Wik Peoples and Thayorre People v. Queensland & others

(1996) 187 CLR 1
71 ALJR 173
141 ALR 129

(Judgment by: Toohey)

Wik Peoples, Thayorre Peoples v. State of Queensland, Commonwealth of Australia, Aboriginal & Islander Affairs Corporation, Comalco Aluminium LTD, Aluminium Pechiney Holdings PTY LTD, Council of the Shire of Aurukun, Napranum Aboriginal Council, Pormparaaw Aboriginal Council, Eddie Holroyd, Cameron Clive & Doreen Ruth Quartermaine, Merluna Cattle Station PTY LTD, John Bock, Aboriginal & Torres Strait Islander Commission, Reefdeen PTY LTD, Richard John & John Richard Price, Richard Matthew Price, Geoffrey John Guest & Robert John Fraser, Myles Kenneth & Debra Ann Gostelow, Thayorre People, Wik People


Judges: Brennan CJ

Kirby JJ

Subject References:
Native Title-Grant of pastoral leases pursuant to Land Act 1910 (Q) and Land Act 1962 (Q)
History of pastoral tenures and disposal of Crown land considered
Whether leases conferred rights to exclusive possession
Application of principles of statutory construction
Whether legislative intention to confer possession to exclusion of holders of native title rights
Rights and obligations of pastoral lessees determined by reference to the language of the statute authorising the grant and terms of the grant
Grant for "pastoral purposes only"
Whether grant of pastoral lease necessarily extinguished all incidents of Aboriginal title
Whether clear and plain intention to extinguish exists
Inconsistency of native title rights and rights conferred on pastoral lessees
Whether grant or exercise of the rights may operate to extinguish
Whether reversion to the Crown
Whether reversion inconsistent with continued existence of native title rights
Effect of non-entry into possession of lease
Native title - State legislation authorising making of agreement
Agreement to have statutory force
Agreement providing for the grant of mining leases
Statutory construction
Whether challenge to validity of agreement contrary to plain intention of the legislation
Whether relief available for alleged breaches in execution of agreement

Other References:
Land Act 1910 (Q).
Land Act 1962 (Q).
Aurukun Associates Agreement Act 1975 (Q).
Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Q).

Hearing date: 11-13 JUNE 1996
Judgment date: 23 DECEMBER 1996


Judgment by:


These proceedings, which were removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth), have their origin in an action brought by the Wik Peoples in the Federal Court of Australia. That action was initiated before the coming into operation of the Native Title Act 1993 (Cth). The catalyst for the action was the decision of this Court in Mabo v. Queensland [No 2] [F152] .

The proceedings in the Federal Court were described by Drummond J in the following terms [F153] :

"The action was brought by the Wik Peoples, an Aboriginal clan or group, for a declaration that it has certain native title rights over a large area of land in North Queensland. They also claim damages and other relief, if it be found that their native title rights have been extinguished. One of the respondents is the Thayorre People, another Aboriginal clan or group, who have cross-claimed for a similar declaration in respect of lands that, in part, overlap those the subject of the Wik Peoples' claim."

However, by the time of his Honour's judgment the Wik Peoples had included an alternative claim under the Native Title Act though that claim is not the subject of the judgment or of this appeal. Although his Honour speaks of "native title rights" [F154] , that is not precisely the language of the relevant pleadings. Paragraph 8 of the statement of claim in its amended form filed on behalf of the Wik Peoples asserts that "The Wik peoples and their predecessors in title are and have always been the holders of Aboriginal title in ... the claimed land". "Aboriginal title" is defined in par 1 of the statement of claim as meaning

"title to land arising by virtue of Aboriginal tradition and recognised by the common law of Australia and has the same meaning as 'native title' as defined in the Native Title Act, 1993 (CTH)".

"Native title" and "native title rights and interests" have a common definition in s 223 of the Native Title Act. Each expression means

"the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
the rights and interests are recognised by the common law of Australia."

The significance of the definition for the appeal by the Wik Peoples lies largely in a system of "rights and interests" to which the definition adverts. This will become clearer as these reasons progress.

The cross-claim of the Thayorre People also uses the language of "aboriginal title". Their statement of claim does not define that title quite in the way that the pleading of the Wik Peoples does; rather it describes the expression by reference to their and their predecessors' occupation and use of the land claimed and their connection with it

"in accordance with a system of rights, duties and interests exercised, acknowledged and enjoyed by Thayorre individuals, families, clans and groups in accordance with their traditional laws and customs".

Nevertheless, they claim title by reason of "a system of rights, duties and interests". Again, the significance of this formulation will emerge later in these reasons.

Accordingly, references in the judgment of Drummond J to native title rights must be understood in light of the pleadings, as must the use of the expression in these reasons.

The land claimed by the Wik Peoples and the Thayorre People ("the appellants") includes land over which pastoral leases were granted by the Crown. The former claim encompasses land the subject of the Holroyd River Holding lease ("the Holroyd lease"). The Mitchellton pastoral leases ("the Mitchellton leases") were granted over land within the area of claim by the Thayorre People and also by the Wik Peoples. Central to the claims was the argument that native title rights had survived the granting of these pastoral leases. Save in one respect, which is discussed later in these reasons under the heading "Non-entry into possession", no attack was made by the appellants on the efficacy of the pastoral leases. In effect the Wik Peoples and the Thayorre People each argued for native title or aboriginal title, "co-existing" with the interests of the lessees. In the event of an inconsistency between rights exercisable by a lessee and rights exercisable by the holders of native or aboriginal title, the appellants accepted that the former would prevail. While accepting the language of extinguishment, the appellants were disposed to argue in terms of restrictions on the enforceability of their rights.

On 29 January 1996 Drummond J gave judgment on five preliminary questions which had been identified for the purposes of the proceedings in the Federal Court [F155] . In the course of those answers, his Honour held that each of the leases in question conferred on the lessee "rights to exclusive possession" of the land and that thereby the grant of each lease "necessarily extinguish[ed] all incidents of Aboriginal title ... in respect of the land demised under the pastoral lease". This is a considerable over-simplification of Drummond J's judgment but it will suffice at this stage in order to show how the matters come before this Court [F156] . It should be noted, however, that his Honour did not decide whether the appellants are the holders of native title rights in respect of the leased land. That matter was not explored and is shut out by his Honour's answers to the questions. The result is to clothe the principal questions with a certain unreality.

Drummond J also answered questions bearing on claims by the appellants against the State of Queensland, Comalco Aluminium Ltd, and Aluminium Pechiney Holdings Pty Ltd [F157] . By those claims the Wik Peoples challenged the validity of Special Bauxite Mining Leases which had been granted by the State to mining companies under the authority of Queensland legislation.

On 22 March 1996 Spender J granted the appellants leave to appeal to the Full Court of the Federal Court against the judgment of Drummond J. Leave was necessary because his Honour's judgment was interlocutory and did not dispose finally of the proceedings. Notices of motion were filed in the Federal Court seeking removal of both matters to the High Court. An order to that effect was made on 15 April.

An amended notice of appeal filed in this Court on 28 May excised any challenge to the answer given by Drummond J to the first question asked of him, namely, whether the power of the Queensland Parliament at the time of its establishment and thereafter was subject to a limitation that prevented it from enacting laws providing for the grant of pastoral leases that do not preserve native title rights. His Honour answered that question adversely to the appellants.

In its present form the notice of appeal is primarily a challenge to the conclusion of Drummond J that the grant of the Holroyd lease and the Mitchellton leases in each case extinguished any native title rights in the land. When the hearing began in this Court, leave to intervene was granted to State and Territory governments and others. However, the Court made it clear that it proposed to deal only with the particular questions raised by the notice of appeal, questions which related specifically to the Holroyd and Mitchellton leases.

