Wik Peoples v Queensland [1996] HCA 40 | Case summary | Zoe

CTHHCA

Wik Peoples v Queensland

[1996] HCA 40

High Court of Australia|1996-07-01|Before: Brennan CJ, Kirby JJ, Drummond J

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Court

High Court of Australia

Decision date

1996-07-01

Before

Brennan CJ, Kirby JJ, Drummond J

Source

Original judgment source is linked above.

Judgment (815 paragraphs)

These proceedings, which were removed into this Court pursuant to s 40 of the Judiciary Act 1903 Cth, have their origin in an action brought by the Wik Peoples in the Federal Court of Australia. That action was initiated before the coming into operation of the Native Title Act 1993 Cth. The catalyst for the action was the decision of this Court in Mabo v Queensland [No 2] [124] .

The proceedings in the Federal Court were described by Drummond J in the following terms [125] :

The action was brought by the Wik Peoples, an Aboriginal clan or group, for a declaration that it has certain native title rights over a large area of land in North Queensland. They also claim damages and other relief, if it be found that their native title rights have been extinguished. One of the respondents is the Thayorre People, another Aboriginal clan or group, who have cross-claimed for a similar declaration in respect of lands that, in part, overlap those the subject of the Wik Peoples' claim. However, by the time of his Honour's judgment the Wik Peoples had included an alternative claim under the Native Title Act though that claim is not the subject of the judgment or of this appeal. Although his Honour speaks of "native title rights" [126] , that is not precisely the language of the relevant pleadings. Paragraph 8 of the statement of claim in its amended form filed on behalf of the Wik Peoples asserts that "The Wik peoples and their predecessors in title are and have always been the holders of Aboriginal title in the claimed land". "Aboriginal title" is defined in par 1 of the statement of claim as meaning title to land arising by virtue of Aboriginal tradition and recognised by the common law of Australia and has the same meaning as "native title" as defined in the Native Title Act, 1993 Cth. 1. Wik Peoples v Queensland (1996) 63 FCR 450 at 454 2. The expressions "native title" and "native title rights" are now part of the vocabulary of the law. However, I still confess a preference for "traditional title". See Mabo [No 2] (1992) 175 CLR 1 at 188.

There was no challenge to the principle established by Mabo [No 2] that the duty of this Court (as of every Australian court) is to apply the common law and relevant statutes although this could lead to the extinguishment or impairment of native title. This Court, established by the Constitution, operates within the Australian legal system. It draws its legitimacy from that system. Self-evidently, it is not an institution of Aboriginal customary law. To the extent that native title is recognised and enforced in Australia by Australian law, this occurs because, although not of the common law, native title is recognised by the common law as not inconsistent with its precepts [525] . This does not mean that, within its own world, native title (or any other incidents of the customary laws of Australia's indigenous peoples) depends upon the common law for its legitimacy or content. To the extent that the tide of history has not washed away traditional laws and real observance of traditional customs, their legitimacy and content rest upon the activities and will of the indigenous people themselves [526] . Two centuries of interaction between Australian law and such traditional laws and customs have doubtless affected the latter, often to their detriment. Now, the decision in Mabo [No 2], the enactment of the Native Title Act 1993 Cth and other legislation have begun a process which may protect and reinforce some aspects of traditional laws and customs. But no dual system of law, as such, is created by Mabo [No 2]. The source of the enforceability of native title in this or in any other Australian court is, and is only, as an applicable law or statute provides. Different considerations may arise in different societies where indigenous peoples have been recognised, in effect, as nations with inherent powers of a limited sovereignty that have never been extinguished [527] . This is not the relationship which the indigenous people of Australia enjoy with the legal system of Australia. For Aboriginal legal rights, including to native title, to be enforceable in an Australian court, a foundation must be found within the Australian legal system [528] . These truisms do not resolve all of the issues concerning the relationship between the Australian legal system and Aboriginal law and custom, including as to native title. It will be necessary to return to some of the differences which have emerged.

[T]he principle must be rigidly instilled that the aboriginals have as much a right to exist as the Europeans, and certainly a greater right, not only to collect the native fruits, but also to hunt and dispose of the game upon which they have been vitally dependent from time immemorial. Were the assumption just mentioned to be carried to its logical conclusion, and all available country leased or licensed, we should have a condition of affairs represented by a general starvation of all the aboriginals and their concurrent expulsion from the State. In an earlier report, the Northern Protector had stated [539] : It would be as well, I think, to point out to certain of these Northern cattle-men (at all events those few amongst them who regard the natives as nothing more than vermin, worthy only of being trampled on) that their legal status on the lands they thus rent amounts only to this: There is nothing illegal in either blacks (or Europeans) travelling through unfenced leasehold runs. These runs are held only on grazing rights - the right to the grass - and can only be upheld as against people taking stock, &c, through them. It certainly is illegal for station-managers, &c, to use physical force and threats to turn blacks (or Europeans) so travelling off such lands. Carrying the present practice (might against right) to a logical conclusion, it would simply mean that, were all the land in the north to be thus leased, all the blacks would be hunted into the sea. Because the Wik and the Thayorre were not banished from the lands in question, still less hunted into the sea, the issue presented by this aspect of these proceedings was not whether in fact the Wik and the Thayorre had physically remained on their traditional lands. It was simply whether in law they did so in pursuance of the native title rights which the common law recognised and which the common law and the Native Title Act 1993 Cth would now protect. Or whether such rights had been extinguished by the Crown's action in granting pastoral leases under legislation, which action was said to be inconsistent with the continuance of native title rights. 1. Queensland Government Gazette, No 7, Vol LXIX, 8 January 1898, p 66; Queensland Government Gazette, No 150, Vol LXXII, 18 November 1899, p 1166. 2. Annual Report of the Northern Protector of Aboriginals for 1903, Queensland, Parliamentary Papers (1904), p 870. 3. Annual Report of the Northern Protector of Aboriginals for 1900, Queensland, Votes and Proceedings (1901), vol 4, pp 1335-1337.

