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Wik Peoples v Queensland
High Court of Australia
Unreported
Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
23 December 1996
Casenote by Ernst Willheim[1]
In its second substantive decision on native title issues following Mabo (No. 2),[2] the High Court has decided, by a narrow 4:3 majority, that the granting of certain pastoral leases in Queensland, the Holroyd River Holding Pastoral lease and the Mitchellton Pastoral leases, did not confer on the lessees the right to exclusive possession, and therefore did not necessarily extinguish native title.
Separate questions, whether claims of alleged breach of fiduciary duty and failure to accord natural justice could be maintained against Queensland and two mining companies, notwithstanding the enactment of authorising legislation, were unanimously answered 'No'.
In Mabo (No. 2)[3] the Court held that native title survived the Crown's acquisition of sovereignty and of radical title. Native title was, however, subject to extinguishment where sovereign power was exercised in a way inconsistent with the continuance of native title ((1992) 175 CLR at 68). The principles relating to extinguishment were expressed in general terms. Brennan J (as he then was), with whom Mason CJ and McHugh J agreed, held that native title was extinguished by the granting or renewal of a lease to the London Missionary Society ((1992)175 CLR at 71; see also at 117 per Deane and Gaudron JJ) and, assuming it was validly granted, by a lease for a sardine factory ((1992) 175 CLR at 77; cf 117 per Deane and Gaudron JJ). Brennan J (as he then was) also made broader observations to the effect that, in accordance with property law principles, when the Crown grants a lease, it acquires reversionary title equivalent to beneficial ownership ((1992) 175 CLR at 68-see below under 'Expansion of radical title'). The formal orders of the Court were stated to be in a form which would not give rise to implications affecting other land ((1992)175 CLR at 16).
Following Mabo (No. 2), the Commonwealth Parliament enacted the Native Title Act 1993. The main objects of the Act were to provide for the recognition and protection of native title, to establish a mechanism for determining claims, to establish mechanisms for future dealings affecting native title, and to validate certain past acts (s3). The Act did not deal with the effect on native title of grants of statutory interests, but the Preamble included the following recital:
'The High Court has:...
'(c) held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates' (para 7(c)).
Pastoral leases are a major form of Australian land holding. Were such leases inconsistent with native title, so as to extinguish any title? This question, left unresolved in Mabo (No. 2), was at the heart of the Wik proceedings.
The Wik Peoples (the Wik) commenced proceedings in the Federal Court in June 1993 seeking a declaration as to native title rights in relation to an area of Queensland. They also claimed damages and further equitable relief in the event that it was found that such rights had been extinguished. One of the respondents was the Thayorre People (the Thayorre). The Thayorre cross-claimed for similar declarations in respect of lands which overlapped, in part, the Wik claim. The land claimed included pastoral leases, the Holroyd River Holding Pastoral lease and the Mitchellton Pastoral leases. Central to the claims was the argument that native title rights survived the granting of these pastoral leases-in effect, the applicants argued that native title co-existed with the interests of the lessees. Following enactment of the Native Title Act 1993 (Cth), the Wik also applied for a determination under that Act.
In January 1996, Drummond J gave judgment on five preliminary questions formulated for the purposes of the Federal Court proceedings.[4] Considering himself bound by the majority judgment of the Full Federal Court in North Ganalanja Aboriginal Corporation v Queensland ('the Waanyi Case') ,[5] he held that the granting of each of the pastoral leases conferred on the lessee 'rights to exclusive possession, and that thereby the grant of each lease necessarily extinguished all incidents of Aboriginal title'.[6] Drummond J did not decide whether the evidence would otherwise have been sufficient to make out native title. In March 1996, the Wik and Thayorre were granted leave to appeal to the Full Court of the Federal Court. In April 1996, the High Court granted an application for removal to that Court.
The case came before the High Court in the form of a series of questions. These were framed in narrow terms. It was agreed that the Court should confine its attention to the particular leases in question (per Toohey J at 49, per Kirby J at 189). Answering those questions, the Court held, by majority (Toohey, Gaudron, McHugh and Kirby JJ, each writing a separate, lengthy, judgment), that the pastoral leases did not confer rights to exclusive possession. Therefore the grant of the pastoral leases did not necessarily extinguish all incidents of native title. Brennan CJ wrote a powerful dissenting judgment, in which Dawson and McHugh JJ concurred.