His Honour's approach to the significance of the pastoral leases in question, dictated as he considered by the majority judgment of the Full Court of the Federal Court in North Ganalanja Aboriginal Corp v. Queensland [F158] , was in the following terms [F159] :

"I regard the majority decision as binding authority that the executive act of granting a pastoral lease under Crown lands legislation that does not differ materially from the Land Act 1902 will extinguish any native title rights that existed in respect of the Crown land the subject of the lease, provided the lease confers a right to exclusive possession for other than a short period on the lessee and also provided the lease does not contain a reservation sufficient to preserve those native title rights."

The conclusion reached by the Full Court in North Ganalanjawas that the 1904 pastoral lease under consideration in that case necessarily extinguished any native title rights that may have existed in the land leased, for the reason that the lease conferred a right of exclusive possession on the lessee. This right of exclusive possession, though limited in time to the duration of the lease, was held sufficient to extinguish all native title rights. Drummond J observed [F160] :

"I also regard the majority decision as authority binding on me that a lease will confer a right to exclusive possession sufficient to have that extinguishing effect, notwithstanding the fact that the lessee's interest is fettered by conditions and statutory limitations of the kind to which the 1904 lease was subject and notwithstanding that the grant is expressed to be 'for pastoral purposes only', as was the 1904 lease".

Nevertheless, his Honour qualified this approach, at least to the extent of recognising that there may be a question of degree involved in determining whether a pastoral lease does extinguish native title rights where a short term is involved. He referred also to the extent of any restrictions imposed by the lease and the statute pursuant to which it was granted as matters relevant to the issue whether

"the particular lease truly does confer a right of exclusive possession or at least a right of possession sufficiently exclusive to extinguish native title" [F161] .

The Holroyd River Holding lease

The story of the Holroyd lease begins with Instrument of Lease No 4652, dated 8 February 1945. It is titled "Lease of Pastoral Holding under Part III, Division 1 of 'The Land Acts, 1910 to 1943'" [F162] . The lease is expressed to be for "pastoral purposes only". The lessee is identified as Marie Stuart Perkins and the term of the lease is 30 years from 1 October 1944 at a yearly rent. The area leased is 1,119 square miles. Reference is made in the instrument to a notification dated 8 June 1944

"declaring the said land open for Pastoral Lease, and to all other rights, powers, privileges, terms, conditions, provisions, exceptions, restrictions, reservations, and provisoes referred to, contained, or prescribed in and by the said Acts [F163] , 'The Mining on Private Land Acts,1909to1929,' and The Petroleum Acts,1923to1939,' or any Regulations made or which may hereafter be made under the aforesaid Acts or any of them".

The lease also contains reservations of minerals and petroleum and rights of access for the purpose of searching for and obtaining them. It concludes:

"AND WE DO FURTHER RESERVE the right of any person duly authorised in that behalf by the Governor of Our said State in Council at all times to go upon the said Land, or any part thereof, for any purpose whatsoever, or to make any survey, inspection, or examination of the same".

On 20 December 1972 the then lessees, John Herbert Broinowski, John Darling, James Maurice Gordon and Ross Farm Pty Limited, applied under s 155 of The Land Acts1962 to 1967 for the grant of a new lease of the holding. The application contains a description of the land by the lessees: natural waters only; bloodwood, ironwood, stringy bark, ti-tree, messmate, ironstone ridges with some melon-hole country, some spear grass with some kangaroo, purely breeding country; approximately one beast to 60 acres; country suitable for cattle breeding only; no improvements; no accommodation.

There followed correspondence between the Land Administration Commission and the lessees, as a result of which the subsisting lease was surrendered so that a new lease might issue. The new lease, which is the current lease, is Instrument of Lease No 4652, dated 27 March 1975. It is titled "Lease of Pastoral Holding under Part VI, Division 1, of the Land Act 1962-1974". It is not expressed to be for "pastoral purposes only". It identifies the former lessees as the new lessees. It is for a term of 30 years from 1 January 1974 at a yearly rent. It is expressed to be subject to statutory and other reservations similar to those contained in the earlier lease. It is granted upon condition that within five years from the commencement of the lease the lessees carry out a number of improvements by way of buildings, an airstrip, internal fencing, dams, a set of main yards and dip; sow 100 acres at least as a seed production area; and "Enclose the holding with a good and substantial fence". The lessees are further required "during the whole term of the lease [to] maintain all improvements".

In his judgment Drummond J said [F164] :

"The question [F165] focuses solely on the current lease and ignores the earlier lease because the current lease is no doubt considered to be typical of a number of leases granted over lands in the area of the applicants' claim not previously leased."

His Honour concluded [F166] :

"This lease is subject to substantially less onerous restrictions than was the 1904 lease considered in the North Ganalanja case ... There is no ground for holding that this lease is so different in any material respect from the 1904 lease that it should not be held ... to confer on the lessee the right to exclusive possession of the area of the lease. It follows that, upon the grant of this lease, any native title rights the applicants held in respect of those lands were extinguished, unless the lease contained a reservation sufficient to preserve those rights to the applicants."

Nevertheless, reference is made in these reasons from time to time to the earlier lease.

The Mitchellton Pastoral Holding leases

These leases were granted over lands within the area of claim by the Thayorre People.

The story of this leasehold begins with Instrument of Lease No 2464, dated 25 May 1915. It is titled "Lease of Pastoral Holding under Part III, Division 1 of 'The Land Act of 1910'". The lessees were Alfred Joseph Smith, Thomas Alexander Simpson and Marshall Hanley Woodhouse. It is expressed to be for "pastoral purposes only". The term of the lease is 30 years from 1 April 1915 at a yearly rent. The area leased is 535 square miles. The lease has reservations which are similar to, though not identical with, the reservations in the Holroyd lease. There is no reservation of petroleum; the Petroleum Act had not then been enacted.

The lessees never took possession of the holding. On 20 July 1918 the lease was forfeited, "the lessees having failed to pay the annual rent due". Shortly thereafter the Mitchellton area was declared open for pastoral lease.

Instrument of Lease No 2464, dated 14 February 1919, was also granted under Pt III Div 1 of The Land Act 1910 (Q). It was of the same land as the 1915 lease. The lessee was Walter Sydney Hood. The lease is expressed to be for "pastoral purposes only". It was for a term of 30 years from 1 January 1919. The lease was subject to reservations under The Mining on Private Land Act 1909 (Q) and The Petroleum Act 1915 (Q). Like the previous lease, it concluded with a reservation, concerning the right of entry by authorised persons, in the general terms noted in the Holroyd lease.

On 9 September 1919 Mr Hood transferred his interest as lessee to The Byrimine Pastoral Properties Limited. On 12 October 1921 the company surrendered the lease pursuant to s 122 of The Land Act 1910. On 8 July 1921 the Chief Protector of Aboriginals had written to the Under Secretary, Home Secretary's Department, Brisbane, noting that the Chief Protector's Office had not been consulted at the time of the lease in 1919 and that "there are about 300 natives roaming on this country, and when the company starts operations the natives will doubtless be hunted off". The Chief Protector noted that there was a suggestion that the lease might be allowed to lapse. In that event, he said, "I would strongly urge that, before allowing anyone else to obtain possession, this Department be first consulted as regards the need for reserving the area for native purposes". On 12 January 1922, an Order in Council reserved the land, the subject of the former leases, for the use of Aboriginal inhabitants of Queensland. The reservation of the land did not extinguish any native title rights then in existence [F167] .

