance. In the event of any withdrawal as aforesaid, the lessee shall be entitled, subject to the approval of the Minister, to remove any movable improvements, or to a fair and reasonable compensation for his interest in any improvements belonging to him on the land so withdrawn. The amount of such compensation shall be ascertained by multiplying a sum representing the fair value of the improvements by a fraction of which the numerator shall be the unexpired term of the lease, and the denominator the full term of the lease. In case the Minister and lessee shall not agree as to the amount of compensation as aforesaid the matter shall be submitted for the determination of the Local Land Board; and the decision of the Board or the Land and Valuation Court, on appeal, shall be final and conclusive. 15. All rights conferred upon the public in the terms of any reservation in regard to the land leased are reserved. 16. The lessee shall not interfere with the right of the public to the use of any roads, streets, lanes or tracks within the land leased. … 18. The lessee shall throughout the currency of the lease effectually destroy or cause to be destroyed all of any of the following on the land leased, viz.: Bathurst burr, noogoora burr, African box thorn, Mexican Poppy, prickly-pear, lantana, blackberry, wild tobacco, fireweed, crofton weed, mint weed, St. John's wort, serrated tussock, briars and all scrub (except edible scrub), undergrowth and such plants or weeds as are, or may from time to time be declared noxious under the Local Government Act, 1919, as amended by subsequent Acts, in all municipalities and shires, or in the particular municipality or shire in which the land leased, or any part of it, is situated. 19. The lessee shall take effective steps to keep the land leased free from foxes, rabbits, and other noxious animals during the currency of the lease. … 24. The lessee shall not reside nor permit any other person to reside on the land leased. … 31. The Crown shall not be responsible to the lessee or his successors in title for provision of access to the land leased. 32. The right is reserved to the public of free access along the bank of the watercourse adjoining the land leased. ... 44. The lessee shall not remove or permit any person to remove gravel, stone, clay, shells or other material for the purpose of sale from the land leased unless he is the holder of a quarry license under regulations made under the Crown Lands Consolidation Act, 1913, and has obtained the special authority of the Minister to operate on such land, but the lessee may with the approval of the District Surveyor, take from the land such gravel, stone, clay, shells or other material for building and other purposes upon such land as may be required by him as lessee. … 59. In the conditions annexed to the lease the expression "The Minister" means the Minister for Lands, and any power, authority, duty or function conferred or imposed upon the Minister by or under such conditions may be exercised or performed either by the Minister or by such officers of the Department of Lands as the Minister may from time to time approve. … 61. Any part of a reserve for travelling stock, camping or water supply within the land leased shall, during the whole currency of the lease, be open to the use of bona fide travellers, travelling stock, teamsters and carriers without interference or annoyance by lessee and the lessee shall post in a conspicuous place thereon notice-boards indicating for public information the purpose of such reserve. In fencing the lease, the lessee shall also provide gates and other facilities for the entrance and exit of travelling stock, teamsters and others; such notice-boards, gates and facilities to be erected and maintained to the satisfaction of the Stock Inspector. The lessee shall not overstock, wholly or in part, the area leased within such reserve; the decision as to overstocking to rest with the Minister. … 63. The lessee shall not interfere with by ring-barking or otherwise any trees or saplings on the land leased. … 68. For the purpose of appraisement of rent the extended term of the lease shall be divided into periods. The first period shall be for ten (10) years and each succeeding period shall be for ten (10) years or for any unexpired term of less than ten (10) years at the expiration of any period. The rent for the second and each succeeding period may be reappraised either upon reference by the Minister or at the request of the lessee made during the first six (6) months of the affected period. 515 The Gazette notification published on 20 April 1965 also provided that SLT No. 1952/1 Warren (as extended) was subject to the following special condition: Notwithstanding any other condition, the lessee shall not, except with the permission of the Forestry Commission, ringbark, cut down, fell or destroy or cause or allow to be ringbarked, cut down, felled or destroyed any tree, sapling, shrub or scrub within, or within 1 chain of, the bed or bank of the Macquarie River. 516 In 1979, SLT No. 1952/1 Warren was transferred from Berawinnia Pastoral Co. Pty Ltd to Twynam Pastoral Co.

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(c) Additional findings of fact 520 Based on the evidence, I make the following additional findings of fact concerning SLT No. 1957/42 Nyngan. 521 This SLT was granted for the purpose of "Grazing and dairying" for the term 1 October 1957 to 31 December 1984. It was forfeited on 21 January 1972, as was agreed by the State and the applicant. The leased area was approximately 134 acres. 522 As at 1 October 1957 when SLT No. 1957/42 Nyngan commenced, s 75 of the CLC Act 1913 was relevantly in the same terms to those which applied when SLT No. 1955/7 Warren commenced (as set out above). 523 SLT No. 1957/42 Nyngan was subject to subsections 1-2, 4-16, 18-19, 29, 20, 36, 38, 41-42, 44, 55 and 59 of Regulation 106 (being the version notified in the Gazette on 22 April 1955 and noting that the subsequent amendment on 12 July 1957 did not relate to any of those subsections). The lease was also subject to a special condition relating to the reappraisal of rent. The general conditions in the relevant subsections of Regulation 106 were as follows: 1. A breach of any of the conditions will render the lease liable to forfeiture. 2. The rent for each year shall be paid in advance to the Crown Land Agent of the District, or to the Under Secretary for Lands, Sydney, on or before the 31st December of the year preceding that for which it is due. … 4. The lease shall not confer any right to purchase the land. 5. The land leased shall be used only for the purposes for which the lease is granted. 6. The lessee shall, within one year from the date of notification in the Gazette of the granting of the lease, enclose the land leased, either separately or conjointly with other lands held in the same interest, with a substantial fence, and maintain such fence in efficient repair during the currency of the lease. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than one year's notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, no compensation will be allowed in respect of such termination. 8. Upon forfeiture, surrender, expiration of the period of the lease, or termination of the lease by the Minister, all improvements on the land leased shall become the property of the Crown, and no compensation shall be payable therefor: Provided that on application within one month after such forfeiture, surrender, expiration, or termination, the Minister may permit the former lessee to remove from such land any movable improvements effected by him or at his expense: Provided further that, if directed by the Minister in writing to do so, the former lessee shall remove any structure or material from the land at his own cost and without compensation. In all cases where such permission or direction has been given, the movable improvements or structures or material, as the case may be, shall be removed within such time as the Minister may specify. 9. The lessee shall not remove any fixed improvements from the land leased during the currency of the lease, except with consent in writing of the Minister first obtained. 10. The lessee shall pay all rates and taxes and all fees and charges under the Local Government Act, 1919, as amended by subsequent Acts, upon the land leased during the currency of the lease. 11. All rights (except residence on land under cultivation) which are conferred by any Mining Act or Acts of New South Wales, with respect to Crown lands, are reserved with respect to the land leased. 12. The lessee shall hold and use the land leased bona fide in his or her own interest, and shall not transfer, except by way of mortgage, or release of mortgage, assign or otherwise in any way deal with the lease or sublet or part with the possession of or take stock on agistment on the land leased or any part thereof, except with the consent in writing of the Minister first obtained. 13. The lessee shall keep any improvements, the property of the Crown, upon the land leased, in good repair during the currency of the lease, fair wear and tear excepted. 14. The right is reserved to the Minister to withdraw from the lease at any time, and from time to time, any land required for mining or any mining purpose, or for any public purpose, and the lessee shall not be entitled to any compensation whatsoever therefor, or for severance. In the event of any withdrawal as aforesaid, the lessee shall be entitled, subject to the approval of the Minister, to remove any movable improvements, or to a fair and reasonable compensation for his interest in any improvements belonging to him on the land so withdrawn. The amount of such compensation shall be ascertained by multiplying a sum representing the fair value of the improvements by a fraction of which the numerator shall be the unexpired term of the lease, and the denominator the full term of the lease. In case the Minister and lessee shall not agree as to the amount of compensation as aforesaid the matter shall be submitted for the determination of the Local Land Board; and the decision of the Board or the Land and Valuation Court, on appeal, shall be final and conclusive. 15. All rights conferred upon the public in the terms of any reservation in regard to the land leased are reserved. 16. The lessee shall not interfere with the right of the public to the use of any roads, streets, lanes or tracks within the land leased. … 18. The lessee shall throughout the currency of the lease effectually destroy or cause to be destroyed all of any of the following on the land leased, viz.: Bathurst burr, noogoora burr, African box thorn, Mexican Poppy, prickly-pear, lantana, blackberry, wild tobacco, fireweed, crofton weed, mint weed, St. John's wort, serrated tussock, briars and all scrub (except edible scrub), undergrowth and such plants or weeds as are, or may from time to time be declared noxious under the Local Government Act, 1919, as amended by subsequent Acts, in all municipalities and shires, or in the particular municipality or shire in which the land leased, or any part of it, is situated. 19. The lessee shall take effective steps to keep the land leased free from foxes, rabbits, and other noxious animals during the currency of the lease. … 29. The lessee shall erect gates on roads within the land leased when and where directed by the District Surveyor for public use and shall maintain same together with approaches thereto in good order to the satisfaction of the District Surveyor. 30. The lessee shall not erect or permit any person to erect any structure, except such gates as may be authorised, on roads within the land leased, and shall not cultivate or use such roads for any purpose not compatible with the use of the road by the public. … 36. The lessee shall not interfere with by ringbarking or otherwise any trees or saplings on the land lease except under the authority of a permit issued under the provisions of the Forestry Act, 1916, as amended by subsequent Acts, and Regulations thereunder, but, subject to the next succeeding condition, the lessee, with the approval of the District Surveyor may take from the land leased such timber and other material for building and other purposes upon such land, as the District Surveyor may approve, provided that such land is not comprised within a timber or forest reserve. Where the lease is for agricultural purposes other than the cultivation of natural grasses for grazing, such permit may be dispensed with when ringbarking or destruction of timber is necessary with a view to cultivation over any part or parts of the land leased, provided the area to be cultivated is defined, and that not less than three weeks' notice in writing of the intention to ringbark or destroy the timber on that area is given to, and written permission is first obtained from, the local Forestry Officer. … 38. The lessee shall preserve on the land leased an average of not less than seven matured or semi-matured trees of honey producing value to each acre for shade, shelter and honey provision. … 41. The lessee shall not overstock the land leased either wholly or in part, the decision as to overstocking to rest with the Minister. Should the Minister deem it necessary for maintenance of pastures or preservation of the fertility of such land or for the prevention of erosion thereon, he may determine the maximum number of stock that may be depastured on such land or any specified part of such land and the lessee shall not permit this number to be exceeded. Such determination may be varied by the Minister for such periods and on such further conditions as he may determine. The lessee shall furnish such returns relative to the stocking of such land as the Minister may require. 42. If at any time so directed by the Minister, the lessee shall, on such part or parts of the land leased as shall be specified in the direction adopt and maintain such agricultural or pastoral practices and instal[l] such soil erosion control structures as the Minister may in such direction specify in the interests of soil conservation and the mitigation or prevention of erosion. … 44. The lessee shall not remove or permit any person to remove gravel, stone, clay, shells or other material for the purpose of sale from the land leased unless he is the holder of a quarry license under regulations made under the Crown Lands Consolidation Act, 1913, and has obtained the special authority of the Minister to operate on such land, but the lessee may with the approval of the District Surveyor, take from the land such gravel, stone, clay, shells or other material for building and other purposes upon such land as may be required by him as lessee. … 50. A conviction of the lessee under the Public Health Act, 1902, or the Dairies Supervision Act, 1901, as amended by subsequent Acts respectively, will render the lease liable to forfeiture. … 59. In the conditions annexed to the lease the expression "The Minister" means the Minister for Lands, and any power, authority, duty or function conferred or imposed upon the Minister by or under such conditions may be exercised or performed either by the Minister or by such officers of the Department of Lands as the Minister may from time to time approve. 524 The original Gazette notification published on 29 November 1957 also provided that SLT No. 1957/42 Nyngan was subject to the following special condition: The rent for the last fourteen (14) years of the term of the lease may be reappraised either upon reference by the Minister or at the request of the lessee made during the first six (6) months of such period.

