HAYNE J.
The issue
During World War II, pursuant to regulations made under the National Security Act 1939 (Cth), a delegate of the Minister of State for the Army made orders ("the reg 54 orders") directing a particular officer to occupy certain land, authorising that officer to do anything in relation to the land that the holder of a fee simple could do by virtue of that interest and prohibiting all other persons from exercising "any right of way over the land or any other right relating thereto". Did the reg 54 orders extinguish native title rights and interests in respect of that land?
A majority of the Full Court of the Federal Court of Australia (North and Jagot JJ, Logan J dissenting) held that the reg 54 orders did not extinguish native title rights and interests. By special leave, the State of Queensland appeals against so much of the orders made by the Full Court as answered a question raising that issue in a special case reserved for the consideration of the Full Court. The appeal should be allowed. Other questions reserved by the special case, including a question about the application of s 51(xxxi) of the Constitution to the extinguishment of native title, were not the subject of the appeal and are not considered in these reasons.
The determinative point
The majority in the Full Court held, and in this Court the first and second respondents (the Bar‑Barrum people and the Commonwealth) submitted, that the objective intention, or statutory purpose, of the reg 54 orders (and the provisions pursuant to which they were made) was that "all rights and interests in the land should yield to the Commonwealth's exclusive possession" for the duration of the war (and up to six months beyond) "but should otherwise continue and found rights of compensation for the interference to those rights thereby resulting".
Part of that proposition is plainly right. All rights and interests in the land were to yield to the Commonwealth's taking of exclusive possession. And the Commonwealth was to take exclusive possession of the land only for the duration of the war (and up to six months beyond).
But the remainder of the proposition, however expressed, does not follow. It is both legally and logically wrong to say that the "objective intention" or "statutory purpose" of the reg 54 orders or the laws pursuant to which they were made was to "preserve" all previously existing rights.
The conclusion that native title rights and interests were not extinguished by the reg 54 orders is legally flawed. It takes as its premise a legal proposition for which there is no support: that native title rights and interests are extinguished only if an intention to extinguish is discernible in the reg 54 orders and the provisions pursuant to which they were made. That premise, and the conclusion which is drawn from it, are both contrary to the accepted doctrine established and unfailingly applied in this Court in a succession of cases decided over more than 20 years. And no party made any submission suggesting that any of those cases was not rightly decided. These reasons will show that the conclusion reached by the majority in the Full Court, and urged by the Bar‑Barrum people and the Commonwealth, can be reached only by applying tests for the extinguishment of native title rights and interests which this Court has expressly rejected.
The statement of "intention" or "purpose" is also logically flawed. It is no more than an unfounded assertion that there was no extinguishment of native title rights and interests because those rights and interests were not extinguished. Even if it is accepted as a premise that native title rights and interests are extinguished only if an intention to extinguish is discernible in the reg 54 orders and the provisions pursuant to which they were made, to state that there was an "intention" or a "purpose" to preserve all rights and interests (including native title rights and interests) leads to circular reasoning. Assuming or asserting as a second premise that there was an "intention" or "purpose" to preserve all rights and interests (then recognised or not) assumes the answer to the question that must be answered. It assumes the answer by conflating two separate inquiries. The first is an inquiry about the effect of the reg 54 orders and the provisions which authorised their making. That inquiry is answered by concluding that the Commonwealth took exclusive possession of the land for only a limited but uncertain time. The second, and separate, inquiry to make is about the effect of that taking on native title rights and interests. Assuming or asserting that there was an "intention" or "purpose" of preserving all rights and interests (then recognised or not) leads to circular reasoning. And those problems would be compounded if the statement about "intention" or "purpose" were to be understood as inviting attention to what the Parliament, the Executive or the Commonwealth as a polity "wanted" to achieve. Any inquiry of that kind would be anachronistic. Native title rights and interests were not recognised in the 1940s.
These reasons proceed as follows. First, the relevant legislative provisions and the terms of the reg 54 orders are described. Next, the native title rights and interests and the rights of possession taken by the orders are identified. The principles governing extinguishment of native title rights and interests are then stated and applied to this case. Finally, the content and utility of notions of "intention" and "purpose" in this field of discourse are examined and particular reference is made to those tests for the extinguishment of native title rights and interests which this Court has rejected.