Several of the respondents appealed to the Court to confine any holding in this case to the peculiarities of pastoral leases in Queensland and the suggested additional peculiarities, as between each other, of the pastoral leases granted in respect of the Holroyd River Holding and the Mitchellton Pastoral Holdings No 2464 and 2540 affecting the traditional lands of the Wik and the Thayorre. The Holroyd River Holding is the pastoral lease referred to in Question 1b in this case. The leases in respect of the Mitchellton Pastoral Holding are the subject of Question 1c. The Wik are concerned principally with the Holroyd River Holding. The Mitchelleton Pastoral Holding is principally the concern of the Thayorre. The Thayorre's claim to native title around the Edward River in Northern Queensland includes areas within the Mitchellton Holding. Because part of this land is within the southern portion of the Wik's claim, the Thayorre were joined in these proceedings. To a large extent the Thayorre made principal cause with the Wik on the common issue of the effect of pastoral leases generally upon native title. But the history of each pastoral lease was different. The point was fairly made that not all pastoral leases, including not all of them in Queensland, would reflect the same history and depend on the same statutes and instruments of pastoral lease as did the Holroyd and Mitchellton Holdings. As will be shown, these holdings evidence minimal, if any, activity on the part of the pastoral lessees in exercise of their leasehold rights. Such would not necessarily be the case in other pastoral leases. Therefore, a decision should not be made in the present case on an assumption that the leaseholds in question here were necessarily typical or representative of Queensland pastoral leases generally. To the extent that native title was not extinguished, as a matter of law, by the fact or necessary concomitants of the grant of a leasehold interest, each such interest would have to be considered individually. A fortiori, because of the different colonial history, legislation, regulation and practices in the several States of Australia and in the Northern Territory, care would need to be observed in expressing any general rule concerning the legal consequences of the grant of pastoral leases upon native title in those jurisdictions. In particular, the legal consequences of express reservations in the grant of a leasehold interest, to protect the rights of Aboriginals (or arguably the reservation of lands for purposes consistent with the enjoyment of those rights, as in national parks [540] ) needed to be separately considered. The different contractual and legislative formulae which exist in this regard in the several States and in the Northern Territory were explained. If the fact, or necessary incidents, of the grant of a pastoral lease did not, without more, extinguish any surviving native title, it was common ground that this Court should confine its attention to the particular leases in question in this case. It should avoid the expression of unnecessary generalisations which might cause problems in future native title claims in Queensland and, in significantly different legal settings, elsewhere in Australia.

There is also a point concerning the role of the courts which should be mentioned for it was referred to in submissions. Various submissions acknowledged the injustices suffered by Australia's indigenous peoples as a consequence of the substantial extinguishment, after 1788, of their traditional laws and customs, including native title. Thus, the Commonwealth admitted that acceptance of its submissions, upholding the determination of Drummond J on the effect of pastoral leases, could be regarded as "the hard view", the "tough view" and one which "the Commonwealth will completely admit is an unsatisfactory result so far as the present position of Aboriginals, or of those claiming native title, may be concerned" [541] . Nevertheless, the Court was repeatedly reminded of the limits of the proper function of the courts in resolving the present claim according to law. Effectively to take away the property rights conventionally assumed to have been granted and previously enjoyed by those holding land by or under pastoral leases is an equally serious matter given the law's respect for, and protection of, property rights [542] . The radical rewriting of the property rights of Aboriginals, pastoralists and those taking under them is a matter for legislation; not a court decision. So much may be accepted. No one doubts the limits of this Court's functions in stating what the law is. But just as in Mabo [No 2], there is room for difference as to where the boundary lies. The Court cannot disclaim the responsibility of determining the legal claims advanced for the Wik and the Thayorre. Those claims are before the Court to be decided according to law. A new ingredient has been injected into the previously settled land law of Australia by the decision in Mabo [No 2]. Settled principles and assumptions must be re-examined to accord with the decision of the Court in that case. Where there is no precise holding on the point (and no valid legislation resolving any doubt) the Court must reach its decision upon the competing legal contentions of the parties: finding the applicable rule by the use of the normal techniques of judicial decision-making, viz reasoning by analogy from established legal authority illuminated by relevant legal history and informed by applicable considerations of legal principle and legal policy [543] .

