Wilson v Anderson

Wilson v Anderson - [2002] HCA 29 - HCA 2002 case summary — Zoe

[31]

In the majority judgment in Western Australia v Ward[5] there is a discussion, consistent with what Brennan CJ said in Wik, of the subject of "clear and plain intention".
Where, as in the present case, the Court is considering an argument as to whether there has been extinguishment by reason of the second of the three kinds of law or act referred to by Brennan CJ then, as his Honour said, and as was repeated by the majority in Ward, no question arises as to whether, at the time of the act said to extinguish native title, there was any specific intention to extinguish such title, or even as to whether anyone adverted to the existence of native title. In such a case, the test is one of inconsistency. If it is satisfied, the extinguishment results from the inconsistency, not from the existence of a purpose of abrogating native title rights or interests.
That is not to say that matters of intention are irrelevant. A decision as to whether an act, such as the grant of an estate in land, creates rights inconsistent with native title rights and interests, may turn upon a question of construction of an instrument, or of a statute pursuant to which an instrument was made. Questions of construction and interpretation are bound up with the matter of intention. But it is necessary to keep in mind what intention involves, and the intention that is relevant.
The concepts of meaning and intention are related, but distinct. It is not presently necessary to distinguish between construction and interpretation[6]. The words are often used interchangeably. In the construction or interpretation of a statute, the object of a court is to ascertain, and give effect to, the will of Parliament. Courts commonly refer to the "intention of the legislature". This has been described as a "very slippery phrase"[7], but it reflects the constitutional relationship between the legislature and the judiciary. Parliament itself uses the word "intention", in the Acts Interpretation Act 1901 (Cth), as a focal point for reference in construing its enactments. Certain words and phrases are said to have a certain meaning unless a contrary intention is manifested in a particular Act. Parliament manifests its intention by the use of language, and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the legislative will. This is a familiar judicial exercise. The law of contract seeks to give effect to the common intention of the parties to a contract. But the test is objective and impersonal. The common intention is to be ascertained by reference to what a reasonable person would understand by the language used by the parties to express their agreement[8]. If the contract is in the form of a document, then it is the meaning that the document would convey to a reasonable person that matters. The reason for this appears most clearly in the case of commercial contracts. Many such contracts pass through a succession of hands in the course of trade, and the rights and liabilities of parties other than the original contracting parties are governed by them. As Lord Devlin observed, writing extra-judicially, it is only the document that can speak to the third person[9]. In the case of a will, or a deed, or other written instrument, the object of a court is to discover, and give effect to, the intention of the testator, or parties; but it is in the meaning of the instrument, discovered according to established principles of construction, that such intention is found.
This is not to say that the exercise is formal and literalistic. On the contrary, common law and statutory principles of construction frequently demand consideration of background, purpose and object, surrounding circumstances, and other matters which may throw light on the meaning of unclear language[10]. And there are presumptions which may be called in aid to resolve uncertainty.
This is the context in which references to intention are made.
In the present case, the question for decision is whether an instrument of title to land, issued pursuant to a statutory power, conferred a certain right. The answer to that question might directly affect, not only the original title-holder, but also transferees, mortgagees, and others who might later need to enforce the rights conferred by the instrument. And it might indirectly affect others. If there is a right of exclusive possession in the lessee, then plainly that has consequences for persons the lessee might wish to exclude; and for the means by which such exclusion might be achieved. As the passage from the judgment of Brennan CJ shows, this being a case in which an act is said to fall within category (ii) of the three categories mentioned, the argument is about whether the instrument conferred a right of exclusive possession, which is a right inconsistent with the continued right to enjoy native title. To the extent that there may be uncertainty about that matter, then it is necessary to decide the meaning of the instrument of title and the legislation pursuant to which it was issued.
It is consistent with the decision in Wik that, just as a grant of an estate in fee simple of a parcel of land in a rural area would extinguish native title, so also would a grant of a residential tenancy of land on which there was a dwelling house, where the instrument of lease conferred a right of exclusive possession on the tenant. Depending on the circumstances, it may be unlikely in the extreme that either party to the lease paid any attention to the subject of native title. It is not suggested that, in deciding whether a grant of an estate in fee simple extinguishes native title, it is relevant to enquire whether the parties to the grant addressed their minds to the position of people who might have had native title rights and interests in the land. What is relevant is that, objectively considered, there was an intention to create an estate that was inconsistent in its incidents with continuing native title rights and interests. The same applies to the creation of a leasehold estate which confers a right of exclusive possession in the lessee. That statement may appear tautologous. But the decision in Wik shows that "lease", like "intention", can be a slippery word. In a straightforward case, such as a residential tenancy, it may be easy to conclude that a lessee was intended to have a right of exclusive possession. Such a conclusion would then lead directly to the assignment of the case to category (ii) of Brennan CJ's three categories.
In Wik, some members of the Court, in dealing with questions of construction of statutory provisions, and instruments of title issued under those provisions, for the purpose of considering whether rights of exclusive possession were conferred, took account of circumstances, including the situation of Aboriginal people, as throwing light on intention. For example, Toohey J, after referring to colonial history, and relations between pastoral activities and Aboriginal people, said[11]:

[33]