National Security (General) Regulations 1939 (Cth)
Section 5(1)(b) of the National Security Act 1939 authorised the Governor‑General to make regulations authorising the taking of possession or control on behalf of the Commonwealth of any property or the acquisition on behalf of the Commonwealth of any property other than land. Regulation 54(1) of the National Security (General) Regulations 1939 (Cth) ("the Regulations") provided that, if it appeared to the Minister of State for the Army to be necessary or expedient to do so in the interests of the public safety, the defence of the Commonwealth or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, the Minister "may, on behalf of the Commonwealth, take possession of any land, and may give such directions as appear to him to be necessary or expedient in connexion with the taking of possession of the land". Regulation 54(2) permitted the Minister to "authorize persons so using the land to do, in relation to the land, anything which any person having an unencumbered interest in fee simple in the land would be entitled to do by virtue of that interest". It further permitted the Minister, by order, to "provide for prohibiting or restricting the exercise of rights of way over the land, and of other rights relating thereto which are enjoyed by any person, whether by virtue of an interest in land or otherwise".
The reg 54 orders
Between 1943 and 1945, a delegate of the Minister of State for the Army, acting under reg 54 of the Regulations, made five orders with respect to land in which the Bar‑Barrum people have since claimed native title rights and interests. Each order related to land in the same general area near Herberton and Atherton in North Queensland, but the borders of the land affected were not identical. The first order covered 167.4 square kilometres. The second order did not include all of the eastern part of the land covered by the first order and covered 153.3 square kilometres. The third, fourth and fifth orders covered 186.1 square kilometres, 199.4 square kilometres and 254.9 square kilometres respectively. The last three orders covered all the land which was subject to the second order but included more land to the south‑west and west. Each order was annotated in a manner which indicated that the land was to be used by the Army as an artillery range.
Each of the reg 54 orders stated that the officer making the order, acting in pursuance of the Regulations and the instrument delegating authority to him to make the order, "[DOES] HEREBY on behalf of the Commonwealth, TAKE POSSESSION of the said land". Each of the orders directed an officer (or persons whom that officer authorised) to occupy the land and authorised that officer (and other authorised persons) "to do in relation to the said land anything which any person having an unencumbered interest in the fee simple in the said land would be entitled to do by virtue of that interest". Each order further provided that, while the land remained in the possession of the Commonwealth, "no person shall exercise any right of way over the land or any other right relating thereto, whether by virtue of an interest in land or otherwise".
No party to the appeal alleged that the reg 54 orders were made beyond power or are otherwise infirm. All said, rightly, that the reg 54 orders must be read and understood against the background of the National Security Act 1939 and the Regulations. But it is not necessary to trace that background in any detail. It is enough to observe that the parties accepted that each of the reg 54 orders would have ceased to take effect no later than the time fixed by s 19 of the National Security Act 1939 as the period of operation of that Act: the duration of the war and six months thereafter.
Some agreed facts
The proceedings in the Full Court of the Federal Court were by way of special case. For the purposes of that special case, the Bar‑Barrum people and the State agreed that, subject to the effect of the reg 54 orders, the Bar‑Barrum people hold "at least non‑exclusive native title rights and interests" over the land (in effect) to go onto the land, to camp there, to hunt, fish and gather for personal, domestic and non‑commercial communal purposes, to conduct ceremonies, to be buried there, to maintain places of importance and areas of significance, to teach the physical and spiritual attributes of the area, to hold meetings there and to light fires for domestic purposes. Those parties further agreed that, at about the time of the first order, "the Commonwealth physically occupied at least some of the [land] in that the Commonwealth used at least some of the [land] as an artillery range and a live fire manoeuvre range for the training of infantry and armoured units preparing to deploy to the South West Pacific area". The parties agreed that the Commonwealth ceased physically to occupy any part of the land on or about 31 August 1945.
Taking possession
The Bar‑Barrum people and the Commonwealth submitted that there had to be some "manifestation of the intention to take possession" of the land beyond the making of the reg 54 orders. The Commonwealth's intention to take possession of this land to the exclusion of all others was evidently made plain by bombarding the land with live artillery fire and using it for live fire military manoeuvres. But the proposition that there must be some manifestation of an intention to take possession beyond the making of the relevant reg 54 order is not right.
The reg 54 orders took effect according to their terms. The orders were the assertion by the Commonwealth of rights over the land, not the grant of any right or bundle of rights to a third person. The assertion of those rights was for a limited time of uncertain duration. It was an assertion which could be made only upon the decision‑maker being satisfied of the matters stated in the Regulations. But, being satisfied of those matters, the officer who made an order, by making it, took possession on behalf of the Commonwealth of the land specified in it.