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. If a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Crown's title is thus expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium. Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. A reservation of land for future use as a school, a courthouse or a public office will not by itself extinguish native title: construction of the building, however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished. But where the Crown has not granted interests in land or reserved and dedicated land inconsistently with the right to continued enjoyment of native title by the indigenous inhabitants, native title survives and is legally enforceable. 1. (1992) 175 CLR 1 at 68. 2. (1995) 61 FCR 1 at 55.

By the successive Queensland Acts, rights to possession were subject to various exceptions. Thus, the Land Act 1910 Q, pursuant to which the instrument of lease of the Mitchellton Pastoral Holding was granted, provided for reservations of a right of access for the purpose of the search for, or working of, any mines of gold or minerals (s 6(3)); the right of a land ranger to enter a holding to "view the same and observe the manner of residence or occupation" (s 14(3)); a right of entry to a person authorised by a Minister to survey, inspect or examine land the subject of a lease (s 14(4)); a power of the Commissioner appointed under the Act to cause inspections of all land within the District of the lease (s 139); a provision to grant a licence to cut timber on leasehold land or to remove stone, gravel, clay, guano or other material (s 199(1)); a right of a licensee to use animals and vehicles to remove timber or materials and to depasture such animals (s 199(1)); a right in a person duly authorised by law to cut or remove timber or material without restriction by the pastoral lessee (s 200); and a right of pasturage for travelling stock (s 205). Such rights enjoyed by third parties, are not confined to the Land Act 1910 Q. Many of the statutes referred to above contain similar provisions. Their existence gave rise to competing submissions in this appeal. For the Wik and the Thayorre, they showed that the Queensland Parliament had never intended, by calling a pastoral lease a "lease", and using other terminology apt to describe a lease at common law, to assimilate the special kind of statutory lease created, to a lease at common law. The fundamental element explained in Landale v Menzies [585] was missing, viz a "contract for the exclusive occupation of land for a determinate period, however short " For the contesting respondents, however, the very need, in the statutes, expressly to reserve rights of entry and inspection demonstrated an acceptance that, in the absence of such reservations, the pastoral lease would, in law, permit exclusion of anyone on the ground that that was the character of a lease. The latter view enjoyed the support of early Queensland Supreme Court decisions [586] written, of course, without any need to address the problem presented by the subsequent decision in Mabo [No 2].

This theory rests upon the political notion that in the one nation there cannot be two sovereigns. Specifically, there cannot be two sources of title to land. All land is held of the Crown, otherwise the Crown's claim to sovereignty is put in doubt. Even native title is, upon this view, held of the Crown, to the extent that the common law recognises and enforces it. Thus where, in effect by legislation, the Crown grants any estate or interest in land (however limited in rights and time), by the very act of doing so it has exercised its sovereignty in a way that is inconsistent with the common law's recognition of native title, derived from a different source, in respect of the same land. A legal metamorphosis takes place the instant that the paramount or radical title is changed to a dealing in the land. When that occurs the Crown's undoubted sovereignty has been exerted in a way that does not permit the survival of a legal right originating outside the ordinary legal system. To the complaint that it would be extraordinary that the rights of Aboriginal peoples in Northern Queensland, possibly enjoyed for millennia, could be extinguished by the actions of officials in Brisbane of which they were completely unaware, the answer is given: that is the way that sovereign powers of a modern state are exercised. Radical title is not a real title for property purposes. It is more in the nature of a political notion and in that sense a legal fiction [590] . But property rights of any kind are not fictional. They concern the interests of individuals. Where they involve estates or interests in land, their recognition and protection by the legal system is important to the social and economic stability and peace which it is the function of the sovereign to protect and enforce. Thus, where radical title expands through the exertion of sovereignty, to the extent of granting a legal estate or interest in land, that fact alone is sufficient to expel forever native title in such land. Thereafter, such title as exists must be derived from any further exercise of the powers of the new sovereign which has asserted its rights of sovereignty over the land. On this theory, the grant of a pastoral lease in respect of any land, being an exercise of the sovereign's powers in relation to that land, necessarily extinguishes rights deriving from a competing legal system unless, possibly, those other rights were expressly reserved or exempted and that is not suggested here.

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. The ascertainment may present a problem of considerable difficulty It is a problem that did not arise in the case of a settled colony so long as the fictions were maintained that customary rights could not be reconciled "with the institutions or the legal ideas of civilised society" [596] , that there was no law before the arrival of the British colonists in a settled colony and that there was no sovereign law-maker in the territory of a settled colony before sovereignty was acquired by the Crown. These fictions denied the possibility of a native title recognised by our laws. But once it is acknowledged that an inhabited territory which became a settled colony was no more a legal desert than it was "desert uninhabited" in fact, it is necessary to ascertain by evidence the nature and incidents of native title. By parity of reasoning, it was argued, the survival, persistence and revival of native title under the Australian legal system, notwithstanding a superimposed title from the Crown, was in every case a question of fact. The Crown (acting under legislation) might have the power to extinguish native title. Whether it had done so in the particular case would depend, not upon theoretical possibilities discovered by an examination of the nature of legal instruments, but by evidence concerning the possible reconciliation or inconsistency of the two legal regimes and the concurrent enjoyment of rights deriving from them, as a matter of fact. It was the essence of the Thayorre's primary submission that native title was title outside the common law. In its nature, it had nothing whatever to do with the feudal system of tenures. Because it had its own sources and integrity, it could not be destroyed by a legal theory outside its own regime [597] . It could expire by factual circumstances: dispossession, acquisition, surrender or abandonment. But even then it might later revive. The Australian legal system might determine whether, and if so when, it would grant recognition and enforcement to native title. But the title itself, being derived from an entirely different legal source, would continue to exist whatever the Australian legal system said, until it was acquired from, or surrendered or abandoned by, the indigenous people themselves. 1. Mabo [No 2] (1992) 175 CLR 1 at 58. 2. In re Southern Rhodesia [1919] AC 211 at 233. 3. For example, in Ceylon (as it was then called) the doctrine was accepted by the courts, that until a change in land tenure was effected by a clear and deliberate act on the part of the Crown, the interests derived before the acquisition of sovereignty would be enforced: Hooker, Legal Pluralism - An Introduction to Colonial and Neo-Colonial Laws (1975), p 467, citing Abeyesekera v Jayatillaka (1932) 33 NLR 51