Speaking of the Mitchellton leases, Drummond J said [F168] :

" The lease considered in th e North Ganalanja case, supra, and those granted under the Land Act 1910 confer substantially the same rights on the lessee and subject him to substantially the same restrictions: the 1904 lease was subject to a more restrictive limitation than the Mitchellton Pastoral Leases in that it was subject to a condition reserving to the Crown unrestricted right to resume land for reserves without compensation (save for improvements)."

His Honour then went on to say (as he had said in the case of the Holroyd lease) that each of the leases issued under the 1910 legislation was subject to a less burdensome range of limitations and restrictions than the lease considered in North Ganalanja. He concluded [F169] :

"It therefore follows that each of these leases should be held to confer the right to the exclusive possession of the leased area on the lessees. The grant of the first of the Mitchellton Pastoral Leases must therefore be taken to have extinguished any native title rights the Thayorre People may previously have enjoyed with respect to the leased lands."

Pastoral leases: general observations

At the heart of the argument in the present case - that the grant of each pastoral lease extinguished native title rights - is the proposition that such a grant conferred exclusive possession of the land on the grantee, and that entitlement to exclusive possession is inconsistent with the continuance of native title rights.

Expressed with that generality, the proposition tends to conceal the nuances that are involved. The first step is to consider whether the relevant grants did in truth confer possession of the land on the grantees to the exclusion of all others including the holders of native title rights. That question is not answered by reference only to general concepts of what is involved in a grant of leasehold. The language of the statute authorising the grant and the terms of the grant are all-important. The second step is to determine whether, if such a grant did confer exclusive possession, native title rights were necessarily extinguished. This second step has within it two elements. The first looks at inconsistency, that is, whether and to what extent native title rights are inconsistent with the exclusive possession which the grant of a pastoral lease is said to carry. The second asks whether native title rights are thereby truly extinguished or whether they are simply unenforceable while exclusive possession vests in the holder of the pastoral lease. Because of the answers I propose to the questions asked, this second element does not arise for consideration.

The grant of the pastoral leases with which these appeals are concerned did not take place in an historical vacuum. It reflected the history of land grants in Queensland. That history cannot be understood without some reference to what had taken place in New South Wales of which Queensland earlier formed part.

Pastoral leases: an historical survey

[F170] When the Australian colonies were first established there was no doubt as to the power of the Crown with respect to the disposition of waste lands. The Royal Prerogative was initially the source of grants of land in Australia [F171] . The situation was explained by Windeyer J in Randwick Corporation v. Rutledgein these terms [F172] :

"The early Governors had express powers under their commissions to make grants of land. ... The colonial Act, 6 Wm IV No 16 (1836), recited ... that the Governors ... had authority 'to grant and dispose of the waste lands' ... And when in 1847 a bold argument, which then had a political flavour, challenged the right of the Crown, that was to say of the Home Government, to dispose of land in the colony, it was as a legal proposition firmly and finally disposed of by Sir Alfred Stephen CJ:The Attorney-General v. Brown".

Attorney General v. Brown [F173] was not followed in Mabo [No 2]but its historical role remains.

The need for statutory regulation was brought about by movements in New South Wales in the late 1820s to occupy large areas of land to depasture stock. The "squatters" moved on to land to which they had no title. The land was unsurveyed, their activities were uncontrolled. And of course they had no security. The colonial authorities met the movement of squatters with a system of occupation licences. The Crown Lands unauthorized Occupation Act 1839 (NSW) [F174] established a Border Police force

"for the mutual protection and security of all persons lawfully occupying or being upon Crown Lands beyond the limits allotted for location".

The Act made it unlawful to occupy Crown lands beyond the limits of location without a valid lease or license; it imposed a penalty for unauthorised occupation. The protective reference to persons "being upon Crown Lands" was clearly wide enough to include Aborigines.

It was in 1842 that the management and disposal of Crown land was first brought under statutory control with the enactment of the Sale of Waste Lands Act 1842 (Imp) [F175] . "The year 1846 saw the first step taken along a road which led to the subsequent invention of a multitude of Australian tenures of new types." [F176] In that year the Sale of Waste Lands Act Amendment Act 1846 (Imp) [F177] authorised the making of Orders in Council. An Order in Council was issued in 1847 in respect of New South Wales. This made it lawful for the Governor to grant leases of land in unsettled districts for any term not exceeding 14 years for pastoral purposes. Dr Fry has described this Order in Council as having a two-fold significance in the New South Wales of the day.

"It brought to an end the policy of concentration of settlement, which was to have been achieved by the Crown refusing to alienate the fee simple of, or to lease, any land outside 'the nineteen counties' around Sydney or outside small areas around Hobart, Melbourne and Brisbane. It also introduced a system of Crown leasehold tenures which led to the whole of Australia being transformed in subsequent decades into a patchwork quilt of freeholdings, Crown leaseholdings, and Crown 'reserves'." [F178]

Less than a decade later the English authorities, through the New South Wales Constitution Act 1855 (Imp), surrendered their control over Crown lands. Thereafter, the entire management and disposal of Crown lands was vested in the New South Wales legislature.

It is against this background that one goes to the situation in what later became the State of Queensland. By Proclamation dated 10 February 1842 [F179] the District of Moreton Bay ceased to be a penal settlement. Pursuant to the provisions of the Crown Lands unauthorized Occupation Acts of 1839-1841, a Commissioner of Crown Lands was appointed for the Moreton Bay District. Other Districts were proclaimed as settlement expanded in the move to open up new land for pastoral purposes.

In June 1859 Queensland became a separate colony. The laws of New South Wales, including laws regulating the "sale, letting, disposal and occupation" of waste lands, remained in force until repealed or varied by the legislature of the new colony. By Order in Council of 6 June 1859 the Queensland legislature was empowered to make laws with respect to waste lands. By s 30 of the Constitution Act 1867 (Q), "it shall be lawful for the Legislature of this colony to make laws for regulating the sale letting disposal and occupation of the waste lands of the Crown within the said colony". Section 40 vested the "entire management and control of the waste lands belonging to the Crown in the said Colony of Queensland ... in the Legislature of the said colony". The local legislature adopted the form of pastoral lease tenure which had evolved in New South Wales. Many statutes were passed between 1860 and 1962 which provided for or affected pastoral leases. It is unnecessary to detail them; it suffices to say they reflected a regime designed to meet a situation that was unknown to England, namely, the occupation of large tracts of land unsuitable for residential but suitable for pastoral purposes. Not surprisingly the regime diverged significantly from that which had been inherited from England. It resulted in "new forms of tenure" [F180] . Regard must be had to the extraordinary complexity of tenures in Australia, perhaps most of all in Queensland. This can be seen most readily in the writings of Dr Fry.

While Australia inherited the English law of tenure, it must be remembered that the system of tenures had by then undergone much change. In 1788 socage and copyhold were the only lay tenures recognised by English law and frankalmoin was the only spiritual tenure. Frankalmoin was then obsolescent; it was never specified in any Australian grant. No land has been held here on copyhold tenure. Socage is the only form of tenure that, for practical if not theoretical purposes, has existed in this country.

As early as 1905 the authors of what became the standard real property text for New South Wales had written [F181] :

"The law of real property now in force here, and the law on the same subject in force in England, present more numerous and more striking differences and divergences than are found in any other branch of equal importance. ... The English law of real property ... has ... received a strong impress of feudalism ... It was therefore natural that this medieval growth, when transplanted to new and uncongenial soil, should soon begin to wither in its weakest branches - that is to say, in the principles which derived the least support from public utility and convenience, and presented the most striking departures from modern notions of reason and justice."

