CONSIDERATION
40 The principles pertinent to the proper use of the separate question procedure under r 30.01 of the Rules were conveniently summarised by Young J in AWB at [29]-[39]. That judgment involved O 29 of the Federal Court Rules 1979 (Cth) as amended, but that order was in substantially the same terms as r 30.01. With citations and quotations omitted, the relevant parts of his Honour's summary was as follows:
29 The starting point must be that, as a general rule, all issues of fact and law should be determined at the one time …
30 A party seeking the determination of separate questions must satisfy the Court that it is "just and convenient" for the order to be made …
31 It would not be appropriate to separate a question if it would not permit or involve a conclusive or final judicial decision that is based on concrete facts, either established or agreed, for the purpose of quelling a controversy between the parties …
32 The separate question procedure poses special problems where the preliminary question is one of mixed fact and law … In that situation, it is essential that there be precision both in formulating the question and specifying the facts upon which it is to be decided …
33 … all of the facts that are on any fairly arguable view relevant to the determination of the separate question must be ascertainable, either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined. Where the separate question involves the grant or refusal of declaratory relief, the Court must be placed in a position where it can consider all relevant matters before it exercises its discretion to grant or refuse the relief …
34 … it would be contrary to the judicial process and no part of the judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case … in order for a court exercising federal jurisdiction to utilise the separate questions procedure, either the parties must agree on the relevant facts or the court must determine the facts before deciding the question.
35 The cases indicate that great caution needs to be exercised in formulating a separate question for determination on the basis of assumed facts. The assumed facts may prove to be incomplete or insufficiently precise … The parties may also have different views concerning the effect or duration of the assumptions; for instance, they may consider that they can depart from the assumptions and re-agitate the facts in another part of the case …
36 … a matter is "ripe" for separate and preliminary determination where it is a central issue in contention between the parties, and its resolution will either obviate the necessity of litigation altogether or substantially narrow the field of controversy. This proposition assumes, of course, that the factual foundation for the determination of the issue has been resolved … in the ordinary course all issues in proceedings should be decided at the one time, but the separate decision of a question may be appropriate where, for example, the decision of a question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end … in particular circumstances, the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of the dispute is decided or where the decision will obviate unnecessary and expensive hearings of other questions.
37 On the other hand, an issue will not generally speaking be "ripe" for separate determination if it is simply one of two or more alternative ways in which an applicant frames its case, and its determination would leave other significant issues unresolved …
38 The courts have repeatedly warned of the dangers that attend the trial of separate or preliminary questions … the attraction of trials of separate questions are often more chimerical than real; savings in time and expense can prove illusory and the process can generate other problems such as interlocutory appeals and consequent delays … single issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question … the dangers of separate trials are well illustrated by the numerous cases in which the process has miscarried … the [separate question] procedure is one that should be adopted with caution as it can be fraught with difficulties … the ordering of separate trials must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of the order was intended to avoid …
39 … [the] factors that have been taken into account by the courts in making or refusing orders for the trial of a separate question … include the following:
(i) whether the separate questions will contribute to the saving of time and cost by substantially narrowing the issues for trial or even lead to the disposal of the action;
(ii) whether they will contribute to the settlement of the litigation;
(iii) whether they will give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial;
(iv) whether there will be any significant overlap between the evidence adduced on the hearing of the separate question and at trial; and
(v) whether the questions will prolong rather than shorten the litigation.
41 On the need for a concrete and established factual foundation for a separate question proceeding, the High Court observed in Bass that (at [45]):
The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy …
42 Their Honours added (at [47] and [49]) a caution about courts avoiding answering hypothetical questions as follows:
47 Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions …
…
49 … Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.
(Footnotes omitted)
43 And finally, their Honours made the following observation about the use of judicial power (at [56], referred to in AWB at [34]):
Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them. It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case …
(Footnotes omitted)
44 With these principles in mind, we turn to consider the appropriateness of the separate question procedure adopted by the parties in this matter. It is convenient to begin by making some remarks about the content and structure of s 47B and its role in the NTA. We will then consider the claims made by the appellant in its native title determination application, the contents of the parties' Joint Note and the principles bearing on the extinguishment of native title.