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(a) Legislation concerning SLTs 526 This land tenure was introduced by ss 86-92 of the CL Act 1884. The purposes for which such SLTs were to be granted were set out in s 90 and included inter alia wharfs, irrigation works, saw-mills, quarries, fisheries, building or repairing ships or boats and obtaining items such as shells or gravel. 527 All nine SLTs the subject of this Schedule were granted pursuant to s 75 of the CLC Act 1913. Under that provision, SLTs could be granted for one of the numerous purposes set out in that provision or in a Ministerial declaration. The purposes set out in s 75 remained the same throughout the relevant period, save that in 1931 the purposes of obtaining "shells - limestone - loam - brick earth - gravel - or ballast" were omitted from the Act (see s 6(a)(ii) of the Crown Lands (Amendment) Act 1931). Various Ministerial declarations were made from time to time by notification in the Gazette. 528 There is no dispute that the nine relevant SLTs were granted for a purpose listed either in the CLC Act 1913 or in a Ministerial declaration. 529 Regulations were made under the CLC Act 1913. They included a list of potential conditions which, subject to the terms of any particular lease, were applicable to a SLT where the Minister considered the conditions to be appropriate (see Regulation 106). The initial regulations were notified in the Gazette dated 11 March 1914. 530 The initial regulations included various regulations with specific reference to "Special Leases" (regs 103-106). Regulation 106 provided that, unless otherwise specified in the Gazette notification intimating the approval of an application for a SLT, every SLT shall be subject to 22 specified general conditions and to any other conditions that may be specified in the Gazette notification. 531 The 22 conditions set out in Regulation 106 included conditions that: the lease shall not confer any right to purchase the land (Regulation 106(3)); that the land shall be used only for the purposes for which the lease was granted (Regulation 106(4)); the land be enclosed with a substantial fence within one year of grant (Regulation 106(5)); that upon forfeiture, surrender or expiration of the period of the lease, all improvements on the land became the property of the Crown with no right of compensation save for an entitlement to apply to the Minister to permit the removal of any moveable improvements (Regulation 106(6)); the Minister was empowered to terminate the lease on giving no less than 12 months' notice, again with no right to compensation save for the right to seek approval to remove any moveable improvements (Regulation 106(7)); the lease could not be transferred or sublet without the Minister's approval in writing (Regulation 106(11)); the Minister was empowered to withdraw from the lease at any time any land required for mining or any mining purpose or any public purpose, again without any right to compensation save for the limited right to remove improvements with Ministerial approval (Regulation 106(13)); public rights in terms of any reservation affecting the leased land were reserved (Regulation 106(14)); the lessee was not to interfere with the right of the public to the use any roads or tracks (Regulation 106(15)); if the lease was for grazing purposes only, it was provided that the land could be cultivated to the extent necessary for the growth and spread of pasture grasses, but no further (Regulation 106(18)); the lessee was required to keep open for the use of bona fide travellers, travelling stock, teamsters and carriers, any part of a travelling stock or camping reserve within the leased land (Regulation 106(21)); and a breach of any of the conditions in Regulation 106 rendered the lease liable to forfeiture (Regulation 106(22)). 532 The initial Regulation 106 was subsequently amended several times, with consolidated versions of the regulations being published on various dates, including 20 April 1917, 2 June 1922 and 22 April 1955. The relevant amendments are reflected in the specific conditions applicable to each of the nine SLTs as detailed above. 533 There was no practice of issuing a formal lease instrument for a SLT. Rather, notification of the issue of such a lease with a schedule of conditions applicable to it was published in the Gazette, including any special conditions. 534 Under s 75 of the CLC Act 1913 as enacted, a SLT could be granted for a fixed term of up to 28 years. If the original fixed term was for less than that period, it could be extended (s 229 of the CLC Act 1913). This changed in 1964 when the CLC Act 1913 was amended to enable the grant of a SLT for a maximum term of 40 years (s 5(1)(c)(ii) of the Crown Lands (Amendment) Act 1964). In 1952, the option of applying to convert certain SLTs to leases in perpetuity became available (see Crown Lands (Special Leases) Amendment Act 1952 (NSW)). In 1968, the option to convert to a lease in perpetuity became available to SLTs generally (see s 4(1)(b)(ii) of the Crown Lands and Closer Settlement (Amendment) Act 1968 (NSW)). 535 The dates on which the nine SLTs were granted range from 1 February 1925 to 9 May 1965. The terms of the CLC Act 1913 (including s 75) and the relevant regulations did not remain constant during that lengthy period. In particular, the conditions imposed by Regulation 106 changed several times during that period. The relevant provisions in force at the time of each grant of the nine SLTs are noted in the previous section of these reasons for judgment. 536 It might also be noted that the conditions attaching to SLT No. 1952/1 Warren changed during the course of the lease period, following the extension of that SLT. Those changes are noted in the previous section of these reasons for judgment.

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(i) SLT No. 1955/7 Warren 538 The State relied upon the following five matters in support of its claim that SLT No. 1955/7 Warren (which was granted for the purpose of "Access") was a true lease in the traditional common law sense and wholly extinguished any native title rights and interests in the leased area. (a) The following conditions were said to indicate that the lease was a true common law lease: the requirement that the lessee hold and use the land under lease for his or her own interest; the stipulation that the lessee not part with possession of the leased land or any part thereof without the Minister's written consent; the requirement to keep leased area free of noxious weeds; the requirement to erect fencing around the boundary of a leased area; the ability of the lessee to transfer the lease; the ability of the lessee to use the lease as security or have it mortgaged; and the requirement that the lessee pay all rates and taxes. (b) The substantive nature of the interest which the State claimed was conferred by the lease was said to be reflected in the following: the lessee's entitlement to apply to convert the lease into a conditional purchase under s 190 of the CLC Act 1913; and following the commencement of the Crown Lands and Closer Settlement (Amendment) Act 1968 (see ss 4(1)(b)(ii) and 4(1)(f)(ii)), the lessee could apply for the lease to be extended into perpetuity pursuant to s 75A of the CLC Act 1913. (c) The State submitted that it is implicit from s 250(1) of the CLC Act 1913 that the lessee could bring an action in trespass against third parties, which right was then regulated by that provision. The State submitted that this right was linked to the lessee's obligation to erect boundary fencing because that requirement implicitly recognised a lessee's right to exclude or remove strangers from the leased area. (d) The State drew attention to the fact that the lessee was entitled to some form of compensation for improvements erected by the lessee on the land in the event that any lands were withdrawn from the leased area, which the State submitted demonstrated that the interest granted under the lease was more substantive than the "precarious" interest under pastoral leases as considered in Ward. (e) The State challenged the applicant's contention that the public had a right to access leased land under rights conferred by any reservation of the leased land. The State emphasised that third rights of entry applied only to the use of any reserves, roads or tracks on the land and the entitlement to travel through the land was confined to travel on the reserve, road or track and did not involve an entitlement to stay or camp or to access any other part of the leased land.

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(ii) SLT No. 1939/1 Warren 539 The State's submissions relating specifically to SLT No. 1939/1 Warren (which was granted for the purpose of "Access and storage") may be summarised as follows. (a) The following conditions of the SLT were said to support the proposition that it was a lease in the true common law sense which wholly distinguished any native title rights and interests: the requirement that the lessee hold and use the land under lease for his or her own interest; the stipulation that the lessee not part with the possession of the land leased or any part thereof without the Minister's written consent; the requirement to keep the leased area free of noxious weeds; the requirement to erect fencing around the boundary of the leased area (although, it should be interpolated at this point that, as submitted by the applicant, it was never a specific condition of SLT No. 1939/1 Warren that the lessee erect fencing around the boundary of the leased area); the ability of the lessee to transfer the lease; the ability of the lessee to use the lease as security or have it mortgaged; and the requirement that the lessee pay all rates and taxes. (b) The State further submitted that the substantive nature of the interest conferred under the SLT was evident in the fact that the lessee was entitled to apply under s 190 of the CLC Act 1913 to convert the lease into a conditional purchase, which the State submitted was akin to a grant in fee simple. (c) The State made similar submissions to those concerning SLT No. 1955/7 Warren as to the right of a lessee to bring an action in trespass, the right to some form of compensation for improvements erected on the land if any land was withdrawn and the nature of the rights of third parties to use any reserves, roads or tracks within the land. 540 In support of its alternative position, namely that the lease was a "Scheduled interest" within s 23B(2)(c)(i) of the NT Act, the State submitted that the terms of the lease permitted the lessee to use the leased area solely or primarily for "storage purposes", with the consequence that the lease fell with cl 3(8) of Sch 1, Pt 1 of the NT Act. In brief, after contending that the general rules of statutory construction apply in construing expressions such as "storage purposes" in cl 3(8) and that a lease granted for a particular purpose may be a Scheduled interest where that purpose is not identically worded to the corresponding purpose in the Schedule (citing Hayes at [81] per Olney J), the State submitted that: (i) SLT No. 1939/1 Warren was a SLT under s 75 of the CLC Act 1913; (ii) SLT No. 1939/1 Warren permitted the lessee to use the leased area, at least primarily, for the purposes of storage; and (iii) therefore SLT No. 1939/1 Warren was a Scheduled interest.

[205]

(iii) SLT No. 1961/48 Warren 541 The State made the following submissions with specific reference to SLT No. 1961/48 Warren (which was granted for the purpose of "Irrigation"): (a) Indicia of the lease as being a true common law lease were reflected in the following conditions: the requirement that the lessee hold and use the land under lease for his or her own interest; the stipulation that the lessee not part with the possession of the land leased or any part thereof without the Minister's written consent; the requirement to keep the leased area free of noxious weeds; the requirement to erect fencing around the boundary of the leased area; the ability of the lessee to transfer the lease; the ability of the lessee to use the lease as security or have it mortgaged; and the requirement that the lessee pay all rates and taxes. (b) The State further submitted that the substantive nature of the interest conferred under the SLT was evident from the fact that: the lessee was entitled under s 190 of the CLC Act 1913 to apply to convert the lease into a conditional purchase; and following the commencement of Crowns Lands and Closer Settlement (Amendment) Act 1968 (ss 4(1)(b)(ii) and 4(1)(f)(ii)), the lessee could apply under s 75A of the CLC Act 1913 to have the lease extended into perpetuity. (c) The State repeated its submissions regarding the significance of the lessee's right to bring an action in trespass, the lessee's entitlement to some form of compensation for improvements on the land in the event that any of the lands in the leased area were withdrawn and the right conferred on third parties to use any reserves, roads, or tracks within the land, being allegedly more narrow than the right of entry conferred upon the pastoral leaseholders in Ward. 542 The State's alternative argument was that the SLT was a "Scheduled interest". Its submissions in support of that alternative proposition may be summarised as follows: (a) The lessee was permitted under the terms of the SLT to use the leased area solely or primarily for "agriculture", "agriculture (or any similar purpose)" and/or "cultivation" within cl 3(8) of Sch 1, Pt 1 of the NT Act. Accordingly, it was a PEPA and wholly extinguished any native title rights and interests in the leased area. The State relied upon the ordinary meaning of the term "agriculture" as meaning the "science or practice of cultivating the soil and rearing animals; farming… the cultivation of land, including crop-raising, forestry, stock-raising, etc; farming". It also relied upon the ordinary meaning of the term "cultivate" as meaning to "prepare and use (soil) for crops… give attention to (a plant) to promote growth, improve fertility etc.; produce or raise by agriculture or horticulture… to bestow labour upon (land) in raising crops…to promote or improve the growth (of a plant etc.) by labour and attention". It relied on the ordinary meaning of the word "irrigation" as meaning the "action of supplying land with water by means of channels or streams, or by sprinkling water over the surface of the ground" or "the supplying of land with water from artificial channels to promote vegetation." (b) The State further submitted that: as a matter or ordinary meaning "agriculture" encompasses the "cultivation" of land, including growing crops; the cultivation of land inevitably involves some irrigation of the land; SLT No. 1961/48 permitted the lessee to use the leased area, at least primarily, to grow irrigated crops in circumstances where the evidence indicates that the crop grown was lucerne and that it was grown for use as fodder; it followed that the SLT permitted the use of the leased area, at least primarily, for "agriculture" or, alternatively, "cultivation"; and accordingly, the SLT is a "Scheduled interest".

[206]

(iv) SLT No. 1958/2 Coonamble 543 In addition to its general submissions on legal principles as set out in the Introduction, the State made the following submissions with specific reference to this SLT (which was granted for "Business purposes (disposal of sawmill waste)": (a) Indicia of the lease as being a true common law lease were reflected in the following conditions: the requirement that the lessee hold and use the land under lease for his or her own interest; the stipulation that the lessee not part with the possession of the land leased or any part thereof without the Minister's written consent; the requirement to keep the leased area free of noxious weeds; the requirement to erect fencing around the boundary of the leased area; the ability of the lessee to transfer the lease; the ability of the lessee to use the lease as security or have it mortgaged; and the requirement that the lessee pay all rates and taxes. (b) It repeated its further submission that the substantive nature of the interest conferred was evident from the fact that: the lessee was entitled under s 190 of the CLC Act 1913 to apply to convert the lease into a conditional purchase; and following the commencement of the Crowns Lands and Closer Settlement (Amendment) Act 1968 (ss 4(1)(b)(ii) and 4(1)(f)(ii)), the lessee could apply under s 75A of the CLC Act 1913 to have the lease extended into perpetuity. (c) The State repeated its submissions regarding the significance of the lessee's right to bring an action in trespass, the lessee's entitlement to some form of compensation for improvements on the land in the event that any of the lands in the leased area were withdrawn and the right conferred on third parties to use any reserves, roads, or tracks within the land, being allegedly more narrow than the right of entry conferred upon the pastoral leaseholders in Ward. (d) In the alternative, the State submitted that SLT No. 1958/2 Coonamble was a commercial lease within s 246 of the NT Act, that is neither an agricultural lease nor a pastoral lease. Relevantly, for a lease to qualify as a "commercial lease" for the purposes of s 23B(2)(c)(iii), it must neither be an agricultural lease nor a pastoral lease, noting that those expressions are defined in ss 247 and 248 of the NT Act respectively. Consequently, the State contended that the lease was a PEPA within s 23B(2)(c)(iii) and hereby wholly extinguished any native title rights and interests. It noted the following definition of "commercial lease" in s 246 of the NT Act (emphasis in original): (1) A commercial lease is a lease (other than a mining lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for business or commercial purposes. The defining of agricultural lease, pastoral lease and residential lease in sections 247, 248 and 249 is not intended to limit the coverage of commercial lease. Examples of a commercial lease (2) For the purposes of subsection (1): (a) construction on land of a building to be used for business or commercial purposes, or of a hotel, motel or tourist resort, is an example of use of the land for business or commercial purposes; and (b) use of a building on land for business or commercial purposes, or operation of a hotel, motel or tourist resort on land, is an example of use of the land for business or commercial purposes. (e) The State referred to Olney J's statement in Wandarang People v Northern Territory [2000] FCA 923; 104 FCR 380 at [99] where his Honour said that the "ordinary meaning of commercial suggests an involvement in business or trade", which the State submitted was a description that captures a wide range of activities. (f) In what appears to be the State's further alternative argument, which it said concerned the notion of "Scheduled interest", the State contended in its outline of written submissions that: SLT No. 1958/2 Coonamble was granted for a business purpose (and is not an agricultural lease or a pastoral lease within the meaning of either ss 247 and 248 of the NT Act respectively); the SLT permitted the lessee to use the leased area, at least primarily, for the specific business purpose of disposing of waste produced by a sawmill; it follows that the SLT was a commercial lease within the meaning of s 246 of the NT Act; and accordingly, SLT No. 1958/2 Coonamble is a "Scheduled interest". 544 It may be interpolated at this point that it is difficult to understand why the State characterised this apparent further alternative argument as relating to what it claimed to be a "Scheduled interest". Having regard to its contentions above, the State's only alternative argument is not that SLT No. 1958/2 Coonamble was a "Scheduled interest" as referred to in s 23B(2)(c)(i) and as defined in s 249C (which then refers to Schedule 1), but rather was based on the claim that this SLT was a commercial lease that is neither an agricultural lease nor a pastoral lease and is therefore a PEPA within s 23B(2)(c)(iii). As is made clear in the terms of question (a)(i) in relation to SLT No. 1958/2 Coonamble (see [474] above), this claim does not rely on the notion of "Scheduled interest". The terms of question (a)(i) are contrary to the State's written outline of submissions, which appear confused. I will address the State's claim according to the terms of question (a)(i) and without reference to "Scheduled interest" later in these reasons for judgment.

