Commonwealth of Australia v Yunupingu

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

COMMONWEALTH OF AUSTRALIA  APPELLANT

AND

YUNUPINGU (ON BEHALF OF THE GUMATJ
CLAN OR ESTATE GROUP) & ORS  RESPONDENTS

Commonwealth of Australia v Yunupingu

[2025] HCA 6

Date of Hearing: 7, 8 & 9 August 2024
Date of Judgment: 12 March 2025

D5/2023

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

S P Donaghue KC, Solicitor-General of the Commonwealth, S B Lloyd SC and N Kidson KC with C J Klease for the appellant (instructed by Australian Government Solicitor)

A R Moses SC with K S Anderson and J D Alderson for the first respondent (instructed by Bowden McCormack)

N Christrup SC, Solicitor-General for the Northern Territory, and S J Wright SC with L S Peattie for the second respondent (instructed by Solicitor for the Northern Territory)

C L Lenehan SC with T M Wood for the 25th to 28th respondents (instructed by Mills Oakley)

S A Glacken KC and G A Hill SC with J R Wang for the 29th and 32nd respondents (instructed by Northern Land Council)

R J Webb KC with C I Taggart for the 34th respondent (instructed by Crown Law (Qld))

P J F Garrisson SC, Solicitor-General for the Australian Capital Territory, with H Younan SC and L A Coleman for the Attorney-General for the Australian Capital Territory, intervening (instructed by Government Solicitor for the Australian Capital Territory)

C S Bydder SC, Solicitor-General for the State of Western Australia, with A B Sanchez-Lawson for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

Submitting appearances for the fourth to tenth, 12th, 13th, 16th, 19th, 21st to 23rd, 31st and 33rd respondents

No appearance for the third, 14th, 15th, 18th, 20th and 30th respondents

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Commonwealth of Australia v Yunupingu

Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Where Gumatj Clan or Estate Group of Yolngu People claim entitlement to compensation under Native Title Act 1993 (Cth) for "past acts" "attributable" to appellant – Where Gumatj Clan claim past acts attributable to appellant are specified appropriations to appellant and grants to third parties of interests in land in Gove Peninsula in Northern Territory – Where appropriations and grants occurred between 1939 and 1969 by or under ordinances made by Governor-General under Northern Territory (Administration) Act 1910 (Cth) – Where Gumatj Clan claim each appropriation or grant invalid at time it occurred to extent inconsistent with native title rights and interests in relation to land then recognised at common law – Whether power conferred on Commonwealth Parliament by s 122 of Constitution to make laws for government of territory extends to making law with respect to acquisition of property otherwise than on just terms within meaning of s 51(xxxi) of Constitution – Whether extinguishment by or under law of Commonwealth of native title recognised at common law before commencement of Native Title Act constituted acquisition of property within meaning of s 51(xxxi) – Whether grant of pastoral lease in 1903 by Governor of South Australia under Northern Territory Land Act 1899 (SA) had effect of extinguishing non-exclusive native title rights over minerals on or under subject land.

Words and phrases – "abstracts", "accession", "acquisition of property", "authorised and legally effective", "common law rule of recognition", "disjoined", "equality before the law", "erosion", "exception", "exception or reservation", "exclusive possession", "exclusive rights", "extinguishment", "for the government of a territory", "information of intrusion", "inherently defeasible", "inherently fragile", "land", "liberty of access", "minerals", "native title", "native title norms", "native title rights and interests", "non-derogation from grant", "on just terms", "pastoral lease", "plenary power", "precedent", "radical title", "recognition", "reservation", "sever", "skeletal principle", "taking", "title", "traditional laws and customs", "valid exercise of sovereign power", "with respect to", "withdrawal of recognition".

Constitution, ss 51(xxix), 51(xxxi), 96, 122.
Native Title Act 1993 (Cth), ss 14, 18, 223, 226, 228, 238, 239.
Northern Territory (Administration) Act 1910 (Cth).
Northern Territory Land Act 1899 (SA), ss 24, 25, Sch A, item (l).

GAGELER CJ, GLEESON, JAGOT AND BEECH-JONES JJ.  