A majority of the Court in Wik accepted that if, as a matter of construction, the leases there in question conferred a right of exclusive possession, native title was extinguished[12]. Partly because of the size and location of the subject land (one holding was 1,119 square miles in area; another was 535 square miles[13]), the consequences for Aboriginal people were regarded by some members of the Court as having a bearing upon the question of construction[14]. But, insofar as there was a question of intention to be decided, the question was whether the intention was that the lessees should have exclusive possession of the land.
It was not submitted by any party, in the present case, that the Court should refuse to follow Wik. Any such submission would have faced the obvious difficulty that Parliament has enacted legislation in response to, and on the basis of the principles accepted and applied in, Wik. In Brodie v Singleton Shire Council[15] I stated my views about the importance of adherence to precedent in cases where the legislature has acted on the faith of judicial decisions. Some of the considerations that applied there operate even more powerfully in the case of Wik.
Wik decided that, having regard to the legislation under which they were granted, and the terms and conditions of the instruments of lease, certain pastoral leases did not confer upon the lessees a right of exclusive possession.
The Court is presently concerned with different legislation, and different instruments of lease. Uninformed by Wik, I would readily have come to the conclusion that the lease in perpetuity presently in question conferred a right of exclusive possession. The decision in Wik does not require any different conclusion.
The nature of the incidents of a statutory lease in perpetuity under the Western Lands Act was considered by the Court of Appeal of New South Wales in Minister for Lands and Forests v McPherson[16]. The issue in that case concerned whether a lessee could obtain relief against forfeiture. The argument against such relief was that the statute embodied a self-contained scheme, and that the incidents of a statutory lease were to be found within the four corners of the statute. In rejecting that argument, Kirby P, with whom Meagher JA agreed, said: "In the case of an interest called a 'lease', long known to the law, the mere fact that it also exists under a statute will not confine its incidents exclusively to those contained in the statute."[17] Later, he said: "Whilst the 'leasehold' envisaged by the Act has particular incidents, it remained a 'leasehold'."[18] Mahoney JA, referring to earlier legislation which was followed by the Western Lands Act, said that "the rights described as 'lease' in the 1884 Act were essentially the rights given to a lessee under a lease of land as understood under the common law"[19].
The decision in Wik makes it necessary now to approach such general statements with caution. Even so, as the joint judgment in the present case demonstrates comprehensively, the history of perpetual leases of Crown land in New South Wales shows a strong affinity between the interests granted under such leases and freehold estates. There is nothing surprising or novel about a conclusion that the incidents of a statutory lease are not exhaustively defined by statute, and may include the incidents of a lease as provided by the common law. Exactly such a conclusion underlay the decision of the Privy Council in Southern Centre of Theosophy Inc v South Australia[20]. That case concerned a perpetual lease of land pursuant to South Australian Crown lands legislation. The issue was as to the application to the land of the common law doctrine of accretion. The land was bordered by an inland lake. An area of about 20 acres was added to the land by the deposit of soil and sand resulting from longshore drift, the retreat of water, and wind-blown sand. The State of South Australia argued, unsuccessfully, that the doctrine of accretion did not apply to an interest in land granted pursuant to a statutory scheme[21]. Reliance was placed on passages in the judgment of this Court in Davies v Littlejohn[22] referring to the statutory basis of interests in land created under Crown lands legislation. Lord Wilberforce, who delivered the judgment of the Privy Council, saw no reason why the doctrine of accretion should not apply to the leasehold interest in question[23]. That decision was not referred to either in argument, or in the judgments, in the later case of McPherson, but it reached that same conclusion with respect to the common law doctrine of accretion as was reached in McPherson with respect to the equitable doctrine of relief against forfeiture. Essential to both decisions was a finding that the incidents of a statutory perpetual leasehold were not exhaustively defined by the statute.
Section 23 of the Western Lands Act, pursuant to which the lease in the present case was granted, in the form it took at the time of the grant, empowered the Minister to grant leases of Crown lands as leases in perpetuity or for a term. The Act enabled leases for a term to be extended to leases in perpetuity (s 18E). Such an extension had occurred in the case of the lease in McPherson[24]. Such leases might be of land set apart for grazing (s 19B), or of land set apart for agriculture, or for agriculture and grazing combined, or for mixed farming or any similar purposes (s 19C). It may be doubted that the juristic nature of the leases referred to in the opening words of s 23 would vary, in relation to the matter of rights of exclusive possession, according to whether they were perpetual or for a term, but that issue does not arise for decision. It is also unlikely that their relevant juristic nature would vary according to whether the subject land had been set apart for grazing, agriculture, or mixed farming. But the various possibilities emphasise the difference between the lease holding presently in contemplation and those of the lessees in Wik.
As the joint judgment shows, when regard is had to the genesis of the interest in land referred to in the Western Lands Act as a lease in perpetuity, and its affinity with freehold title, the inference that it was the intention of the legislation that the Minister should be empowered to grant leases which conferred upon lessees a right to exclusive possession of land is compelling. Wik does not deny the relevance of the use by the statute of the term "lease". But it requires a court to look further. In the present case, when one considers the object and purpose of the legislation, the primary impression created by the statutory language is not weakened; it is strongly reinforced. And the language of the instrument of lease, which uses the language of demise historically associated with the conferring of a right of exclusive possession, read in the light of the statutory power and purpose, evinces the same intention.
I agree with the orders proposed by Gaudron, Gummow and Hayne JJ.
GAUDRON, GUMMOW AND HAYNE JJ. This application for special leave to appeal arises from the determination by the Full Court of the Federal Court (Black CJ, Beaumont and Sackville JJ)[25] of several questions reserved for separate decision by that Full Court. This Court heard full argument on the special leave application.

[37]

The applicant, Mr Wilson, is the current lessee of Western Lands Lease 7951 ("the Lease"). The Lease was granted to Ross Patrick Smith "in perpetuity" by the Minister for Lands on behalf of the Crown in right of New South Wales and under s 23 of the Western Lands Act. The instrument was recorded and enrolled on 16 March 1955 in the Register of Western Lands Leased at the Office of the Western Lands Commissioner ("the Commissioner") at Sydney. Subsequent dealings were noted thereon, before computerisation some time after 1980. Mr Wilson acquired the Lease by transfer by way of sale in 1984. In the intervening period since the grant, there had been several transfers by way of sale and by way of mortgage to banks, with transfers by way of release by those mortgagees.
The area of the land the subject of the Lease ("the Leased Land") was reduced in 1965 from 11,118 acres to 11,099 acres. The Leased Land lies within the claim area. Section 18 of the Western Lands Act required the Lease to contain the covenants, reservations and exemptions set out in Sched A, "or such of the same as the Minister may deem applicable". Schedule A contained 17 such covenants, reservations and exceptions, many of which were reflected in the terms of the Lease. Clauses 3 and 4 of the Lease obliged the lessee not to use or permit the use of the Leased Land for any purpose other than grazing and cl 2 required the lessee to make his bona fide residence there.
The Leased Land had been located within the area of the pastoral lease granted under the 1884 Act to the Australian Mortgage Land and Finance Company Limited and known as "Angledool". After the commencement of the Western Lands Act, the holding under the 1884 Act became Western Lands Lease No 33. Section 17 of the Western Lands Act empowered the Governor to withdraw any lands held under lease whenever it might be deemed expedient to do so for the purpose of providing for settlement, such lands to be disposed of under the provisions of the statute and not to exceed one-eighth of the area of the lease. In pursuance of the provisions of s 17, one‑eighth of the area that was Angledool, including what became the Leased Land, was withdrawn therefrom in 1911 for the purpose of providing small holdings in accordance with the provisions of the Western Lands Act.
The applicant, by notice of motion dated 23 March 1999, sought orders that would avoid the mediation procedures contemplated by the NTA[29]. The applicant also sought, pursuant to par (a) of O 29 r 2 of the Federal Court Rules, an order that certain questions be answered prior to and separately from the remainder of proceedings for the determination of native title. That is to say, the separate questions were to be answered prior to any factual inquiry respecting the existence or content of any native title rights and interests in respect of the claim area.
On 29 April 1999, Beaumont J made the orders sought. Thereafter, the Chief Justice of the Federal Court, acting pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth), directed that the original jurisdiction of the Court be exercised by a Full Court. There was a Statement of Agreed Facts that Mr Wilson was the lessee, that the Lease was validly granted under the Western Lands Act, that Mr Anderson was a claimant under the NTA, and that the Leased Land was subject to that claim; a copy of the Lease was annexed to the statement. On these materials, the Full Court heard the matter on 18 and 19 October 1999; judgment was delivered on 5 April 2000.
Before turning to consider the separate questions, it is necessary to make reference to one further matter. Before the commencement of the Full Court hearing, the first respondent moved under s 64 of the NTA to amend the Native Title Application. The motion came before Hill J and on 8 May 2000, pursuant to leave granted by Hill J on that day, the application for determination of native title was amended so that it differed from the previous application in two major respects. First, the applicants in respect of the application for determination of native title were now "Michael Anderson, Roger Gordon and Eric James Dixon on behalf of the direct descendants of Ethel and Tinka Dixon of the Nyoongah Ghurradjong Murri (Granny Ethel) clan of the Euahlayi People who lived in the Narran-Warrambool area of north-western New South Wales from the 1830's to about 1931". Secondly, the amended application clarified the areas that are excluded from the application by expressly excluding any land or waters covered by, amongst other things:

[54]

It is convenient now to say something respecting the practice of reserving questions for separate determination, particularly respecting alleged extinguishment of native title. The difficulties that arise when an attempt is made to determine, in the absence of adequate findings of fact, issues of extinguishment of native title are well known. They were referred to in Wik[31] and Yanner v Eaton[32] and exemplify the general considerations referred to in Bass v Permanent Trustee Co Ltd[33].
In the Full Court, Black CJ and Sackville J observed that, while the identification of separate questions for determination can be a convenient procedure, there "are dangers in adopting the procedure, especially where no findings of fact have been made and the questions are capable of different interpretations"[34]. Their Honours recognised that the procedure had been adopted in this case as "a 'short cut' designed, depending on the outcome, 'to obviate the necessity for [a] very complex, lengthy and expensive factual inquiry'"[35].
In some circumstances it is possible to determine issues of extinguishment in advance of findings as to the existence and content of the anterior native title rights and interests in question. One such example is where the extinguishing act relied upon is the grant of an estate in fee simple or of a common law lease. The grant of a fee simple extinguishes all native title rights that may exist in relation to the land the subject of the grant. This is so because the estate of fee simple "does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title"[36]. The same reasoning applies to the grant of a common law leasehold estate[37]. In both instances "the comprehensiveness of the grant precludes any question of partial extinguishment"[38].
Questions respecting the satisfaction of the criteria contained in s 23B of the NTA may provide a further occasion where findings of fact that establish the ambit of any native title rights and interests claimed are not required. This is because an "act"[39] which satisfies the criteria in s 23B is a "previous exclusive possession act".
The identification of separate questions for determination must also be considered having regard to the provisions of s 84C of the NTA which permit a party to apply on stated grounds to strike out an application filed in the Federal Court that relates to native title. Those grounds include non‑compliance with the basic requirements for an application and non‑compliance with s 61A of the NTA. This section, among other things, prohibits the making of a native title determination application if a previous exclusive possession act was done in relation to the area and that act either was an act attributable to the Commonwealth or it was attributable to a State or Territory and a law of the State or Territory has made provision of the kind mentioned in s 23E in relation to the act.

[80]

Sub‑section (1) of s 23J has the effect of conferring upon native title holders an entitlement to compensation only where the statutory extinguishment exceeds the extinguishment that would have occurred at common law. The evident purpose of s 23J is to limit, so far as possible, the entitlement to compensation under s 23J, to cases where the "act" is invalid by reason of the Racial Discrimination Act 1975 (Cth) ("the RDA") and is subsequently validated by s 14 of the NTA or s 8 of the State Act[52]. However, s 23J also may be attracted in respect of a valid "act" which, although satisfying the definition of "previous exclusive possession act", would not completely extinguish native title at common law. That a different result may be reached under Div 2B of Pt 2 of the NTA or Pt 4 of the State Act emphasises the point that it is the statutory criteria provided for by those provisions which are to be applied when determining issues of extinguishment.
As s 23B is of central importance to these proceedings, it is appropriate to say something more respecting that provision. It contains certain criteria, the satisfaction of which, by an "act", results in the characterisation of that "act" as a "previous exclusive possession act". Three requirements must be satisfied.
First, the "act" must be valid (s 23B(2)(a)). The "act" may be valid either because (as in this case) it was valid when done and it occurred before the commencement of the RDA or because it was a "past act" under s 228 of the NTA and was validated by s 14 of the NTA or s 8 of the State Act. Given the date of the grant of the Lease, more than 20 years before the commencement of the RDA, the "past act" provisions have no role in this case. The "act" here was valid in any event.
The second requirement of s 23B is that the "act" occurred on or prior to 23 December 1996 (s 23B(2)(b)). Thirdly, the "act" must have consisted of the grant or vesting of an interest which falls within any of eight specified categories. Those categories of "previous exclusive possession act" are (s 23B(2)(c)):

[98]

It will be apparent that the expression "lease" as defined in s 242 is wide enough to encompass for the purposes of the NTA statutory interests which may not necessarily amount to a lease as understood by the common law. The Lease at issue in this case satisfies the above definition. It was granted under s 23(1)(a) of the Western Lands Act. This section was substituted for the original s 23 by s 8 of the Western Lands (Amendment) Act 1934 (NSW) ("the 1934 Act"). The new s 23(1)(a) provided that it was lawful for the Minister to grant "leases" of Crown lands as "leases in perpetuity". Paragraph (c) of s 242(1) of the NTA therefore is satisfied.
The definition in s 242 of "lease" is of importance in the present proceedings because it demonstrates that the NTA postulates the existence of an interest which, although described as a "lease", is not a lease at common law. Further, the scheme of Div 2B of Pt 2 is premised upon the fact that a "lease" under the NTA may or may not confer a right of exclusive possession[55]. These considerations illustrate the flaw in reasoning that as an interest was described as a "lease" it is to be presumed that a right of exclusive possession was conferred.
It is possible that, as an exclusive pastoral lease or as a lease conferring a right of exclusive possession over particular land, the Lease, being a "lease in perpetuity" under the Western Lands Act, satisfies either or both of pars (iv) and (viii) of s 23B(2)(c) of the NTA; par (iv) engages the definition of "exclusive pastoral lease" in s 248A. It is in this way that the issue for determination arises - whether on grant in 1955 the Lease conferred a right of exclusive possession upon the grantee thereof[56]. That issue turns upon the meaning of the statutory expression "lease in perpetuity" and requires an examination of the nature of the perpetual holdings created under the Western Lands Act and the Consolidation Act.
No doubt it is right to say that rights and interests are not to be held to have been abrogated by statute, except where the intention to do so is plainly expressed. But the relevant question in the present matter is what are the rights that were created by the grant of the Lease. In particular, did the holder of the Lease acquire a right to exclusive possession of the Leased Land? That question is not to be answered by presuming its answer any more than it is to be answered by noticing that later legislation has attributed certain legal consequences to the fact of the grant of such rights. It is to be answered by analysing the nature and extent of the rights that were conferred by the grant.