The possession which the Commonwealth thus took was possession to the exclusion of all others. Each order authorised an identified officer (and persons whom that officer authorised) to occupy the land. Not only was this officer (and other authorised persons) authorised "to do in relation to the said land anything which any person having an unencumbered interest in the fee simple in the said land would be entitled to do by virtue of that interest", others having "any right of way over the land or any other right relating thereto" were not permitted to exercise that right. No doubt anyone could have asked for permission to go onto the land. But if, as all parties have assumed in this litigation, the reg 54 orders were valid, that permission could be refused for any reason or no reason. Permission could be refused because the Commonwealth had taken possession of the land. And taking possession had been judged to be necessary and expedient in the interests of the public safety, the defence of the Commonwealth and the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community. The connection between using the land as an artillery range and live fire manoeuvre range and the defence of the Commonwealth is evident. By the reg 54 orders the Commonwealth took exclusive possession of the land.
Extinguishment of native title
In Western Australia v The Commonwealth (Native Title Act Case) the six members of this Court who had constituted the majority in Mabo v Queensland [No 2] said that "[a]t common law ... native title can be extinguished or impaired by a valid exercise of sovereign power inconsistent with the continued enjoyment or unimpaired enjoyment of native title". That valid exercise of sovereign power may take the form of creating rights in third parties (for example, by the grant of an interest in land). But it may also take the form of the relevant sovereign authority itself asserting or taking rights in or over the land (for example, by some forms of dedication of land to public purposes). The determinative question in either kind of case is whether the rights granted or asserted are inconsistent with native title rights and interests over the land.
Hence, in Fejo v Northern Territory this Court held that native title is extinguished by a grant in fee simple and is not revived if the land is later held again by the Crown. As the plurality pointed out in Fejo, native title is extinguished by a grant in fee simple "because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title". That conclusion "follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title" (emphasis added).
It is against this background, then, that the decision in Western Australia v Ward must be understood. And despite the degree of attention given in argument in this case to only one paragraph of what was written in Ward, what was said by the plurality in that case cannot be read as altering or detracting from what was then, and remains, the established doctrine of this Court.
Common law extinguishment of native title rights and interests depends upon only one test: inconsistency of rights. As the plurality said in Ward, "[t]wo 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." And "[a]bsent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise" (emphasis added). Rather, questions of inconsistency require identification of, and comparison between, the two sets of rights, recognising always that one set of rights derives from traditional law and custom and the other set derives from the exercise of the new sovereign authority that came with European settlement.
No case decided after Ward holds to the contrary. It is enough, for present purposes, to refer only to Western Australia v Brown. All five members of the Court agreed that the principles to be applied are those that have been stated.
Application of the principles
By taking exclusive possession of the land, the Commonwealth asserted rights which were inconsistent with the native title rights and interests in issue in this case. The Commonwealth's acts extinguished the native title rights and interests claimed by the Bar‑Barrum people.
Contrary to the submissions of the Bar‑Barrum people and the Commonwealth, the effect of the reg 54 orders on native title rights and interests was more radical than working only some temporary suspension of their enjoyment, whether with or without some concomitant grant of a right to compensation for loss of enjoyment of the rights. Analysis in terms of suspension of either the native title rights and interests or their exercise (with or without the addition of a right to monetary compensation) fails to recognise the manner in which the common law and native title rights and interests intersect. In particular, analysis of the kind described does not take into account the facts that native title rights and interests are rooted in the laws and customs observed by the claimant people and that while native title is recognised by the common law it is neither an institution of the common law nor a form of common law tenure.
The failure to recognise the manner in which the common law and native title rights and interests intersect results in seeking to attach incidents of suspension and monetary compensation deriving from the common law of real property and trespass to native title rights and interests deriving from a different normative system. As was pointed out in Yorta Yorta Aboriginal Community v Victoria, native title rights and interests "may not, and often will not, correspond with rights and interests in land familiar to the Anglo‑Australian property lawyer" and "[t]he rights and interests under traditional laws and customs will often reflect a different conception of 'property' or 'belonging'". The error of seeking to transfer common law ideas about real property and trespass to native title rights and interests is most starkly exemplified by the attempt to transform the spiritual attachment to land which underpins native title rights and interests into money damages for the tort of trespass.