Introduction

1. This appeal is from a decision of the Full Court of the Federal Court of Australia (Mortimer CJ, Moshinsky and Banks-Smith JJ)[1] answering separate questions[2] in an application to the Federal Court on behalf of the Gumatj Clan or Estate Group of the Yolngu People ("the Gumatj Clan") for a determination of compensation claimed to be payable to the Gumatj Clan by the Commonwealth of Australia under the Native Title Act 1993 (Cth) ("the Native Title Act").

   [1]Yunupingu v The Commonwealth (2023) 298 FCR 160.

   [2]See r 30.01 of the Federal Court Rules 2011 (Cth).

2. The appeal raises three important questions of law. The first question is whether the power conferred on the Commonwealth Parliament by s 122 of the Constitution to make laws for the government of a territory extends to making a law with respect to the acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution. The answer is it does not. The second question is whether an extinguishment by or under a law of the Commonwealth of native title recognised at common law before the commencement of the Native Title Act on 1 January 1994 constituted an acquisition of property within the meaning of s 51(xxxi). The answer is it did.

3. The third and more specific question is whether the grant of a pastoral lease in 1903 by the Governor of South Australia under the Northern Territory Land Act 1899 (SA) ("the Northern Territory Land Act") had the effect of extinguishing any non-exclusive native title rights over minerals on or under the subject land. The answer is it did not.

   The claim of the Gumatj Clan

4. The Gumatj Clan claim an entitlement to compensation under the Native Title Act for "past acts" that are "attributable" to the Commonwealth and that are "validated" by the Native Title Act.

5. Within the meaning of the Native Title Act, "native title" refers to "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 where "the rights and interests are recognised by the common law of Australia".[3] An "act" includes the making of legislation as well as the exercise of executive power whether or not under legislation.[4] A "past act" includes an act consisting of the making, amendment or repeal of legislation which occurred before 1 July 1993 or any other act at any time before 1 January 1994 which, apart from the retrospectively validating operation of the Native Title Act, was invalid to any extent at the time it occurred but would have been valid to that extent at that time if native title did not exist.[5] A past act is "attributable" to the Commonwealth if it was done by the Commonwealth Parliament or under a law enacted by the Commonwealth Parliament.[6]

   [3]Section 223(1) of the Native Title Act.

   [4]See s 226 of the Native Title Act.

   [5]See s 228 of the Native Title Act.

   [6]See s 239 of the Native Title Act.

6. By operation of the Native Title Act, a past act attributable to the Commonwealth "is valid" and "is taken always to have been valid".[7] However, native title holders are entitled to compensation, payable by the Commonwealth, for a past act attributable to the Commonwealth that meets specified criteria.[8]

   [7]See s 14 of the Native Title Act.

   [8]See s 18 of the Native Title Act.

7. The Gumatj Clan claim that the past acts attributable to the Commonwealth for which they are entitled to compensation are specified appropriations to the Commonwealth and grants to third parties of interests in land in the Gove Peninsula in the Northern Territory. These appropriations and grants of interests in land all occurred by or under ordinances made by the Governor-General under the Northern Territory (Administration) Act 1910 (Cth) ("the Northern Territory Administration Act"). The earliest past act on which the Gumatj Clan continue to rely occurred in 1939, when "all ... minerals and metals on or below the surface of any land in the Territory" were "deemed to be the property of the Crown" by s 107 of the Mining Ordinance 1939 (NT) ("the Mining Ordinance"). The latest occurred in 1969, when a mineral lease was granted under the Mining Ordinance in accordance with the Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968 (NT).

8. The Gumatj Clan claim that each such appropriation or grant of an interest in land was invalid at the time it occurred to the extent that it was inconsistent with native title rights and interests which, in light of Mabo v Queensland [No 2] ("Mabo [No 2]"),[9] it must now be accepted that the common law of Australia recognised that the Gumatj Clan then held in relation to the land.

   [9](1992) 175 CLR 1.

9. The theory underlying the claim of the Gumatj Clan, that each appropriation or grant was invalid at the time it occurred to the extent that it was inconsistent with their native title then recognised at common law, is founded on two main propositions. The first is that the power conferred on the Commonwealth Parliament by s 122 of the Constitution to make laws for the government of a territory – the source, or at least a source, of the power of the Commonwealth Parliament to enact the Northern Territory Administration Act – does not extend and has never extended to making a law with respect to the acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution. The second is that a law is properly characterised as a law with respect to the acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution if and to the extent that the law purported before the commencement of the Native Title Act to appropriate or grant an interest in land which was inconsistent with a native title right or interest in relation to that land then recognised at common law.