[207]

(v) SLT No. 1924/16 Walgett 545 The State made the following submissions with specific reference to SLT No. 1924/16 Warren (granted for the purpose of "Accommodation paddock") in addition to its more general submissions: (a) SLT No. 1924/16 Warren was a true lease in the traditional common law sense which wholly extinguished any native title or rights and interests because of the relevant conditions in the lease, including that: it was reasonable to infer the lease enabled the temporary accommodation of horses and/or livestock belonging to guests at the Grand Hotel Carinda; that, together with other terms of the lease, indicated that the land was to be used actively and on an ongoing basis; the lessee was required to hold and use the land under lease for his or her own interest and not part with the possession of any part of it without the Minister's written consent; the lessee was required to pay all rates and taxes, to keep the leased area free of noxious weeds and or erect fencing around the boundary of the leased area; and the lessee was able to transfer the lease and use the lease as security or have it mortgaged. (b) It submitted that the substantive nature of the interest conferred was evident from the fact that the lessee was entitled to apply to convert the lease into a conditional purchase. (c) The State repeated its submissions in respect of the significance of the lessee's right to bring an action for trespass against third parties and regulation of that right under s 250(1) of the CLC Act 1913, the right to some form of compensation for improvements erected on the land if part of the land was withdrawn and the rights conferred on third parties to use any reserves, roads or tracks within the land. 546 Again, the State had an alternative position, namely a claim that SLT No. 1924/16 Warren is a "Scheduled interest". That claim was based on the following contentions: SLT No. 1924/16 Warren was a commercial lease within s 246 of the NT Act, that was neither an agricultural lease nor a pastoral lease within ss 247 and 248 respectively. Thus it was a PEPA and wholly extinguished any native title rights and interests in the land; the ordinary meaning of the expression "accommodation paddock" means an area set aside for the overnight pasturing of travelling livestock; under the terms of SLT No. 1924/16 Warren the lessee could use the leased area, at least primarily for the specific purpose of the accommodation of animals; the evidence indicated that the lease was associated with the business of the Grand Hotel Carinda; it was reasonable to infer, on the balance of probabilities, that the animals accommodated in the leased area were animals belonging to patrons of the Grand Hotel Carinda which meant that the leased area was being used for a business purpose; it follows that the lease was a commercial lease within s 246 of the NT Act; and accordingly, the lease is a Scheduled interest. 547 For the same reasons as noted above in relation to SLT No. 1958/2 Coonamble, it is difficult to understand why the State characterised this alternative argument as relating to what it claimed to be a "Scheduled interest". Having regard to its contentions above, the State's alternative argument was not that SLT No. 1924/16 Walgett was a "Scheduled interest" as referred to in s 23B(2)(c)(i) and as defined in s 249C (which then refers to Schedule 1), but rather was based on the claim that this SLT was a commercial lease that is neither an agricultural lease nor a pastoral lease and is therefore a PEPA within s 23B(2)(c)(iii). As is made clear in the terms of question (a)(i) in relation to SLT No. 1924/16 Walgett (see [482] above), this claim does not rely on the notion of "Scheduled interest". The State's written outline of submissions again appear to be confused and contrary to the terms of question (a)(i). I will address the State's claim according to question (a)(i) and without reference to "Scheduled interest" later in these reasons for judgment.

[208]

(vi) SLT No. 1952/6 Coonamble 548 In addition to its primary legal submissions, the State made the following submissions with respect to SLT No. 1952/6 Coonamble specifically (granted for the purpose of "Grazing and access to water"): (a) The following indicia of the lease showed that it was a true common law lease: it was reasonable to infer that the lease enabled the lessee to use the leased land on an ongoing basis effectively as an adjunct to the adjacent land which the lessee held as purchasers under a conditional purchase. The leased area provided means by which stock on the adjacent land could access the water from the Castlereagh River; that, coupled with the terms of the lease, indicated that the land was to be used actively and on an ongoing basis; the lessee was required to hold and use the land under lease for their own interest and not part with possession of any part of it without the Minister's consent in writing; the lessee was also required to pay all rates and taxes, to keep the leased area free of noxious weeds and to erect fencing around the boundary of the leased area; and the lessee was able to transfer the lease and use the lease as security or have it mortgaged. (b) The substantive nature of the interest conferred under the lease was said to be further evident from the fact that: the lessee was entitled to apply to convert the lease under s 190 of the CLC Act 1913 into a conditional purchase; and following the commencement of the Crown Lands and Closer Settlement (Amendment) Act 1968, the lessee could apply for the lease to be extended into perpetuity under s 75A of the CLC Act 1913. (c) The State repeated and adopted its earlier submissions on the significance of the lessee's right to bring an action in trespass against third parties, the lessee's entitlement to some form of compensation for improvements erected on the land if any part of the land was withdrawn and the rights conferred on third parties to use any reserves, roads or tracks within the land.

[210]

(viii) SLT No. 1952/1 Warren 550 In addition to its primary submissions, the State made the following submissions with specific reference to SLT No. 1952/1 Warren (granted for the purpose of "Grazing and access to water") in support of its contention that it was a true lease in the traditional common law sense and wholly extinguished any native title rights and interests within the leased area: (a) The following requirements imposed by conditions on the lease were said to support that contention: the requirement that the lessee hold and use the land under lease for their own interests; the stipulation of the lessee not part with the possession of any part of the land without the Minister's written consent; the requirement to keep the leased area free of noxious weeds; the requirement to erect fencing around the boundary of the leased area; the ability of the lessee to transfer the leased area (which in fact occurred in 1979); the ability of the lessee to use the lease as security or have it mortgaged; and the requirement that the lessee pay all rates and taxes. (b) The substantive nature of the interest conferred under the lease was said to be further supported by: the lessee's entitlement to apply under s 190 of the CLC Act to convert the lease into a conditional purchase; and the fact that following the commencement of the Crown Lands and Closer Settlement (Amendment) Act 1968, the lessee could apply under s 75A of the CLC Act to have the lease extended into perpetuity. (c) The State repeated and adopted its submissions regarding the significance of the lessee's right to commence an action for trespass against third parties, the lessee's entitlement to some form of compensation for improvements erected on the land if any part of the land was withdrawn and the right conferred on third parties to use any reserves, roads or tracks. (d) The State submitted that the reservation under subsection 32 of Regulation 106 (which reserved free access to the public along the bank of the watercourse adjoining the lease area and applied following the extension of the term of the lease in 1965) reinforced its claim that exclusive possession was conferred because such a condition would not have been necessary if the lessee did not have the right to exclude the public from the leased land generally.

[211]

(ix) SLT No. 1957/42 Nyngan 551 In addition to its primary submissions, the State made the following submissions in support of its contention that SLT No. 1957/42 Nyngan (granted for the purpose of "Grazing and dairying") was a true lease in the common law sense: (a) Certain conditions of the lease supported that position, including: the requirement that the lessee hold and use the land under lease for his or her own interest; the stipulation that the lessee not part with the possession of any part of the land without the Minister's written consent; the requirement to keep the leased area free of noxious weed; the requirement to erect fencing around the boundary of the leased land; the ability of the lessee to transfer the lease area; the ability of the lessee to use the lease as security or have it mortgaged; and the requirement that the lessee pay all rates and taxes. (b) The substantive nature of the interest conferred under the lease was said to be further evidenced by: the lessee's entitlement to apply under s 190 of the CLC Act 1913 to convert the lease into a conditional purchase; and the fact that following the commencement of the Crown Lands and Closer Settlement (Amendment) Act 1968, the lessee could apply under s 75A of the CLC Act to have the lease extended into perpetuity. (c) The State repeated and adopted its submissions regarding the significance of the lessee's right to commence an action for trespass against third parties, the lessee's entitlement to some form of compensation for improvements erected on the land if any part of the land was withdrawn and the right conferred on third parties to use any reserves, roads or tracks. (d) The State's alternative position was that SLT No. 1957/42 Nyngan was a "Scheduled interest". That was said to be because the lease permitted the lessee to use the leased area, at least primarily, for "dairying" and/or "agriculture (or any similar purpose) and grazing combined" within cl 3(8) of Sch 1, Pt 1 of the NT Act, with the consequence that the lease was a PEPA and thereby wholly extinguished any native title rights and interests in the leased area. (e) In support of the "Scheduled interest" argument, the State further submitted that: as a matter of ordinary meaning "dairying" included the breeding, raising, and use of dairy animals, usually cows, for the production of milk and related products; the purpose of "dairying" is similar to the purpose of "agriculture"; under the terms of SLT No. 1957/42 Nyngan the lessee could use the leased area, at least primarily, for a purpose that was similar to "agriculture" and grazing; it follows that the lease permitted the use of the leased area, at least primarily, for "agriculture (or any similar purpose) and grazing combined"; and consequently, SLT No. 1957/42 Nyngan is a Scheduled interest. (f) In the alternative to the second, third and fourth dot points above, the State contended that under the terms of SLT No. 1957/42 Nyngan, the lessee could use the leased area, at least primarily, for dairying, which also meant that the lease is a Scheduled interest.

[212]

(c) Applicant's primary general submissions summarised 552 The applicant's primary general submissions in respect of all nine SLTs may be summarised as follows. First, it emphasised that many SLTs under both the CL Act 1884 and the CLC Act 1913 are Scheduled interests, but it submitted that none of the nine SLTs fitted that category because they were, in general, granted for purposes ancillary to grazing. 553 Secondly, the applicant referred to the CL Act 1884, being the precursor legislation to the CLC Act 1913. The applicant also referred to the precursor regulations, the Crown Lands Regulations 1889, which described the administrative process to be followed if an applicant sought a SLT under s 90 of the CL Act 1884. An applicant was required to use Form 45 to apply to the Chairman of the Local Land Board and to indicate the position and extent of the land they wished to lease, the purpose of the lease, the rent offered, and any other information that might facilitate the dealing (reg 150). The applicant was required to provide a plan or tracing showing the position of the land applied for, and include with the application the consent from any person whose consent was required and a receipt for the payment of a deposit and survey fee (reg 150). The Local Land Board assessed the merits of any such application (reg 151). There was no provision in the regulations for a particular form for a SLT. 554 The applicant emphasised that, similarly to ss 86-90 of the CLA 1884, SLTs granted under ss 74-77 of the CLC Act 1913 were divided into the following four distinct groups: (a) leases over land under the sea or under water, for the purposes of wharfs, jetties, piers or floating docks; (b) leases for various miscellaneous special purposes; (c) leases for tramway and irrigation purposes; and (d) leases over scrub land for the purpose of destroying scrub. 555 Regulations made under the CLC Act 1913 described the administrative processes to be followed by an applicant seeking a SLT under that Act, in particular regs 103 and 104. They were similar to, but not identical with, the administrative processes applying to applications under s 90 of the CL Act 1884. 556 Thirdly, the applicant submitted that all nine SLTs were for purposes that did not require a conferral on the lessee of exclusive possession in the sense that there was no requirement for the lessee to have a right to use the land as they saw fit and to exclude any and everyone from access to the land for any reason or no reason (citing Brown at [36], [46] and [57]). 557 Fourthly, the applicant submitted that the interest conferred by the nine SLTs was precarious, not the least because all contained a condition by which the Governor could withdraw from the lease any land for any public purpose at any time without compensation. Moreover the SLTs were all subject to a condition that upon forfeiture, surrender or expiration of the lease, the improvements on the land became the property of the Crown, with no compensation. It should be interpolated at this point that some of the SLTs did have certain relevant but limited rights to compensation, as specified above in the conditions applicable to each lease. 558 Having regard to these features of the relevant SLTs, the applicant submitted that they were very different from the Special Leases considered in Ward where it was held that a special lease for grazing granted under s 116 of the Land Act 1933 conferred exclusive possession. The applicant submitted that the nine SLTs here were more akin to the pastoral leases referred to in Ward at [355]. The applicant pointed to various similar individual conditions of pastoral leases under 106 of the Land Act 1933 and the nine SLTs here. 559 The applicant emphasised that the nine SLTs were all subject to significant reservations which entitled third parties to enter the leased land and that all rights conferred by NSW mining legislation with respect to Crown land were reserved. 560 The applicant submitted that the nine SLTs conferred no greater interest than a pastoral lease. 561 Finally, the applicant described the relevant SLTs in the following terms: The Special Lease was an interest in respect of land that was susceptible to resumption at any time, and subject to many reservations entitling entry by third parties. It was a condition of each lease that the lessee use the land only for the purpose for which the lease was granted. All the Special Leases were granted for purposes that in general were ancillary to the use for grazing of neighbouring land. 562 The applicant also made detailed submissions concerning each of the individual SLTs. To avoid duplication, I will not summarise those submissions here as they are substantially reflected in my reasons below.