It is convenient to assume that competent legislation could validly suspend the exercise of native title rights and interests and attach to those rights and interests, first, some statutory right to resume their exercise on the happening of some event and, second, some right to compensation for interruption in their exercise. In Ward, the plurality referred to the possibility of a "particular statutory provision" suspending native title rights and interests. It may greatly be doubted that legislation could achieve these results except by express and detailed provision to the desired effect. But assuming, for the purposes of argument, that legislation could inferentially or impliedly superimpose such incidents upon, or attach such incidents to, native title rights and interests, the legislation at issue in this case cannot be understood as having that effect. That legislation validly authorised the Commonwealth to take to itself rights over the land which were inconsistent with the native title rights and interests that have been described. The view that the legislation worked only a temporary suspension of the exercise of the native title rights and interests depends upon assuming or asserting either that the applicable statutory and regulatory provisions intended to preserve all other interests or that they should be construed as having that effect. There is no basis for making an assumption or assertion of that all‑encompassing generality. None was identified in argument.
It is important, however, to say something more about the content and utility of notions of "intention" and "purpose" in this field of discourse.
"Intention" and "purpose"
The metaphors of "intention" and "purpose" will mislead if they are understood as permitting or requiring identification of some actual or constructed objective for the act which it is alleged extinguished native title rights and interests. Hence, as the plurality said in Ward, "referring to an 'expression of intention' is apt to mislead" (original emphasis).
As the plurality also said in Ward, references to expression of "intention" and "purpose" are apt to mislead because the subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant. It matters not whether those who made the reg 54 orders did or did not think about what rights and interests the Bar‑Barrum people would claim in the land. And it matters not whether those who made the reg 54 orders did or did not think about what rights or interests in the land would survive beyond the expiration of the orders.
It is irrelevant, therefore, to observe, as the majority did in the Full Court, that in the course of the second reading of the Bill for what became the National Security Act 1939, the Prime Minister spoke of the Executive being guided in the exercise of the powers given by that Act by the principle that there be "as little interference with individual rights as is consistent with concerted national effort".
There are fundamental reasons why references to "intention" and "purpose" may mislead. As has already been explained, native title is neither an institution of the common law nor a form of common law tenure, but is recognised by the common law. There is, therefore, an intersection of two normative systems.
Identifying the intersection may be assisted, in some cases, by using the idea of radical title as a tool of legal analysis. But the concept of radical title does not have a controlling role. And as the decisions in The Commonwealth v Yarmirr and subsequent cases show, an inquiry about extinguishment of native title rights and interests must begin by examining the allegedly inconsistent rights and interests which have been created and asserted since the Crown's acquisition of sovereignty.
It is, therefore, irrelevant to notice, as the majority in the Full Court did, that the Commonwealth was not the holder of the radical title in the land the subject of the reg 54 orders. To say, as their Honours did, that the Commonwealth "was a stranger to the land and indifferent to the nature and extent of pre‑existing interests which might be held in relation to the land" suggests, wrongly, that radical title to the land is the controlling concept, and deflects attention from the central and determinative issue of whether the rights asserted by the Commonwealth were inconsistent with the claimed native title rights and interests.
Reference to purpose may mislead in another way. It is, of course, well established that the legislative power, given by s 51(vi) of the Constitution, to make laws with respect to "the naval and military defence of the Commonwealth and of the several States" is purposive. And it is equally clear that the powers given by reg 54(1) of the Regulations had to be exercised for the purposes described in the regulation.
It by no means follows, however, from either of these observations about power that the rights which the Commonwealth asserted over the land were not rights of exclusive possession of the land for the duration of the war. What was said in Ward does not support the proposition that a power conferred for a statutory purpose, to be exercised for that purpose, may not create rights which are inconsistent with native title rights and interests.
Nor does it follow from the observations about the purposive nature of the relevant legislative power or the purposes for which the power given by the Regulations could be exercised that any analogy can be drawn between the reg 54 orders and the mining interests that were considered in either Ward or Brown. What was said in Ward about the mining interests in issue in that case illustrates the fundamental importance of identifying what are the rights and interests which it is said are inconsistent with native title rights and interests. Any supposed analogy between the reg 54 orders and the mining interests considered in Ward and Brown founders on the rock of the radical difference between the two kinds of right. The reg 54 orders gave the right to take possession of land to the exclusion of all others, albeit for a limited time. The mining interests in issue in Ward and Brown gave the holder exclusive rights only to search for and win whatever minerals were to be found on the relevant land.