The case attracted much public attention. Victoria, Western Australia, South Australia and the Northern Territory intervened on behalf of the respondents, as did the Commonwealth and interests representing pastoralists. ATSIC, a number of Aboriginal Land Councils and Aboriginal Corporations and other Aboriginal people intervened on behalf of the appellants. Thirty-six counsel appeared. No party sought to re-open the basic principles of Mabo (No. 2).
The respondents argued that the pastoral leases, granted under the Land Act 1910 (Qld) and the Land Act 1962 (Qld), were true leases and conferred rights of exclusive possession inconsistent with the continued existence of native title, thus giving rise to extinguishment. The appellants argued that the leases were not true leases, did not confer rights of exclusive possession but conferred merely rights to use land for pastoral purposes, that these rights were not necessarily inconsistent with native title rights, and therefore native title was not necessarily extinguished. The appellants also argued, in the alternative, that native title was merely suspended during the terms of the leases and revived on expiry or forfeiture of the leases. The respondents argued that, upon grant of a pastoral lease, the Crown acquired the interest in the reversion and its radical title was converted to full beneficial ownership.
The pastoral lease question turned in large part on the construction of the legislation under which the leases were granted, the Land Act 1910 (Qld) ('the 1910 Act'), the Land Act 1962 (Qld) ('the 1962 Act'), and the terms of the grants. Each lease covered a very large area, Holroyd 1,119 square miles (2,830 square kilometres), Mitchellton 535 square miles (1,385 square kilometres). The first Mitchellton lease was granted under the 1910 Act for 'pastoral purposes only', subject to reservations for access for searching for gold and minerals and the right of any person to go upon the land for survey. Originally granted in 1915, the lessee never took possession. A new lease was granted in 1919 but surrendered in 1921. In 1922 the land was reserved for the use of Aborigines. The 1910 Act included a prohibition on ringbarking, cutting and destruction of trees (s198), and provision for the issue of licences to persons to enter any pastoral holding to cut, get and remove timber, stone, gravel, clay, guano, or other material (s199). Section 205 allowed for depasture of stock being driven on a stock route or road passing through a pastoral holding. The first Holroyd lease, granted under the 1962 Act, was expressed to be 'for pastoral purposes only'. This was surrendered. A new lease was granted upon condition that the lessees carry out and maintain a number of improvements. While this lease was not specifically expressed to be 'for pastoral purposes only', no other activity was authorised (the lease was granted as a 'pastoral holding'). Each of the leases was granted in the form the Crown 'Do hereby ... Demise and Lease' the land in question.
That native title is subject to extinguishment was not in dispute. Toohey J referred to the question he had raised in Mabo (No. 2), whether the power to extinguish was exercisable only with the consent of the titleholders or was exercisable unilaterally ((1992) [1992] HCA 23; 175 CLR 1 at 195), but appeared to accept the majority view, repeated in Western Australia v The Commonwealth ((1995) [1995] HCA 47; 183 CLR 373 at 422), that native title can be extinguished by an act that is inconsistent with the continued right of Aborigines to enjoy native title (at 72). Brennan CJ said that, in relation to pastoral leases, the question was not whether the Governor intended to extinguish native title, but whether the right conferred by the leases (which he, in dissent, held to be the right to exclusive possession) was inconsistent with the continued right of the holders of native title to enjoy that title (at 26; see also per Gummow J at 128).
The majority judgments focused on the rights conferred by the legislation and the lease. Native title is extinguished to the extent that the rights of the lessee are necessarily inconsistent with native title rights. Although the tests for inconsistency are formulated in different ways, there is clear indication in each of the judgments that inconsistency will not readily be found.
Toohey J referred to Macfarlane JA in the leading Canadian case Delgamuukw v British Columbia[7] that one must be satisfied that the intended consequence was that the two interests 'could not possibly co-exist'. As Toohey J then put it, 'If the two can co-exist, no question of implicit extinguishment arises' (at 75). Toohey J said inconsistency can only be determined by identifying what native title rights are asserted in relation to the land contained in pastoral leases. It is necessary to focus specifically on the traditions, customs and practices of the particular Aboriginal group claiming the right, and to measure those rights against the rights conferred on the grantees of pastoral leases. To the extent of any inconsistency, the latter prevail (at 75).
Gummow J said it is necessary to show, at least, the intention manifestly and plainly to achieve that result (at 128). 'Intention' does not refer to any particular state of mind. What is involved is the intention manifested by the legislation (at 128). The question is whether the existing right cannot be exercised without abrogating the statutory right. If it cannot then, by necessary implication, the statute extinguishes the existing right (at 148). The authorisation by the 1910 and 1962 Acts of activities amounting to physical inconsistency with the continued exercise of what are now accepted as existing rights of native title would manifest, as a matter of necessary implication, the legislative intention to impair or extinguish those rights (at 149). Impairment or extinguishment would also follow if the 1910 or 1962 Acts prohibited acts in the exercise of native title (at 149). Later in his judgment, he held there was no 'clear, plain and distinct authorisation of acts necessarily inconsistent with all species of native title which might have existed' (at 168).