[213]

Resolution 563 It is desirable to commence this section of the reasons for judgment with a brief analysis of the reasons of the High Court plurality in Ward for concluding that a special lease granted under s 116 of the Land Act 1933 in Western Australia conferred a right of exclusive possession, with the consequence that it was an exclusive pastoral lease within s 248A of the NT Act, and was a PEPA within s 23B(2)(c)(iv). It should be emphasised at the outset that I do not intend to suggest that the plurality's characterisation of the special lease in Ward is determinative of the questions raised in this Schedule in the present proceeding. Such an approach would fail to acknowledge that the plurality in Ward focused on the application of s 23B(2)(c)(iv), a matter which does not arise here. Moreover, it would be naïve and wrong not to take into account the different legislative scheme in New South Wales for granting SLTs. That scheme contains some important differences to the legislative scheme considered in Ward. The value of examining the reasoning in Ward is that it highlights the kinds of indicia in a legislative scheme which can justify a conclusion that a statutory lease conferred a right of exclusive possession. 564 The special lease considered by the plurality in Ward was granted in 1962 under s 116 of the Land Act 1933. It was for a term of 21 years and was terminable by either party giving six months' notice. The special lease was granted for "the special purpose of Grazing". The leased area was almost completely surrounded by a pastoral lease. Certain rights were reserved to the Minister with respect to pastoral leases under s 106 of the Land Act 1933. 565 It is evident from the Full Court's decision below in Western Australia v Ward [2000] FCA 191; 99 FCR 316 at [617] per Beaumont and von Doussa JJ that the special lease covered an extensive area which was in excess of 90,000 acres, but most of the leased area was not in the native title claim area in that proceeding. Only a small portion was within the claim area. 566 Although the plurality in Ward found that there were some similarities between the terms and conditions of a pastoral lease and a special lease under the Land Act 1933, it concluded that, unlike a pastoral lease, the interest granted by the special lease was not precarious (at [355]). The plurality highlighted the following three features of the special lease there which distinguished it from a pastoral lease: (a) there was no general provision such as in s 106 of the Land Act 1933 which would determine the lease upon reservation, sale or its other disposal (at [355]); (b) nor were there reservations applicable to the special lease equivalent to s 106 of the Land Act 1933 which, in the case of pastoral leases, reserved to the Crown the right to depasture stock or gave to any person the right to pass over any part of the leased land which was unenclosed or, if enclosed, was unimproved (at [355]); and (c) the purposes for which a special lease could be granted were also viewed as significant. Some of those purposes, such as uses as sites for tanneries, factories, saw or other mills, stores, warehouses or dwellings (s 116(5)) of the Land Act 1933) were described by the plurality as "uses in which it might ordinarily be expected that the user would wish to control access to the land" ([at 356]). 567 In assessing the significance of the reasoning in Ward to the present proceeding I think it important to emphasise that the plurality did not regard any single feature of the special lease there as determinative. Rather, it seems that the plurality attached particular significance to the cumulative effect of the three matters described above which their Honours viewed as differentiating a special lease from pastoral leases. For example, it is difficult to see how the third of the matters described above (i.e. controlling access) would itself and alone require a conclusion that the special lease conferred a right of exclusive possession. That is because, while it is easy to understand that a lessee under a special lease granted for a site to be used as a tannery or dwelling would wish to control access to the leased land, that is not so obvious with the case of a lease granted for grazing purposes (as was the special lease in Ward). 568 Applying the general principles outlined in the Introduction, I will now explain why I consider that the State should succeed in respect of only some of the nine SLTs.

[214]

(a) SLT No. 1955/7 Warren 569 For the following reasons, I find that SLT No. 1955/7 Warren did confer a right of exclusive possession which had the consequence of wholly extinguishing any native title rights and interests in the lease area. My reasons differ somewhat from those advanced by the State in support that conclusion. 570 First, and primarily, it is significant that SLT No. 1955/7 Warren was granted for the purpose of "Access" and the lease area was a relatively small area of only five acres, which was close to the lessee's farm (which was held under conditional purchase, a higher land tenure akin to freehold). The SLT was granted so that the lessee could improve access to his farm. I consider that these matters, together with other matters below, indicate that it was recognised that it was important for the particular lessee to control the access of other persons to the land, even though there were some limited rights of entry (see by way of broad analogy Ward at [356]). 571 Secondly, it should be acknowledged that there were some qualifications to the nature of the interest given to the lessee, as is reflected in some of the conditions which are described at [455] above concerning forfeiture, withdrawal, termination on notice, limited rights to compensation and the reservation of mining rights and the reservation of public rights of entry, including to use roads or tracks within the lease area. But these reservations are hardly more onerous than those imposed by the 21st Schedule to SLTs under the Land Act 1933 which were considered in Ward (see at [354]) and were viewed as not denying a right of exclusive possession. Those reservations in Ward were as follows: …PROVIDED, NEVERTHELESS, that it shall at all times be lawful for Us, Our heirs and successors, or for any person or persons acting in that behalf by Our or their authority, to resume and enter upon possession of any part of the said land which it may at any time by Us, Our heirs and successors, be deemed necessary to resume for roads, tramways, railways, railway stations, bridges, canals, towing paths, harbour or river improvement works, drainage or irrigation works, quarries, and generally for any other works or purposes of public use, utility, or convenience, and for the purposes of exercising the power to search for minerals hereinafter reserved, and such land so resumed to hold to Us, Our heirs and successors, as of Our or their former estate, without making to the lessee, or any person claiming under him, any compensation in respect thereof; so, nevertheless, that the lands so to be resumed shall not exceed one-twentieth part in the whole of the lands aforesaid, and that no such resumption be made of any part of the said lands upon which any buildings may have been erected, or which may be enclosed and in use as gardens or otherwise for the more convenient occupation of any such buildings, or on which any other improvements as defined by the said Act have been made, without compensation: PROVIDED ALSO, that it shall be lawful at all times for Us, Our heirs and successors, or for any person or persons acting in that behalf by Our or their authority, to cut and take away any such indigenous timber, and to search and dig for and carry away any stones or other materials which may be required for making or keeping in repair any roads, tramways, railways, railway stations, bridges, canals, towing paths, harbour works, breakwaters, river improvements, drainage or irrigation works, and generally for any other works or purposes of public use, utility, or convenience without making to the lessee, or any person claiming under him, any compensation in respect thereof: AND We do hereby save and reserve to Us, our heirs and successors, all mines of gold, silver, copper, tin, or other metals, ore, and mineral, or other substances containing metals and all gems and precious stones, and coal or mineral oil and all phosphatic substances in and under the said land, with full liberty at all times to search and dig for and carry away the same; and for that purpose enter upon the said land or any part thereof: PROVIDED ALSO, that if the said lessee shall, during the term hereby created, at any time make default in payment of the rent hereby reserved, or shall fail or cease to use, hold, and enjoy the said land for the said special purpose, it shall thereupon be lawful for Us, Our heirs and successors into and upon the said demised premises, or any part thereof in the name of the whole to re-enter, and the same to have again, repossess, and enjoy as if this deed-poll had never been executed, without making any compensation to the said lessee. 572 The plurality in Ward contrasted these reservations with the powers reserved to the Minister under s 106 of the Land Act 1933, which applied to pastoral leases and were relied upon by the plurality in finding that such leases did not confer a right of exclusive possession. That provision provided: 106. The right is reserved to the Minister- (a) to lay out, declare open, and make, either permanently or for temporary use, public roads through any land held under pastoral lease: (b) to take away any indigenous produce, rock, soil, or other material; and to fell, cut, and remove all or any timber, sandalwood, or other woods which may be required for public purposes, from any such land: (c) to issue licenses to any persons to cut, remove, and cart away any timber, sandalwood, or other woods or to quarry, dig for, and cart away any rock, soil, or other material growing or being upon any such land; (d) to sell, lease, or otherwise dispose of any mineral land comprised within the limits of any pastoral lease: (e) to sell, lease, or otherwise dispose of any other portion of such lease subject to the provisions of this Act, at any time, and with a right of immediate entry, but subject to section one hundred and eight; and (f) to depasture any horses or cattle in the employ of the Government while working on or passing over the said land, and to water them at any natural sources there, together with a right for any person to pass over any such land which may be unenclosed, or enclosed but otherwise unimproved, with or without horses, stock, or vehicles, on all necessary occasions. 573 Thirdly, and less significantly, after 1968 the lessee could apply for the lease to be extended to perpetuity under s 75A of the CLC Act 1913, which indicates a substantive interest (see Anderson). 574 Fourthly, and also less significantly, although there was a reservation of the public right to use any reserves, roads or tracks within the lease area, that reservation did not extend to permitting a third party to camp or remain on the lease area and the reserved right was narrower than the right of entry of any person relating to the pastoral leases in Ward (see [178]). 575 For completeness, I should indicate that I do not accept the following matters put forward by the State in support of its position. (a) The State overstated the significance of the lessee's entitlement to apply to convert the SLT into a conditional purchase under s 190 of the CLC Act 1913. The right to convert to a conditional purchase was not absolute nor guaranteed, particularly in circumstances where the Minister's power to approve such a conversion depended upon a favourable report by the Local Land Board (see s 190(5)). (b) Contrary to the State's position, I do not accept that s 250 of the CLC Act 1913 supports its position. That provision regulated the right of certain landholders, including the holders of a SLT, to impound stock or bring an action for trespass. The provision applied to the impounding of straying stock or the bringing of an action for trespass against the person responsible for the straying stock (unless the trespass was wilfully committed). The provision did not apply more broadly to actions for trespass against, for example, a person exercising native title rights and interests independently of any straying stock. (c) The requirement that the lessee pay all rates and taxes under the Local Government Act 1919 (NSW) is hardly significant in circumstances where lessees and licensees were treated similarly, having regard to the definition therein of "lease" as including a "license". 576 The answer to the relevant special question in the present proceeding is finely balanced, but I consider that the principal matters which support the State's position is the purpose for which the SLT was granted (namely Access) and the close proximity of the five acre lease area to the lessee's conditional purchase, where his farm was located.

[218]

B. Exclusive possession 582 For the following reasons, I reject the State's claim that SLT No. 1939/1 Warren conferred a right of exclusive possession, or otherwise conferred rights which were inconsistent with native title rights and interests, so as wholly to extinguish those rights. 583 First, although the lease was granted for the purposes of "Access and storage", different considerations arise as to the significance of those purposes compared with the case of SLT No. 1955/7 Warren. The grant there was for access alone, and was not also for the purpose of storage. It is evident from the Department's lease card concerning SLT No. 1939/1 Warren that the storage was of fodder. It may be inferred that the fodder was lucerne or similar crop which was grown on the "heavy black soil" on Portion 79 as marked on the Crown plan. Presumably the fodder was stored on part of the lease area as bales or stacks, which would not have taken up much of the 36 acres. 584 In these circumstances, the need for the lessee to control access to the lease area would have been far less acute than was the case with, for example, SLT No. 1955/7 Warren, where the lease area was only five acres and the purpose of the lease there was limited to "Access" alone. 585 Secondly, and related to the first point, in contrast with the position concerning SLT No. 1955/7 Warren, it is particularly significant that there was a travelling stock route on the lease area here. As noted above, in the absence of any evidence depicting the precise location of TSR No. 34261, it should be inferred that it included all of the lease area (being Portion 79 as shown on the Crown plan). 586 There is a long history in Australia and New South Wales specifically providing legislative recognition to the need for land to be reserved for the purposes of travelling stock routes. This is so particularly with regard to the Western District, which is prone to seasonal conditions and droughts which require stock to be moved for them to survive. In New South Wales, the history goes back to at least the Crown Lands Occupation Act, s 19 of which provided that any person driving horses, cattle or sheep along any track used or required for the purpose of travelling may depasture such stock on any Crown Lands within the distance of a half a mile of such a track and notwithstanding any lease of such lands for pastoral purposes. I consider that it is also appropriate to take judicial notice of the notorious fact that many travelling stock routes, including in New South Wales, originated from tracks used by Indigenous people and early European explorers who frequently adopted Indigenous pathways as travelling stock routes (see, for example, Spooner, Firman and Walmanbirra, "Origins of Travelling Stock Routes. 1. Connections to Indigenous traditional pathways", (2010) 32 The Rangeland Journal, 329-339). 587 The presence of a travelling stock route on the lease area is significant. It is inconsistent with the State's propositions that the lease granted a right of exclusive possession. This is further reinforced by the express reservation in condition 15 of SLT No. 1939/1 Warren of the right of the public to use any of inter alia the roads or tracks on the lease area without interference by the lessee. 588 In my opinion these matters outweigh the incidents relied upon by the State as summarised at [539] above, including the fact that condition 15 did not confer a public right to camp or stay on the land. In addition, I repeat and adopt what is said at [575] above regarding my rejection of some of the State's contentions concerning this aspect of SLT No. 1955/7 Warren. Moreover, at the relevant time the right to convert a SLT to a conditional purchase was limited to leases for specified purposes, which did not include a SLT granted for "access and storage", as was the case here. In addition, SLT No. 1939/1 Warren expired on 31 December 1950, while the option to convert to a conditional purchase or a lease in perpetuity did not became available to SLTs generally until 1968 (see ss 4(1)(b)(ii) and 4(1)(f)(ii) of the Crown Lands and Closer Settlement (Amendment) Act 1968).

[221]

A. Scheduled interest 591 As noted, the lease was granted for the purpose of "Irrigation". Although this use is not included among the matters specified in cl 3(8) of Sch 1, Pt 1 of the NT Act, the State contended that the lease was a "Scheduled interest" because the terms of the lease permitted the lessee to use the lease area solely or primarily for "agriculture", "agriculture or any similar purpose" and/or "cultivation", which are all uses which are specified in cl 3(8). 592 For the following reasons, I accept that the lease was a "Scheduled interest". First, the terms of the lease permitted the lessee to use the lease area solely or primarily for "agriculture" or "cultivation". Both those expressions should be given their ordinary meaning. "Agriculture" is defined in the Macquarie Dictionary (Fifth Edition) to mean "the cultivation of land, including crop-raising, forestry, stock-raising, etc.; farming". "Cultivate" is defined there relevantly to mean "1. to bestow labour upon (land) in raising crops; till; improve by husbandry… 3. to promote or improve the growth (a plant, etc.) by labour and attention". The term "irrigation" is defined there relevantly to mean "1. the supplying of land with water from artificial channels to promote vegetation". 593 Secondly, as the State pointed out, the Explanatory Memorandum to the Native Title Bill 1993 provided further support for this approach albeit that the following passage is directed to what is now s 247 of the NT Act and what constitutes "an agricultural lease": In order to be an agricultural lease a lease must permit the lessee to use the land or waters covered by the lease solely or primarily for agricultural purposes. The definition specifically states that agricultural purposes include the planting and growing in land of trees, vines or vegetables. The reference to "planting and growing" indicates that there must be a cultivation of the land and that it is not enough to simply maintain and harvest what grows naturally, though this may otherwise fall within the definition as being an agricultural purpose. 594 Thirdly, I find that the lease permitted the lessee to use the lease area, at least primarily, to grow irrigated crops which, in this case, was lucerne, which was grown for use as fodder. I do not accept the applicant's submission that this passage from the Explanatory Memorandum is irrelevant because nothing in SLT No. 1961/48 Warren entitled the lessee to do anything on the lease area except use it for "irrigation", presumably from the Macquarie River. The applicant contended that the lease did not entitle the lessee to then grow crops, plants or trees. Those contentions should not be accepted, in circumstances where it is plain that irrigation is not an activity which is carried out for its own sake. By its very nature, land is irrigated for the purpose of agriculture in some form or another. The Department's internal documentation as referred to above makes clear that the purpose of irrigation here was to grow lucerne for fodder to feed to stock. 595 The applicant also contended that it was significant that the lease area was "extremely small and was within a travelling stock and camping reserve". I would not describe an area of 36 acres as "extremely small". Moreover, the State adduced evidence, which I accept, which demonstrates that the travelling stock and camping reserve on the lease area was revoked prior to the lease being granted.