[125]

At the time the Lease was granted under the Western Lands Act, the Consolidation Act provided for various species of lease "in perpetuity". There were (i) the conditional lease (ss 52, 185(1)(a)), (ii) leases for business purposes (s 75B), (iii) town leases (s 82A), (iv) conditional purchase leases (s 107), (v) Crown leases (s 134), (vi) week‑end leases (s 136F), (vii) homestead farms (s 123), (viii) suburban holdings (s 128), and (ix) in irrigation areas, the irrigation farm lease and the town land lease (s 142D).
In the case of leases in categories (vii), (viii) and (ix), the Consolidation Act provided for the issue by the Governor of grants "to the lessee his heirs and assigns for ever" (ss 123(2), 128(2) and 144(1) respectively). At common law, that expression was peculiarly appropriate for the creation of a fee simple[68]. Section 13 of the RP Act as enacted subjected to the provisions of that statute lands unalienated from the Crown "when alienated in fee". The Registrar-General treated grants under the Consolidation Act in the categories just mentioned as grants of a fee simple thereby attracting s 13 and the RP Act as a whole[69].
That practice of the Registrar-General had two consequences. First, as Roper J accepted in Nolan v Willimbong Shire Council[70], the issue of a certificate of title was conclusive evidence of the fact that the grantee had an estate in fee simple. Secondly, the registered proprietor of land under the provisions of the RP Act held the same with the benefit of the indefeasibility provisions of the legislation, in particular s 42.
Section 2 of the Conveyancing (Strata Titles) Act 1961 (NSW) declared that that statute applied to land "under the provisions of the [RP Act] held … under perpetual lease from the Crown or in fee simple". Thereafter, in 1970, s 13 of the RP Act was amended by s 5 of the Real Property (Amendment) Act 1970 (NSW) to make it clear that land "leased as a perpetual lease under grant from the Crown" was subjected to the provisions of the RP Act.
Subsequently, the Real Property (Crown Land Titles) Amendment Act 1980 (NSW) took matters further by inserting into the RP Act a new Pt 3 (ss 13‑13M) headed "Crown Lands and Lands Acquired from the Crown to be Subject to the Act". In particular, s 13B(1) provided:

[137]

In Re E W Hawkins[81], Davidson J observed that, whilst at common law there was no such interest in land as a lease in perpetuity, there could be "a fee simple subject to a land charge". However, at present, at the issue of the Lease in 1955 and, one may be permitted to assume, from an earlier time, in Australia the term "fee simple" was associated with and synonymous with the fee simple absolute. The defeasible fee simple to which tenurial incidents were attached cut across Australian conceptions of what was involved in freehold title.
It will be apparent that, in part, the controversy concerning the classification as fees simple of leases "in perpetuity" created under the Crown lands legislation has turned upon the existence of a Crown grant using a particular form of words, "to the lessee his heirs and assigns for ever". In the case of the Lease, the grant was not so expressed. However, that apart, there remain other factors tending for and against the classification of all the above categories (i) to (ix) of perpetual interests and leases in perpetuity under the Western Lands Act as fees simple[82].
Reference has been made earlier in these reasons to the possibility that the circumstances in a given case may answer more than one of the "acts" itemised in pars (i) to (viii) of s 23B(2)(c) of the NTA, which are "exclusive possession acts". To the extent that, with respect to the Lease, the above controversy was to be resolved in favour of classification as a fee simple, that would render the grant of the Lease the grant of a "freehold estate" within par (ii) of s 23B(2)(c) of the NTA. That "act" would bring about total extinguishment of any native title without going on to consider the "acts" depending upon the definition in the NTA of "lease", namely the "acts" identified in pars (iv) and (viii).
It is unnecessary to pursue the question of the grant of a "freehold estate". The underlying controversy, at least in part, in New South Wales has been overtaken by legislative amendment to the RP Act concerning the anterior practice of the Registrar-General. The significant point for this case lies in the legislative genesis of the very term "lease in perpetuity" and its significance for the "lease" provisions in s 23B(2)(c) of the NTA.

[139]

Before turning to this matter, it should be observed that the legislation of New South Wales did not stand alone in its creation of the paradoxical perpetual lease. Reference will be made later in these reasons to Crown lands legislation in New Zealand in 1892 and Victoria in 1898, preceding the New South Wales legislation. Further, when considering, in Fisher v Deputy Federal Commissioner of Land Tax (NSW)[83], laws of various Australian States which in 1915 provided for leases of Crown lands in perpetuity[84], Isaacs and Gavan Duffy JJ referred[85] to a decision of the Privy Council in an Indian appeal. In Abhiram Goswami v Shyama Charan Nandi[86], their Lordships approved the judgment of Jenkins J in the Calcutta decision Kally Dass Ahiri v Monmohini Dassee[87]. That case turned upon the construction of Ch 5 (ss 105‑117) of the Indian Transfer of Property Act 1882[88]. Section 105 thereof defined a lease of immovable property as "a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity". Yet, s 111 provided in certain circumstances for the determination of such leases by forfeiture. But, it was argued, where was the reversion dependent upon the end of eternity? The decision of the Court in Ahiri was that, on the true construction of the legislation, even in respect to a grant of a lease in perpetuity, there was an interest still remaining in the lessor dependent, for example, upon the forfeiture of the lease.
No wholly satisfactory answer is to be found to the question whether, by the grant of the Lease, there was created and vested an estate in fee simple, whether conditional or subsequent. Nor, for the purpose of considering whether the grant of the Lease was an act bringing about extinguishment for the purposes of the NTA, is it necessary to do so. The issue, as in the Indian case, turns upon a proper analysis of the statutory regime under the Western Lands Act provided in s 23 for the creation of leases in perpetuity. Does this have the same consequences with respect to extinguishment as would have followed from the grant of a fee simple? The answer is to be found by having regard to the scope and purpose of the Western Lands Act and the anterior situation under other New South Wales legislation respecting dealings in Crown lands.
In Randwick Corporation v Rutledge[89], Windeyer J explained that the early Governors of New South Wales had under their commissions express powers to make grants of land and continued:

[166]