Brennan CJ said native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature, or by the act of the executive in exercise of powers conferred on it. Such laws may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of parcels of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title (at 24). A State or Territory law made or executive act done since the Racial Discrimination Act 1975 (Cth) came into force cannot effect an extinguishment of native title if the law or executive act would not effect the extinguishment of a title acquired otherwise than as native title (at 25).
In relation to his third category, Brennan CJ said the Crown, without statutory authority, may have acquired beneficial ownership simply by appropriating land in which no interest has been alienated by the Crown (in the case of a State or Territory, before the Racial Discrimination Act came into force). Appropriation gives rise to the Crown's beneficial ownership only when the land is actually used for some purpose inconsistent with the continued enjoyment of native title-for example, by building a school or laying a pipeline. A mere reservation of the land for the intended purpose, which does not create third party rights over the land, does not alter the legal interests in the land but the Crown's exercise of its sovereign power to use unalienated land for its own purposes extinguishes, partially or wholly, native title interests in or over the land used (at 26). Although Brennan CJ was in dissent on the pastoral lease issue, these observations are likely to be cited and closely scrutinised in relation to future native title claims. On the basis, as he found, that the pastoral leases conferred a right to exclusive possession, Brennan CJ found also that inconsistency arises because the rights of the lessee and the rights of the holders of native title cannot be fully exercised at the same time (at 27,28).
The case came to the High Court for determination of questions of law prior to the taking of evidence and any determination as to the existence of native title. A number of members of the Court commented on the artificiality of the process (per Toohey J at 76, 81; per Gummow J at 129). Toohey J said that at one end of the spectrum native title rights may approach the rights flowing from full ownership at common law. On the other hand, there may be an entitlement to come on to land for ceremonial purposes. Gummow J noted that the content of native title, its nature and incidents, will vary from one case to another. It may comprise personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the other opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate. The content is to be ascertained by evidence (at 129).
In light of comments in the case, judges at first instance in native title litigation may well be reluctant to determine questions of law, particularly questions relating to extinguishment, as preliminary questions prior to determining the existence and content of native title. Otherwise, the majority judgments throw little new light on the content of native title. (Brennan CJ at 24 expanded a little on Mabo [No. 21.)
Each of the majority justices analysed the role of pastoral leases in Australian land law, the historical setting, and the relevance of traditional principles of English property law in light of the applicable statutory provisions. The majority considered pastoral leases to be creatures of statute, sui generis•(per Toohey J at 59, 63; per Gaudron J at 104,108; per Gummow J at 163; per Kirby J at 198).
Toohey J traced the history of disposition of waste lands. While the Royal Prerogative was initially the source of grants of land in Australia (at 54), management and disposal of Crown land was subsequently brought under statutory control (at 55) (see also per Gaudron J at 92-93; per Gummow J at 134). The legislation reflected a regime designed to meet a situation unknown to England, namely the occupation of large tracts of land unsuitable for residential but suitable for pastoral purposes (at 56-57, 80). Gaudron J similarly noted that pastoral leases were granted for vast areas, remote from settled areas (at 102, 110). The regime diverged significantly from that which had been inherited from England. It resulted in new forms of tenure (at 55, 57). These points were emphasised also by Gummow J (at 135, 138). It is necessary to look at the relevant statutory provisions rather than simply apply feudal notions of tenure (at 58). Pastoral leases are a creature of statute, and the rights and obligations that accompany them derive from statute (at 59). The leases granted under the 1910 Act were expressed to be for 'pastoral purposes only'. The rights of the lessee were to be determined accordingly (at 61).
Toohey, Gaudron and Kirby JJ each cited various contemporary documents, for example, a despatch from Earl Grey, Secretary of State for the Colonies, to the Governor of New South Wales, that pastoral leases 'are not intended to deprive the Natives of their former right to hunt over these Districts' (per Toohey J at 67; per Gaudron J at 94-95; per Kirby J at 199).
Toohey J referred to the 'almost constant concern' expressed by authorities in England 'that the grant of pastoral leases should not be used to prevent Aboriginals from using the land for subsistence purposes' (at 67). Similar concerns were expressed in Australia.