[225]

A. Commercial lease 601 The State's submissions are summarised at [543(d)-(f)] above. The terms "mining lease", "commercial lease", "agricultural lease" and "pastoral lease" are defined respectively in ss 245, 246, 247 and 248 of the NT Act. The terms of s 246 are set out at [543(d)] above. 602 For the following reasons, I uphold the State's claim in respect of this aspect of SLT No. 1958/2 Coonamble. 603 First, as Olney J observed in Wandarang People at [99], the "ordinary meaning of commercial suggests an involvement in business or trade". 604 Secondly, for a lease to be a commercial lease as defined in s 246 of the NT Act, it must be a lease (other than a mining lease) that permits the lessee to use the lease area solely or primarily for business or commercial purposes. SLT No. 1958/2 Coonamble permitted the lessee to use the lease area for "Business purposes (disposal of sawmill waste)". Condition 5 of the lease provided that the land leased shall be used only for the purposes for which the lease was granted. Thus the lessee could not use the lease for any purpose other than the stated purpose. Accordingly, the requirement of "sole" or "primary" use is satisfied here. 605 Thirdly, I find that disposal of sawmill waste is a business or commercial activity. That is because it is an integral part of operating a sawmill, which is itself a business or commercial activity. 606 Fourthly, while I accept that the terms of the examples of a commercial lease provided in s 246(2) (particularly sub-paragraph (b)) suggest that evidence of actual use may be relevant in determining whether or not a lease is a commercial lease for the purposes of s 246, that does not mean that the provision has no application if there is no such evidence. That would be inconsistent with the focus in s 246(1) on whether the lease "permits the lessee to use the land" etc. (emphasis added). 607 Fifthly, I reject the applicant's contention that it is significant that special condition (b) (see [480] above) limited the deposit of sawdust to filling in depressions on the leased land and not otherwise accumulating any sawdust or waste timber. Unlike the position in Daniel v State of Western Australia [2004] FCA 1388; 212 ALR 51 at [60] (upon which the applicant relied), I do not regard the disposal of sawmill waste as being only "obliquely incidental" to some other enterprise. The disposal of sawmill waste is itself a commercial or business activity and an integral part of operating a sawmill.

[229]

A. Commercial lease 615 I adopt what is said above in relation to SLT No. 1958/2 Coonamble and the expression "commercial lease". 616 For the following additional reasons, I uphold the State's position that SLT No. 1924/16 Walgett was a commercial lease for the purposes of s 246 of the NT Act. 617 First, it is plain that the paddock was used to accommodate the horses of guests who stayed at the Grand Hotel in Carinda. The lease area was approximately six acres and it is reasonable to assume that the lessee had a real interest in controlling access to the paddock (see Ward). The use of an area as an accommodation paddock to keep guests' horses, in a rural village, required appropriate controls on public access to the relatively small area. This is further highlighted by the fact that under condition 5 of the lease, the lessee was obliged within one year of notification of the grant to enclose the lease area with a substantial fence and maintain such fence in efficient repair during the currency of the lease. That is not to say, however, that such a condition is determinative in every case. 618 Secondly, as noted above in respect of SLT No. 1958/2 Coonamble, to meet the relevant requirements of s 246 for a lease to be a commercial lease, it must permit the lessee to use the lease area solely or primarily for business or commercial purposes. SLT No. 1924/16 Walgett permitted the lessee to use the lease area for "Accommodation paddock". Condition 4 of the lease provided that the lease area shall be used only for the purposes for which the lease was granted. Thus the lessee could not use the six acres of land other than for the stated purpose. 619 Thirdly, I find that the use of the land as an "Accommodation paddock", in circumstances where that use is plainly associated with the accommodation of guests at the Grand Hotel, is itself a business or commercial activity. It may reasonably be inferred that guests who used the facility paid for that service, either separately or as part of the room rate for staying at the Hotel.

[232]

(f) SLT No. 1952/6 Coonamble 626 For the following reasons, I find that SLT No. 1952/6 Coonamble did confer a right of exclusive possession which had the consequence of wholly extinguishing any native title rights and interests in the lease area. My reasons differ somewhat from those advanced by the State in support of its position. 627 First, and primarily, it is significant that SLT No. 1952/6 Coonamble was granted for the purpose of "Grazing and access to water" and the lease area was a relatively small area of approximately seven acres and had a width of two chains. The SLT was granted so that the lessee could improve access to his farm. I consider that these matters, together with other matters below, indicate that it was recognised that it was important for the lessee to control the access of other persons to the particular land, even though there were some limited rights of entry (see by way of broad analogy Ward at [356]). 628 Secondly, it should be acknowledged that there were some qualifications on the nature of the interest given to the lessee, as is reflected in some of the conditions which are described at [495] and [496] above concerning forfeiture, withdrawal, termination on notice, limited rights to compensation, the reservation of mining rights and the reservation of public rights of entry, including to use roads or tracks within the lease area. But these reservations are hardly more onerous than those imposed by the 21st Schedule to SLTs under the Land Act 1933 which were considered in Ward (see at [354]) and were viewed as not denying a right of exclusive possession. The relevant parts of the 21st Schedule are set out at [571] above. 629 The plurality in Ward contrasted the reservations in the 21st Schedule with the powers reserved to the Minister under s 106 of the Land Act 1933 (which applied to pastoral leases) and were relied upon by the plurality in finding that such leases did not confer a right of exclusive possession. The terms of s 106 are set out at [572] above. 630 Thirdly, it is also relevant that, after 1968, the lessee could apply for the lease to be extended to perpetuity under s 75A of the CLC Act 1913, which indicates a substantive interest (see Anderson). 631 Fourthly, although there was a reservation of the public right to use any reserves, roads or tracks within the lease area, it is notable that the reservation did not extend to permitting a third party to camp or remain on the lease area and the reserved right was narrower than the right of entry of any person relating to the pastoral leases in Ward (see at [178]). 632 For completeness, I should indicate that I do not accept some of the matters put forward by the State in support of its position (see [575] above). 633 The answer to the relevant special question in the present proceeding is finely balanced, but I consider that the principal matter which supports the State's position is the purpose for which the SLT was granted (namely "Grazing and access to water"), together with the close proximity of the seven acre lease area to the lessees' farm.

[236]

(h) SLT No. 1952/1 Warren 640 As noted at [506] above, this SLT was initially granted for the purpose of "Grazing and access", but was then extended in 1965 to the end of 1990 for the amended purpose of "Grazing, access and storage". The lease area was approximately 36 acres. 641 It may be noted that when the SLT was extended the special condition relating to travelling stock or camping as set out at [513] above did not apply to the extended lease. The only special condition which applied to the extended lease is that set out at [515] above, concerning the felling of trees close to the Macquarie River. Significantly, however, the one of the general conditions of the extended lease relating to reservations for travelling stock, camping or water supply (see condition 61 at [514] above]) was in substantially similar terms to the previous special condition. 642 Focussing first on the original lease, the precarious nature of the interest conferred by it is reflected in the numerous and significant reservations, limitations and Ministerial powers set out in conditions such as 4, 6, 7, 8, 10, 11 and 13 to 16, as well as the special condition, as set out at [512] and [513] respectively above. These matters far outweigh the incidents of the original lease relied upon by the State as supporting its contention that the lease conferred exclusive possession or other conferred rights which were inconsistent with native title rights and interests (see the summary of those submissions at [550] above). 643 It is also necessary to consider the position under the extended lease in circumstances where, for reasons set out in the Introduction, I reject the applicant's primary position that subsequent relevant legislative and/or executive events are irrelevant to the questions requiring determination. 644 In my view, the lessee's interest under the extended lease was at least as precarious as those under the original lease. This is reflected in conditions attaching to the extended lease such as 5, 7, 8, 9, 11, 12, 14, 15, 16, 32 and 61 (which are set out at [514] above). Those matters outweigh the matters relied upon by the State in support of its claim that the lease conferred a right of exclusive possession or otherwise conferred rights which were inconsistent with native title rights and interests.

[251]

(a) Legislation concerning SLGs summarised 662 When the CL Act commenced in 1884, s 90 was in the following terms (copied exactly and noting that the lack of punctuation is as it appears in the original): The Governor may lease by auction or otherwise for a term not exceeding fifteen years and in areas not exceeding in any case three hundred and twenty acres Crown Lands for any of the purposes hereinafter specified that is to say for dams - tanks - irrigation works - wharfs - bridges - punt-houses - ferries - bathing-places - landing-places - saw-mills - brick-kilns - lime-kilns - slaughter-houses - tanneries - wool-washing establishments - quarries - fisheries - building or repairing ships or boats - tramway purposes - obtaining guano - shells - limestone - loam - brickearth - gravel - or ballast - or for an inn - store - smithy - bakery - or mail station in sparcely populated districts - or for any purpose declared by the Governor by proclamation in the Gazette to be a purpose within this section and may determine the upset rent thereof if let at auction or the annual rent if let otherwise not being in either case less than ten pounds per annum and may annex to any such lease such conditions reservations and provisions as he may deem fit Provided that leases may be granted at a less rental to contractors of public works for purposes connected with the construction of such works during the term of contract If it should appear to the satisfaction of the Governor that the land comprised in any such lease is not used and occupied bona-fide for the purpose for which the same has been made or that default has been made in any condition he may declare such lease forfeited together with any improvements erected on the land and any rent paid in respect thereof. 663 The purpose of "Grazing" was proclaimed to be a purpose under s 90 of the CL Act 1884 by a notification in the NSW Government Gazette dated 28 August 1894, p 5391. 664 Section 90 was to be read subject to subsequent amending legislation, including the CL Act 1895, the Western Lands (Amendment) Act 1905 (NSW) and the Crown Lands (Amendment) Act 1908. 665 When the CLC Act 1913 commenced, s 75 was in the following terms: Special leases - For miscellaneous purposes. The Minister may lease by auction or otherwise in areas not exceeding in any case three hundred and twenty acres Crown lands (not being in the Western Division) for any of the purposes hereinafter specified, that is to say, for dams - tanks - irrigation works - wharfs - bridges - punt-houses - ferries - bathing-places - landing-places - saw-mills - brick-kilns - lime-kilns - slaughterhouses - tanneries - wool-washing establishments - quarries - fisheries - building or repairing ships or boats - tramway purposes - obtaining guano - shells - limestone - loam - brick earth - gravel - or ballast - or for an inn - store - smithy - bakery - or mail station in sparsely populated districts - or for business purposes - or for the erection of buildings - or for any purpose declared by the Minister by notification in the Gazette to be a purpose within this section, and if the letting be by auction, may determine the upset rent thereof, and may annex to any such lease such conditions reservations and provisions as he may think fit. Any such condition reservation or provision may on application by the lessee in the prescribed manner and on the recommendation of the local land board be varied modified or revoked by the Minister; and this power shall not be affected by anything contained in section one hundred and eighty-two hereof. If it should appear to the satisfaction of the Minister that the land comprised in any such lease is not used and occupied bona fide for the purpose for which the lease was granted, such lease together with any rent paid in respect thereof shall be liable to be forfeited. With any application for a lease under this section there shall be tendered a fee in accordance with the prescribed scale for the survey of the land; and if the lease be let otherwise than by auction or tender the rent shall be determined by the local land board. The term of the lease may be fixed for any period not exceeding twenty-eight years, and if fixed for a less period than twenty-eight years may be extended as provided in section two hundred and twenty-nine hereof. 666 Section 75 was subsequently amended by numerous Acts during the period 1917 to 1982, many of which are set out at [8] of the contentions of the State. In essence, s 75 of the CLC Act 1913 conferred a power on the Minister to grant leases for any one of the purposes set out in that provision or for any purpose declared by the Minister in the Gazette to be a purpose within s 75. The effect of s 3(f) of the CLC Act 1913 was to declare all purposes under s 90 of the CL Act 1884 to be valid purposes within s 75 of the CLC Act 1913. The upshot of this was that "Grazing" was a valid purpose for which a SLG could be granted under s 75 of the CLC Act. 667 As was the case with SLTs, the practice for SLGs was not to issue a formal lease instrument. Rather, the practice was to publish in the Gazette a notice of the issue of a particular SLG with a schedule of conditions applicable to it. 668 Regulations were made under the CL Act 1884 which included a list of conditions which, subject to the terms of any particular lease, were applicable to a SLG granted under s 90 (see Regulation 215 as notified in the NSW Government Gazette dated 24 March 1909 and amended in the NSW Government Gazette dated 9 November 1910). 669 Subsequently, SLGs granted under s 75 of the CLC Act 1913 were subject to standard conditions in Regulation 106 as initially notified in the NSW Government Gazette dated 11 March 1914, p 1530, as well as additional special conditions in some cases. The regulations were subsequently amended with consolidated versions being published inter alia on 20 April 1917, 2 June 1922 and 22 April 1955. 670 I will describe the conditions attaching to the two relevant SLGs in the next section.