The interest conferred under s 23(1)(a) of the Western Lands Act and identified as a "lease in perpetuity" was a creature of statute forming part of the special regime governing Crown land[104]. That regime included the various tenures provided for in the Consolidation Act, some of which also were identified as a "lease in perpetuity". Legislation establishing these perpetual tenures in New South Wales predated the introduction of the "lease in perpetuity" into the Western Lands Act by the 1932 Act and the 1934 Act.
The evident purpose of the introduction to the Western Lands Act of the perpetual tenure already established in other respects in the Consolidation Act was to strengthen the position of settlers in the Western District, particularly by giving them an asset more likely to attract the provision and continuation of finance. The character of the lease in perpetuity derived from that of the tenures established by the earlier legislation in New South Wales.
There had been a history in colonial New South Wales of Crown grants of freehold for which no purchase price was paid but with the reservation to the Crown of annual quit‑rents. Conditions also were imposed, upon pain of cancellation or revocation of the grant and determination of the fee simple. These conditions included requirements of residence and improvement of the land. By the time of the development in New South Wales of the legislative system of Crown land tenures in the second half of the nineteenth century, there was developing the popular perception of freehold as a tenure without risk of forfeiture for breach of tenurial incidents, a perception of which legislators would have been conscious. Yet it was in the interests of the Crown to achieve the economic and social goals of land settlement with the assistance of the controls imposed by conditional grants.
The legislative solution began with the "perpetual" obligations imposed upon the holders of homestead grants by the 1895 Act. As Sir Joseph Carruthers later was proud to declare, the inspiration for this legislation lay in the old common law notions of tenurial incidents. The legislative regime was developed with the appearance, in the 1912 Act, of the "lease in perpetuity". By this means there was created a tenure which, like freehold tenure, was to last "for ever" but the term "lease" indicated that the continued retention of title by the grantee was dependent upon the performance of many tenurial incidents imposed to further the objectives of the legislature with respect to land development.
The number and scope of those incidents developed as time passed. The Lease contains a number. Reference already has been made to the requirement of residence (cl 2) and the stipulations respecting use for the purpose of grazing stock (cll 3, 4). Further, the lessee was obliged by cl 14 not to transfer, convey, assign, sub‑let or mortgage the Leased Land without the written consent of the Minister; cl 20 provided that the Lease was not to be transferable except by way of mortgage for 10 years following its commencement, save to certain members of the armed forces.
The Lease stipulated an "unrestricted" right to proclaim travelling stock routes, camping places and other reserves (cl (l) of Sched A to the Western Lands Act) without payment of compensation and to withdraw land for the purposes of such reserves. The Lease was also expressed (cl 23(d)) to be subject to the withdrawal of land for any public purpose mentioned in the Consolidation Act[105]. A lessee was placed under obligations with respect to fencing (cl 5), destruction of vermin (cl 7), improvements (cl 12) and stocking levels (cl 15). There was an obligation to allow authorised persons to enter the Leased Land to examine improvements (cl 12) and to search for and remove minerals (cl 16). The lessee also was obliged to permit authorised persons to enter for purposes connected with soil conservation and erosion mitigation (cl 22).
The point of present importance is that these conditions and obligations, whether imposed directly by the Western Lands Act or permitted by the statute to be attached to the grant, were not inconsistent with the incidents of a grant of a determinable fee simple. The right of forfeiture for failure to pay rent or non‑observance of conditions is equivalent to the right of re‑entry on breach of a condition subsequent attached to a determinable fee simple.
However, in other respects, the legislative creation of the lease in perpetuity was to have the attraction, both for leaseholders and those financing their operations upon mortgaged security, of a tenure with, as the Secretary put it in 1912, "all the advantages and essence of a freehold". Save where statute otherwise provided, that essence denied to anyone else the enjoyment of any right or interest in respect of the land[106]. For the purposes of the NTA, this included a right in the grantee of a lease in perpetuity of exclusive possession.
The question in this litigation thus differs from that considered with respect to the legislation in cases such as Wik. The pastoral lease tenures there considered lack the historical and conveyancing background from which the lease in perpetuity was derived as a substitute for the old Crown grant of the determinable fee simple.
The restraints upon alienation which applied to the Leased Land and the requirement to allow entry by certain persons for particular purposes and the other restrictions which we have described were consistent with the attachment of conditions to what in substance was a freehold. Their existence did not deny what otherwise was involved in the comprehensive statutory grant of a "lease in perpetuity", including the right to exclusive possession.
It has been pointed out earlier in these reasons that it is unnecessary to determine whether the "lease in perpetuity" under the Western Lands Act is a "freehold estate" for the purposes of the NTA. The grant here was of a "lease" within the meaning of s 242 of the NTA which, upon the true construction of the Western Lands Act, conferred upon the lessee "the essence of a freehold", including a right of exclusive possession, within the meaning of pars (iv) (with s 248A) and (viii) of s 23B(2)(c) of the NTA. Section 20 of the State Act then mandates extinguishment of any native title, with effect from the grant of the Lease.

[183]

It was understandable that Mr Wilson should look for a rapid path to resolution of the claim affecting the leased land. He is one of many lessees under the WLA, exposed to claims such as Mr Anderson has brought. The position of those other WLA leaseholders may be indistinguishable. Contesting such claims would not only be expensive but distracting and worrying for those leaseholders. Some of them, it may be inferred, live on land with low average rainfall, at the edge of viability. They have many worries without adding legal proceedings to them if they could be avoided.
In the necessary course of clarification of the law of native title, since the decisions of this Court in Mabo [No 2] and Wik, issues of extinguishment have been of the first importance. In Fejo v Northern Territory[116], a claim under the NTA by the Larrakia people, in respect of land in an area including Darwin in the Northern Territory, was unanimously rejected by this Court. It was held that native title was extinguished by a grant to a landholder of fee simple in the land. It was concluded that native title was not revived by the fact that the land was later acquired, and again held, by the Crown[117].
In effect, Mr Wilson sought to repeat the success of the Northern Territory in Fejo. He asserted that he was entitled to be relieved from the burden of Mr Anderson's claim by a simple analysis of the legal character of the Lease. He submitted that, by analogy with the rule in Fejo, the "lease in perpetuity" under the WLA was, or was equivalent to, a "freehold estate" for the purposes of the NTA[118]. If he could secure an authoritative decision similar to that in Fejo, by reference to nothing more than the legislation applicable to his case and the governing legal principle and policy, he could bring his ordeal to an end. He could then get on with running his lease under the WLA instead of spending his time in courtrooms.
Selecting separate questions that afford, in effect, a "knock-out" point in litigation and arguing them in advance of what would otherwise be lengthy and expensive proceedings, is a rational course of conduct on the part of private individuals where that course is available. Properly deployed, it can also save substantial public costs that are otherwise necessarily involved in devoting the resources of the courts, and of publicly funded litigants, in the exploration of factual questions that ultimately turn out to be irrelevant to the disposition of the matter. Some judges are less sympathetic than others to such procedures[119]. Certainly, it is true that well-intentioned attempts by interlocutory procedures to knock out claims at the threshold can, with interlocutory appeals, sometimes prove more burdensome than beneficial.
Nevertheless, given that Mr Wilson took what amounted to a Fejo-like preliminary objection to the legal viability of Mr Anderson's claim to native title, and given the great savings to all parties that could be secured if a Fejo-like conclusion were quickly arrived at[120], I would make no criticism of Mr Wilson for urging the course that was pursued or of the Federal Court for pursuing it. The procedures of courts should be flexible, not least where a point of a legal character is said to exist that may afford summary relief and where that point arises in relation to disputed questions of native title that must otherwise be resolved by plunging into the jungle of legislation and litigation. The common law has long facilitated the preliminary disposition of legal objections of this character. It has done so by way of preliminary proceedings to strike out a claim[121] and by the more formal procedure of demurrer[122], by which a party responds to another's pleading by asserting that, even if the facts pleaded be fully proved, they would not give rise to the legal claim or defence alleged.

[184]

In Mabo [No 2] it was held that native title is not a creature of the common law, but is a recognition by the common law of the traditional laws of Australia's indigenous peoples[123]. Since Mabo [No 2], there have been a number of decisions of the Federal Court and of this Court, seeking to clarify the intersection between Australian property law, as it has developed from its English origins, and native title rights which take their content from an ancient and very different legal system[124]. It is now accepted that it is the NTA that "governs the recognition, protection, extinguishment … of native title"[125]. However, the common law still has a significant role to play because of its express mention in the NTA and because of the consequent need to resolve questions affecting the interpretation and application of the NTA in a consistent and principled way.
From the start of this new legal journey, it has been unquestioned that Aboriginal native title rights may be terminated by inconsistent dealings in the land on the part of the Crown (meaning, relevantly, in modern times, the organs of government of Australia acting under, or pursuant to, legislation[126]). From the beginning it has been clear that the enjoyment of native title to which successively the common law, the NTA and other legislation gave recognition, was "precarious"[127] or "inherently fragile"[128].
Nevertheless, once the Rubicon was crossed, as it was in Mabo [No 2], and once it was made clear that the Australian legal system did, after all, accord recognition and protection to the native title rights of Australia's indigenous peoples in certain circumstances, it was fundamental that such rights would persist, in the face of legislation said to be inconsistent with them, "unless there be a clear and plain intention" to extinguish such rights[129]. It cannot be doubted that this has been one of the guiding principles of this field of jurisprudence, regularly applied and never questioned[130]. In a world of uncertainty it has been a constant. It is a beam of light in the legal jungle. Moreover, it is a bright beam because it is the product of "conventional [legal] theory"[131].