What is important about this history of legislation, both in New South Wales and Queensland, is that it is essentially the story of the relationship between the Crown and those who wished to take up land for pastoral purposes. It reflects the desire of pastoralists for some form of security of title and the clear intention of the Crown that the pastoralists should not acquire the freehold of large areas of land, the future use of which could not be readily foreseen.

Writing in 1946-1947, Dr Fry commented [F182] :

"A century of subsequent legislation by the various legislatures of Australia has developed a new system of land tenures in the various Australian States and Territories, so that it is now possible to say, with a very high degree of accuracy, that the constitutional supremacy of Australian Parliaments and the Crown over all Australian lands, as much as the feudal doctrines of the Common Law, is the origin of most of the incidents attached to Australian land tenures."

Of course Dr Fry was not writing with the principles enunciated in Mabo [No 2] in mind. His starting point was clear: "Rights in respect of any land in Australia must therefore be derived either directly or indirectly from the Crown, or not at all." [F183] Mabo [No 2] has shown his starting point to be too narrow. What is important for present purposes is Dr Fry's focus on legislation rather than feudal doctrine in order to identify the incidents of tenure. This reinforces the need to look at the relevant statutory provisions, rather than simply apply feudal notions of tenure without considering their place in the statutory scheme. Thus in R v. Toohey; Ex parte Meneling Station Pty Ltd, where the question was whether a grazing licence under the Crown Lands Act 1931 (NT) conferred an "estate or interest" in the land within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), Mason J said [F184] :

"The grazing licence is the creature of statute forming part of a special statutory regime governing Crown land. It has to be characterized in the light of the relevant statutory provisions without attaching too much significance to similarities which it may have with the creation of particular interests by the common law owner of land."

These comments apply with particular force to Queensland where, at least at the time Dr Fry was writing, there were approximately 70 different kinds of Crown leasehold and Crown perpetual leasehold tenures. To approach the matter by reference to legislation is not to turn one's back on centuries of history nor is it to impugn basic principles of property law. Rather, it is to recognise historical development, the changes in law over centuries and the need for property law to accommodate the very different situation in this country.

Pastoral leases lie in the grant of the Crown. They are the creature of statute and the rights and obligations that accompany them derive from statute. In light of this, it is pertinent to turn to the legislation pursuant to which the leases the subject of these appeals were granted.

The Land Act 1910

The grants in question were of course of Crown land. The first Holroyd lease and both Mitchellton leases were granted pursuant to and subject to the conditions and provisos of Pt III Div I of the Land Act 1910 (Q).

The 1910 Act is described in its long title as

"An Act to Consolidate and Amend the Law relating to the Occupation, Leasing, and Alienation of Crown Land."

Section 6(1) empowers the Governor in Council, in the name of His Majesty, to "grant in fee-simple, or demise for a term of years, any Crown land within Queensland". "Crown Land" is defined [F185] as

"All land in Queensland, except land which is, for the time being -

Lawfully granted or contracted to be granted in fee-simple by the Crown; or
Reserved for or dedicated to public purposes; or
Subject to any lease or license lawfully granted by the Crown: Provided that land held under an occupation license shall be deemed to be Crown land".

Part III of the Act deals with Pastoral Tenures. The term pastoral tenures is wider than pastoral leases since it includes occupation licenses granted under Pt III [F186] . Division I of Pt III prescribes the machinery whereby Crown land may be declared open for pastoral lease for a term not exceeding 30 years and competing applications dealt with. When the term of any lease exceeds 10 years, the term is to be divided into periods, the last period to be of such duration as to permit the other period or periods to be of 10 years duration [F187] . Division 1 contains other provisions relating to the computation of rent. Subject to what is said in the general provisions of the Act, little more appears as to the rights and obligations attaching to pastoral leases.

Division II of Pt III deals with occupation licenses. Section 45 empowers the Minister to declare Crown land to be open for occupation under occupation license. A yearly rent is payable. Each license expires on 31 December of the year in which it is granted but is renewable from year to year [F188] . While Pt III makes specific provision for pastoral leases and occupation licenses in respect of term and rent, other parts of the Act apply equally to both.

There are two other sections of the 1910 Act which should be noted because of the attention paid to them (or their counterparts in later legislation) in argument. The first is s 135 which reads:

"If the license or lease of any land is determined by forfeiture or other cause before the expiration of the period or term for which it was granted, then, unless in any particular case other provision is made in that behalf by this Act, the land shall revert to His Majesty and become Crown land, and may be dealt with under this Act accordingly."

This section has relevance to the concepts of radical title and reversion to the Crown which are discussed later in these reasons.

The other provision is s 203 which reads:

"Any person, not lawfully claiming under a subsisting lease or license or otherwise under any Act relating to the occupation of Crown land, who is found occupying any Crown land or any reserve, or is found residing or erecting any hut or building or depasturing stock thereon, or clearing, digging up, enclosing, or cultivating any part thereof, shall be liable to a penalty not exceeding twenty pounds."

This provision was relied upon by the respondents as evidencing the exclusive possession of a pastoral lessee. I shall return to s 203 when dealing with that question.

As already noted, the leases granted under the 1910 Act [F189] were expressed to be for "pastoral purposes only". "Pastoral purposes" is not defined in the Act nor are the grants of lease specific as to what the expression entails. Clearly it includes the raising of livestock. It also includes things incidental thereto such as establishing fences, yards, bores, mills and accommodation for those engaged in relevant activities. But the use to which the land may be put is circumscribed by the expression "pastoral purposes only"; the rights of the lessee are to be determined accordingly.

The Land Act 1962

The second Holroyd lease, the one on which Drummond J focused, was granted in pursuance of Pt VI Div 1 of the Land Act 1962-1974.

The 1962 Act is described in its long title as

"An Act to Consolidate and Amend the Law relating to the Alienation, Leasing and Occupation of Crown Land."

With some transposition of words, the long titles of the 1910 and 1962 Acts are the same. The definition of "Crown land" in the 1962 Act is the same as that in the 1910 Act. The power to make grants and leases is virtually the same. In the 1962 Act s 6(1) empowers the Governor in Council, in the name of Her Majesty, to "grant in fee-simple, or demise for a term of years or in perpetuity, or deal otherwise with any Crown land within Queensland".

Part III of the 1962 Act deals with Pastoral Tenures which it identifies as pastoral leases, stud holdings (not found in the 1910 Act) and occupation licenses. Occupation licenses are dealt with similarly in both Acts. Part III Div 1 of the 1962 Act prescribes the machinery whereby Crown land may be declared open for pastoral lease. Section 49(1) identifies

"the following classes of tenure, namely:-

pastoral holding; or
pastoral development holding; or
preferential pastoral holding".

These classes of pastoral lease are not defined. But s 49(1) provides that land may be declared open for pastoral lease under pastoral development holding "only where the cost of developing the land will be abnormally high, and where developmental conditions are imposed calculated to improve the carrying capacity and productivity of the land and to develop the public estate". A preferential pastoral holding carries an obligation of personal residence if the notification so provided [F190] .

Mention is made earlier in these reasons of the improvements and development specified in the second Holroyd lease which is a pastoral holding. While the lease is not expressed to be for pastoral purposes only, no other activity is authorised. The term of such a pastoral lease is to be determined by the Minister and may not exceed 30 years [F191] .

By force of s 4(2), all leases granted under repealed Acts and subsisting at the commencement of the 1962 Act "shall be deemed to have been granted or issued under the provisions of this Act relating to the tenure or class or mode of a class of tenure hereunder which is analogous thereto".