[253]

A. Original conditions to SLG No. 1908/51 Coonamble 672 SLG No. 1908/51 Coonamble was granted for the term 1 January 1909 to 31 December 1918 and the lease was then extended for a further six years from 1 January 1919 to 31 December 1925. 673 The lease area was approximately 40 acres. The main boundaries of the leased area were fenced with wire netting, for at least a period during the term of the lease. 674 Approval of the original SLG No. 1908/51 Coonamble was notified in the NSW Government Gazette on 23 March 1910, which specified that the lease was subject to the following conditions (being the conditions set out in subsections 1-16 and 18-21 of Regulation 215 as notified on 24 March 1909): 1. The rent for each year shall be paid in advance to the Crown Land agent of the District, or to the State Treasurer at Sydney, on or before the 31st December of the year preceding, otherwise penalties for the late payments shall be incurred, and the lease shall be liable for forfeiture. 2. The area leased is exclusive of any roads within its boundaries. 3. The lease shall not confer any right to purchase the land. 4. The land shall be used only for the purposes for which the lease is granted. 5. The lessee shall, within one year from the date of notification in the Government Gazette of the granting of the lease, enclose the land, either separately or conjointly with other lands held in the same interest, with a substantial fence, and maintain such fence in efficient repair during the currency of the lease. 6. Upon forfeiture, surrender, or expiration of the period of the lease, all improvements on the land shall become the property of the Crown, and no compensation shall be payable therefor, but on application within one month after such forfeiture, surrender, or expiration, the Minister may permit the former lessee to remove any movable improvements effected by him or at his expense. In all cases where such permission has been given the improvements must be removed within three months after the date of forfeiture, surrender, or expiration. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than twelve months' notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, not compensation will be allowed; but the lessee may, subject to approval of the Minster, remove any movable improvements effected by or at the expense of the lessee during the currency of the lease, provided he does so within three (3) months after the termination of the lease. 8. No fixed improvements shall be removed from the land during the currency of the lease, unless with the approval in writing of the Minister. 9. The lessee shall pay all rates and taxes upon the land during the currency of the lease. 10. All rights (except residence on land under cultivation) which are conferred by the Mining Acts, with respect to Crown Lands, are reserved. 11. The lessee shall not transfer the lease or sublet the land, or any part of it, before the approval in writing of the Minister has been obtained. 12. Any improvements, the property of the Crown, upon the lease must be kept in repair during its currency, reasonable wear and tear excepted. 13. The right is reserved to the Minister to withdraw from the lease at any time, and from time to time, any land required for mining or any mining purpose, or for any public purpose within the meaning of the Crown Lands Acts, and the lessee shall not be entitled to any compensation whatsoever therefore, or for severance. In the event of any withdrawal as aforesaid, the lessee shall be entitled, subject to the approval of the Minister, to remove any moveable improvements, or to a fair and reasonable compensation for his interest in any improvements belonging to him on the land so withdrawn. The amount of such compensation shall be ascertained by multiplying a sum representing the fair value of the improvements by a fraction of which the numerator shall be the unexpired term of the lease and the denominator the original term of the lease. In case the Minister and the lessee shall not agree as to the amount of compensation as aforesaid, the matter shall be submitted for the determination of the Local Land Board; and the decision of the Board or the Land Appeal Court, on appeal, shall be final and conclusive. 14. Rights conferred upon the public, in the terms of any reservation in regard to the land leased, are reserved. 15. The right of the public to the use of any roads or tracks shall not be interfered with. 16. With the concurrence of the Local Land Board, gates may be erected on any reserved road, and should further access be required, other gates shall be erected wherever and within such period as the Minister may hereafter direct. … 18. If the lease be for grazing purposes only, the land may be cultivated to the extent necessary for the growth and spread of pasture grasses, but no further. 19. The lessee shall, within twelve months from the date of notification in the Government Gazette of the granting of the lease, clear the land of all noxious scrub, plants or weeds, and shall thereafter keep the land clear of them during the currency of the lease. 20. The lessee shall take all reasonable steps to keep the land free from rabbits sand other noxious animals during the currency of the lease. 21. Any part of a travelling stock or camping reserve within the land leased shall, during the whole currency of the lease, be open to the use of bona fide travellers, travelling stock, teamsters, and carriers, without interference or annoyance by lessee, and the lessee shall post in a conspicuous place thereon notice-boards indicating for public information the purpose of such reserve. In fencing such reserve the lessee shall also provide gates and other facilities for the entrance and exit of travelling stock, teamsters, and others, such notice-boards, gates, and facilities to be erected and maintained to the satisfaction of the Stock Inspector. The lessee must not overstock, wholly or in part, the area leased within such reserve; the decision as to overstocking to rest with the Minister. 675 The original Gazette Notification published on 23 March 1910 also provided that SLG No. 1908/51 Coonamble "shall be subject to… the following special conditions": (a) No trees of saplings shall be interfered with by ringbarking or otherwise, except under permits issued under the provisions of the Forestry Act and Regulations thereunder, but the lessee may take form the land lease to him such timber and other material for building and other purposes upon such land, as may be required by him as tenant thereof, provided such land is not comprised within a timber or forest reserve. (b) A breach of any of the above conditions will render the lease liable for forfeiture.

[254]

B. Amended conditions to SLG No. 1908/51 Coonamble 676 SLG No. 1908/51 Coonamble was extended by Gazette Notification dated 2 May 1919. That Gazette Notification specified that SLG No. 1908/51 Coonamble (as extended) was subject to subsections 1, 2, 4 and 6-22 of Regulation 106 (notified 20 April 1917), which were as follows: 1. The rent for each year shall be paid in advance to the Crown Land Agent of the District, or to the Colonial Treasurer at Sydney, on or before the 31st December of the year preceding that for which it is due, otherwise penalties for late payments shall be incurred, and the lease shall be liable to forfeiture. 2. The area leased is exclusive of any roads within its boundaries. … 4. The land shall be used only for the purposes for which the lease is granted. … 6. Upon forfeiture, surrender, or expiration of the period of the lease, all improvements on the land shall become the property of the Crown, and no compensation shall be payable therefor, but on application within one month after such forfeiture, surrender, or expiration, the Minister may permit the former lessee to remove any movable improvements effected by him or at his expense. In all cases where such permission has been given the improvements must be removed within three months after the date of forfeiture, surrender, or expiration. 7. The right is reserved to the Minister to terminate the lease upon giving the lessee not less than twelve months' notice in writing to that effect. If the lease is terminated by the exercise of the foregoing reserved right, no compensation will be allowed; but the lessee may, subject to approval of the Minister, remove any moveable improvements, effected by or at the expense of the lessee during the currency of the lease, provided he does so within three (3) months after the termination of the lease. 8. No fixed improvements shall be removed from the land during the currency of the lease, unless with the approval in writing of the Minister. 9. The lessee shall pay all rates and taxes upon the land during the currency of the lease. 10. All rights (except residence on land under cultivation) which are conferred by the Mining Acts, with respect to Crown Lands, are reserved. 11. The lessee shall hold and use the land under lease bona fide in his or her own interest, and shall not transfer, assign, or otherwise in any way deal with the lease, or sublet or part with the possession of the land leased, or any part thereof, without the consent in writing of the Minister. 12. Any improvements, the property of the Crown, upon the lease must be kept in repair during its currency, reasonable wear and tear excepted. 13. The right is reserved to the Minister to withdraw from the lease at any time, and from time to time, any land required for mining or any mining purpose, or for any public purpose within the meaning of the Act, and the lessee shall not be entitled to any compensation whatsoever therefor, or for severance. In the event of any withdrawal as aforesaid, the lessee shall be entitled, subject to the approval of the Minister, to remove any movable improvements, or to a fair and reasonable compensation for his interest in any improvements belonging to him on the land so withdrawn. The amount of such compensation shall be ascertained by multiplying a sum representing the fair value of the improvements by a fraction of which the numerator shall be the unexpired term of the lease, and the denominator the full term of the lease. In case the Minister and the lessee shall not agree as to the amount of compensation as aforesaid, the matter shall be submitted for the determination of the Board; and the decision of the Board or the Land Appeal Court, on appeal, shall be final and conclusive. 14. Rights conferred upon the public in the terms of any reservation in regard to the land leased are reserved. 15. The right of the public to the use of any roads or tracks shall not be interfered with. 16. With the concurrence of the Board, gates may be erected on any reserved road, and, should further access be required, other gates shall be erected wherever and within such period as the Minister may hereafter direct. 17. No trees or saplings shall be interfered with by ringbarking or otherwise, except under permits issued under the provisions of the Forestry Act and Regulations thereunder, but the lessee may take from the land leased to him such timber and other material for building and other purposes upon such land, as may be required by him as tenant thereof, provided such land is not comprised within a timber reserve. 18. If the lease be for grazing purposes only, the land may be cultivated to the extent necessary for the growth and spread of pasture grasses, but no further. 19. The lessee shall, within twelve months from the date of notification in the Government Gazette of the granting of the lease, clear the land of all prickly-pear, lantana, nagoora burr, briars, blackberry, wild tobacco, and noxious scrub, plants, or weeds, and shall thereafter keep the land clear of them during the currency of the lease. 20. The lessee shall take all reasonable steps to keep the land free from foxes, rabbits, and other noxious animals during the currency of the lease. 21. Any part of a travelling stock or camping reserve within the land leased shall, during the whole currency of the lease, be open to the use of bona fide travellers, travelling stock, teamsters, and carriers, without interference or annoyance by lessee, and the lessee shall post in a conspicuous place thereon notice boards, indicating, for public information, the purpose of such reserve. In fencing such reserve the lessee shall also provide gates and other facilities for the entrance and exit of travelling stock, teamsters, and others - such notice boards, gates and facilities to be erected and maintained to the satisfaction of the Stock Inspector. The lessee must not overstock, wholly or in part, the area leased within such reserve; the decision as to overstocking to rest with the Minister. 22. A breach of any of the conditions will render the lease liable to forfeiture. 677 The Gazette Notification of 2 May 1919 also specified that SLG No. 1908/51 Coonamble (as extended) was subject to the following special condition: (a) The lessee shall maintain existing fences in efficient repair during the currency of the lease, and, should he be required by the Minister in writing to do so, shall erect within such time as may be given and thereafter maintain a substantial fence on any boundary at present unfenced.

[255]

(c) Additional facts concerning No. SLG 1957/6 Nyngan 678 SLG No. 1957/6 Nyngan was granted for the term 1 January 1958 to 31 December 1985 (on which date it expired, as agreed by the State and the applicant). The lease was granted for the purpose of "Grazing". 679 The lease area was approximately 105 acres. For at least part of the lease period, stock-proof fencing was constructed along part of the boundary of the leased area, but not along the boundary represented by the Bogan River. The Crown plan showed a narrow strip between the lease area and the Bogan River which was reserved for future public requirements. That plan also described the soil in the lease area as "Heavy brown clay loam". An internal Departmental document noted that the land was used for grazing and that land on the opposite side of the river was land held by the same interest. Significantly, the Crown plan also depicted a track which traversed the lease area. 680 The original conditions attaching to SLG No. 1957/6 Nyngan at the date it was granted were those published in the NSW Government Gazette No 29 dated 14 March 1958, which stated that the lease included the conditions in subsections 1, 2, 5-19, 24, 29, 30, 32, 36, 38, 44 and 59 of Regulation 106 (as notified in the NSW Government Gazette on 22 April 1955 and as amended on 12 July 1957). Relevantly, and in summary form, the conditions were as follows: (a) A breach of any of the conditions rendered the lease liable to forfeiture. (b) The land could only be used for the lease purpose, being grazing. (c) The lessee was to enclose the land with a substantial fence within one year from the date of the Gazette Notification, and to keep it in efficient repair. (d) The Minister could terminate the lease with one year's notice at any time, with no compensation. (e) Upon forfeiture, surrender, or expiration, the improvements on the land became the property of the Crown with no compensation. On application within one month therefrom, the Minister could permit the lessee to remove any movable improvements effected by the lessee or at the lessee's expense. Such removal was to be within the time specified by the Minister, at the lessee's own cost and without compensation. (f) The lessee could not remove any fixed improvements from the land during the term of the lease unless with the Minister's written consent. (g) All rights (except residence on land under cultivation) conferred by "any Mining Act or Acts of New South Wales, with respect to Crown lands" were reserved. (h) The lessee was required to use the land bona fide for his or her own interest. The lessee could not transfer, except by way of mortgage, or release of mortgage, assign, or in any way deal with the lease, or sublet, or part with possession of, or take stake on agistment on the land leased, without the consent in writing of the Minister. (i) All improvements on the lease that were the property of the Crown had to be kept in good repair. (j) The right was reserved to the Minister to withdraw land from the lease at any time for any mining purpose or public purpose with no compensation. If land was withdrawn, subject to the approval of the Minister, the lessee was entitled to remove moveable improvements or to fair and reasonable compensation for his interest in any improvements belonging to him on the withdrawn land. (k) All rights conferred upon the public in the terms of any reservation of the leased land were reserved. (l) The public right to use any roads, streets, lanes, or tracks was not to be interfered with. (m) As the lease was for grazing purposes only, the lessee could only cultivate the land to the extent necessary for the growth and spread of pasture grasses, but no further. (n) The lessee was required to destroy Bathurst burr, noogoora burr, African box thorn, Mexican poppy, prickly-pear, lantana, blackberry, wild tobacco, and various other scrub. (o) The lessee was to take all reasonable steps to keep the land free from foxes, rabbits and other noxious animals. (p) The lessee could not reside on the land, nor permit anyone else to reside on the land. (q) The right was reserved to the public of free access along the bank of the watercourse adjoining the land. (r) No trees or saplings were to be interfered with by ringbarking or otherwise, except under permits issued under the provisions of the Forestry Act 1916 (NSW) and regulations thereunder. However, the lessee could take from the land timber and other material for building and other purposes, provided such land was not comprised within a timber or forest reserve, with the approval of the District-Surveyor. (s) The lessee was required to preserve an average of not less than seven matured or semi-matured trees of honey producing value to each acre for shade, shelter, and honey provision. (t) The lessee was not allowed to remove or permit anyone else to remove gravel, stone, clay, shells, or other material for the purpose of sale, unless the lessee held a quarry licence. However, with the approval of the District Surveyor, the lessee could take gravel, stone, clay, shells, or other material for building or other purposes as required as the lessee. 681 The following two special conditions also applied to SLG No. 1957/6 Nyngan: (a) The rent for the last 14 years of the term of the lease may be reappraised either upon reference by the Minister or at the request of the lessee during the first six months of such period. (b) Notwithstanding any other condition annexed to the lease the lessee shall not, except with the permission of the Forestry Commission, ringbark, cut down, fell or destroy or cause or allow to be ringbarked, cut down, felled or destroyed, any tree, sapling, shrub or scrub within or within one chain of, the bed or bank of the Bogan River.