(a) Both the Land Acts in question and the instruments granting the relevant interests are expressed in terms of a "lease". A lease is a legal interest well known to the common law. Where a word such as "lease" is used in the Acts of Parliament, it should be presumed that it was the purpose of the legislators to use the word in its ordinary meaning. That meaning includes the concept that it is the intention of the parties that the grantee will be entitled to exclusive possession of the property, the subject of the lease. Where it is otherwise, what is granted is a licence and not a lease [607] . Conceding that the word "lease" is sometimes used where "licence" is meant [608] , it should nonetheless be assumed, in the technical area of land law, the subject of successive and detailed enactments of the Queensland Parliament, that the drafters knew what a "lease" was in law and intended to use the word in the technically accurate sense [609] . Any doubts or confusion which they may have had at an earlier historical time would have been removed by decisions of the Queensland Supreme Court before the 1910 and 1962 Land Acts were enacted and before the grant of any of the pastoral leases in issue here [610] . It is of the essence of a "lease" in the ordinary meaning of that term, that it must be for an estate or term less than the lessor has in the property. Otherwise, an instrument which passes the entire interest of the grantor is a conveyance or assignment and not a lease. It was this attribute of a lease which was critical to the respondent's argument resting on the reversion expectant [611] . According to this notion, it was inherent in the Land Acts (although not expressed in them) that, in order that it might grant a lease to the lessee, the fundamental legal character of the Crown's interest in the subject land must have changed. Its title had "expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium" [612] . Such a metamorphosis was implicit in, and necessary to, the Crown's capacity to found a grant of a leasehold interest, including a pastoral leasehold under statute. Not only was this an essential postulate to sustain the grant of a legal right called a "lease". It was equally necessary to explain the Crown's interests, elsewhere reflected in the Land Acts, to protect the land and to receive the reversion on expiry, forfeiture or surrender of the lease [613] . The successive Land Acts, by expanding the Crown's dominium in order to sustain the grant of interests called "leases" had necessarily moved from the "logical postulate" of a radical title to the holding of an interest in the particular parcel of land which was sufficient to expel any residual native title.

The Crown tenures of mediaeval England were as difficult to classify, and the incidents of such tenures were as multitudinous and multifarious, as are the Crown tenures and tenurial incidents of modern Australian land law, especially in Queensland and New South Wales. Tenurial incidents in mediaeval England were, however, peculiarly appropriate to the feudal period, and those in modern Australia are of a different nature. [621] It is a mistake to import into the peculiar Australian statutory creation, the pastoral lease, all of the features of leases in English leasehold tenures dating back to medieval times. Unless such importation is necessary, either for reasons of the language or imputed purpose of the statute, it is much more appropriate to give content to the statutory pastoral lease by reference to the statute, unencumbered. Doing so represents a more orthodox approach to the construction of an Australian statute, made for peculiar, and in some ways unique, local land conditions. Tenure is already, to some extent, a fiction in England. It is a fiction increasingly questioned [622] . Why, in such circumstances, it should be imputed to the Queensland Parliament in 1910 and 1962 that it had imported all of the incidents of the English common law of leases is not immediately plain. Pastoral leases covered huge areas as extensive as many a county in England and bigger than some nations. In these circumstances, it seems distinctly unlikely that there can be attributed to the Queensland Parliament an implied purpose of granting a legal right of exclusive possession to the pastoralist (including as against Aboriginals known to exist on the land and unmolested in their continuing use of it) where that Parliament held back from expressly so providing. 1. 5 & 6 Vict c 36. There was an irrelevant exception preserved by s xvii, whereby the Governor's power to grant licences for periods of up to twelve months (squatters' annual licences) was preserved. 2. Fry, Freehold and Leasehold Tenancies of Queensland Land (1946), p 19; Fry, Land Tenures in Australian Law, Res Judicatae, vol 3 (1947) 158, at p 160. 3. Fry, Land Tenures in Australian Law, Res Judicatae, vol 3 (1947) 158, at p 169. 4. Fry, Land Tenures in Australian Law, Res Judicatae, vol 3 (1947) 158, at p 160.