10. Each of those two propositions was considered in Newcrest Mining (WA) Ltd v The Commonwealth.[10] The first was again considered in Wurridjal v The Commonwealth.[11] However, neither Newcrest nor Wurridjal authoritatively determined the correctness or incorrectness of either proposition.

    [10](1997) 190 CLR 513.

    [11](2009) 237 CLR 309.

11. The main purpose of stating the separate questions in the proceeding in the Federal Court was to elicit an authoritative determination of the correctness or incorrectness of the two propositions in the same way as if the procedure of the Federal Court had permitted the Commonwealth to demur to the Gumatj Clan's claim.[12]

    [12]See Yunupingu v The Commonwealth (2023) 298 FCR 160 at 167-173 [10]-[20].

12. The Full Court, in answering the separate questions, accepted both propositions to be correct. By the first two grounds of its appeal by special leave to this Court, the Commonwealth challenges the Full Court's acceptance of them.

13. The historical background to the application for compensation made by the Gumatj Clan and the particulars of their claim are explained in the reasons for judgment of Gordon J. Her Honour's explanation enables immediate consideration of the legal merits of the two propositions on which the Gumatj Clan's claim is founded. For reasons now to be explained, the Full Court was right to accept both propositions to be correct.

    The first proposition: s 51(xxxi) "abstracts" from s 122 of the Constitution

14. Section 51(xxxi) is within Ch I of the Constitution, which is headed "The Parliament". Section 1 provides: "The legislative power of the Commonwealth shall be vested in a Federal Parliament ... which is hereinafter called 'The Parliament', or 'The Parliament of the Commonwealth'." Section 51(xxxi) provides, in full: "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to ... the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws".

15. Section 51(xxxi) of the Constitution has long been recognised to have two relevant effects. The first is that "it confers power to acquire property from any State or person for any purpose for which the Parliament has power to make laws and it conditions the exercise of that power on the provision of just terms". The second is that "by an implication required to make the condition of just terms effective, it abstracts the power to support a law for the compulsory acquisition of property from any other legislative power".[13] The second of those effects has long been said to afford s 51(xxxi) "the status of a constitutional guarantee" operating "to protect [any State or person] from being deprived of their property except on just terms".[14]

    [13]Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 177.

    [14]Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 168.

16. The general principle of constitutional interpretation,[15] or "rule of construction",[16] through the operation of which s 51(xxxi) of the Constitution has the second of those effects – that of "abstract[ing]"[17] the power to support a law for the compulsory acquisition of property from other legislative powers – has long been understood to be that enunciated by Dixon CJ in Attorney-General (Cth) v Schmidt:[18]

    "[W]hen you have, as you do in [s 51](xxxi), an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect, it is in accordance with the soundest principles of interpretation to treat that as inconsistent with any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification."

    [15]Bourke v State Bank of New South Wales (1990) 170 CLR 276 at 285.

    [16]Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 160.

    [17]Theophanous v The Commonwealth (2006) 225 CLR 101 at 124 [55]; Cunningham v The Commonwealth (2016) 259 CLR 536 at 561 [61].

    [18](1961) 105 CLR 361 at 371-372.

17. Leaving s 122 of the Constitution to one side, the application of that general principle of constitutional interpretation to s 51(xxxi) of the Constitution is as follows. Had s 51(xxxi) not been in the Constitution, other legislative powers might have been construed as empowering the Parliament to make laws with respect to acquisitions of property, including laws with respect to acquisitions of property otherwise than on just terms.[19] The consequence of s 51(xxxi) empowering the Parliament to make laws with respect to acquisitions of property "for any purpose in respect of which the Parliament has power to make laws" on condition that the power be exercised only on just terms is that s 51(xxxi) is construed as the sole source of power to make any law which has the character of a law with respect to an acquisition of property for any purpose in respect of which the Parliament has power to make any law. No other legislative power is construed to include that power because the "totality of the power" is found in s 51(xxxi) alone.[20] Abstracted from, or "carve[d] out"[21] of, every other legislative power is accordingly power to make any law that is properly characterised as a law with respect to an acquisition of property within the meaning of s 51(xxxi).