[256]

(d) State's primary submissions summarised 682 In addition to its submissions on general legal principles, the State made the following submissions with specific reference to the two relevant SLGs in support of its claim that both leases were a true lease in the traditional common law sense, which wholly extinguished any native title rights and interests in the leased area. (a) This was said to be consistent with the following requirements of the lease: the requirement that the lessee hold and use the land under lease for his or her own interest; the stipulation that the lessee was not to part with the possession of the leased land, or any part thereof, without the Minister's written consent; the requirement to keep the leased area free of noxious weed; the requirement to erect fencing around the boundary of the leased area; the ability of the lessee to transfer the lease; the ability of the lessee to use the lease as security or have it mortgaged; and the requirement that the lessee pay all rates and taxes. (b) The substantive nature of the interest conferred under the SLG was said to be further evidenced by: the lessee's entitlement to apply to convert the lease into a conditional purchase under s 190 of the CLC Act 1913; and that following the commencement of the Crown Lands and Closer Settlement (Amendment) Act 1968, the lessee could apply under s 75A for the lease to be extended into perpetuity. (c) It was said to be implicit from s 250(1) of the CLC Act 1913 that the legislature contemplated that the lessee could bring an action in trespass against third parties, and that right was then regulated by that provision. The State emphasised that s 250 made express reference to a "special lease". The State further pointed to the requirement to erect boundary fencing, which it said was related to the right to bring an action in trespass and implicitly recognised the lessee's right to exclude or remove strangers from the leased lands. (d) If any part of the land was withdrawn, the lessee was entitled to some form of compensation for improvements erected on the land. (e) The State contested the applicant's claim that the public had a right to access the leased land under rights conferred by any reservation of the leased land because it submitted that there is no basis for such a blanket proposition, citing Ward at [200]. (f) Presumably in the alternative, the State claimed that any right conferred on third parties to use any reserves, roads or tracks within the land was much narrower than the right of entry conferred under pastoral leases in Ward. This was because the rights of entry only applied to the use of any reserves, roads or tracks that existed on the land and did not involve any entitlement for a traveller to stay or camp on the land.

[269]

(a) Legislation concerning commons 710 The CL Act 1884 contained provisions providing for the reservation or dedication of land. Some key provisions were as follows: Under s 101, express reference was made for lands being temporarily reserved for sale pending survey or determination of the portion to be set aside for any public purpose, commonage or population areas. Under s 104, provision was made for Crown lands to be reserved or dedicated for other wide-ranging public purposes. It further provided that land so reserved or dedicated could at any time be granted for the purposes for which it was reserved in fee simple. Under s 105, subject to notification in the Gazette and parliamentary supervision, the resumption of dedicated or reserved land could occur where the purpose of the dedication or reservation had failed either wholly or in part, where there was doubt as to the purpose, where trusts annexed to the land had failed or could not be carried out or where it was expedient in the public interest to do so. Under s 106, the Governor was empowered to appoint not less than three trustees to be charged with the care and management of lands already or subsequently dedicated, reserved or resumed for any public purpose. In s 133, provision was made for the prosecution and imposition of penalties on any person occupying reserved or dedicated land by residing, erecting any hut or building, clearing, digging up, enclosing, cultivating, cutting timber (other than firewood not for sale), obtaining stone or stripping bark from any tree on such land. 711 Section 39 of the CL Act 1889 substantially replicated s 101 of the CL Act 1884. 712 By reason of notification under either s 101 of the CL Act 1884 or s 39 of the CL Act 1889, land the subject of such notification was set aside as a "common" and became a "common" within the meaning of s 3 of the Commons Regulation Act 1898. "Common" was defined there as including: … any portion of land which, at the time of the passing of the Commons Regulation Act of 1873, had been by any instrument under the hand of the Governor, whether with or without the advice of the Executive Council, allotted as a common for the use of the inhabitants of the towns, or the cultivators and small farmers in the district or locality in which such common is situated, and any common, whether permanent, temporary, or for pasturage, heretofore or hereafter granted, notified, reserved or dedicated by the Governor. 713 The State contended that by being setting aside as a "common" within the meaning of s 3, the relevant land became a "common" within the meaning of that concept under the common law. 714 "Commoner" was defined in s 3 to mean any person whose name was in the Commoners' Roll. 715 Under s 10 of the Commons Regulation Act 1898, provision was made for the appointment of the first trustees of any "common", who thereafter were elected at a general meeting of commoners (s 6). 716 By operation of that legislation, trustees appointed from time to time in respect of the relevant parcel near Canbelego were: (a) a body corporate under the name "Trustees of Canbelego Common", and under that name the trustees had perpetual succession and were capable of holding such common in perpetuity upon the trusts and for the uses declared in, relevantly, the reservation (s 4); (b) required to keep a roll of the persons entitled to use the common in accordance with the grant, notification, reservation or dedication of the common or in accordance with any proclamation or other declaration relating to such common (s 5); (c) empowered to declare the number and description of cattle and other stock which commoners were entitled to depasture upon the common or portions of it (s 13); (d) required to expend money received by them under the legislation on improvement of the common. Section 14 provided that the trustees "shall expend in and about the improving of the said common or otherwise in relation thereto all sums of money received by them for trespass or otherwise under this Act"; (e) empowered to make and enforce rules and regulations for the better and more convenient and equal use of the common by the persons named in the Commoners' Roll (s 15); (f) empowered to distrain or impound cattle or other stock found depasturing upon the common which belonged to any person not named in the Commoners' Roll and recover damages as claimed by the owner or occupant of any private lands in respect of such trespass and damage (s 17); and (g) empowered to receive charges, as prescribed by regulations under the Commons Regulation Act 1898, from carriers, teamsters, travellers or drovers depasturing animals on the common (s 24). 717 It should be noted that under s 23 of the Commons Regulation Act 1898, the Minister was empowered to grant licences to take soil, stone or minerals or to remove timber from a common. As Mr Waters acknowledged in oral address, while this feature of the legislation may not be determinative, it is a factor to be taken into account in determining whether or not the trustees or commoners had a right of exclusive possession. 718 It is also appropriate to note the following relevant provisions of the Commons Management Act 1989, which commenced on 1 September 1991: (a) Relevant preceding legislation, as well as rules or regulations made by trustees under the Commons Regulation Act 1898 were repealed, but saving provisions applied in respect of existing Commoners' Rolls, bodies corporate and trustees (see ss 4(3) and 64 and Sch 5). (b) Section 3 relevantly defined a "common" as including a parcel of land which, on or before 1 February 1909, had by any instrument made by the Governor, been set aside as a common for the use of inhabitants of any specified locality or the cultivators or famers of any locality in which the parcel of land was situated, other than where the reservation or dedication had been revoked or otherwise terminated. (c) "Commoner" was defined as meaning a person whose name is entered on the relevant Commoners' Roll (s 3). (d) As noted, provision was made for the continuation of existing trusts under the former Act (s 4(3)). (e) Under s 14, trusts were declared to have an estate in fee simple in the common for which it is established, unless it already had such an estate by virtue of another enactment or instrument. (f) Trusts were empowered, with Ministerial consent, to enter into transactions, with certain exceptions relating to a common in the Western Division of the State (ss 16 and 17). Relevantly, a "transaction" in relation to land was defined in s 3 as "any transaction which creates, transfers, charges, encumbers, varies or extinguishes an estate or interest in land, and includes a transfer, a conveyance, a lease, a mortgage, a covenant and a grant of a licence, and also includes a grant or reservation of an easement or other incorporeal hereditament". (g) On transfer of land by a trust, the land vested in the transferee free from all trusts, ceased to be set aside as a common and was freed from any leases or licences (ss 18 and 23(1)). (h) Trusts were empowered to make by-laws with respect to, among other things, care control and management of the common and the rights of commoners with respect to the use of the common (ss 9(1)(a) and (b)). (i) There was provision for the creation, adoption and cancellation of management plans for commons (ss 25-28). (j) Members of a trust board, members of a local authority managing a trust's affairs or authorised employees of the trust or local authority were empowered to remove: persons on the common who were not authorised to be there; persons contravening a provision of the Act or a by-law; or persons who by disorderly conduct were annoying or causing inconvenience to commoners or persons lawfully using the common (s 56). 719 Mr Waters acknowledged in oral address that the Commons Management Act 1989 re-enacted many of the same principles as were established in the Commons Regulation Act 1898. 720 The terms of s 14 of the Commons Management Act 1989 should be noted. They were relied upon by the State in support of its submission that the acts done in relation to the relevant parcel constituted the grant or vesting of a freehold estate in the relevant parcel. Section 14 of the Commons Management Act 1989 provided: Trust to have a fee simple estate in the common for which it is established (1) For the purposes of this Act, a trust has, by virtue of this subsection, an estate in fee simple in the common for which it is established, unless it already has such an estate by virtue of some other enactment or instrument. (2) If the setting aside of a common is revoked or otherwise terminated as to part of the common, the trust ceases to have an estate in fee simple in that part.

[270]

(b) State's primary submissions summarised 721 In brief, in addition to adopting its general submissions on matters of principle as summarised in the Introduction, the State submitted that the reservation of the parcel on 23 April 1904 and the subsequent appointments of trustees committed the relevant parcel to the public purpose of temporary common. It further submitted that upon such reservation and appointment, rights and interests in the parcel were vested in the trustees and Canbelego Common Trust, which expressly and by necessary implication conferred on the trustees' rights of exclusive possession and were inconsistent with the existence of native title. 722 The State emphasised that trustees of temporary commons have considerable power under the Commons Regulation Act 1898, citing Sullivan v Horsley (1914) 14 SR (NSW) 431 at 435. 723 The State submitted that powers and duties of trustees presupposed possession of the relevant land and, while acknowledging that, in the case of a temporary commons, the right of possession would come to an end on the revocation of the reservation or dedication of the land as a common, the State submitted that, until this occurred, the right of possession was indistinguishable from possession as ordinarily understood in law. 724 The State's position on exclusive possession and consequential extinguishment in respect of the reservation of land for a temporary common relied on both s 23B(2)(c)(ii) and 23B(3) of the NT Act, as well as principles at common law. Section 23B(2)(c)(ii) states that an act will be a PEPA if it consists of the "grant or vesting" of a "freehold estate" (provided it meets the other necessary requirements under s 23B). The State submitted that even if the Court were to find that there was no "grant or vesting" within the meaning of s 23B(2)(c)(ii), the State contended that any native title rights or interests in the land reserved as common were wholly extinguished at common law. 725 The State contended that the reservation in respect of the common here had "all the markers that were apparent in the reservations in Ward that were seen as, in effect, conveying exclusive possession and extinguishing native title in contrast to mere reservations and reservations which were simply setting aside land or forbidding its sale or lease". This was because the reservation here went further than simply reserving the land from being sold or leased. It established a specific usage, in a particular way, under a statutory scheme related to commons. The State submitted that it was a necessary consequence of the relevant legislation that any native title rights and interests were extinguished.

[271]

(c) Primary submissions of applicant and Aboriginal Land Councils summarised 726 The applicant submitted that, in the early days of the colony, the most usual form of common was for pasturage, noting that "rights of common" were inherited from the position in England where land was set aside for "common use" and was considered a profit a prendre, exercisable in common with others. Commons were used early in the colony to ensure a reliable body of grazing land. 727 The applicant pointed out that the Gazette Notice published on 23 April 1904 in respect of the relevant parcel stated that the land was reserved from sale "pending determination of the portion to be set apart for temporary common for the use of the residents of Canbelego, and reserved and exempted from licence and lease generally, and is hereby reserved and exempted accordingly". 728 The applicant then made three primary submissions. First, it contended that native title was not extinguished simply by the reservation of lands, without more. 729 Secondly, and alternatively, it submitted that commoners' rights under the Commons Regulation Act 1898 were limited, essentially to that of pasturage. It emphasised that a commoner only had rights in relation to the common if his or her name was on the Commoners' Roll. When that occurred, the commoner had a right to the common for the purpose of pasturage of stock (including access to water) and to take fallen timber or underwood from the common with the trustees' permission. It submitted that these rights could not have extinguished all or any native title. 730 Thirdly, the applicant submitted that the trustees' powers were also relatively limited, as was reflected, for example, in s 13 which gave the trustees power to declare the number and description of stock which would be allowed on the land by commoners. That power was not only quite narrow in its ambit, the applicant also contended that it was not an absolute power because when an aggrieved person had a right of appeal to a Court of Petty Sessions, which Court could override the trustees' decision. 731 As to the State's reliance of s 14 of the Commons Regulation Act 1898, the applicant submitted that the provision did not confer a power upon trustees to bring an action in trespass. Rather, it was a provision which directed how to deal with monies received, including for "trespasses or otherwise under the Act". It submitted that the words "under this Act" governed both trespasses or otherwise. The only provision in the Act dealing with trespasses was s 17, which was directed to trespasses by stock. The applicant submitted that it is this trespass which is the subject of s 14. 732 The applicant contended that, as was the case with pastoral leases, native title rights and interests, other than the right to control access, could clearly co-exist with a commoner's right to pasture their stock. 733 As to the State's reliance on an analogy with Ward, the applicant emphasised that that case dealt with two separate types of reserves. The first type was a reserve created simply by reservation for public purposes, while the second type was a reserve resulting from the vesting of land in trustees. The High Court held that the first type of reservation did not extinguish all native title, even though it clearly extinguished a right to control access. The High Court regarded the second kind of reserve (i.e. by vesting) as the equivalent to the vesting of a fee simple. The applicant submitted that a temporary reservation of land for a common so as to allow commoners to depasture their stock did not mean that the land reserved could not lawfully be used for other purposes, relying on what was said in Ward at [221]. 734 The submissions of the Aboriginal Land Councils in respect of this parcel were primarily directed to the effect of s 14 of the Commons Management Act 1989 (see [718(e)] above). They relied upon cases such Boggabri for the proposition that this provision (as was also the case with s 37X of the CLC Act 1913 and s 100(1) of the CL Act 1989 (NSW)) merely created a statutory fiction of the existence of a fee simple and did not affect the real or underlying title to common land. They submitted that the effect of s 14 was not actually to vest the land in the Canbelego Common in trustees. In support of that submission, they pointed to the fact that at all relevant times the State was recorded as the registered proprietor for the parcel of land and not in anyone else (including the trustees). 735 The applicant clarified in oral address that it no longer pressed the issue whether the relevant parcel was in fact a common. Nor was it disputed that the parcel was reserved as a temporary common under s 101 of the CL Act 1884 and s 39 of the CL Act 1889. 736 In the course of the hearing, the State clarified that it did not contest the position of the Aboriginal Land Councils regarding the meaning and effect of s 14 of the Commons Management Act 1989. Mr Waters said that he withdrew [70] of the State's written submissions in reply and accepted that s 14 operated "to transfer an estate for the purposes of the Act in terms of the language of the Act". This is consistent with the position of the Aboriginal Land Councils. But the State otherwise relied upon its other submissions that the effect of the reservation was to create a right of exclusive possession, with particular reference to the earlier legislation. Accordingly, the Court was not asked to determine the correctness of Boggabri or, as discussed in that case, the meaning and effect of s 14 for the purpose of the present proceeding.