45 First, it is to be noted that the object of s 47B of the NTA is the historic extinguishment of native title on vacant Crown land (see Tjungarrayi HC at [2] and [100]). It operates where two "positive pre-conditions" are met (see Banjima at [94]). They are that the area concerned is the subject of a native title determination application (s 47B(1)(a)) and, when that application is made, one or more members of the native title claim group occupy that area (s 47B(1)(c)). In that event, s 47B(2) requires that any extinguishment of the native rights and interests in relation to the area is to be disregarded and s 47B(3) applies the non-extinguishment principle to the creation of any prior interest in relation to the area (see Tjungarrayi HC at [66]). However, there are three categories of exceptions or "negative pre-conditions" (see Banjima at [94]) where these provisions do not apply. They are prescribed by s 47B(1)(b) and include land that is: covered by a freehold estate or a lease (s 47B(1)(b)(i)); or covered by a reservation, proclamation, etc (s 47B(1)(b)(ii); or subject to a resumption process (s 47B(1)(b)(iii)). The separate questions in this matter concern the second category of these three negative pre-conditions or exceptions.
46 Next, it is important to note that s 47B itself (together with ss 47 and 47A) operates as an exception to certain "restrictions" imposed by s 61A(2) and 61A(3) of the NTA. Those "restrictions", in turn, constrain the right to make a claimant application for the determination of native title under s 13(1)(a) of the NTA. The expression "claimant application" is defined in s 253 of the NTA. Stated briefly, it refers to an application that has been authorised by a native title claim group. The restrictions contained in s 61A(2) and 61A(3) prevent a claimant application being made that covers an area in relation to which an attributable "previous exclusive possession act" or a "previous non-exclusive possession act" was done, respectively.
47 Section 23B of the NTA defines the expression "previous exclusive possession act". Relevantly, for present purposes, it consists of "the grant or vesting of any of the following" on or before 23 December 1996 (s 23B(2)(c)):
(i) a Scheduled interest (see section 249C);
(ii) a freehold estate;
(iii) a commercial lease that is neither an agricultural lease nor a pastoral lease;
(iv) an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);
(v) a residential lease;
(vi) a community purposes lease (see section 249A);
(vii) what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to "1 January 1994" were instead a reference to "24 December 1996";
(viii) any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.
48 Further, s 23F of the NTA defines the expression "previous non-exclusive possession act". Again, relevantly for present purposes, it consists of the "grant of a non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral lease (see section 248B)" on or before 23 December 1996 (see s 23F(2)(c)).
49 The appellant's claimant application in this matter reflected these restrictions, albeit in general and unparticularised terms. It did that in two ways: by exclusion and by exception. As [7(1)] above reveals, the latter was achieved by, first, claiming the exclusive native title that "can be recognised (such as areas where there has been no prior extinguishment of native title or where s.238 and/or ss.47, 47A and 47B apply)". Then "non-exclusive rights and interests including the right to conduct activities necessary to give effect to them" were claimed where "exclusive native title cannot be recognised" (see at [7(2)] above).
50 The former exclusions were achieved by identifying the areas within the boundaries of the claim area that were not claimed (see at [6(1)] above). In summary, that included those areas "covered by past or present freehold title or by previous valid exclusive possession acts as defined by section 23B of the [NTA]". It also included the areas described in a list which effectively replicated the provisions of s 23B(2)(c) above (see at [6(2)] above). And finally, it also excluded any "public works" commenced prior to 23 December 1996 (see at [6(3)] above) and any areas "subject to valid previous non-exclusive possession acts done by the Commonwealth, State or Territory" (see at [6(4)] above).
51 However, these exclusions were expressed to be subject to a number of exceptions (see at [6(5)] and [6(6)] above). Relevantly for present purposes, they included (at [6(6)] above):
Where an act specified in paragraphs 2, 3 and 4 affects or affected land or waters referred to in:
a) s 47 - Pastoral leases etc covered by the claimant application;
b) s 47A - Reserves covered by [the] claimant application;
c) s 47B - Vacant Crown land covered by [the] claimant application;
the area covered by the act is not excluded from the application.
52 These exceptions correlate to an important provision in s 61A, that is s 61A(4). It provides the link between the restrictions in s 61A(2) and s 61A(3) and s 47B as follows:
Section not to apply in section 47, 47A or 47B cases
(4) However, subsection (2) or (3) does not apply to an application if:
(a) the only previous exclusive possession act or previous non‑exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and
(b) the application states that section 47, 47A or 47B, as the case may be, applies to it.