Kirby J referred to historical materials which lie said demonstrated that it was known that there were substantial numbers of Aborigines using the land, comprised in the pastoral leases, according to their traditional ways. It was not government policy to drive them into the sea, nor to confine them strictly to reserves (at 219). It was not 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 Aborigines from the land (at 220).
Gummow J referred to the difficulty in construing statutes enacted at a time when the existing state of the law was perceived to be the opposite of that which it has, since then, been held to be (at 147).
At the forefront of the case for the respondents was the argument that an essential feature of a lease is that it confers exclusive possession on the lessee.
Each of the majority Justices found that the leases did not confer a right to exclusive possession. Brennan CJ (dissenting) found they did confer such a right.
There was general agreement that the question whether a pastoral lease conferred a right to exclusive possession is to be determined by reference to the lease and the legislation under which it was granted, not by reference to what the parties called the instrument (per Brennan CJ at 13-14; per Toohey J at 54, 64; per Gaudron J at 107). Pastoral leases are a creature of Australian statute (per Toohey J at 59, 63; per Gaudron J at 104, 106, 108; per Gummow J at 163; per Kirby J at 198), not of common law concepts. The majority Justices, building on the historical setting, emphasised the need to apply the Australian legislation, rather than simply apply feudal notions of tenure or common law principles relating to leases (per Toohey J at 58, 63).
Addressing the question whether a pastoral lease confers exclusive possession, Toohey J rejected the respondents' argument that exclusive possession is an essential element of a lease. To pose the issue that way is to focus unduly on leasehold interests as known to the common law, and to give insufficient recognition to the fact that the pastoral lease is a creature of statute (at 63). Rights and obligations of a person holding an interest under the relevant legislation are not disposed of by nomenclature (at 64). Pastoral leases do not confer exclusive possession on the grantees especially in the sense of excluding all holders of native title rights (at 70, 81). Toohey J cited with approval description by Windeyer J of a New South Wales mining lease as 'really a sale by the Crown of minerals reserved to the Crown to be taken by the lessee at a price payable over a period of years as royalties'.[8] The passage has implications for the question whether a New South Wales mining lease extinguishes native title.
Against this background, Toohey J found that a pastoral lease granted to the lessee possession for pastoral purposes. But nothing in the statute which authorised the lease, or in the lease itself, conferred rights to exclusive possession, in particular possession exclusive of all rights and interests of the Indigenous inhabitants whose occupation derived from their traditional title (at 70). The continuation of native title is consistent with the disposition of land through pastoral leases.
Gaudron J said there is no very secure basis for thinking that the pastoral leases owed anything to common law concepts (at 108). They were a novel concept, and there was nothing to suggest that a right of exclusive possession was a necessary or convenient feature (at 108). Moreover, the vastness of the areas and their inevitable remoteness militated against any intention that they should confer a right of exclusive possession entitling pastoralists to drive away native title holders. The argument for exclusive possession was stronger in relation to the 1962 Act, but clear words were required before that Act could be construed as changing the essential nature of the pastoral leases (at 124).
Gummow J also emphasised the statutory nature of the rights created by a pastoral lease. The ordinary meaning of the phrase 'for the purpose of pasture' is the feeding of cattle or other livestock upon the land in question. The phrase 'for pastoral purposes' would include the feeding of cattle or other livestock upon the land, but it may well be broader, and encompass activities pursued in the occupation of cattle or other livestock farming. Even upon this broader interpretation, it cannot be said that there have been clearly, plainly and distinctly authorised activities and enjoyment of the land necessarily inconsistent with the continued existence of any of the incidents of native title which could have been subsisting at the time of the grants of the pastoral leases (Gummow J at 166).
Kirby J said the leasehold interests were of such a character and limited intensity as to make it far from impossible for the Aborigines to continue to utilise the land in accordance with their native title (at 223). He left open the possibility that, in particular cases, and in particular places, native title rights, in their operation, are inconsistent with rights under pastoral leases. This is a matter for evidence (at 224).