[272]

Resolution 737 For the following reasons, I reject the State's position that the reservation of the relevant parcel of land as a temporary common, the appointment of trustees and/or the operation of any legislation which applied to the land created a right of exclusive possession in either the trustees or commoners who were entitled to depasture their stock on the common. These incidents did not wholly extinguish any native title rights and interests in the land. 738 First, while it may be accepted that the parcel of land so reserved vested in the trustees under s 4 of the Commons Regulation Act 1898 (for the purposes of that Act), that falls far short of conferring upon the trustees a right of exclusive possession. The powers and obligations of trustees were essentially limited to managing the activities of enrolled commoners and preventing other persons from depasturing their stock on the common. 739 Secondly, I accept the applicant's submission that s 14 of the Commons Regulation Act 1898 does not support the State's contention that the reservation involved a grant of exclusive possession. That provision obliged the trustees of every common to use all sums of money received by them for trespass or otherwise under the Act to improve the common. Properly construed, this provision did not empower trustees to bring actions for trespass at large so as, for example, to prevent non-commoners from accessing and using the land for purposes other than depasturing stock, such as personal recreation. The provision speaks of money received by trustees "for trespass or otherwise under this Act". The reference to "under this Act" is important. It refers in part to actions for trespass brought by trustees in respect of the unauthorised depasturing of stock as provided in s 17. The words "under this Act" are important words of limitation, which govern money received by trustees in respect of prosecutions brought under s 17 or money obtained as a result of some other provision of the Act. 740 Thirdly, and significantly, trustees were empowered to hold the reserved land for the purposes of the Act and not for any other purpose. The State pointed to no source of power which authorised trustees to exclude anyone and everyone from the land apart from their limited rights under provisions such as s 17. In other words, the trustees' power to control access was quite limited and was directed to particular classes of person. This limited power of control co-existed with any relevant native title rights and interests in the land. The trustees had no power to exclude any Aboriginal person exercising native title rights and interests apart from the limited powers of control conferred by the Act. 741 Fourthly, having regard to the limited rights of commoners who were entitled to use the land, it is plain that they did not have any right of exclusive possession. Their rights were limited in effect to depasturing their stock on the land where they were entitled to do so. The legislation prevented persons who were not on the Commoners' Roll from depasturing their stock on the common (apart from drovers and the like whose rights to use the common even though they were not commoners were provided for in s 24). However, it imposed no limits on the rights of the public to use the common for purposes other than depasturing stock, as is the case with other Crown land where there has been found to be no grant of a right of exclusive possession. 742 Fifthly, as to the State's reliance on Ward, I accept the applicant's response as summarised at [733] above. 743 Sixthly, the State's reliance on ss 23B(2)(c)(ii) and s 23B(c) of the NT Act is in my view misplaced. The reserved land cannot correctly be described "freehold estate". Moreover, as the Aboriginal Land Council's correctly pointed out, at all times the State (and not the trustees) was recorded as the registered proprietor for the parcel of land the subject of the reservation. 744 Finally, I am not satisfied that any native title rights and interests in the land were wholly extinguished by operation of common law principles, separately from the issue of whether exclusive possession existed within the meaning of s 23B of the NT Act. As previously mentioned, the State scarcely developed this alternative contention.

[274]

Associate: Dated: 5 March 2021 SCHEDULE OF PARTIES NSD 38 of 2019 Second Applicant GRACE GORDON Third Applicant PETER WILLIAMS Fourth Applicant JOHN SHIPP Fifth Applicant NEVILLE MERRITT Sixth Applicant DANIELLE FLAKELER-CARNEY Seventh Applicant JASON FORD Eighth Applicant HILARY WILLIAMS Ninth Applicant DAVID CLARKE Tenth Applicant PHILLIP SULLIVAN Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent BOGAN SHIRE COUNCIL Fourth Respondent BREWARRINA LOCAL ABORIGINAL LAND COUNCIL Fifth Respondent COBAR LOCAL ABORIGINAL LAND COUNCIL Sixth Respondent CONDOBOLIN LOCAL ABORIGINAL LAND COUNCIL Seventh Respondent COONAMBLE LOCAL ABORIGINAL LAND COUNCIL Eighth Respondent GILGANDRA LOCAL ABORIGINAL LAND COUNCIL Ninth Respondent GRIFFITH LOCAL ABORIGINAL LAND COUNCIL Tenth Respondent MURRIN BRIDGE LOCAL ABORIGINAL LAND COUNCIL Eleventh Respondent NEW SOUTH WALES ABORIGINAL LAND COUNCIL Twelfth Respondent NORTH WEST LAND CORPORATION ACN 163 612 351 Thirteenth Respondent NTSCORP LIMITED Fourteenth Respondent NULLA NULLA LOCAL ABORIGINAL LAND COUNCIL Fifteenth Respondent NYNGAN LOCAL ABORIGINAL LAND COUNCIL Sixteenth Respondent WALGETT LOCAL ABORIGINAL LAND COUNCIL Seventeenth Respondent WARREN MACQUARIE LOCAL ABORIGINAL LAND COUNCIL Eighteenth Respondent WEILWAN LOCAL ABORIGINAL LAND COUNCIL Nineteenth Respondent A.H. WISE PASTORAL CO PTY LIMITED Twentieth Respondent BREWARRINA CLAY TARGET CLUB INC Twenty First Respondent JOHN BRYAN CHARLES EGAN Twenty Second Respondent SHIRLEY VIDA GEORGE Twenty Third Respondent GAVIN GEOFFREY GREEN Twenty Fourth Respondent HE KATER AND SON PASTORAL CO PTY LTD Twenty Fifth Respondent M M WOODLOCK PTY LIMITED Twenty Sixth Respondent FRANK JOHN MCKILLOP Twenty Seventh Respondent MOUNT FOSTER PTY LIMITED Twenty Eighth Respondent PETER WILLIAM PEARCE Twenty Ninth Respondent RUSSELL BRUCE ORIEL AND JANICE MARGARET ORIEL Thirtieth Respondent CHRISTOPHER JOHN STANMORE Thirty First Respondent T.L. AND A.L. FISHPOOL Thirty Second Respondent WARRIE GRAZING PTY LIMITED Thirty Third Respondent WAYNE JOHN WHILLOCK Thirty Fourth Respondent RICHARD JOHN WOODLOCK Thirty Fifth Respondent VIRGINIA ANNE WOODLOCK Thirty Sixth Respondent WYNDERBRI PTY LTD Thirty Seventh Respondent ACTWAY PTY LTD Thirty Eighth Respondent COBAR MANAGEMENT PTY LTD Thirty Ninth Respondent COBAR OPERATIONS PTY LTD Fortieth Respondent ISOKIND PTY LTD Forty First Respondent PEAK GOLD MINES PTY LIMITED Forty Second Respondent TRIAKO RESOURCES PTY LTD Forty Third Respondent TRITTON RESOURCES PTY LTD Forty Fourth Respondent AUSTRALIAN EXECUTOR TRUSTEES LIMITED AS CUSTODIAN FOR RFM RIVERBANK Forty Fifth Respondent CARTOBA PTY LIMITED Forty Sixth Respondent MALCOLM STANLEY HENWOOD Forty Seventh Respondent KILFENORA PASTORAL CO PTY LIMITED Forty Eighth Respondent PETER ARCHIBALD LAIRD Forty Ninth Respondent KENNETH JOHN MAYMAN Fiftieth Respondent CHRISTOPHER GERARD NOONAN Fifty First Respondent THE ROTO PASTORAL COMPANY PTY LTD Fifty Second Respondent TELSTRA CORPORATION LIMITED Fifty Third Respondent BOBADAH PUBLIC HALL TRUST

Parties

Applicant/Plaintiff:

Ohlsen on behalf of the Ngemba/Ngiyampaa People

Respondent/Defendant:

Attorney General of New South Wales

Legislation Cited (49)

Crown Lands Act 1884(NSW)

(NSW), Crown Lands Act 1889(NSW)

(NSW), Crown Lands Act 1895(NSW)

(NSW), Western Lands Act 1901(NSW)

Crown Lands Consolidation Act 1913(NSW)

Commons Regulation Act 1898(NSW)

Crown Lands (Amendment) Act 1908(NSW)

Crown Lands (Amendment) Act 1931(NSW)

Crown Lands (Amendment) Act 1932(NSW)

Crown Lands (Amendment) Act 1964(NSW)

Crown Lands (Homestead Selections and Settlement Leases) Act 1896(NSW)

Crown Lands (Special Leases) Amendment Act 1952(NSW)

Crown Lands Act 1889(NSW)

Crown Lands Act 1895(NSW)

Crown Lands Act 1989(NSW)

Amendment Act 1903(NSW)

Crown Lands Alienation Act 1861(NSW)

Crown Lands and Closer Settlement (Amending) Act 1924(NSW)

Crown Lands and Closer Settlement (Amendment) Act 1968(NSW)

Crown Lands Occupation Act 1861(NSW)

Forestry Act 1909(NSW)

Forestry Act 1916(NSW)

Improvement Leases Cancellation Act 1906(NSW)

Local Government Act 1919(NSW)

Mining Act 1874(NSW)

Mining Act 1906(NSW)

Rabbit Act 1890(NSW)

Water and Drainage Act 1902(NSW)

Western Lands (Amendment) Act 1905(NSW)

Western Lands (Amendment) Act 1927(NSW)

Western Lands Act 1901(NSW)

Sch A Land Act 1898(WA)

Land Act 1933(WA)

(Validation) and Native Title (Effect of Past Acts) Act 1995(WA)

Land Act 1898(WA)

CLC Act 1913(NSW)

Crown Lands Regulations 1889(NSW)

Crown Lands Regulations 1895(NSW)

Public Roads Act 1902(NSW)

Both the Western Lands Regulations 1906(NSW)

Western Lands Regulations 1935(NSW)

CL Act 1989(NSW)

Native Title Act 1993(Cth)

Native Title (New South Wales) Act 1994(NSW)

Federal Court Rules 2011(Cth)

Commons Management Act 1989(NSW)

Inclosed Lands Protection Act 1901(NSW)

Real Property Act 1900(NSW)

Racial Discrimination Act 1975(Cth)

Cases Cited (23)

Cases cited: Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 Anderson v Wilson [2000] FCA 394; 97 FCR 453 Brown v Western Australia [2012] FCAFC 154; 208 FCR 505 Chisholm v Macauley (1868) 7 SCR (NSW) 312 Daniel v State of Western Australia [2004] FCA 1388; 212 ALR 51 Drinkwater v Arthur (1871) 10 SCR NSW 193 Fejo v Northern Territory [1998] HCA 58; 195 CLR 96 Fergusson v Mackinnon (1912) 12 SR (NSW) 406 Hayes v Northern Territory [1999] FCA 1248; 97 FCR 32 Hopkins v Minister for Lands (1912) 12 SR (NSW) 215 Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales [2012] FCA 792 Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 Minister for Lands v Priestley [1911] HCA 68; 13 CLR 357 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) [2014] NSWLEC 58 Peters v Manly Municipal Council [2006] NSWLEC 676; 149 LGERA 321 Pincham v Minister for Lands (1946) 46 SR (NSW) 393 Queensland v Congoo [2015] HCA 17; 256 CLR 239 Sullivan v Horsley (1914) 14 SR (NSW) 431 Wandarang People v Northern Territory [2000] FCA 923; 104 FCR 380 Western Australia v Brown [2014] HCA 8; 253 CLR 507 Western Australia v Ward [2002] HCA 28; 213 CLR 1 Wik Peoples v State of Queensland [1996] HCA 40; 187 CLR 1 Wilson v Anderson [2002] HCA 29; 213 CLR 401 Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38

[1911] HCA 68

(2002) 213 CLR 1

(2002) 213 CLR 401

Cited By (9)

Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People

Commissioner of Taxation v Iannuzzi

Darkinjung Local Aboriginal Land Council v Attorney General of New South Wales

Deerubbin Local Aboriginal Land Council v Attorney General of New South Wales

District Council of Streaky Bay v Wilson

Indigenous Land and Sea Corporation v Anderson

NSW Department of Industry (for Fisheries NSW) v Connolly

Ohlsen on behalf of the Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan People v Attorney General of New South Wales