53 It can be seen that there are two conditions to the operation of this exception. First, the word "only" in s 61A(4)(a) above confines the exception to a previous exclusive possession act, or a previous non-exclusive possession act, whose extinguishment of native title would be required to be disregarded under ss 47, 47A or 47B. Secondly, s 61A(4)(b) requires that the native title determination application in question must state that (in this case) s 47B "applies to it". The word "it" in this subsection could apply to the "act" referred to in s 61A(4)(a), or to the application itself. Assuming it is the latter, paragraph 6(c) (see at [51] above) may have achieved that purpose with respect to the four Areas. However, that left the acts concerned with respect to those areas unparticularised.
54 At this point, it is convenient to return to the parties' Joint Note (see at [29] above) and to record the following features of it. First, in response to (a) of the Court's letter, the parties are now agreed that any exclusive possession native title rights in the four Areas the subject of this appeal (and, curiously, Area 74, which is not) have been extinguished. This replaces their previous positions where the State generally asserted that native title had been "partially extinguished" in each Area without particularising the native title concerned and the appellant had remained silent. Nonetheless, they have now identified, at least in general terms, the native title rights and interests that they assert were extinguished.
55 Secondly, and by comparison, the parties' response to (b) of the Court's letter is unsatisfactory. They have simply stated that a "prior interest" was created in each Area by the notification or proclamation concerned without identifying what that interest was and describing what rights it gave rise to that were inconsistent with the "claimed exclusive native title rights" such that they caused the asserted extinguishment. This is important because, as is mentioned above, it concerns the link between the restrictions in ss 61A(2) and (3) and the exception in s 61A(4) which is, in turn, linked with the disregarding provisions in s 47B.
56 Thirdly, and relatedly, the parties no longer appear to rely upon Permissive Occupancy 79/8 (see [12(4.2)(c)] above), or the notifications issued on 29 June 2007 and 18 July 2008 (see [12(4.2)(d)] and [12(4.2)(e)] above) in respect of Area 460, as extinguishing any native title. Instead, with that Area they now rely exclusively on the notification made on 28 April 1933 (see at [12(4.3)(b)(i)] above). Finally, with respect to Area 624, while they also no longer appear to rely upon the notifications issued on 29 June 2007 and 18 July 2008 (see at [14(5.2)(d)] and [14(5.2)(e)] above), they have confined the extinguishing act to the Permissive Occupancy 1960/21 dated 30 November 1987 (see at [14(5.2)(c)] above).
57 Fourthly, in respect of (c) of the Court's letter, the parties have stated that they are in dispute about whether or not one or more members of the claim group occupied the Areas concerned in accordance with the "positive pre-condition" in s 47B(1)(c).
58 Fifthly, it is clear from the first of the two concluding paragraphs to the Joint Note that there is an ongoing and broad dispute between the parties in connection with extinguishment issues connected with the appellant's native title determination application the extent of which may be gleaned from the trial programming orders attached to the Joint Note. Those orders (Order 8) anticipate that the "extinguishment hearing" is to be listed with an estimated hearing time of 20 days.
59 Sixthly, and finally, there is no indication in the Joint Note, or the agreed facts, or elsewhere, of any agreement about the existence of the native title rights and interests that the appellant claims to hold in any part of the claim area, or any of the four Areas concerned in this appeal, nor the content of those rights and interests. To the contrary, it is implicit in the contentions of the parties concerning the appropriateness of the separate question procedure that there is also an ongoing dispute about this quite fundamental issue (see, for example, [36(b)] above).
60 Next, it is convenient to turn to the extinguishment of native title which is the central focus of the disregarding provisions of s 47B(2). That extinguishment takes place where rights have been granted to third parties, or where the Executive asserts rights or powers, which are inconsistent with the continuing existence of the native title concerned (see Ward at [78], [215] and [468] and State of Western Australia v Brown (2014) 253 CLR 507; [2014] HCA 8 (Brown) at [33]). In this matter, the parties appear to claim that the reservations, notification, or Permissive Occupancy variously affecting the four Areas concerned constituted the latter, namely the assertion of rights by the New South Wales Executive in that land. That is to say, they claim in their Joint Note that those acts variously created a "prior interest" in respect of each Area that resulted in the extinguishment of the "claimed exclusive native title rights". In this context, it is to be noted that s 226 of the NTA affects the meaning of the word "act" in references relating to native title. The appellant called in aid of these contentions what the plurality said in Ward (at [219]) as follows:
Nevertheless, by designating land as a reserve for a public purpose, even a purpose as broadly described as "public utility", the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.