Key features of the statutory regime referred to by the majority Justices as distinguishing pastoral leases from leases at common law were:
(i) provisions conferring rights on authorised persons to enter upon the land the subject of a pastoral lease, to remove timber, stone, gravel, clay, guano or other material;
(ii) provisions denying the lessee the right to ringbark, cut or destroy trees and denying the lessee the power to restrict authorised persons from cutting or removing timber;
(iii) provisions authorising others to depasture stock if a stock route or road passed through;
(iv) reservations in the leases of the right of authorised persons to go upon the land for any purpose whatsoever, or to make any survey, inspection or examination (per Toohey J at 50, 70, 80; per Gaudron J at 91, 103-104, 109-110, 122; per Gummow J at 165; per Kirby J at 201). Conferral of such extensive rights on third parties was considered to be inconsistent with the submission that the lease conferred rights of exclusive possession upon the lessee. Brennan CJ (dissenting) considered that these reservations, far from implying that the lease did not confer a right to exclusive possession, implied that, without the reservations, the lessee would have been entitled to refuse entry to any person (at 11). They were statutory exceptions to rights the lessee would otherwise have had (at 12);
(v) the provision in s6(2) of the 1910 Act that the making of a grant operated to vest the interest granted whereas at common law the interest would have vested only upon entry into possession (per Toohey J at 80; per Gaudron J at 109-110; per Gummow J at 163).
Kirby J also relied on s6(2) to reject a submission for the Thayorre that, as the successive lessees of the Mitchellton Holding never went into possession, the estates never vested in possession, with the result that the Crown never acquired a reversion expectant which was the postulate for the expansion of the Crown's radical title to the plenum dominium that was said to extinguish native title (at 215). Under the 1910 Act, execution of the lease alone was sufficient (at 216). Brennan CJ and Toohey J also held, on the basis of s6(2), that execution of the lease was sufficient to vest the grant (per Brennan CJ at 23; per Toohey J at 79-80). The Thayorre argument may, however, be open in relation to any leases, particularly leases in other States, not governed by a provision such as s6(2).
Brennan CJ, dissenting, gave weight to the use of terms that had acquired a technical legal meaning (to demise, lease, vest estate or interest, surrender, etc: at 14-15). The use of the language of lease indicated agreement to give the right of exclusive possession, being the leading characteristic of a leasehold estate (at 17, 20). His reasons relied on traditional property law authorities, the relevance and application of which was rejected by the majority.
The respondents argued the facts were irrelevant. The issue was to be decided on legal principles, not factual evidence regarding land use. Kirby J traced in some detail the circumstances relating to the leases. Each was in a remote area. In relation to the Mitchellton leases, these lasted for only a short period. The Thayorre asserted that they never left their ancestral land. There being no entry by the lessees, they would have had no reason even to be aware of the grant of pastoral leases. The position of the Holroyd River Holding was not so extreme, but it seemed to Kirby J a reasonable inference that traditional Aboriginal life would have been little disturbed by the grant of that lease (at 204). Kirby J considered the facts showed how Aboriginal law and tradition could readily survive in such an environment because of the very limited contact inherent in these pastoral leases. They were 'a far cry from the situation in settled and occupied areas of Australia where the extinguishment of native title has a practical and necessary quality sustaining a legal determination of extinguishment by reference to the legal characteristics of common law or residential leases' (at 205). Clearly this analysis provides no support for argument that suburban backyards are now at risk.
He rejected, however, an argument that whether native title had been extinguished would depend in each case not on the legal instruments but on the evidence (at 208-210). He held that the question is not whether Indigenous people have in fact been expelled from traditional lands, but whether those making claims to such lands had the legal right to exclude them. The search is one which is directed at the legal rights conferred on a landholder. Legal title and its incidents should be ascertainable before the rights conferred are actually exercised, and indeed whether they are exercised or not (at 210). Later in his judgment, however, he noted that the ascertainment of native title rights is a matter for evidence (at 224). Brennan CJ (dissenting) expressed the same view: the question of extinguishment of native title by a grant of inconsistent rights is-and must be-resolved as a matter of law, not of fact (at 9, 27).
Evidence is not, however, irrelevant. It is necessary to distinguish between the relevance of facts/evidence to the ascertainment of the rights of the lessee, and the relevance of facts/evidence to the ascertainment of native title rights. The legal interests of the lessee are to be defined by the instrument of the lease and the legislation under which it was granted. Native title is to be established by evidence. Because the issues came before the Court in the form of abstract questions of law, whether the granting of the leases necessarily extinguished native title, the Court inevitably focussed on the legislation and the terms of the grant. It may be, however, that the general proposition, that native title is extinguished by the grant of inconsistent rights, irrespective of their exercise, does not necessarily mean that the conduct of the lessee is in all circumstances irrelevant. Two members of the majority, Gaudron and Gummow JJ, suggested that compliance by the lessee with certain conditions, such as the construction of an airstrip and dams, would as a matter of fact exclude enjoyment of native title (Gaudron J at 124, Gummow J at 168, cf also Toohey J at 83). (Semble, the right to construct the airstrip or dam does not constitute a right to exclusive possession, but actual construction is inconsistent with native title.) The distinction between the grant of a right and compliance with a condition, if followed by other members of the Court, is likely to give rise to difficulty. Importantly, questions of extinguishment necessarily involve identification of the relevant native title rights. That, it was accepted, is a matter for evidence (per Toohey J at 75-76; per Gaudron J at 125; per Kirby J at 224).