The Land Acts regulate the grant of leases. They do not expressly confer on the Crown the estate necessary to grant a lease. The historical reason for this is clear enough. At the time of the enactments, it was assumed that the Crown exclusively enjoyed the power to grant leasehold and other interests simply as an attribute of its sovereignty. Only now, following Mabo [No 2], has it become clear that, contrary to the earlier understanding, with sovereignty came no more than a radical or paramount title and this was burdened with native title which the common law would, in some circumstances, uphold. To invent the notion, not sustained by the actual language of the Land Acts, that the power conferred on the Crown to grant a pastoral leasehold interest was an indirect way of conferring on the Crown "ownership" of the land by means of the reversion expectant involves a highly artificial importation of feudal notions into Australian legislation. It would require much plainer statutory provisions to convince me that this was what the Queensland Parliament did in 1910 and 1962 when the Land Acts were enacted. That legislation is silent on the point precisely because the notion that the legislators (and drafters) were obliged to confer such a power on the Crown would have been furthermost from their minds. What is therefore suggested, upon analysis, is that, by a new legal fiction, such a purpose should be invented, retrospectively attributed to the Queensland Parliament and read into the Land Acts in order to afford the estate out of which the Crown might grant a pastoral lease. But if the Crown's power to make such a grant, properly analysed, exists simply because Parliament has said that it does, that is sufficient. Importing into the Land Acts notions of the common law apt for tenurial holdings under the Crown in medieval England, and attributing them to the Crown itself, piles fiction upon fiction. As it is not expressed in the legislation, I would not introduce it.

As to the argument that the very word "lease" and the other words familiar to leasehold interests ("demise", "rent", "assigns") are used in the Land Acts, I am quite unconvinced that they are sufficient to import all of the features of a common law lease. The case books are full of warnings against such a process of reasoning, both generally [623] and particularly in the context of the use of words such as "lease" and "licence" [624] . In R v Toohey; Ex parte Meneling Station Pty Ltd [625] , this Court was obliged to consider a statutory "grazing licence" as either proprietary or non-proprietary in nature. Mason J observed that the licence [626] "has to be characterised in the light of the relevant statutory provisions without attaching too much significance to similarities which it may have with the creation of particular interests by the common law owner of land". The same point has been made many times by this Court and by other courts of high authority. Long ago, in O'Keefe v Malone [627] , the Privy Council, in a case involving a statutory licence, emphasised that the correct approach for a court to take was to examine the rights actually conferred on the grantee by the instrument rather than implying from the mere use of the word "licence" or "lease" all of the incidents common to those expressions in a private contract. This is not to say that some features of an ordinary "lease" may not be imported into the terms where used in a statute. For example, the lessee would be entitled (exceptions and reservations aside) to enforce as against the Crown an entitlement to be given quiet enjoyment. The lessee would be entitled to seek relief in equity in certain circumstances as under a private lease [628] . The lessee would have the statutory right to invoke the assistance of the Crown to expel trespassers who had no right or title to be upon the land [629] . However, these conclusions fall a long way short of requiring that the title conferred by a pastoral lease upon the lessee to use the land "for pastoral purposes only" be extended to exclude Aboriginals using the land in the traditional way. This is particularly so where they are on the land, as Mabo [No 2] now makes clear, in pursuit of a native title which the common law will recognise and enforce so far as it is not inconsistent with the pastoralist's right to use the land "for pastoral purposes only". The context in which the legislation on pastoral leases was enacted in Queensland also makes it highly unlikely that this was the intention of Parliament. As the historical materials demonstrate, it was known that there were substantial numbers of Aboriginals using the land, comprised in the pastoral leases, according to their traditional ways. It was not government policy to drive them into the sea or to confine them strictly to reserves. In these circumstances, it is not at all difficult to infer that when the Queensland Parliament enacted legislation for pastoral leases, it had no intention thereby to authorise a lessee to expel such Aboriginals from the land. Had there been such a purpose, it is not unreasonable to suggest that the power of expulsion would have been specifically provided. In such huge, remote and generally unvisited areas as ordinarily comprise pastoral leases, it may be assumed that Parliament, had it been questioned about the position of Aboriginals, would have responded as the Northern Protector of Aboriginals did at the turn of the century.