[185]

I say that this is a fundamental rule because this Court constantly applies the same principle to cases in which it is asserted that legislation has taken away the civil rights of non-indigenous Australians[132]. It is an old, wise and beneficial presumption, long obeyed, that to take away people's rights, Parliament must use clear language[133]. The basic human right to own property and to be immune from arbitrary dispossession of property is one generally respected by Australian lawmakers[134]. This fundamental rule attributes to the legislatures of Australia a respect for the rights of the people which those legislatures have normally observed, being themselves regularly accountable to the electors as envisaged by the Constitution[135]. In some circumstances, at least in respect of federal legislation depriving people of established property rights, the presumption to which I have referred is reinforced by constitutional imperatives[136].
Whatever may have been its character when the Constitution first came into force and this Court was first established, the Australian legal system is now race- and colour-blind. There is no reason why the long-established principle, applied in respect of other Australians, obliging that a clear and plain intention in Parliament be established to deprive people of their rights (including rights to property interests), should not inure to protect the rights of indigenous Australians. Indeed, there is no reason why, in respect of indigenous Australians, McHugh J's dictum in Marshall v Director-General, Department of Transport[137] should not be faithfully applied. His Honour there said that legislation empowering the deprivation of rights that an Australian would otherwise enjoy "should be construed with the presumption that the legislature intended the claimant to be liberally compensated". After so many legal injustices in the past, I cannot accept that presumptions such as this are available to the settlers and their descendants and successors but not to indigenous Australians.
Where the rights concern native title, they may be fragile but they are still protected against accidental, unintended, collateral or unnecessary extinction. To be extinguished, a clear purpose on the part of the legislature must be manifest[138]. The inquiry is, of course, an objective, not a subjective, one. This fundamental rule is not only a statement of the repeated authority of this Court. No other principle could, in my view, be adopted in a legal system that accords equal protection to the rights of all of the people subject to it. In Australia, this includes indigenes and descendants of, and successors to, the settlers; native title claimants under the NTA and lessees under the WLA. One of the principal purposes of the NTA was to ensure that surviving native title, still existing in 1993, should not thereafter be extinguished contrary to the provisions of that Act[139]. That statutory principle gives expression to the fundamental rule.
It follows that I do not agree with the opinion of Callinan J, that the "clear and plain intention" requirement "forms no part of our law"[140]. A lot of law would be thrown overboard by me before I would contemplate discarding a principle so central to the fundamental postulate of equality before the law of this country[141].

[186]

In the Full Court, both Black CJ and Sackville J in their joint reasons[142], and Beaumont J in his separate opinion[143], concluded that, if native title were extinguished in the present case, it was extinguished by the general law and not by force of the NTA. For the reasons given in the joint reasons in this Court, I agree that this conclusion was incorrect.
As the joint reasons in this Court explain, the answer to the legal contentions of the parties was to be found not, as such, in the common law but by starting with the provisions of Pt 2 Div 2B of the NTA[144] and its State counterpart. In summary, that Division determines the effect upon native title of certain "acts". If an "act" is a "previous exclusive possession act", all native title in relation to the land or waters covered by the act is extinguished[145]. If it is a "previous non-exclusive possession act", the native title is extinguished or suspended to the extent of any inconsistency[146].
However, such provisions of the NTA only have effect in respect of "acts" attributable to the Commonwealth. Provision is then made for the States and Territories to enact counterpart legislation, subject to conditions, in respect of previous exclusive or non-exclusive possession acts attributable to the State or Territory in question[147]. No new question was raised in these proceedings as to the constitutional validity of such provisions[148]. Obviously, the provisions are designed to overcome any suggestions that the NTA covered the field of applicable legislation and so excluded inconsistent State or repugnant Territory legislation affecting the same subject matter[149]. It was pursuant to this facility in the NTA that the State Act enacted a provision confirming the complete extinguishment of native title by previous exclusive possession acts "attributable to the State"[150]. That Act also picked up and applied to State legislation the definition of "previous exclusive possession acts" expressed in the NTA[151].
Therefore, the first question in this case is whether the Lease constitutes a "previous exclusive possession act". If it does, all native title to the area covered by the Lease is extinguished. This question could then be answered without reference to the contents of the native title claimed by Mr Anderson. Such a finding results in complete extinguishment of any such native title to that area, whatever it may be.
I agree that the answer to that question depends principally upon the meaning of the statutory expression "lease in perpetuity" under the WLA. That was the legal character of the Lease which Mr Wilson's predecessor obtained in 1955 and which was later transferred to Mr Wilson. Mr Wilson says that that character was a right of exclusive possession; that this constituted a "previous exclusive possession act"; and that it therefore extinguished all native title rights and interests in the land.
On his side, Mr Anderson argued that the separate questions should not be answered[152], in part because they were not expressed in terms of the NTA. However, if they were apt to an answer, Mr Anderson submitted that they should be answered as Black CJ and Sackville J had answered them in the Full Court. This was to the effect that it could not be said at this stage "that any native title rights, the exercise of which involved the presence on the Leased Land by the holders of the native title, were extinguished by the grant of the Lease or suspended upon the grant of the Lease for [its] duration"[153]. Black CJ and Sackville J held that Mr Wilson had failed to show that his rights under the Lease were "necessarily inconsistent with all native title rights that may exist over or in relation to the Leased Land"[154].
The focus of the inquiry is thus whether the Lease included a right of exclusive possession, as understood in the NTA. The phrase "exclusive possession" must be understood in the context of the development of the NTA. The NTA was drafted following this Court's decision in Mabo [No 2], which marked the first recognition, by the common law of Australia, of native title rights and the rejection of the doctrine of terra nullius. The NTA therefore continued the process of integrating a previously unknown right, native title, into the tenures recognised and enforced by the Australian legal system.
The phrases "exclusive possession" and "non-exclusive possession" were not included in the NTA until the amendments that followed this Court's decision in Wik[155]. That legislative change was enacted in order to clarify the effect of "acts" by or for the Crown, which conferred "exclusive possession" or "non-exclusive possession". As is evident from the terms of the NTA and made plain by the second reading speech of the federal Attorney-General, the amendments that followed Wik were substantially declaratory. The Parliament did not "go beyond what can be inferred from the decisions of the High Court as to what acts [extinguish] native title"[156]. The meaning of "exclusive possession" in the NTA should therefore be consonant with the majority decision in Wik. At least it should be so unless the terms of the NTA demand a contrary conclusion. Upon this footing, because there is no contrary purpose evident in the NTA itself, "exclusive possession" means possession exclusive of all third parties, including native title holders exercising their rights under traditional law. This conclusion is also consistent with the presumption explained above - the presumption against extinguishment in the absence of a clear and plain purpose to do so.