Queensland also relied on ss203 and 204 of the 1910 Act (and the corresponding provisions in ss372(1) and 373(1) of the 1962 Act) as evincing exclusive possession. Section 203 provided that any person found occupying any Crown land not lawfully claiming under a lease or licence was liable to a penalty not exceeding twenty pounds.
In Mabo [No. 2], Brennan J[9] (Mason CJ and McHugh J agreeing) and Deane and Gaudron JJ[10] construed the predecessor of s203, s91 of the Crown Lands Alienation Act 1876 (Qld), as not directed at Indigenous inhabitants occupying land under native title because they were not included in the class of persons at whom s91 was directed. 'To construe s91 ... as applying to the Meriam people ... would be truly barbarian' ((1992) 175 CLR at 114). This construction was followed (Toohey J at 60, 69, Gaudron J at 101, Gummow J at 155).
Section 204 provided a remedy in respect of unlawful occupation. Gaudron J said once it was accepted that s203 did not render Aboriginal people trespassers on their own land, it followed that s204 did not, of itself, render them trespassers on a pastoral lease (at 101).
Gummow J said the section did not render Indigenous inhabitants relying upon their native title liable to removal, either because s203 did not apply or because 'unlawful' was to be construed as meaning without any bona fide claim of right (at 158).
The respondents relied strongly on the following passage in the judgment of Brennan J in Mabo [No. 2]:
'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 ((1992) [1992] HCA 23; 175 CLR 1 at 68).
If adopted and applied, this proposition would have been fatal to the native title claim.
The majority judges each rejected this approach. Toohey J said that to speak, in relation to the position of the Crown under the relevant statutes, of a reversion expectant on the expiry of a lease as expanding the Crown's radical title to a plenum dominium was to apply the concept of reversion to an unintended end. The Crown was able to deal with the land as authorised by statute. Under the statutes, once a pastoral lease came to an end, the land answered the description of 'Crown land' and could be dealt with accordingly (at 60, 77-78).
Gaudron J said a reversionary interest only arises on the vesting of a leasehold estate. As the grant of a pastoral lease did not confer a right to exclude native title holders and thus did not confer a right of exclusive possession, the leases were not true leases in the traditional common law sense, and thus did not operate to vest a leasehold estate. It followed that there was no basis for the contention that on the grant of the lease the Crown acquired a reversionary interest, and its radical title was thereby expanded to full beneficial ownership (at 111). Moreover, the effect of the provision in s135 for a statutory reversion upon forfeiture was to assimilate the previously alienated land to land in respect of which the Crown had radical title, and not to land in respect of which it had beneficial ownership (at 112). Section 299 of the 1962 Act, which applied to the Holroyd lease, had a different provision pointing to a reversion extending beyond radical title (at 123).
Gummow J said the argument broke down when applied to the statutory schemes for the disposition of Crown lands established by the 1910 and 1962 Acts (at 151). He referred to statutory provisions, originally enacted in 1867 and repeated in successive statutes, for the Governor in Council to grant in fee simple or demise for a term of years any Crown land. These provisions displaced the prerogatives of the Crown: thereafter, all land in Queensland was to be dealt with pursuant to statute (at 151-152). In respect of leases, there was no need for the creation in the Crown of a reversionary estate out of which lesser estates might then be granted. Rather, when the lease expired, it again answered the statutory definition of Crown land (s4(c)), and was liable to be further dealt with by the Crown. Reference was also made to a statutory provision that if the lease is determined by forfeiture the land is to revert and become Crown land. Whilst entry was necessary to create a common law reversion, the statute vested the land without the need for prior entry. Further, at common law, entry was necessary to create the estate in reversion. However, the 1910 Act operated without the creation of what at common law would be regarded as a reversionary estate (at 164). The statute used the expression in s135 'shall revert to His Majesty and become Crown land' in respect of determination of a lease before expiry of the term. Under the common law, determination would not ordinarily be described as bringing about a reversion (at 165).