61 This paragraph appears in a discussion in the plurality judgment in Ward, beginning at [209] and concluding at [223], about the extinguishing effect of reserves. The issue under consideration in those paragraphs was Western Australia's submission that the "reservation of those parcels was more than an exception of the land in question from sale, it was the dedication of the land to the nominated purpose and the land could not, thereafter, be lawfully used except for the reserved purpose" (at [209]). That proposition was said, at [210], to involve two elements: "first, that reserved lands cannot lawfully be used except for the reserved purpose and, secondly, that creation of a reserve gave a right to the public, at least where, as was the case with [the reserve in that matter], the reserve is for public purposes". In considering those two elements, their Honours emphasised that the critical factor was the rights created or asserted as a consequence of the reservation, not the use to which the land may be put, although the latter may provide some indication as to the former (Ward at [215]-[216]). Furthermore, they observed that identifying the rights that were created or exercised when a reserve was created or "dedicated" required consideration of "the whole of the relevant statutory framework" (Ward at [217] and to similar effect see at [151]).
62 It was in the process of considering that statutory framework in Western Australia at [218]-[220] that their Honours made the observations at [219] above. That is to say, those observations were directed to the Western Australian legislative framework. So much is apparent, in our view, from their Honours' observations at [220] as follows:
The reason that the right to use the land may have survived reservation is the same reason that the grant of a pastoral lease extinguished the right to control access to the land, but not necessarily all the rights of native title holders to use it in accordance with the rights held under traditional laws or customs. The provisions of the Acts providing a penalty for "unlawful or unauthorised use or occupation" of lands (including "lands reserved for or dedicated to any public purpose") did not, on their proper construction, prohibit use or occupation by native title holders. It is, therefore, not right to say, as a proposition of universal application, as Western Australia submitted, that reserved lands could not lawfully be used except for the reserved purpose. The facts that the 1905 amendments to the Land Act 1898 permitted leasing of reserves not immediately required for their purpose or that in 1960 the Land Act 1933 was amended to permit leasing or licensing of certain kinds of reserve for depasturing stock require no different conclusion. Whether a right in native title holders to use the land continued unextinguished depends upon other considerations, particularly what, if any, rights in others were created by the reservation or later asserted by the executive.
(Footnotes omitted)
63 For completeness, we note that their Honours' conclusion with respect to the second element mentioned above (see at [61]) was set out at [221] as follows:
The designation of land as a reserve for certain purposes did not, without more, create any right in the public or any section of the public which, by reason of inconsistency and apart from the [Titles Validation Act 1995 (WA)], extinguished native title rights and interests.
64 Finally, at [222]-[223], their Honours expressed a qualification with respect to reserves created after 31 October 1975 when the Racial Discrimination Act 1975 (Cth) (the RDA) came into effect and considered the provisions of the NTA and the validating legislation in Western Australia bearing on that issue.
65 It follows from these parts of the plurality judgment in Ward that it is not valid to transpose the observations at [219] to a different statutory regime, namely that in New South Wales. Instead, it is necessary in this matter to look to the New South Wales legislation upon which the New South Wales Executive relied when it undertook the relevant act in respect of each Area. Unfortunately, the parties have not attempted this exercise in their agreed facts, or in their Joint Note. Instead, as already mentioned, they have claimed, without explanation, that each act involved the creation of a "prior interest". No attempt has been made to identify what specific rights were asserted by the New South Wales Executive by those acts, having regard to the provisions of the apposite New South Wales legislation.
66 The latter is not a simple exercise. In the case of Areas 572 and 115, they were declared to be "reserved from sale pending determination of the portion to set apart for public recreation" under s 101 of the Crown Lands Act 1884 (NSW) (see at [8(1.2)(c)] and [10(2.2(c)(i)] above). Additionally, Area 115 was "reserved and exempted from lease generally" under s 39 of the Crown Lands Act 1889 (NSW) (see at [10(2.2)(c)(ii)] above). While it would be necessary to examine these two pieces of legislation to determine what rights were asserted by them, it is not immediately apparent on their face how those reservations, expressed in such general terms and having no immediate effect, could have extinguished any native title rights and interests in those Areas, exclusive or otherwise.
67 As already mentioned, in the case of Area 460, the parties have replaced their reliance on the reservation for "future public requirements" made in 2007 and 2008 with a reliance on the notification made on 28 April 1933 under s 26A of the Pastures Protection Act 1912 (NSW), placing the control of that Area in the Pastures Protection Board for the Pastures Protection District of Tweed-Lismore (see at [12(4.3)(b)(i)] above). While placing control over an area of land in a statutory agency may have more potential to affect exclusive native rights and interests in that area, it would still be necessary to carefully consider the legislation concerned to ascertain precisely what rights of control over that land that placement entailed (see the observations in Ward at [151]). At one extreme, it might have involved the general administrative control of pasture protection in the whole of the Tweed-Lismore District, including, incidentally, Area 460. At the other extreme, it might have involved specific restrictions on access to that Area which could have affected the exclusive possession native title rights and interests claimed by the appellant.