[187]

Analysis in the Full Court: Although the judges in the Full Court erred in considering that the issue before them was to be answered by reference to the common law rather than the NTA (and its State counterpart), that error does not affect their analysis regarding the legal character of the Lease. I would adopt the analysis of Black CJ and Sackville J regarding the issue of whether the Lease conferred a right of "exclusive possession" upon the lessee[157]. In addition, I make the following observations.
The word "lease" is insufficient: The language and scheme of Pt 2 Div 2B of the NTA is premised upon the assumption that an instrument called a "lease", as referred to in the NTA, may or may not confer a right of exclusive possession[158]. So it must be in the counterpart State Act. It follows, as the joint reasons in this Court demonstrate, that an instrument, described as a "lease" in the WLA, is not to be presumed, as such, to confer a right of exclusive possession as a lease at common law might do[159].
This conclusion answers the reliance in this case upon the kind of argument that succeeded in the New South Wales Court of Appeal in Minister for Lands and Forests v McPherson[160]. The approach that I took in that Court in that case, with the concurrence of Meagher JA[161], was not inconsistent with the conclusion that a "lease" under the Queensland Land Acts, of the kind considered in Wik, did not necessarily confer the right of exclusive possession on a lessee[162]. What was said in Wik applies with even greater force in the present case, having regard to the language and structure of the WLA, the NTA and the counterpart State Act.
The starting point for the analysis in response to this question is an appreciation of the peculiarities of a "lease" under the WLA, of the history of such a "lease", and of the reasons for upgrading its original legal description to that of a "lease in perpetuity" and a consideration of whether this latter phrase (or the other statutory incidents of the "leases" under the WLA) afforded the grantee of such a "lease" an exclusive possession right or not. In the joint reasons it is demonstrated that, in this context, the use of the word "lease" does not, of itself, confer the right of exclusive possession[163]. The legal character of what the WLA calls a "lease" must be judged in terms of that statute's legislative scheme[164].
Absence of express legislative provision: It is also clear that the WLA itself did not, in terms, afford the right to exclusive possession. Equally, the NTA does not expressly identify "leases" under the WLA as being amongst the categories of "previous exclusive possession acts". In those categories various interests of considerable variety are specified. They include a "freehold estate"[165] but they get down to interests of quite particular kinds. The latter include "an exclusive pastoral lease"[166], a "community purposes lease"[167] and even "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'"[168]. It would be hard to be more specific and particular than this.
Despite such high particularity, no express reference is made either in the NTA or in the State Act, to a "lease" under the WLA. It is not even as if the provisions of s 23B(2)(c)(i) have been enlivened under which a facility is provided for the specification of particular interests in Sched 1 of the NTA[169]. Nor has "an interest, in relation to land or waters [been] declared by a regulation for the purposes of this paragraph to be a Scheduled interest"[170]. In short, neither the NTA nor the State Act has expressly specified that "leases" under the WLA constitute "previous exclusive possession acts". This could have been done. It was not. Instead, the question was left to be decided according to whether, within s 23B(2) of the NTA and its State counterpart, the WLA "lease" constituted a "previous exclusive possession act" applying the applicable legal analysis.
Lease "in perpetuity" is insufficient: With respect, I cannot agree that the fact that the WLA was amended to describe its leases as being "in perpetuity" converted such "leases" from special statutory interests subject to forfeiture for breach of conditions, effectively, or in law, to a freehold estate. The history of the WLA[171] shows that the addition of the words "in perpetuity" represented something of a legislative sleight of hand. This was a truth that Sir Joseph Carruthers, one-time Secretary for Lands, never ceased to point out[172]. The phrase involved nothing more than the adoption of terminology designed to make it easier for grantees of "leases" under the WLA to raise finance by mortgage of the land. Yet borrowings sustained by mortgages are a common feature of a huge variety of legal interests that fall short of affording exclusive possession to land[173]. The incorporation of the additional phrase in the WLA did not alter the character of the peculiar statutory tenure in question.
It would have been relatively easy for the Parliament of New South Wales to convert the WLA "leases" to freehold land. It might have done so in 1895 when the "homestead grants" were first provided under the Crown Lands Act of that year[174]. It might have done so in 1912 when the notion of a "lease in perpetuity" was introduced[175]. It might have done so later, with a blast of political trumpets, when soldier settler legislation was enacted[176]. Instead, the basic structure of the WLA was retained. Presumably, this fact can be explained on the footing that the New South Wales Parliament continued to regard settlement of land in what became the Western Division of the State as presenting special problems of public policy. This was land with significant implications for the State's environment, for water conservation and possibly for relationships with the local Aboriginal peoples. To ensure the maintenance of a more active supervision by State authorities of WLA land than would be appropriate with respect to freehold, the New South Wales Parliament held back from converting the WLA leasehold to a grant of freehold. Instead, it continued to provide for a special kind of statutory leasehold. That statutory leasehold was subject to incidents that are not features of freehold land, or indeed of other leaseholds. Most important amongst these was forfeiture for breach of conditions of residence on, and maintenance of, the land. Yet there were other statutory peculiarities adapted to the special features of WLA land[177].
The latter included the right of the Minister, under WLA s 18, to exercise his or her powers to grant a "lease" or to modify, or add to, the terms contained in Sched A. Such modification could, in a particular case, provide that the lessee should receive by grant an interest equivalent to a mere right of occupancy[178]. To transfer land under the WLA, the lessee had to obtain the Minister's consent[179] and a large range of matters relating to the use of the land and its economy were laid down, inconsistent with freehold tenure and inconsistent with a common law lease[180]. Add to this the exceptions and reservations for entry upon the land and the power reserved to resume parcels of the land, and the similarity to the peculiar statutory tenure considered in Wik becomes overpowering.
Unique features of WLA leases: The particular characteristics of the WLA cannot, therefore, be wished away. They are as indelibly written on the "leases" granted to people such as Mr Wilson as were the features of the pastoral leases provided to the grantees in Wik.
I agree with the conclusion expressed by Black CJ and Sackville J in the Full Court[181]:

[192]

During the hearing of the special leave application, it was made clear by members of this Court that the way in which the separate questions were framed was less than perfect. They were not framed with any consideration for the operation of the NTA. It is not literally necessary for me to answer question (c) as it is prefaced by "If the answer to question (a) or question (b) is 'Yes'". However, I would make the following additional comments to outline the correct operation of the NTA in this case.
Question (c) includes whether "any native title rights the exercise of which involved the presence on the leased land by the holders of the native title [were] extinguished by the grant of the Lease [or] suspended". My conclusion relating to exclusive possession leads to the answer that native title rights were not necessarily extinguished. However, the next step is to consider whether the Lease amounted to a "previous non-exclusive possession act"[183], in which case there is extinguishment or suspension of native title rights, to the extent of any inconsistency between those rights and the rights conferred by the Lease[184].
One example of a "previous non-exclusive possession act" expressly envisaged by the NTA is a "non-exclusive pastoral lease"[185]. Pastoral leases include leases that permit the lessee to use the land "solely or primarily for … maintaining or breeding sheep, cattle or other animals"[186]. Considering that cl 4 of the Lease states that "the Lessee will not use or permit to be used the said land for any purpose other than grazing", it is likely that the Lease does fit the NTA definition of a "previous non-exclusive possession act".
That being so, the final step would be to determine the extent of the inconsistency between the Lease, so understood, and any rights claimed by Mr Anderson. It is at this stage that the inconsistency of incidents test is applied[187]. This involves a detailed examination of the legal and factual incidents of the competing interests, in order to determine the exact inconsistencies and therefore establish any extinguishment of claimed native title rights. This is what was required by Wik. It is what the NTA envisages should still be done in the case of "previous non-exclusive possession acts".
Once one reaches that conclusion, the result follows that Mr Wilson's pre-emptive strike must fail. Unfortunately for him, there is no alternative but to conduct the painstaking analysis of the facts and the law that was upheld in Wik, albeit now in the context of the questions presented by the NTA and the State Act and analysis of the WLA and the incidents of the Lease.