    [19]Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 371.

    [20]Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 445.

    [21]Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 445 [107]; Cunningham v The Commonwealth (2016) 259 CLR 536 at 615 [271].

18. The ultimate question on the first ground of appeal is whether the relationship between s 51(xxxi) and s 122 of the Constitution conforms to that general principle of constitutional interpretation or is an exception to it.

19. Section 122 is within Ch VI of the Constitution, which is headed "New States". Part of the explanation for its location in that context is that one of its purposes was to provide for provisional government of a territory which might be admitted or established as a new State under s 121.[22] Section 122 provides, in relevant part: "The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth".

    [22]Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 266, 271.

20. Section 122 of the Constitution can be seen from its terms to apply "compendiously and briefly"[23] in relation to territories which might be in markedly different geographical locations and geopolitical situations, and which might or might not ever be expected to be admitted or established as new States. In particular, it applies in relation to an internal territory (one surrendered by a State to and accepted by the Commonwealth under s 111 of the Constitution so as to become "subject to the exclusive jurisdiction of the Commonwealth"), such as the Northern Territory[24] or the Australian Capital Territory,[25] in the same terms as it applies in relation to an external territory (one placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth) such as the current Territory of Cocos (Keeling) Islands[26] or Australian Antarctic Territory[27] or the former Territories of Papua and New Guinea.[28]

    [23]Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 331 [7].

    [24]See Northern Territory Acceptance Act 1910 (Cth).

    [25]See Seat of Government Acceptance Act 1909 (Cth).

    [26]See Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cth); Cocos Islands Act 1955 (UK); Cocos (Keeling) Islands Act 1955 (Cth).

    [27]See Australian Antarctic Territory Acceptance Act 1933 (Cth); Australian Antarctic Territory Act 1954 (Cth).

    [28]See Papua Act 1905 (Cth); New Guinea Act 1920 (Cth). See also Fishwick v Cleland (1960) 106 CLR 186 at 197-198.

21. The power conferred by s 122 of the Constitution to "make laws for the government of any [such] territory" has often been described as "plenary", although the aptness of that descriptor has been doubted.[29] The power conferred by it is plenary not in the sense that s 122 is "disjoined from other provisions in the Constitution" but in the sense that "all that need be shown to support an exercise of the power is that there should be a sufficient nexus or connexion between the law and the Territory".[30]

    [29]Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 604-605, 611-612.

    [30]Berwick Ltd v Gray (1976) 133 CLR 603 at 607-608.

22. The plenary power conferred by s 122 of the Constitution has never been doubted to enable the Parliament to enact a law that provides for the "direct administration"[31] of a territory, including by empowering the making of subordinate legislation,[32] such as occurred in the Northern Territory under the Northern Territory Administration Act[33] and in the Australian Capital Territory under the Seat of Government (Administration) Act 1910 (Cth). The power has also been accepted to enable the Parliament to enact a law that provides for the establishment of a territory as a self-governing polity having its own "separate political, representative and administrative institutions",[34] such as now exist in and for those territories under the Northern Territory (Self-Government) Act 1978 (Cth) ("the Northern Territory Self-Government Act") and the Australian Capital Territory (Self-Government) Act 1988 (Cth) ("the Australian Capital Territory Self-Government Act").[35]

    [31]Berwick Ltd v Gray (1976) 133 CLR 603 at 607.

    [32]See Palmer v Western Australia (2021) 272 CLR 505 at 546 [120], citing Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 101-102.

    [33]Northern Territory v GPAO (1999) 196 CLR 553 at 576-577 [40], quoting Kruger v The Commonwealth (1997) 190 CLR 1 at 49-50.

    [34]Berwick Ltd v Gray (1976) 133 CLR 603 at 607.

    [35]Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 263-267, 269-274.

23. The question whether s 51(xxxi) abstracts from the legislative power conferred by s 122 of the Constitution power to make laws that are properly characterised as laws with respect to an acquisition of property, as it does from other legislative powers, was squarely addressed in Teori Tau v The Commonwealth.[36] The unanimous holding was that it does not. The "concern" of s 51 of the Constitution was said to be with "what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States" in contrast with the "concern" of s 122, which was said to be with "the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power". The non-federal character attributed to the legislative power conferred by s 122 contributed to the conclusion that s 122 "is not limited or qualified by s 51(xxxi) or, for that matter, by any other paragraph of that section".[37] Though the question arose in relation to an external territory, the holding was emphasised to apply to internal and external territories alike.[38]

    [36](1969) 119 CLR 564.