Kirby J noted that the actual orders made in Mabo (No. 2) excluded the land the subject of the two leases. Therefore, the effect of the grant of leasehold interests upon native title was not authoritatively decided (at 196). The passage in the reasons of Brennan J cited above was not part of the binding rule established by Mabo (No. 2) (at 196). Kirby preferred the analysis of Lee J in the Waanyi Case to that of Hill J (Jenkinson J concurring).
Kirby J also distinguished the passage from Brennan J in Mabo (No. 2). In that passage, Brennan J implied that it was not the grant of the lease which had the effect of expanding the Crown's title 'from the mere radical title' to a 'plenum dominium', but the acquisition of the reversion expectant on the expiry of the leasehold term. This required legal analysis of the consequences of the exercise of sovereign rights in respect of each dealing in land. Thus, a Crown grant of land in trust or dedication of land for public purposes was also an exercise by the Crown of its rights as a sovereign, but was not regarded by Brennan J as sufficient to extinguish native title (at 207). The key objection, for Kirby J, was that Mabo (No. 2) made it clear that not all estates and interests in land could be explained by reference to the English legal doctrine of tenure derived ultimately from the sovereign. A different source of title had now to be accommodated by the recognition of native title as a burden on the Crown's radical title. Something more was needed to remove that burden, and to extinguish native title, than a mere exercise by the Crown of rights of dominium in respect of that land.
Later in his judgment, Kirby J was more critical: ‘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 lease 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 (at 218). And towards the end of his judgment: The suggestion that it was necessary and inherent in the special Queensland legislation creating the uniquely Australian property interest of a pastoral lease to import the paraphernalia of English feudal leasehold notions has been rejected' (at 224).
One of the most significant features of Wik is the rejection, by the majority, of the application of traditional land law concepts.
Toohey J in effect rejected analysis based on English property law relating to leases (at 58, 59, 63). Thus at one point in his judgment, he emphasised that the rights and obligations were not to be disposed of by nomenclature (at 64). Later he said '[t]hat a concept of feudal tenure brought to Australia but subjected to change through a complex system of rights and obligations adapted to the physical, social and economic conditions of the new colony, in particular the disposition of large areas of land (often unsurveyed) for a limited time for a limited purpose, should determine the fate of the indigenous people is a conclusion not lightly to be reached' (70).
Gummow J noted that to meet local conditions, including vast areas of unoccupied lands, colonial statutes created new forms of tenure not known to the common law. The terms 'lease' and 'licence' were applied in a generic sense (at 134-135). The issue in the case did not concern the extinguishment of native title by grant of a fee simple or a leasehold interest as known to the common law. Rather, the statutory grants of pastoral leases were sui generis (at 138).
Brennan CJ, in dissent, adhered to the view that the common law system of land law, including the interlocking doctrines of tenure and estates, applied in Australia (at 30-31). Exercise of the statutory power of alienation of an estate brought land within the regime governed by the doctrines of tenure and estates. Native title existed only in respect of unalienated and unappropriated land (at 32-33). Under the 1910 Act, on the issue of a pastoral lease, the reversion was held by the Crown (at 33). Central to this analysis is the view that grant of a lease is more than an exercise of statutory or sovereign power: by reason of applicable principles of land law, the grant is an act of alienation.
Gaudron J held that the question whether pastoral leases conferred a right of exclusive possession was concluded in favour of the continued existence of native title rights by application of the rule of construction identified in Mabo (No. 2), that general legislation with respect to waste lands or Crown land 'is not to be construed, in the absence of clear and unambiguous words, as intended to apply in a way which will extinguish or diminish rights under common law native title'.[11] This was simply a manifestation of the general rule which requires that clear and unambiguous words would be used before there will be imputed to the legislature an intention to expropriate or extinguish valuable rights relating to property without fair compensation (at 111, citing Mabo (No. 2) [1992] HCA 23; (1992) 175 CLR 1 at 111; see also at 124). Gummow J referred to the burden borne by a party seeking to establish the extinguishment of subsisting rights not by express legislative provision but by necessary implication (at 148).
Kirby J also emphasised that there is a strong presumption that a statute is not intended to extinguish native title. This is a species of a general proposition: the presumption that Parliament would not normally take away the rights of individuals or groups, without clearly stating such a purpose (at 221-222; see also at 224).
These principles will of course be relevant in applying Wik to legislation in the other States and the Territories.
Toohey J, the only member of the Court in Mabo (No. 2) to hold that the power of the Crown to extinguish native title gave rise to a fiduciary relationship ((1992)175 CLR at 203), considered it unnecessary to pursue this aspect (at 71), as did Gaudron J (at 112, 125). Gummow J assumed, adversely to the Wik Peoples and the Thayorre People, that there was no fiduciary relationship between them and the State of Queensland (at 128).