[277]

The question that the applicant wishes answered is whether the grant of the lease was a previous exclusive possession act which extinguished native title.
In Western Australia v Ward, I referred to the reality that in modern times exclusive possession in absolute terms has long since ceased to exist[190]. I adhere to the opinions I expressed there that the fact that timber[191] and minerals may be reserved to the lessor or others, that identified categories of persons may pass across the land for certain purposes, and that there may be special statutory provisions for vindication of a right of possession which are different from the common law right to bring an action in ejectment do not deprive a lease for pastoral purposes issued pursuant to an enactment of the character of a lease. Nor would I depart from the opinion that I formed in Ward, that the pursuit of pastoral purposes, properly understood, is incompatible with the pursuit of any other activity involving unrestricted access to or physical presence upon the land. I accept that whether an instrument is described as a "statutory lease" or a "lease" may not necessarily be decisive of the question whether the instrument has conferred a right of exclusive possession, although the use of the word "lease" should be given much weight[192]. Again, I would reject the notion that has unnecessarily complicated, and, if unchecked, will continue to complicate the resolution of claims for native title: the imputation to the parties to pastoral and other leases of an entirely artificial intention, contrary to the known facts, that native title was or was not to subsist. It is for that reason and the reasons that I also gave in Ward that the notion of a "clear and plain intention" to extinguish native title forms no part of our law, and courts should be careful to look to the legal effect of what was granted[193].
It is unnecessary for me to repeat what I said in Ward concerning the absence of a clear majority opinion in Wik (or relevantly its statutory enactment) as to the factors determinative of a lack of exclusive possession because, on any view, this case is distinguishable.
The area and location of land here in question could not be described as vast or remote, a factor which some Justices in Wik thought very significant[194]. I prefer the view of Beaumont J in the Full Court[195] that there is no principled basis on which to hold that large and remote pastoral leases do not confer exclusive possession but smaller ones supposedly nearer to more closely settled places do.
In Wik, in Pt III of the Land Act 1962 (Q), "pastoral leases" were dealt with in Div I, "stud holdings" in Div II, and "occupation licenses" in Div III. In Pt IV, "agricultural selections" were dealt with in Div II and "grazing homestead perpetual leases" were dealt with in Div IV. Similar parts had been included in the Land Act 1910 (Q). Some of the majority judges in Wik regarded these features as providing a basis for holding that a pastoral lease was a special kind of statutory interest[196]. In contrast, the State Act here contains no special part, or set of special provisions, dealing with pastoral leases to distinguish them from common law leases. All leases here, no matter what the purpose for which the land subject to them could be used, were granted in exercise of the power conferred by s 23 of the State Act.
Justices in the majority in Wik placed weight upon provisions that, in their view, obscured or blurred the distinction between various kinds of "leases" and "licences"[197]. The State Act, however, consistently distinguished between "leases" and "licenses". Thus, leases required payment of "rent"[198], while licences required payment of a licence "fee"[199].
In Wik, Gummow J[200] and Kirby J[201], and perhaps to a lesser extent Gaudron J[202], regarded as relevant the provisions of the Queensland enactments which suggested to them that the Crown enjoyed possession of the land rather than the lessee[203]. Those Queensland provisions have no analogues in the State Act. Section 255 of the Crown Lands Consolidation Act 1913 (NSW), set out below, never had application to land leased under the State Act[204]:

[283]

Two of the majority Justices in Wik[208] saw as significant the provisions in the Land Act 1910 (Q) and Land Act 1962 (Q) providing that pastoral leases vest upon the making of the grants and not - as at common law under the doctrine of interesse termini - upon entry into possession. In New South Wales, however, the State Act, as originally enacted and amended, never made a distinction of that kind between statutory pastoral leases and common law leases.
In Wik, two of the Justices in the majority suggested that the extensive reservations of rights of entry were indications that pastoral leases there did not confer a right of exclusive possession[209]. The three minority judges, Brennan CJ, Dawson and McHugh JJ, on the other hand, thought that the rights of entry were indications that a general right to exclusive possession (subject only to specified rights and reservations) was intended[210]. Toohey J, who was also in the majority, noted that the "lessee's right to possession must yield to [the] reservations". His Honour stated that, insofar as indigenous rights and interests involved entering or remaining on the land, "it [could] not be said that the lease conferred on the grantee rights to exclusive possession"[211].
With respect, I prefer the view of Brennan CJ, Dawson and McHugh JJ that the reservations do not tell against a right of exclusive possession. It has long been established that even very extensive reservations of rights of entry for official and other purposes are entirely compatible with ordinary leaseholds and also with freehold titles[212]. Nothing about pastoral leases places them in a peculiar category in this respect. In any case, the reservations in Sched A of the State Act applied to all leases granted under s 18, some of which undoubtedly conferred a right of exclusive possession.
I do not think that the fact that the lease here is a lease in perpetuity is indicative of an absence of exclusive possession in the lessee[213]. Certainly, the fact that there is no apparent right of reversion is a concept foreign to a common law notion of a lease. Nonetheless, Dixon J in Hawkins v Minister for Lands (NSW) was able to describe the reversionary interest in the Crown in relation to such a lease as "slight" and "technical"[214]. It is, moreover, not difficult to see why, in circumstances and places far removed from those of the United Kingdom, there should not be a special form of "statutory lease" adapted from a conventional lease at common law but retaining as far as possible the characteristics of such a lease, including a right of exclusive possession. A lease in perpetuity confers certain advantages on the Crown as lessor: it can enforce a greater measure of control over the land and the uses to which it may be put; it has what may be an easier or more attractive means of obtaining revenue by rent instead of by the exaction of a land tax or some other tax. It would be anomalous, in my opinion, to hold that a lessee in perpetuity should be in a worse position than a lessee for a term of years or months, and that the former could not exclude others from the land and would have what in substance would only be a grazing licence, whereas the latter would have a lease with common law incidents (subject to statutory modifications).
I have not found it necessary to decide whether the extrinsic materials relied on by the applicant should be referred to. That is because what I have said so far leads me to conclude that the lease here is distinguishable from the leases before the Court in Wik, and that it does confer a right of exclusive possession within the meaning of the Native Title Act and its State analogue[215]. For the same reason, it is unnecessary for me to deal with other points of distinction between this case and Wik and the other submissions made by the applicant.
There remains the question whether the applicant should be granted special leave to appeal. In my opinion, he should be. The case has been fully argued. Many, many thousands, possibly hundreds of thousands, of dollars of public and other money must have been spent to this point. There is sufficient material before the Court to provide substantial answers to the questions. Answers to the questions should resolve many other cases and reduce much uncertainty. I would therefore grant special leave and answer the questions as follows:

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