Before leaving this survey of the 1962 Act, two provisions should be mentioned. In dealing with the 1910 Act mention was made of s 135 which provided that on the determination of a lease before the expiration of the term, the land reverted to His Majesty and became Crown land. That provision has its counterpart in s 299(1) of the 1962 Act with, however, an additional requirement that the person in occupation give peaceful possession to the Land Commissioner, "otherwise such person shall be a trespasser upon Crown land" [F192] .

The other provision was s 203 of the 1910 Act relating to persons on Crown land, "not lawfully claiming under a subsisting lease or license or otherwise under any Act relating to the occupation of Crown land". It has its counterpart in s 372 of the 1962 Act.

Leases: exclusive possession

The 1910 Act and the 1962 Act say little as to the rights conferred by a pastoral lease. What of the lease itself? In each of the leases with which this appeal is concerned, the Crown "DO HEREBY ... DEMISE AND LEASE" the land in question.

At the forefront of the respondents' case was the argument that an essential feature of a lease is that it confers exclusive possession on the lessee. In their submission, it followed that the instruments, being pastoral leases, conferred on the lessees exclusive possession of the land. To pose the issue in 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. Accordingly, the rights it confers and the obligations it imposes must be determined by reference to the applicable statutory provisions. That is not to say that reference to leasehold interests at common law does not aid an understanding of these rights and obligations. But it must not be allowed to obscure the particular nature of a pastoral lease under the relevant legislation. And it must not divert attention from the basic question whether the grant of a pastoral lease was so inconsistent with the existence of native title rights that those rights must be regarded as having been extinguished. With those observations in mind, I turn to a consideration of leasehold interests.

The headnote to Radaich v. Smith [F193] reads:

" In determining whether an instrument creates a lease as opposed to a licence, the decisive factor in favour of a lease is whether the right which the instrument confers is one to the exclusive possession of the premises for a term."

Put that way, the point is not so much that a "lease" confers exclusive possession; it is that the conferring of exclusive possession is an indication that the arrangement in question is a lease rather than, say, a licence [F194] .

Radaich v. Smithand many other cases in which the character of a lease has been considered were decided in the context of commercial transactions, often entered into against the background of legislation that controlled rents and evictions. The factual background had generally been a written contract, described as a licence in order to avoid the operation of legislation. It is in this context that the following passage from the judgment of Windeyer J must be considered [F195] :

"What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given alegal right of exclusive possessionof the land for a term or from year to year or for a life or lives."

The particular context in which emphasis has been placed on exclusive possession is further illustrated by Street v. Mountford, where the question was whether an agreement gave rise to a tenancy protected under the Rent Acts(UK). Lord Templeman, with whom the other Law Lords agreed, "gratefully adopt[ed] the logic and the language of Windeyer J" [F196] for the purposes of determining whether as a result of an agreement relating to residential accommodation the occupier was a lodger or a tenant. Neither Windeyer J nor Lord Templeman was speaking in a context which throws light on the position of a "lessee" whose rights depend on statute. It is a mistake to apply what is said in these passages to the present appeals unless it accords with the relevant statute and has regard to the presence on the land of the indigenous people.

The inconclusiveness for the present context of descriptive terms such as lease and licence is illustrated by O'Keefe v. Malonewhich concerned licences granted under the Crown Lands Act 1889 (NSW). Lord Davey, delivering the advice of the Privy Council, spoke of the need to examine the rights actually conferred on the grantee and said [F197] :

"An exclusive and transferable licence to occupy land for a defined period is not distinguishable from a demise, and in the legislative language of the Land Acts the words 'leased,' 'lease,' and 'lessee,' are frequently used as words of a generic import, including lands held under occupation licence, or the licence or the holder thereof."

The point is that the rights and obligations of a person holding an interest under the legislation involved in the present appeals are not disposed of by nomenclature. A closer examination is required. The looseness of terminology in this area is further illustrated by the term "mining lease" which, as used in the Mining Act 1906 (NSW), was described by Windeyer J in Wade v. New South Wales Rutile Mining Co Pty Ltd [F198] 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" [F199] .

Likewise, the question has arisen whether an arrangement described as a lease may fall short of the grant of a right of exclusive possession. It arose in Goldsworthy Mining Ltd v. Federal Commissioner of Taxation [F200] with respect to a dredging lease of an area of sea-bed issued under the Land Act 1933 (WA). The respondent in that case argued that reservations in favour of the Crown and others by way of access for navigation, and the reservation of all minerals and petroleum showed that there was no right of exclusive possession in the appellant. Mason J rejected the argument, holding in effect that the reservations were explicable by reason of the relationship of the sea-bed to the navigable channel which it underlay. Indeed, his Honour thought that the very existence of access reservations assumed a right of exclusive possession. It is clear that Mason J found such a right in the terms of the overall arrangement, not simply in the use of the expression "demises and leases". A similar approach may be found in Glenwood Lumber Company v. Phillipswhere the Privy Council said [F201] :

"If the effect of the instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations or to a restriction of the purposes for which it may be used, it is in law a demise of the land itself."

The instrument in question was a licence of land for the purpose of cutting timber, granted pursuant to a Newfoundland statute.

Certainly, the authorities point to exclusive possession as a normal incident of a lease. They do not exclude, however, an inquiry whether exclusive possession is in truth an incident of every arrangement which bears the title of lease. Furthermore, those authorities, which are directed to commercial transactions between individual persons or corporations, are not concerned whether something that is underpinned by common law recognition, namely, native title rights, are excluded by the grant by the Crown of what is described as a pastoral lease over land to which those rights attach.

There is a passage in the judgment of Brennan J in American Dairy Queen (Q'ld) Pty Ltd v. Blue Rio Pty Ltd [F202] which may seem to tell against some of the considerations just mentioned. His Honour said of a lease by a trustee of land reserved under The Land Act 1962-1981 (Q):

"By adopting the terminology of leasehold interests, the Parliament must be taken to have intended that the interests of a lessee, transferee, mortgagee or sublessee are those of a lessee, transferee, mortgagee or sublessee at common law, modified by the relevant provisions of the Act."

These remarks were made in a particular context, namely, whether a sublessee of the land could assign its interest at common law. The further sublease proposed was an entirely commercial transaction. It did not involve the title of the Crown. There is no comparison with the situation in the present appeals. Furthermore, examination of how pastoral leases came about in Queensland and the more basic question of tenures under Queensland law shows that his Honour's observation cannot be transposed so as to throw light on the position of native title rights. The same may be said of the observation of Mason J in the same case [F203] that the rule that courts will construe a statute in accordance with common law principles "applies to the principles of the common law governing the creation and disposition of rights of property".

Pastoral leases: exclusive possession?

It is not surprising that the terminology of pastoral leases was employed by the legislature. And it is important to bear in mind that although the second Holroyd lease was granted in 1975 (the Mitchellton leases in 1915 and 1919), the regime under which all the leases were granted was established before the turn of the century and was itself part of the historical development of the colony. The regime is best understood by seeing what had preceded it, as outlined earlier in these reasons.

It is apparent from a despatch from Sir George Gipps, transmitting the Crown Lands unauthorized Occupation Act to the Secretary of State that one of its aims was "for the purpose of putting a stop to the atrocities which have been committed both on them [the natives] and by them" [F204] . Furthermore, under the Regulations made pursuant to that Act a licence could be cancelled if the licensee was convicted "of any malicious injury committed upon or against any aboriginal native or other persons". The whole tenor of these provisions indicates a contemplation that Aborigines would be upon licensed lands.