There are further reasons of legal principle which reinforce this approach to the Land Acts under which the pastoral leases here were granted. There is a strong presumption that a statute is not intended to extinguish native title [634] . The intention to extinguish native title must be clear and plain, either by the express provision of the statute or by necessary implication [635] . General provisions of an Act are not construed as extinguishing native title if they are susceptible to some other construction [636] . Whether by necessary implication a statute extinguishes native title depends upon the language, character and purpose which the statute was designed to achieve. This is species of a general proposition applied by courts in the construction of legislation. It is applied out of deference to the presumption that Parliament would not normally take away the rights of individuals or groups, without clearly stating such a purpose [637] . It may be said that the Land Acts under which the present pastoral leases were granted, were made by the Queensland Parliament before the survival of native title was made clear by this Court in Mabo [No 2]. That is true. It is equally true that a court, in giving meaning to the language of an Act, will ordinarily take into account the circumstances and conditions contemporaneous to its enactment [638] . However, the principle protective of the rights of Aboriginal people is not new to the common law. It existed in Australia in colonial times. Often it was explained in terms of the duty which the Crown owed, in honour, to native people who were under the Crown's protection [639] . Although the legislators in 1910 and 1962 did not know of the existence of native title, it should be presumed that, had they known, Parliament would have acted to protect such rights against uncompensated expropriation [640] . Especially would it have done so in circumstances where the expropriation asserted was alleged to have occurred by a legal fiction, viz the grant of a leasehold interest but one whose peculiarities would leave traditional Aboriginal life totally, or largely, undisturbed. In Canada, the principle has been approved that courts should attribute to Parliament the objective of achieving desired results with as little disruption as possible of the rights and interests of indigenous peoples and affecting their rights and status no more than is necessary [641] . Moreover, the principles of statutory construction to which I have referred are by no means new principles. There were many cases before and at the time of the enactment of the early pastoral leases legislation which adopted analogous principles [642] . Existing proprietary rights might be affected by Parliament acting within, and in accordance with, its constitutional powers [643] . However, to deprive a person of pre-existing proprietary interests, the legislation enacted by Parliament must clearly do so, either by express enactment [644] or by necessary implication [645] . The problem of interference with proprietary rights over land (frequently rights of way) by or under railway construction legislation was a question commonly before the courts in the nineteenth and early twentieth centuries. Where Parliament had not expressly abolished proprietary rights, the court typically asked itself whether "[t]he continued use of the land would render the exercise of the powers expressly conferred on the Constructing Authority impossible" [646] . If such a question is posed in relation to native title rights and the rights conferred on lessees of pastoral leases under the successive Land Acts of Queensland, the answer must be in the negative. The exercise of the leasehold interests to their full extent would involve the use of the land for grazing purposes. This was of such a character and limited intensity as to make it far from impossible for the Aboriginals to continue to utilise the land in accordance with their native title, as they did. In that sense, the nature of the interests conferred by a pastoral lease granted under the successive Land Acts, was not, of its legal character, inconsistent with native title rights. Whether, in particular cases, and in particular places, native title rights, in their operation, were inconsistent with the rights enjoyable under the pastoral lease is a matter for evidence. Because the interests under native title will not be uniform, the ascertainment of such interests, by evidence, is necessary in order to judge whether such inconsistency exists as will extinguish the particular native title proved. If inconsistency is demonstrated in the particular case, the rights under the pastoral lease will prevail over native title [647] . If not, the native title recognised by our law will survive.

Mabo v Queensland (Mabo [No 1]) (1988) 166 CLR 186 at 224 Mabo [No 2] (1992) 175 CLR 1 at 111; Western Australia v The Commonwealth (the Native Title Act Case) (1995) 183 CLR 373 at 422. 2. Mabo [No 1] (1988) 166 CLR 186 at 213; Mabo [No 2] (1992) 175 CLR 1 at 64, 110-111; Western Australia v The Commonwealth (the Native Title Act Case) (1995) 183 CLR 373 at 423. 3. Mabo [No 1] (1988) 166 CLR 186 at 213, 223. 4. Potter v Minahan (1908) 7 CLR 277 at 304 Sorby v The Commonwealth (1983) 152 CLR 281 at 289-290, 309; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341 Hamilton v Oades (1989) 166 CLR 486 at 495-496see also Bropho v Western Australia (1990) 171 CLR 1 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 5. Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 Bropho v Western Australia (1990) 171 CLR 1The courts have accepted presumptions as to the result of development of the law unforeseen at the time that original legislation was enacted. Thus, where legislation which had disturbed proprietary rights was repealed, the courts would infer that it was Parliament's intention that the repeal would revive and restore the pre-existing common law rights of property: see Marshall v Smith (1907) 4 CLR 1617 at 1634Here, the legislative text is unchanged but a major hypothesis upon which it was drafted and enacted has been varied with retrospective effect. 6. cf Guerin v The Queen [1984] 2 SCR 335 at 376(1984) 13 DLR(4th) 321 at 335; Mabo [No 2] (1992) 175 CLR 1 at 201-203, per Toohey J. 7. There are indications of legislative intent that some protection be afforded to Aboriginals in other respects: see Aboriginals Protection and Restriction of the Sale of Opium Act 1897 Q; Aboriginals Preservation and Protection Act 1939 Q. 8. Delgamuukw v British Columbia (1993) 104 DLR(4th) 470 at 529, quoted with approval in Western Australia v The Commonwealth (the Native Title Act Case) (1995) 183 CLR 373 at 433; affd sub nom R v Van der Peet [1996] 2 SCR 507(1996) 137 DLR(4th) 289. 9. eg, Arthur v Bokenham (1708) 11 Mod 148 at 150[88 ER 957 at 958] cited in Potter v Minahan (1908) 7 CLR 277 at 304 10. Penny v Penny (1965) 6 FLR 476 11. Greville v Williams (1906) 4 CLR 694 12. Yarmouth Corporation v Simmonds (1877) 10 Ch D 518 at 528 Goodwin v Phillips (1908) 7 CLR 1 at 16 Chief Commissioner for Railways and Tramways (NSW) v Attorney-General (NSW) (1909) 9 CLR 547 at 560See also Hocking v Western Australian Bank (1909) 9 CLR 738 at 746 The Commonwealth v Hazeldell Ltd (1918) 25 CLR 552 at 563 Melbourne Corporation v Barry (1922) 31 CLR 174 at 206 13. Chief Commissioner for Railways and Tramways (NSW) v Attorney-General (NSW) (1909) 9 CLR 547 at 560 14. Mabo [No 2] (1992) 175 CLR 1 at 68.