In this case, the majority in the Full Court treated inconsistency of rights as no more than "an analytical tool enabling objective legislative intention to be ascertained". At the very least, an approach of this kind inverts the proper order of inquiry, for it appears to suggest that deciding that there is inconsistency of rights requires some further inquiry into what is called an "objective intention". But, as used by the majority in the Full Court, that approach led to the legal and logical errors identified at the commencement of these reasons. It is necessary to amplify that conclusion.
The majority identified the relevant "objective legislative intention" as being "that native title rights no longer be recognised by the common law". Their Honours accepted that "the Commonwealth took to itself a right of exclusive possession" but concluded that "the Commonwealth cannot be imputed with an objective intention to extinguish native title rights and interests". And their Honours founded that conclusion on the proposition that "[t]he context and language of the statute does not disclose any intention, let alone a clear and plain intention, that any rights or interests in the land no longer be recognised". Rather, the objective intention of the Commonwealth was said to be "that all rights and interests in the land should yield to the Commonwealth's exclusive possession for the duration of the Commonwealth's exercise of power under reg 54 but should otherwise continue and found rights of compensation for the interference to those rights thereby resulting". For the reasons already given, the proposition takes its conclusion as its premise. It is circular.
Reverting to rejected tests of extinguishment
An important part of the ratio decidendi of Ward is the rejection of tests of extinguishment other than the inconsistency of rights test which had been established in earlier decisions of this Court. Three particular forms of other test were specifically rejected: (a) the adverse dominion test suggested in Delgamuukw v British Columbia, (b) a test dependent upon so‑called "permanent" adverse dominion, and (c) a test dependent upon degrees of inconsistency.
No party submitted that any of these tests could or should be applied. Yet the repeated reference in this case to the temporary nature of the rights taken by the Commonwealth and the temporary nature of the circumstances which permitted that step can be explained only as seeking to revive one or other of the tests that were expressly rejected in Ward.
As has already been explained, the rights which the Commonwealth took for itself over the land were rights of exclusive possession. The temporal duration of those rights was not certain. But the rights were no different in kind or duration from those a tenant would have under a lease granted for the term of the life of another. And it was not, and could not be, disputed that a lease of that kind would extinguish native title. Yet a constant thread, running through both the reasoning of the majority in the Full Court and the arguments advanced on behalf of the Bar‑Barrum people and the Commonwealth, was that the Commonwealth took possession of the land for a limited time and could do that only because circumstances which would not continue permanently were found then to exist. It followed, according to this thread, that the native title rights and interests could not have been, and were not, extinguished, because the rights which the Commonwealth had asserted over the land were not permanent and were occasioned by extraordinary circumstances.
The premise for that argument can only be that native title rights and interests cannot be extinguished without some exercise of adverse dominion over the land (perhaps some exercise of permanent adverse dominion) or cannot be extinguished unless the rights which are taken "totally replace" or "fully eclipse" the claimed native title rights and interests. And, as already explained, those tests were rejected in Ward. None of them is now to be reintroduced into the law in Australia by taking it as an unstated premise for argument. The question of extinguishment is to be decided according to established principles.
That the Commonwealth took exclusive possession for a limited but uncertain time does not deny that the rights which were taken were inconsistent with the native title rights and interests described earlier in these reasons. And because the Commonwealth's rights over the land were inconsistent with those native title rights and interests, the native title rights and interests were extinguished. The fact that the Commonwealth ceased asserting exclusive possession of the land on or about 31 August 1945 did not revive those native title rights and interests. As cases like Fejo demonstrate, cessation of inconsistent rights does not revive native title rights and interests.
Conclusion
By taking exclusive possession of the land, the Commonwealth asserted rights which were inconsistent with the native title rights and interests in issue in this case. The Commonwealth's acts extinguished the native title rights and interests of the Bar‑Barrum people.
Question 3 of the questions reserved for the consideration of the Full Court of the Federal Court should have been answered as follows:
Did the act of the Commonwealth in
(a) making the Military Orders wholly extinguish all native title rights and interests that then subsisted on the special case land, and, if not,
(b) being in physical occupation of at least some of the special case land pursuant to the Military Orders wholly extinguish all native title rights and interests that then subsisted on the special case land or that part of the special case land that had been physically occupied?
Answer:
(a) Yes.
(b) Unnecessary to answer.
The appeal to this Court should be allowed. The orders of the Full Court of the Federal Court of Australia made on 21 February 2014 should be varied by setting aside par 1(c) and substituting the answers to question 3 set out above. Consistent with the terms on which special leave to appeal was granted, the appellant should pay the first respondents' costs of the appeal to this Court. There should be no other order as to the costs of the appeal to this Court.