The thrust of contemporary documents, in particular communications by the Secretary of State, Earl Grey, to the Governor of New South Wales make it clear that Aborigines were not to be excluded from land under pastoral occupation [F205] . In the first of these two despatches, Earl Grey wrote of pastoral occupation:

"I think it essential that it should be generally understood that leases granted for this purpose give the grantees only an exclusive right of pasturage for their cattle, and of cultivating such Land as they may require within the large limits thus assigned to them, but that these Leases are not intended to deprive the Natives of their former right to hunt over these Districts, or to wander over them in search of subsistence, in the manner to which they have been heretofore accustomed, from the spontaneous produce of the soil except over land actually cultivated [or] fenced in for that purpose."

In the second, Earl Grey repeated his earlier view that the intention was "to give only the exclusive right of pasturage in the runs, not the exclusive occupation of the Land, as against Natives using it for the ordinary purposes".

The Queensland legislation aimed at giving pastoralists some security of tenure in regard to their pastoral activities. The authorities in England expressed almost constant concern that the grant of pastoral leases should not be used to prevent Aborigines from using the land for subsistence purposes. And a similar concern was expressed within Australia. Thus in his 1900 Annual Report the Northern Protector of Aboriginals, Walter Roth, warned against the dispossession of blacks from their hunting-grounds and sources of water supply "by their lands being rented for grazing rights at a nominal figure". He added:

"Carrying the present practice (might against right) to a logical conclusion, it would simply mean that, were all the land in the north to be thus leased, all the blacks would be hunted into the sea." [F206]

The Protector repeated his forebodings in his report of 1903 [F207] .

Against this background, it is unlikely that the intention of the legislature in authorising the grant of pastoral leases was to confer possession on the lessees to the exclusion of Aboriginal people even for their traditional rights of hunting and gathering. Nevertheless, "intention" in this context is not a reference to the state of mind of the Crown or of the Crown's officers who, for instance, made a grant of land. What is to be ascertained is the operation of the statute and the "intention" to be discerned from it [F208] .

Some reference should be made to the authorities upon which the respondents relied. In Macdonald v. Tullythe Full Court of the Supreme Court of Queensland said of a plaintiff who had paid rent to the Crown and occupied and stocked Crown lands under The Tenders for Crown Lands Act 24 Vic No 12 (Q), though no formal lease had been granted to him [F209] :

"This right of the plaintiff to occupy was, in our opinion, capable of being maintained against any disturber, whether assuming to disturb in virtue of an alleged lease or otherwise."

But, despite the generality of the statement, it is clear that the Court was directing its attention to the position of third parties in the conventional sense, not to Aborigines whose traditional land might fall within the lease. The same may be said of the observation of the Full Court in Wildash v. Brosnan [F210] that a pastoral lessee had an "exclusive right to the land".

Reference was made earlier in these reasons to s 203 of the 1910 Act and its counterpart, s 372 of the 1962 Act. The respondents contended that the effect of the provision was to render a trespasser any person occupying Crown land who was "not lawfully claiming under a subsisting lease or license". This was said to include Aborigines. The answer to this contention was given by Brennan J in Mabo [No 2]when dealing with s 91 of the Crown Lands Alienation Act 1876 (Q), the predecessor of this provision. His Honour said [F211] :

"To construe s 91 or similar provisions as applying to the Meriam people in occupation of the Murray Islands would be truly barbarian. Such provisions should be construed as being directed to those who were or are in occupation under colour of a Crown grant or without any colour of right; they are not directed to indigenous inhabitants who were or are in occupation of land by right of their unextinguished native title."

In the course of argument reference was made to the decision of this Court in Yandama Pastoral Co v. Mundi Mundi Pastoral Co Ltd [F212] as pointing to exclusivity of possession on the part of a holder of a pastoral lease. But this was a case in which one pastoral company, relying on certain statutory provisions, claimed the right to take travelling stock across the land comprised in a pastoral lease held by another pastoral company. The judgments turned on the language of the statutory provisions. There was however a strong dissent from Isaacs J who thought it astonishing to hear it argued [F213]

"that - while in the very act of liberalizing the conditions of pastoral settlement in the more distant parts of the State on virgin land ... the Legislature of South Australia had deliberately adopted the suicidal and inconsistent policy of making the passage of healthy travelling stock, not only always more difficult than it already was, but in a vast number of cases impossible".

His Honour's judgment is lengthy, involving a detailed consideration of the history of pastoral leases in South Australia. It is apparent that his view of the statutory provisions was influenced by that history which he regarded [F214] as establishing that "the right of owners of travelling stock to pass- a right more or less regulated, but basically a right - over Crown lands, including lands let by the Crown for pasturage, ispart of the constant and traditional policy and law of South Australia".

While the appellants may find some support for their argument in the dissenting judgment of Isaacs J, the decision itself turns on statutory language. Certainly, the decision offers no support for the proposition that exclusivity of possession is a necessary ingredient of a pastoral lease.

A pastoral lease under the relevant legislation granted to the lessee possession of the land for pastoral purposes. And the grant necessarily gave to the lessee such possession as was required for the occupation of the land for those purposes. As has been seen, each lease contained a number of reservations of rights of entry, both specific and general. The lessee's right to possession must yield to those reservations. There is nothing in the statute which authorised the lease, or in the lease itself, which conferred on the grantee rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title. In so far as those rights and interests involved going on to or remaining on the land, it cannot be said that the lease conferred on the grantee rights to exclusive possession. That is not to say the legislature gave conscious recognition to native title in the sense reflected in Mabo [No 2]. It is simply that there is nothing in the statute or grant that should be taken as a total exclusion of the indigenous people from the land, thereby necessarily treating their presence as that of trespassers or at best licensees whose licence could be revoked at any time.

It follows that Question 1B(b) and Question 1C(b), which ask whether the pastoral leases "confer rights to exclusive possession on the lessee", must be answered "No". As the questions are framed, the question of extinguishment strictly does not then arise. But for these reasons to be meaningful, one must go on and consider to what extent the grant of a pastoral lease under the 1910 Act or 1962 Act necessarily extinguished native title rights.

That 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 term for a limited purpose, should determine the fate of the indigenous people is a conclusion not lightly to be reached. The continuance of native title rights of some sort is consistent with the disposition of land through the pastoral leases. I say "of some sort" because there has been no finding by the Federal Court whether such rights existed in respect of the leased land and, if they did, the nature of those rights. That is a matter to which I shall return.


The idea of extinguishing title to land raises a number of questions, particularly when the title said to have been extinguished does not derive from the common law but has been recognised by the common law. When land is acquired by the Crown for the purposes of public works, the title of the registered proprietor is in truth extinguished by force of the notice of acquisition or resumption. The title vests in the Crown by force of statute though registration may be required under the Torrens system. But that is hardly the situation here when what is contended is that the grant of a pastoral lease of itself effected an extinguishment of native title rights.

In Mabo [No 2]Brennan J said [F215] :

" Sovereignty carries the power to create and to extinguish private rights and interests in land within the Sovereign's territory. It follows that, on a change of sovereignty, rights and interests in land that may have been indefeasible under the old regime become liable to extinction by exercise of the new sovereign power."

His Honour cited, in support of the initial proposition,Joint Tribal Council of the Passamaquoddy Tribe v. Morton [F216] . There are other authorities which assert or assume the power to extinguish traditional title [F217] . The general proposition is not questioned by the appellants. And although fiduciary obligations on the part of the State of Queensland were asserted by the appellants, it is unnecessary to pursue this aspect in order to deal with the questions posed by the appeals.

Mason CJ and McHugh J agreed with the reasons for judgment of Brennan J. Deane and Gaudron JJ said that, like other legal rights,

"the rights conferred by common law native title and the title itself can be dealt with, expropriated or extinguished by valid Commonwealth, State or Territorial legislation" [F218] .