    [37](1969) 119 CLR 564 at 570.

    [38](1969) 119 CLR 564 at 570-571.

24. The holding in Teori Tau, that s 51(xxxi) does not abstract from the power conferred by s 122 of the Constitution, was challenged in Newcrest. The result was inconclusive: three members of the Court (Brennan CJ,[39] Dawson J[40] and McHugh J[41]) favoured its retention, three (Gaudron J,[42] Gummow J[43] and Kirby J[44]) favoured its reopening and overruling, and one (Toohey J[45]) refrained from expressing an opinion.

    [39](1997) 190 CLR 513 at 544-545.

    [40](1997) 190 CLR 513 at 551-552.

    [41](1997) 190 CLR 513 at 575-576.

    [42](1997) 190 CLR 513 at 565.

    [43](1997) 190 CLR 513 at 613-614.

    [44](1997) 190 CLR 513 at 661.

    [45](1997) 190 CLR 513 at 560-561.

25. The holding in Teori Tau was again challenged in Wurridjal. This time, four members of the Court (French CJ,[46] Gummow and Hayne JJ[47] and Kirby J[48]) were unequivocal that Teori Tau should be reopened and overruled. However, only three of them (French CJ, Gummow and Hayne JJ) joined in the order of the Court.[49] For that reason, reopening and overruling Teori Tau cannot be treated as part of the ratio of Wurridjal.[50]

    [46](2009) 237 CLR 309 at 359 [86].

    [47](2009) 237 CLR 309 at 388 [189].

    [48](2009) 237 CLR 309 at 419 [287].

    [49]See (2009) 237 CLR 309 at 367 [116], 391 [203], 426 [312], 472.

    [50]See Brodie v Singleton Shire Council (2001) 206 CLR 512 at 563 [112], citing Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 314.

26. The holding in Teori Tau therefore stands. Yet the authority of Teori Tau has been so weakened by Newcrest and Wurridjal as to have made it inevitable that Teori Tau would be reopened if leave to reopen were sought. The Gumatj Clan appropriately seek leave to reopen Teori Tau, and that leave should be granted.

27. In answer to the question whether s 51(xxxi) does or does not abstract from the legislative power conferred by s 122 of the Constitution power to make laws that are properly characterised as laws with respect to an acquisition of property, posed and answered in binary terms in Teori Tau, the Commonwealth proffers a hybrid alternative: a middle way. The approach for which the Commonwealth contends is that s 51(xxxi) abstracts the power to support a law with respect to the acquisition of property from the legislative power conferred by s 122 if the law is "made" under both s 122 and another source of legislative power in s 51 of the Constitution but that s 51(xxxi) does not abstract the power to support a law with respect to the acquisition of property from the legislative power conferred by s 122 if the law is "made" under s 122 alone.

28. It must be acknowledged that reasoning of Gaudron J in Newcrest,[51] with which Toohey J,[52] Gummow J[53] and Kirby J[54] expressed agreement, can be interpreted as supporting the alternative approach for which the Commonwealth contends. That said, the approach must be rejected.

    [51](1997) 190 CLR 513 at 568-569.

    [52](1997) 190 CLR 513 at 560.

    [53](1997) 190 CLR 513 at 614.

    [54](1997) 190 CLR 513 at 661-662.

29. The Commonwealth's hybrid approach would produce disconformity in the application of s 51(xxxi) and s 122 in relation to internal and external territories. On the one hand, s 51(xxxi) might or might not abstract from s 122 power to support a law with respect to an acquisition of property in an internal territory depending on whether the particular law in question might also be "made" under another source of legislative power in s 51. On the other hand, s 51(xxxi) would always abstract from s 122 power to support a law with respect to an acquisition of property in an external territory. That is because, despite an external territory being regarded as a part of the Commonwealth of Australia for some constitutional purposes,[55] any such law would necessarily be a law dealing with a matter geographically external to the continent of Australia and the island of Tasmania[56] so as necessarily also to be a law with respect to "external affairs" which might be "made" under s 51(xxix).[57] This bifurcated result means that s 51(xxxi) would operate as a complete guarantee against a legislatively imposed acquisition of property otherwise than on just terms in an external territory (with the curious consequence that Teori Tau would have been wrongly decided for that if for no other reason) but would operate only as a partial and contingent guarantee against a legislatively imposed acquisition of property otherwise than on just terms in an internal territory. The result would be inexplicable as a matter of rational constitutional design.