Those remarks were repeated in the House of Lords in British Railways Board v Pickin [666] , where it was further decided that a litigant could not establish a claim in equity that the other party, by fraudulently misleading the legislature in successfully promoting a Bill, had inflicted damage on the plaintiff. The Wik's argument concerning the invalidity of the Comalco Agreement, at least on the basis of their attacks on that Agreement, conflicts with one of the obvious purposes of adopting the procedure evidenced in the Comalco Act. That procedure was designed to confer a statutory status on the Comalco Agreement. To permit a party to attack the validity of the Comalco Agreement on the basis of alleged default or impropriety in the steps leading to its execution would undermine and frustrate the clear purpose of the legislation. Similarly, once the Comalco Agreement was executed, the rights conferred by it were of the same status as if they had been conferred by legislation. The fact that other persons (such as the Wik) may thereby have lost rights previously belonging to them is simply the result of the operation of legislation, the constitutional validity of which is not impugned. Subject to what follows, the Comalco Act had the purpose and effect of giving legislative force to the Comalco Agreement. To permit the Wik now to question the validity of the Comalco Agreement is contrary to the plainly intended effect of the Comalco Act. Inherent in this conclusion is the further one that damages and other relief cannot be obtained for alleged breaches of duty resulting in, or constituted by, the making of the Comalco Act or in respect of the benefits flowing from the Comalco Agreement. This is so because, once executed as Parliament provided, the Comalco Agreement itself took on the force of legislation [667] . This was not the usurpation of legislative power. It was the exercise of it. The suggested injustice of the Comalco Agreement and of its consequences for the Wik is not then a matter for legal [668] but only for political redress.

Parties

Applicant/Plaintiff:

Wik Peoples

Respondent/Defendant:

Queensland

Legislation Cited (1)

Federal Court Rules 1979(Cth)

Cases Cited (114)

If the effect of the instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations or to a restriction of the purposes for which it may be used, it is in law a demise of the land itself. 1. (1973) 128 CLR 199. 2. Goldworthy Mining (1973) 128 CLR 199 at 213. 3. [1904] AC 405 at 408.

The definition of private land in s 3 of the Petroleum Act means all land other than Crown land. Crown land does not include land "subject to any lease or licence lawfully granted by the Crown". 2. The problems of mining leases over privately owned land need not be explored here. See, eg, Croudace v Zobel [1899] AC 258 Ebbels v Rewell [1908] VLR 261 at 264 Frazers Creek Mining Co Pty Ltd v Schieb [1971] 1 NSWLR 953 at 959 Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177

As a starting point, their Lordships accept as fully established the proposition that, in Queensland, as in other states of the Commonwealth of Australia, the Crown cannot contract for the disposal of any interest in Crown lands unless under and in accordance with power to that effect conferred by statute. In Queensland the legal basis for this power, and for the limitations upon it, is to be found in the Constitution Act 1867, of which s 30 provides for the making of laws regulating the sale, letting, disposal and occupation of the waste lands of the Crown, and s 40 vests the management and control of the waste lands of the Crown in the legislature. Illustrative of this view is the judgment of Isaacs J in O'Keefe v Williams [31] , where his Honour repeated a view he had earlier [32] expressed: "It may fairly be said that the whole frame of the Crown Lands Act 1891 NSW shows that the legislature has merely enacted the method and conditions upon which the Crown may contract for the disposal of its interest in the public lands." And that involves the position that the Crown may contract to give a lease, and may contract by a lease. It cannot contract either for or by a lease in any terms contrary to the Statute; and where the Statute declares what rights the lease when granted shall confer, in other words declares its legal effect, the Crown when granting such a lease grants those rights. The use of well understood conveyancing terms in statutes authorising the disposition of interests in unalienable land was taken to import the interests and rights ordinarily attributed to those terms [33] . The substantive rights conferred on a Crown lessee are equated with the rights of a lessee under a lease at common law granted within the confines of the empowering statute. The substantive rights of a Crown lessee thus include the right of exclusive possession. In Goldsworthy Mining Ltd v Federal Commissioner of Taxation [34] , Mason J held "the language of lease" to indicate an agreement by the Crown to give the lessee the right of exclusive possession. 1. de Britt v Carr (1911) 13 CLR 114 at 122, per Griffith CJ. 2. [1975] AC 520 at 533. 3. (1910) 11 CLR 171 at 207. 4. In O'Keefe v Williams (1907) 5 CLR 217 at 230 5. O'Keefe v Williams (1910) 11 CLR 171 at 191, 193, 200, 209; and see American Dairy Queen (Q'ld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 at 683 6. (1973) 128 CLR 199 at 213.