68 The Permissive Occupancy 1960/21 over Area 624 may have, at first blush, even more potential to affect exclusive native title rights in that Area. However, it raises some different considerations of its own. It was issued on or about 30 November 1987 under s 136K of the Crown Lands Consolidation Act 1913 (NSW) (see at [14(5.2)(c)] above). That being so, it was issued after the RDA came into effect on 31 October 1975. Accordingly, it would be necessary to consider the validity of that grant, having regard to the provisions of the NTA and the validating legislation passed by the New South Wales Legislature (see, for example, Ward at [222]-[223]). Furthermore, as the judgments in both Ward at [194] and Hayes at [136], mentioned by the appellant in its submissions, demonstrate, along with the terms of that permission, it would be necessary to give careful consideration to the terms of the legislation under which it was issued to ascertain what rights and interests were created by it. Then, it would be necessary to compare those rights and interests with the content of the native title rights and interests claimed by the appellant to determine what, if any, inconsistency exists between those two sets of rights and interests.
69 The former, namely the parties' reliance on the expression "prior interest" in the asserted extinguishment of the claimed native title rights and interests, raises its own issues. That expression is unique to s 47B and it is not defined in that section or elsewhere in the NTA. As already mentioned, it concerns the historic extinguishment of native title on vacant Crown land. Given that context and given that the word "interest" is used in the composite expression "prior interest", it is open to question, in our view, whether that word engages the definition of "interest" in s 253. That is to say, since, as explained above, the extinguishment of native title involves an inconsistency of rights, it may be that the word "interest" in the expression "prior interest" has a different meaning to that in s 253. This possibility was left open recently by Nettle J in Western Australia v Manado (2020) 94 ALJR 352; [2020] HCA 9 at [59] (but cf. Edelman J at [86]-[87]).
70 In any event, while the parties both mentioned the definition of "interest" in s 253 as having some relevance to this issue, neither explained how that was so. In its supplementary written submissions, the appellant mentioned (b) and (c) of that definition, without any further explanation, in support of a submission that each reservation was a "prior interest" that extinguished the claimed exclusive native title rights and interests. For its part, during oral submissions at the appeal hearing, the State pointed to (c) of that definition and contended that it included "a restriction on the use of land". However, when challenged to explain that contention, its counsel accepted that "[a] bare reservation from sale with no more probably doesn't restrict the use of land". A short time later, he added that the reservation affected the "Minister's powers of disposition under the Act", but he did not further develop that argument.
71 To sum up on this extinguishment aspect, based on what is presently known about the reservations in respect of Areas 115 and 572, and subject to the qualification expressed above, it seems unlikely that they resulted in any extinguishment of native title, assuming some existed in those areas and was held by the appellant. While the same cannot be said with the same confidence about the notification in respect of Area 460, or the Permissive Occupancy 1960/21 over Area 624, as explained above, on the present state of the materials before the Court, the necessary factual foundation does not exist to allow the Court to have any confidence that any relevant extinguishment of native title has occurred in those two Areas, again assuming some existed and was held by the appellant.
72 In respect of these conclusions, it is important to add that we are not bound to accept the agreed facts and the assertions made by the parties in their Joint Note on the extinguishing effects of the various acts in this matter. That is so because, in those documents, the parties have essentially agreed upon a conclusion of law about those extinguishing effects where the factual foundation for that conclusion is left unexplained and undisclosed and where what is known about the facts suggests that their assertions are not correct, with respect to Areas 115 and 572, and inconclusive, at best, with respect to Areas 460 and 624. In other words, those documents contain conclusions of law and contentions and cannot be truly treated as facts at all (see Secretary, Department of Health and Ageing v Prime Nature Prize Pty Ltd (in liquidation) [2010] FCA 597 at [6] per Stone J).