I said that there is "precedent for the proposition that the Crown has power to extinguish traditional title" [F219] . But I raised a number of questions. Is the power exercisable only with the consent of the titleholders or is it exercisable unilaterally? I added [F220] :

"the plaintiffs did not contest the Crown's power to extinguish traditional title by clear and plain legislation. That concession was properly made, subject to a consideration of the implications that arise in the case of extinguishment without the consent of the titleholders."

Later in his judgment Brennan J said [F221] :

" However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive."

The need for clarity of intention is spelled out in the judgments of other members of the Court [F222] .

In Western Australia v. The Commonwealth(Native Title Act Case) the following passage appears [F223] :

" After sovereignty is acquired, native title can be extinguished by a positive act which is expressed to achieve that purpose generally ... provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act. Again, after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel - for example, a grant by the Crown of a parcel of land in fee simple - provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act."

It is with the concept of inconsistency that these appeals are much concerned.

During the hearing of these appeals attention focused on a passage in the judgment of Brennan J in Mabo [No 2]where his Honour said [F224] :

" A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title."

In this regard Deane and Gaudron JJ said:

" The personal rights conferred by common law native title ... are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession" [F225] .

In the circumstances of the case, I held that whether the leases in question were effective to extinguish traditional title was something it was unnecessary to answer [F226] .

The recital in the preamble to the Native Title Act that

"The High Court has:

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"

reads too much into the judgments in Mabo [No 2]so far as the reference to leasehold estates is concerned unless particular attention is given to what is meant by that term. At their highest, the references are obiter. It has been generally accepted that a grant of an estate in fee simple extinguishes native title rights since this is the largest estate known to the common law.

It is fair to comment that while there are passages in the judgments of the Court dealing with the circumstances in which native title may be extinguished, no great attention has been focused on the idea itself. Hitherto it has not been necessary to do so. What is meant by extinguishment is alluded to by Macfarlane JA in Delgamuukw v. British Columbiawhen he said [F227] :

" Before concluding that it was intended that an aboriginal right be extinguished one must be satisfied that the intended consequences of the colonial legislation were such that the Indian interest in the land in question, and the interest authorized by the legislation, could not possibly co-exist."

There is a further passage in the judgment of Macfarlane JA which strikes a chord in the present appeals:

" It is clear that the mischief at which many of the Colonial Instruments was directed was the agitation in the colony attendant upon the influx and presence of miners seeking gold. Governor Douglas needed authority to stabilize the situation. A plan to attract permanent settlers, and establish them on the land was urgently required. The aboriginal peoples were not the problem. The acquisition of Indian lands was not the design, although attendant upon settlement was the need to reconcile the conflicting interests of the aboriginals and of the settlers. But the urgent question was settlement and the establishment of British authority in the colony. One should assume that the object was to achieve the desired result with as little disruption as possible, and without affecting accrued rights and existing status any more than was necessary." [F228]

It is true that what is said in the judgments in Delgamuukwis against a background of treaty making. Nevertheless the passage in the judgment of Macfarlane JA is particularly apposite here. In the course of his judgment Lambert JA (who was in dissent as to the outcome of the appeal) distinguished express (or explicit) extinguishment and implicit extinguishment. As to the latter he said [F229] :

"Implicit extinguishmentis extinguishment brought about by the sovereign power acting legislatively in an enactment which does not provide in its terms for extinguishment but which brings into operation a legislative scheme which is not only inconsistent with aboriginal title or aboriginal rights but which makes it clear and plain by necessary implication that, to the extent governed by the existence of the inconsistency, the legislative scheme was to prevail and the aboriginal title and aboriginal rights were to be extinguished."

What emerges from the judgments in Delgamuukwis the emphasis on inconsistency between native title rights and rights created by legislation or by some administrative scheme authorised by legislation, that is, the inability of the two to co-exist. It is that inconsistency that renders the native title rights unenforceable at law and, in that sense, extinguished. If the two can co-exist, no question of implicit extinguishment arises and it is implicit extinguishment with which these appeals are concerned.

While the appellants accepted, as they were bound to do in light of Mabo [No 2] [F230] and the Native Title Act Case [F231] , that native title may be extinguished, there is something curious in the notion that native title can somehow suddenly cease to exist, not by reason of a legislative declaration to that effect but because of some limited dealing by the Crown with Crown land. To say this is in no way to impugn the power of the Crown to deal with its land. It is simply to ask what exactly is meant when it is said that native title to an area of land has been extinguished.

Inconsistency can only be determined, in the present context, by identifying what native title rights in the system of rights and interests upon which the appellants rely are asserted in relation to the land contained in the pastoral leases. This cannot be done by some general statement; it must "focus specifically on the traditions, customs and practices of the particular aboriginal group claiming the right" [F232] . Those rights are then measured against the rights conferred on the grantees of the pastoral leases; to the extent of any inconsistency the latter prevail. It is apparent that at one end of the spectrum native title rights may "approach the rights flowing from full ownership at common law" [F233] . On the other hand they may be an entitlement "to come on to land for ceremonial purposes, all other rights in the land belonging to another group" [F234] . Clearly there are activities authorised, indeed in some cases required, by the grant of a pastoral lease which are inconsistent with native title rights that answer the description in the penultimate sentence. They may or may not be inconsistent with some more limited right.

Thus the questions asked of the Federal Court, which assume the existence of native title rights but say nothing as to their content, produce an artificial situation.

Radical title

Because of the course taken by the argument before the Court in the present appeals, it is necessary to say something about radical title, though this matter was considered by the Court in Mabo [No 2] [F235] . As is clear from the judgments in that case, a consequence of sovereignty is the attribution of radical title to the Crown. But radical title does not of itself carry beneficial ownership. Brennan J described it in these terms [F236] :

"The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty."

In Amodu Tijani v. Secretary, Southern Nigeriathe Privy Council, in a judgment delivered by Viscount Haldane [F237] , spoke of the title of the Sovereign as "a pure legal estate, to which beneficial rights may or may not be attached".

From the distinction thus made, it is apparent that the grant of an estate in land does not require the Crown to assume beneficial ownership of the land. Nor does the relevant legislation so dictate. As Brennan J observed in Mabo [No 2] [F238] :

"It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty."

Later his Honour said [F239] :

"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 ."

That the radical title lies with the Crown immediately before the grant of a pastoral lease is clear. But how relevant is it to speak of the Crown acquiring the "reversion" in such a case and of the Crown's title becoming a plenum dominium ? It has been said [F240] : "A reversion is the interest which remains in a grantor who createsout of his own estatea lesser estate" (emphasis added). In support of the foregoing statement, the author quotes from Blackstone [F241] :

"An estate inreversionis the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him. ... For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him."

The doctrine of estates is a feudal concept in order to explain the interests of those who held from the Crown, not the "title" of the Crown itself. The discussion of reversion in the standard texts invariably focuses on the holder of an estate in fee simple who grants some lesser estate, usually a life estate or lease. But that is not the case here. The matter was explained by Brennan J in Mabo [No 2]when he said [F242] :

"Recognition of the radical title of the Crown is quite consistent with recognition of native title to land, for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown's territory)."

To speak, in relation to the Crown, of a reversion expectant on the expiry of the term of a lease as expanding the Crown's radical title to a plenum dominium is, in my respectful view, to apply the concept of reversion to an unintended end. To say this in no way detracts from the doctrine of sovereignty; the Crown may thereafter deal with the land as is authorised by statute, disposing of it in some way or appropriating it to its own use [F243] . Indeed it may deal with the land during the term to the extent that it is authorised by statute or by the terms of the grant to do so. In the present case, once a pastoral lease came to an end, the land answered the description of "Crown land" and might be dealt with accordingly [F244] . The invocation of reversion and plenum dominium , as those expressions are usually understood, does not lie easily with the position of the Crown under the relevant statutes.