It creates them, shapes them, states their characteristics, fixes the mutual obligation of the Crown and the purchaser, and provides for the mode in which they shall cease to exist, either by becoming unconditional purchases or by termination en route Whatever estates, interests or other rights are created by the Crown must owe their origin and existence to the provisions of the statute. In other words, they are statutory or legal estates, interests and rights. They are not and cannot be equitable, that is, owing their existence to some doctrine or principle of equity. His Honour's approach was followed by the Full Court of the Supreme Court of Victoria in In re Brady [36] in defining the right to a grant in fee simple possessed by a Crown lessee who had complied with the conditions of the lease and was entitled to the grant on payment of a specified amount. Both of these cases were concerned to distinguish between a statutory right to acquire the fee and an ordinary contract of sale under which the respective rights of vendor and purchaser are affected by equitable principles. In Davies v Littlejohn , Isaacs J was concerned to demonstrate that the Crown had no vendor's lien on the unpaid price of land held on conditional purchase. As the purchaser under a conditional purchase (unlike a purchaser under an ordinary contract for the sale of land) acquired no interest in the land until the statutory conditions were fulfilled, the Crown (unlike a vendor under an ordinary contract for the sale of land) parted with no interest. Accordingly, there was no occasion for equity to protect the Crown by a vendor's lien for the unpaid balance of the purchase price. The scheme for conditionally purchasing land was statutory and there was "no room for equity to intervene and modify the nature of a conditional purchase as Parliament has shaped it" [37] . Of course the conditions which entitle a person to the grant of a freehold estate under a conditional purchase are prescribed by statute; non constat that a lease issued by the Crown in exercise of its statutory powers is not truly a lease conferring, or in accordance with the statute conveying, a leasehold estate. 1. (1923) 34 CLR 174 at 187-188. 2. [1947] VLR 347. 3. Davies v Littlejohn (1923) 34 CLR 174 at 190

(1996) 134 ALR 637

(1992) 175 CLR 1

(1959) 101 CLR 209

(1973) 128 CLR 199

(1925) 36 CLR 340

(1969) 121 CLR 177

(1910) 11 CLR 171

(1908) 6 CLR 469

(1983) 153 CLR 338

(1966) 115 CLR 1

(1911) 13 CLR 537

(1981) 147 CLR 677

(1978) 53 ALJR 220

(1911) 13 CLR 114

(1907) 5 CLR 217

(1923) 34 CLR 174

(1991) 22 NSWLR 687

(1982) 158 CLR 327

(1907) 5 CLR 326

(1993) 68 ALJR 110

(1995) 183 CLR 373

(1988) 166 CLR 186

(1913) 16 CLR 404

(1915) 19 CLR 343

(1959) 102 CLR 54

(1933) 50 CLR 154

(1995) 124 FLR 1

(1904) 1 CLR 283

(1996) 186 CLR 71

(1984) 154 CLR 178

(1985) 157 CLR 1

(1984) 156 CLR 41

(1985) 160 CLR 583

(1978) 52 ALJR 28617

(1978) 52 ALJR 286

(1996) 63 FCR 450

(1995) 61 FCR 1

(1914) 18 CLR 381

(1985) 1 NSWLR 731

(1969) 43 ALJR 69

(1918) 25 CLR 552

(1904) 1 CLR 363

(1906) 4 CLR 374

(1987) 162 CLR 514

(1994) 50 FCR 555

(1985) 157 CLR 309

(1907) 4 CLR 1304

(1971) 126 CLR 376

(1916) 22 CLR 556

(1908) 6 CLR 264

(1981) 148 CLR 1

(1959) 107 CLR 208

(1985) 155 CLR 448

(1996) 71 ALJR 131141

(1979) 142 CLR 617

(1994) 179 CLR 520

(1987) 162 CLR 221

(1989) 168 CLR 242

(1992) 175 CLR 353

(1995) 184 CLR 538

(1989) 167 CLR 316

(1908) 7 CLR 1

(1909) 9 CLR 547

(1960) 105 CLR 303

(1908) 6 CLR 143

(1979) 144 CLR 633

(1981) 150 CLR 1

(1988) 165 CLR 19

(1963) 110 CLR 74

(1957) 99 CLR 462

(1952) 86 CLR 223

(1975) 132 CLR 463

(1952) 88 CLR 609

(1979) 145 CLR 330

(1993) 178 CLR 145

(1952) 87 CLR 267

(1964) 114 CLR 656

(1967) 116 CLR 344

(1990) 22 NSWLR 671

(1909) 9 CLR 89

(1975) 135 CLR 337

(1971) 17 FLR 141

(1996) 185 CLR 595

(1994) 49 FCR 1

(1936) 55 CLR 499

(1981) 148 CLR 170

(1993) 68 ALJR 110118

(1994) 182 CLR 45

(1994) 179 CLR 155

(1994) 179 CLR 297

(1988) 165 CLR 197

(1987) 163 CLR 1

(1990) 171 CLR 1

(1947) 74 CLR 492

(1946) 73 CLR 1

(1908) 7 CLR 277

(1983) 152 CLR 281

(1983) 152 CLR 328

(1989) 166 CLR 486

(1991) 172 CLR 319

(1907) 4 CLR 1617

(1965) 6 FLR 476

(1906) 4 CLR 694

(1909) 9 CLR 738

(1922) 31 CLR 174

(1931) 44 CLR 394

(1990) 20 NSWLR 188

(1991) 23 NSWLR 683

(1975) 133 CLR 1

(1928) 40 CLR 481

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