73 This review of the pertinent provisions of the NTA, the changing position of the parties in their agreed facts and Joint Note and the principles relating to the extinguishment of native title and the appropriate use of the separate question procedure demonstrates why that procedure was inappropriate to be employed by the parties in this matter. First, if there was no relevant extinguishment of native title in any of the four Areas concerned, that means there is nothing to disregard under s 47B(2) of the NTA. In that circumstance, it is hypothetical to consider whether the exception to the operation of that section set out in s 47B(1)(b)(ii) applies. Secondly, even if there were a factual foundation for a conclusion that some extinguishment of native title had occurred such that the disregarding provisions of s 47B(2) were engaged, the dispute about the construction of the exception in s 47B(1)(b)(ii) constitutes such a minor and peripheral part of the broad and extensive dispute that exists between the parties in this matter that it is inappropriate to isolate it for determination as a separate question. In this respect, it is to be noted that there is a fundamental dispute about whether the appellant holds native title rights and interests in the claim area. There is also a dispute about whether, and if so to what extent, any native title rights and interests that existed in the claim area have been extinguished. Finally, there is even a dispute about one of the other pre-conditions in s 47B(1), namely whether any members of the native title claim group occupied any of the four Areas when the native title determination application was filed.
74 Given these conclusions, it is unsurprising that none of the cases upon which the parties relied for support, justifies their use of this separate question procedure in this matter. That includes the decisions in the Tjungarrayi proceedings, Bass, Edwards v Santos and National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543 (NAB) and Blurton.
75 In the Tjungarrayi proceedings, the two separate questions concerning the construction of s 47B of the NTA arose in the course of negotiations for a consent determination of native title. By the time the matter came before the Full Court, and thereafter before the High Court, that consent determination had been made (see Tjungarrayi v Western Australia (No 3) [2017] FCA 938). Accordingly, the issue to which the separate questions related was the only matter upon which the parties remained in dispute.
76 The High Court rejected, as inappropriate, the separate question procedure being adopted in Bass because there were no agreed facts and no findings of fact to provide the necessary foundation for the separate questions in that matter (see Bass at [43] and the excerpts set out above). For the reasons given above, the position in this matter is therefore essentially the same as in Bass.
77 Edwards v Santos was a matter in the original jurisdiction of the High Court. It did not involve a separate question procedure, but rather an application for a declaratory judgment which a single judge of this Court had dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth). Despite the appellant suggesting that the parties in this matter might seek declarations at some future stage, they have not done so to date. In those circumstances, we do not consider that the appellant can draw support from anything said in that judgment.
78 The NAB decision involved, what the Chief Justice described as, a "construction summons" (see at [5]) concerning the proper construction of certain clauses in insurance policies issued by an insurer and its reinsurers. As in Edwards v Santos, it involved a claim for declaratory relief rather than a separate question procedure. While the Chief Justice did consider the appropriateness of the declaratory relief sought and, in that context, considered the question of hypothetical judgments discussed in Bass (see at [107]-[109]), we do not consider anything said in that judgment provides any assistance on the present question relating to the appropriateness of the separate question procedure in this matter.
79 Finally, Blurton involved a narrow question of law concerning the construction of s 109 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Because of that circumstance, and because it was not necessary to adduce any evidence in order to determine that issue, French J considered it was appropriate to be dealt with as a separate question. We do not consider any analogy can be drawn between that situation and the situation prevailing in this matter, as outlined above.
80 In concluding, it is important to add these observations. Nothing in these reasons should be taken to deny the utility of the separate question procedure in native title litigation. In Bass (at [51]) the High Court said: "It cannot be doubted that in many cases the formulation of specific questions to be tried separately from and in advance of other issues will assist in the more efficient resolution of the matters in issue." This is commonly the case in native title litigation. Native title claims usually cover enormous areas of land and the analysis of land tenure records to determine whether native title has been extinguished by prior grants, or other acts, is time-consuming and expensive. As a consequence, the questions whether native title exists in a large claim area and, if so, the nature and content of the rights and interests concerned, are often determined separately from, and in advance of, any issues of extinguishment. A recent example of this approach is Ashwin on behalf of the Wutha People v State of Western Australia (No 4) (2019) 369 ALR 1; [2019] FCA 308. While the same approach is also used to determine questions of extinguishment, for the reasons given above, that usually happens after the existence of the native title rights and interests claimed has been determined and the details of the rights and interests involved have been assayed. The High Court made this point repeatedly in Ward (see at [94], [308], [382] and [468(4)]). Recent examples of this approach being adopted include Brown, where separate questions concerning extinguishment followed a consent determination in which the native title rights and interests concerned had already been defined (see at [20]). As explained above (at [75]), the Tjungarrayi proceedings had a similar procedural history.