The proposition that it is the radical title of the Crown with which we are concerned and that, on the expiration or other termination of a pastoral lease, it is still the radical title that must be considered in relation to native title rights, does not minimise the sovereignty of the Crown. Nor does it undermine the principle that native title rights depend on their recognition by the common law. That recognition carries with it the power to extinguish those rights. But it requires a very clear act to do so. To contend that there is a beneficial reversionary interest in the Crown which ensures that there is no room for the recognition of native title rights, is in my view, to read too much into the Crown's title. Furthermore, if it is the reversion which carries with it beneficial title, why is that title not there in the first place? And if it is the existence of that beneficial title which extinguishes native title rights, why were those rights not extinguished before the grant of a pastoral lease? There is a curious paradox involved in the proposition.

While nothing in the judgments of the Court, in particular those in Mabo [No 2], point with any certainty to the answers demanded of the Court in the present proceedings, that decision is a valuable starting point because it explores the relationship between the common law and the "law" which evidences native title rights. So far as the scope of Mabo [No 2]is concerned, it should be noted that in their joint judgment Mason CJ and McHugh J, with the authority of the other members of the Court constituting the majority, said [F245] :

"The formal order to be made by the Court ... is cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration in ... the formal order."

This simply reinforces the proposition that while the judgments in Mabo [No 2]are significant for an understanding of the issues in the present appeals, they do not determine their outcome.

Non-entry into possession

The lessees of the Mitchellton leases did not go into possession. Council for the Thayorre People relied upon this point of distinction with the Holroyd lease to argue that the Mitchellton leases vested in interest but never in possession.

The argument was in part that if the concept of feudal tenures applied to pastoral leases, the Crown did not acquire a reversion expectant necessary for the plenum dominium required to extinguish native title rights. The feudal principle was expressed in Coke on Littletonin the following manner [F246] :

"For before entry the lessee hath butinteresse termini, an interest of a terme, and no possession, and therefore a release which enures by way of enlarging of an estate cannot worke without a possession, for before possession there is no reversion".

Although the rule has been abolished in all States of Australia, including Queensland [F247] , it occasionally rears its head [F248] . However the earlier existence of the rule does not advance the argument of the Thayorre People. Section 6(2) of the Land Act 1910, under which the Mitchellton leases were granted, declares the leases to be "valid and effectual to convey to and vest in the person therein named the land therein described for the estate or interest therein stated". It follows that execution of the leases in question was sufficient to vest in the lessees a grant in accordance with the statute.

Extinguishment revisited

Undue emphasis on the term extinguishment tends to obscure what is at the heart of this issue. It is too simplistic to regard the grant by the Crown of a limited interest in land as necessarily extinguishing native title rights. It is a large step indeed to conclude that, because there has been a grant of a "lease" of many square miles for pastoral purposes, all rights and interests of indigenous people in regard to the land were intended thereby to be brought to an end. Where is the necessary implication of a clear and plain intention? The impact of such a conclusion was addressed by Lee J in North Ganalanjawhen he said [F249] :

"It may be thought to be a bold proposition that the grant of a statutory right to take possession of a vast area of leasehold land to depasture stock, being an area which included land to which an organised social group of indigenous inhabitants resorted as of right for usufructuary or cultural purposes, demonstrated a clear and plain intention by the Crown to extinguish those rights when the interest granted to the pastoral tenant by the Crown was subject to various derogations including the right of the Crown to recover the demised property by resumption or reservation, and rights of access and possession vested by the Crown in third parties, the exercise of which, in most cases, was likely to cause as much disturbance to the pastoral tenant's enjoyment of possession as the use of native title rights by indigenous inhabitants."

Because I have concluded that none of the grants necessarily extinguished "all incidents of Aboriginal title", no further question arises in these appeals as to any concept of the suspension of native title rights during the currency of the grants. I express no view on that matter.

The claims against Queensland, Comalco and Aluminium Pechiney

These claims, mentioned at the outset of these reasons, are the subject of Questions 4 and 5. They raise discrete issues from the earlier questions.

I would answer each of those questions "No", for the reasons given by Kirby J which I gladly adopt.

Answering the questions

As I said early in these reasons, the Court made it clear that it proposed to deal only with the particular questions asked.

Questions 1A and 1B are not happily framed, with their emphasis on whether the grant of each pastoral lease "necessarily" extinguished "all incidents of Aboriginal title" of the Wik Peoples and the Thayorre People, an aspect that only arises if in each case the pastoral lease conferred "rights to exclusive possession on the grantee". The questions reduce to straightforward propositions what are in truth complex issues of law and of fact. They look for a certainty in the answers which, in the circumstances of the present appeals, is a mirage. There have been no findings as to whether native title rights even exist in connection with the land, let alone the content of any such rights. It is apparent from these reasons that I am of the opinion that none of the grants the subject of the appeals "necessarily" extinguished all incidents of aboriginal title. However, Questions 1B and 1C cannot be answered in the form asked because I am also of the opinion that the pastoral leases did not confer exclusive possession on the grantees especially in the sense of excluding all holders of native title rights, the existence and nature of which have not even been canvassed. Indeed, the questions framed by reference to "exclusive possession" tend to obscure what is the critical question, that of extinguishment. Nevertheless, the questions should be answered as best they can.

As to Question 1B(a), the Wik Peoples did not press a challenge to Drummond J's answer. While the Thayorre People did not abandon their challenge to Drummond J's answer to Question 1C(a), they made no submissions in support of that challenge. I am content to adopt Gaudron J's reasons for dismissing the appeal on this point.

In the light of these reasons for judgment, I would answer the questions as follows:

Question 1B

Does not arise.
Strictly does not arise but, in the light of these reasons, is properly answered No.

Question 1C

Does not arise.
Strictly does not arise but, in the light of these reasons, is properly answered No.

Question 4


Question 5


It follows that each appeal succeeds in part. The answers given by Drummond J to Questions 1B(b), (c) and (d) and 1C(b), (c) and (d) should be set aside and the questions answered in accordance with these reasons. The Wik Peoples should have their costs of the appeal relating to Question 1B(b), (c) and (d), to be paid by the respondents who opposed the orders sought in relation to that question. The Wik Peoples should pay the respondents' costs relating to Questions 4 and 5. The Wik Peoples and the Thayorre People should have their costs of the appeal relating to Question 1C(b), (c) and (d), to be paid by the respondents who opposed the orders sought in relation to that question. The Thayorre People should pay the respondents' costs relating to Question 1C(a). The matter should be remitted to Drummond J with respect to the costs of the proceedings below and generally.


Before leaving this judgment, it is important that the significance of the answers proposed should be properly understood. What now follows is said with the concurrence of Gaudron, Gummow and Kirby JJ who each answers the questions in similar terms. The order the Court makes will therefore reflect those answers.

In these appeals the Court has been called upon to answer questions which, no doubt, it was hoped would resolve all important issues between the parties. Having regard to the form of the questions framed for the purpose of the proceedings in the Federal Court, that has not proved possible.

To say that the pastoral leases in question did not confer rights to exclusive possession on the grantees is in no way destructive of the title of those grantees. It is to recognise that 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.

So far as the extinguishment of native title rights is concerned, the answer given is that there was no necessary extinguishment of those rights by reason of the grant of pastoral leases under the Acts in question. Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees. Once the conclusion is reached that there is no necessary extinguishment by reason of the grants, the possibility of the existence of concurrent rights precludes any further question arising in the appeals as to the suspension of any native title rights during the currency of the grants.