    [55]Bennett v The Commonwealth (2007) 231 CLR 91 at 108 [35]-[36], referring to Berwick Ltd v Gray (1976) 133 CLR 603 at 605, 608.

    [56]New South Wales v The Commonwealth ("the Seas and Submerged Lands Act Case") (1975) 135 CLR 337 at 360, 470-471; Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 600.

    [57]Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 528, 602, 634, 696, 714; Horta v The Commonwealth (1994) 181 CLR 183 at 193-194; XYZ v The Commonwealth (2006) 227 CLR 532 at 539 [10], 546 [30], 548 [38].

30. But that is not the only problem, or even the main problem, with the approach. The fundamental problem with the approach lies in the distinction for the purpose of s 51(xxxi) between a law "made" under one source of legislative power alone (s 122) and a law "made" under that and another source of legislative power (in s 51).

31. Such a distinction contradicts the further settled general principle of constitutional interpretation "that a law upon a subject-matter within Commonwealth power does not cease to be valid because it touches or affects a topic outside Commonwealth power or because it can be characterized as a law upon a topic outside power".[58] One corollary of that principle is that "a single law can possess more than one character in the sense that it can properly be characterized as a law with respect to more than one subject-matter". Another is that "[i]t suffices for constitutional validity if any one or more of those characters is within a head of Commonwealth legislative power".[59]

    [58]The Commonwealth v Tasmania (1983) 158 CLR 1 at 151.

    [59]Re F; Ex parte F (1986) 161 CLR 376 at 387.

32. Application of the further settled general principle of constitutional interpretation means that:[60]

    "Where a law of the Parliament of the Commonwealth affects a property right, the ... critical question is whether s 51(xxxi) has withdrawn from every other head of federal power the authority to enact the law that affects the property in question. ... If s 51(xxxi) has withdrawn from every other head of federal power the capacity to acquire the property in question, it is the only source of power that can support the acquisition. If the legislation acquiring the property can be supported by another head of federal power that has not relevantly been curtailed by the presence of s 51(xxxi), s 51(xxxi) cannot invalidate the legislation."

    [60]The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 50 [131].

33. Application of the further settled general principle of constitutional interpretation also means that where the Parliament "makes a law intended to be of general application throughout the whole of the Commonwealth and its territories it does so in the exercise of all powers it thereunto enabling". "If the law be within power under s 51 it will, by the combined effect of that section and of s 122, be law in and for the States and the territories alike" but "[i]f it be invalid as beyond s 51 then, in the absence of a clear indication that it should nevertheless apply in the territories, it will ... fail altogether of effect". If the law is not supported by a source of power in s 51, then "[w]hether a particular Act is intended to extend to the territories, or to a particular territory, as well as to the States", so as to be supported by s 122 in that application, "becomes a question of construction to be resolved either by its express provisions or by its intendment as revealed by its scope and nature".[61]

    [61]Spratt v Hermes (1965) 114 CLR 226 at 278; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 533-534, 549.

34. Adherence to settled principle therefore precludes it being said that a law is unsupported by s 122 if the law is unsupported by another source of legislative power through the effect of s 51(xxxi) on that other source of legislative power. Whether the law is supported by s 122 is a question that is independent of whether the law is supported by another source of legislative power. Either s 51(xxxi) abstracts from s 122 or it does not. There is no room for the hybrid approach.

35. The question posed and answered in binary terms in Teori Tau remains: does s 51(xxxi) abstract the power to make a law with respect to the acquisition of property from the legislative power conferred by s 122 of the Constitution?