Brennan CJ rejected the application of a fiduciary relationship, holding that the sovereign power of alienation was antipathetic to the safeguarding of the holders of native title-Parliament imposed no guidelines to be observed in its exercise (at 22). The imposition on the repository of a statutory power of a fiduciary duty to individuals who will be adversely affected by the exercise of the power would preclude its exercise (at 38). Canadian and United States authorities were distinguished, for example the Canadian legislation considered in Guerin v R [12] imposed on the Crown the duty to act 'on the band's behalf'.[13] The power of alienation conferred by the 1910 Act was inherently inconsistent with the notion that it should be exercised as agent for or on behalf of the Indigenous inhabitants of the land to be alienated (at 38).
Only Kirby J gave scope to the possibility of a contrary view, referring to 'the duty which the Crown owed, in honour, to native people who were under the Crown's protection' (at 222, citing Guerin v R[14] and Toohey J in Mabo (No. 2)).
The appellants also challenged the validity of Special Bauxite Mining Leases which had been granted by Queensland to two mining companies under the authority of Queensland legislation. The challenge failed, the Court holding, unanimously, that because the relevant leases and associated agreements were authorised by legislation, the claims of failure to accord natural justice or to perform a fiduciary duty could not be made out (per Kirby J at 226-236; Toohey, Gaudron and Gummow JJ concurring at 80,86,130; per Brennan CJ at 40-43).
The decision does not mean that the Wik and Thayorre have established native title. Their claims will now go back to the Federal Court for determination. In that determination, the granting of the pastoral leases will not, however, be a necessary obstacle.
In so far as pastoral leases are concerned, the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it (per Toohey J at 82, Gaudron, Gummow and Kirby JJ concurring).
More generally, in the words of Kirby J, '[T]he holders of pastoral leases are left with precisely the legal rights which they enjoyed pursuant to the leases granted under the Land Acts "for pastoral purposes only" '(at 225). Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If there be inconsistency between native title rights and rights conferred under the statutory grants, the rights under the statutory grants will prevail, to the extent of the inconsistency (per Toohey J at 83; Gaudron, Gummow and Kirby JJ concurring; see also per Kirby J at 225). Co-existence of rights under pastoral leases and native title is possible because of the peculiarity of the legal rights conferred by such statutory leases, in the factual setting in which they were intended to operate.
Traditional land law concepts based on feudal tenure will have limited relevance. Unless leases clearly confer a right to exclusive possession, they will not automatically extinguish native title.
Also, that co-existence is not possible in relation to fee simple has been confirmed (per Toohey J at 74; per Gaudron J at 87; per Gummow J at 137; per Kirby J at 225).
Whether native title is extinguished by other leasehold interests in Queensland and by pastoral and other leasehold interests elsewhere in Australia will need to be resolved on a case by case basis.
The decision does not cast doubt on the validity of leases granted prior to the commencement of the Native Title Act 1993 (Cth). In relation to leases granted after the commencement of the Native Title Act, the 'future act' provisions apply. If leases over areas of land in respect of which native title has not been extinguished have been granted otherwise than in accordance with those provisions, questions of validity will arise.
[1] This casenote is submitted in a personal capacity. It does not purport to reflect the views of the Commonwealth Attorney-General’s Department or of the Commonwealth Government.
[2] . (1992)175 CLR 1. In Western Australia v The Commonwealth ((1995) [1995] HCA 47; 183 CLR 373), the Court upheld the validity of the Native Title Act 1993 (Cth), other than s12. Note also North Ganalanja Aboriginal Corporation v Queensland ((1996) 135 ALR 225), which was decided on primarily procedural issues, the High Court deciding, by majority, that it was premature to determine the correctness of the Federal Court's decision on the pastoral lease question.
[3] (1992)175 CLR 1.
[4] Wik Peoples v State of Queensland (1996)134 ALR 637.
[5] (1995)132 ALR 565.
[6] (1996) 134 ALR 637, at 666, 669.
[7] (1993) 104 DLR (4th) 470 at 525.
[8] Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28; (1969) 121 CLR 177 at 192.
[9] (1992)175 CLR 1 at 66.
[10] (1992)175 CLR 1 at 114.
[11] (1992)175 CLR 1 at 111.
[13] (1985)13 DLR (4th) 321 at 334, 310.
[14] (1984)2 SCR 335 at 376.
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