36. The answer to that binary question must take into account, in addition to the reasoning in Newcrest and Wurridjal, the subsequent holding in ICM Agriculture Pty Ltd v The Commonwealth[62] that s 51(xxxi) abstracts from the legislative power conferred on the Commonwealth Parliament by s 96 of the Constitution. Section 96, which is within Ch IV of the Constitution, headed "Finance and Trade", confers power on the Commonwealth Parliament to "grant financial assistance to any State on such terms and conditions as the Parliament thinks fit". The abstracting effect of s 51(xxxi) was held in ICM Agriculture to constrain the terms and conditions which the Commonwealth Parliament can impose on the voluntary acceptance of a grant of financial assistance to a State: excluded from s 96 by s 51(xxxi) is any term or condition which would directly or indirectly require the State to exercise its own undoubted legislative power to acquire property otherwise than on just terms. The tide of history is strong.

    [62](2009) 240 CLR 140 at 170 [46], 206 [174].

37. The ultimately compelling counterpoint to the view which found favour in Teori Tau lies in the contemporary resonance of the earlier emphatic rejection in Lamshed v Lake[63] of the notion that s 122 can be interpreted "just as if the Commonwealth Parliament were appointed a local legislature in and for the [t]erritory with a power territorially restricted to the [t]erritory" in favour of the understanding that "s 122 is a power given to the national Parliament of Australia as such to make laws 'for', that is to say 'with respect to', the government of the [t]erritory". The understanding which prevailed in Lamshed v Lake was supported by the observation that "it is 'the Parliament' that is to make the law pursuant to the power s 122 confers", which "necessarily refers to s 1 of the Constitution", and that "the use of the expressions 'accepted by the Commonwealth' and 'placed under the authority of the Commonwealth'" can be seen to refer to "the polity established by the Constitution and ... the full legal authority which under the Constitution it possesses".[64]

    [63](1958) 99 CLR 132 at 141.

    [64](1958) 99 CLR 132 at 141-142.

38. The characterisation in Teori Tau of s 51(xxxi) as a "federal legislative power" in contradistinction to s 122 as a power "for the government of Commonwealth territories" involved the creation of a dichotomy which is falsified by the national character of the sole repository of both of those legislative powers. "[W]hen s 122 gives a legislative power to the Parliament for the government of a territory the Parliament takes the power in its character as the legislature of the Commonwealth, established in accordance with the Constitution as the national legislature of Australia".[65] The same is true when s 51(xxxi) gives a legislative power to the Parliament to make laws with respect to the acquisition of property on just terms. Sections 51(xxxi) and 122 are both conferrals of legislative power on the Parliament of the Commonwealth to make laws that not only have the potential to have nationwide application but that also have the potential to be of national significance even if their application is territorially confined.

    [65]Lamshed v Lake (1958) 99 CLR 132 at 143.

39. That meets the submission of the Commonwealth that for s 51(xxxi) to abstract from the power conferred by s 122 would be "incongruous" or "anomalous" given that no equivalent constraint exists on the legislative power of a State[66] and that s 111 of the Constitution provides for a State to surrender and the Commonwealth to accept a territory so as to result in the territory becoming subject to the Commonwealth's exclusive jurisdiction. The power of the Commonwealth Parliament in relation to the government of the surrendered territory cannot be equated with the power which the State Parliament had in relation to that territory prior to surrender: surrender to and acceptance by the Commonwealth moves the government of the territory to a national plane.

    [66]See Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 at 410 [13]-[14].

40. Textually, there is no difficulty construing the reference in s 51(xxxi) of the Constitution to "any purpose in respect of which the Parliament has power to make laws" as encompassing the purpose of "the government of any territory" for which the Commonwealth Parliament may make laws under s 122 of the Constitution. The circumstance that s 51(xxxi) is, and s 122 is not, expressed to be "subject to this Constitution" does not affect this construction. When s 51(xxxi) is so construed, the application to s 122 of the general principle of constitutional interpretation through the operation of which s 51(xxxi) abstracts the power to make a law which has the character of a law with respect to an acquisition of property necessarily follows.

41. For s 51(xxxi) to abstract from s 122 of the Constitution power to make laws that are properly characterised as laws with respect to an acquisition of property does not mean that the Commonwealth Parliament cannot confer authority on the legislature of a self-governing territory to acquire property on just terms. The argument of the Commonwealth to the contrary is answered by re-emphasising that s 51(xxxi) is, "first and foremost, a grant of power, and only secondarily a guarantee of 'just terms'".[67]

    [67]Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 187.

42. As a grant of legislative power, no less than as a guarantee of just terms, s 51(xxxi) of the Constitution is to be "given as full and flexible an operation as will cover the objects it was designed to effect".[68] It is to be construed according to orthodox principles, "with all the generality which the words used admit"[69] and as "intended to apply to the varying conditions which the development of our community must involve".[70]

    [68]Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 349.

    [69]Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16], quoting R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225-226.

    [70]R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 at 314, quoting Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 367-368.

43. When so construed, s 51(xxxi) of the Constitution is itself sufficient to support the present conferral by the Northern Territory Self-Government Act and the Australian Capital Territory Self-Government Act on the legislatures of the Northern Territory and the Australian Capital Territory respectively of power to make laws for the compulsory acquisition of property as an aspect of the general power of each legislature "to make laws for the peace, order and good government of the Territory"[71] subject to the express limitation that the general power does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms.[72]

    [71]Section 6 of the Northern Territory Self-Government Act and s 22(1) of the Australian Capital Territory Self-Government Act.

    [72]Section 50(1) of the Northern Territory Self-Government Act and s 23(1)(a) of the Australian Capital Territory Self-Government Act.

44. Consistently with the views of three members of the Court in Newcrest and four members of the Court in Wurridjal, Teori Tau must now be overruled. The time has come for it to be finally and authoritatively declared that the power conferred on the Commonwealth Parliament by s 122 of the Constitution to make laws for the government of a territory does not extend to making a law with respect to an acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution.

45. The first of the propositions on which the claim of the Gumatj Clan is founded is correct and the first ground of the appeal fails.

    The second proposition: legislative "extinguishment" of native title constitutes an acquisition of property

46. In Mabo [No 2], Deane and Gaudron JJ observed:[73]

    "Like other legal rights, including rights of property, 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 operating within the State or Territory in which the land in question is situated. ...

    There are, however, some important constraints on the legislative power of Commonwealth, State or Territory Parliaments to extinguish or diminish the common law native titles which survive in this country. In so far as the Commonwealth is concerned, there is the requirement of s 51(xxxi) of the Constitution that a law with respect to the acquisition of property provide 'just terms'. Our conclusion that rights under common law native title are true legal rights which are recognized and protected by the law would, we think, have the consequence that any legislative extinguishment of those rights would constitute an expropriation of property, to the benefit of the underlying estate, for the purposes of s 51(xxxi)."

    [73](1992) 175 CLR 1 at 110-111.

47. This observation by Deane and Gaudron JJ in Mabo [No 2] formed the background to an argument against reopening Teori Tau which the Commonwealth advanced five years later in Newcrest. The argument was couched in terms that "the application of s 51(xxxi) to the Northern Territory would have the effect of invalidating significant provisions of Commonwealth legislation and would potentially invalidate every grant of freehold or leasehold title granted by the Commonwealth in the Territory since 1911 to the extent to which any such grant may be inconsistent with the continued existence of native title as recognised at common law".[74]

    [74](1997) 190 CLR 513 at 523. The consequence would be that these past acts would be validated by s 14(1) of the Native Title Act and compensation may thereby be payable for the otherwise invalid past acts under s 18.

48. This argument was squarely addressed and rejected in Newcrest by Gummow J, with whom Toohey J[75] and Kirby J[76] specifically agreed. Gummow J said:[77]

    "Such apprehensions are not well founded. The characteristics of native title as recognised at common law include an inherent susceptibility to extinguishment or defeasance by the grant of freehold or of some lesser estate which is inconsistent with native title rights; this is so whether the grant be supported by the prerogative or by legislation".

    [75](1997) 190 CLR 513 at 560.

    [76](1997) 190 CLR 513 at 651.

    [77](1997) 190 CLR 513 at 613 (emphasis in original), citing Mabo v Queensland [No 2] (1992) 175 CLR 1 at 69, 89, 110, 195-196, Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 422, 439, 459 and Wik Peoples v Queensland (1996) 187 CLR 1 at 132-133 together with R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636 at 653 and Health Insurance Commission v Peverill (1994) 179 CLR 226 at 235-237, 256, 264-265.

49. This statement by Gummow J in Newcrest is central to the argument now advanced by the Commonwealth on the second ground of its appeal to the effect that a legislative appropriation or grant of an interest in land inconsistent with native title recognised at common law should not be characterised as having constituted an acquisition of property within the meaning of s 51(xxxi) of the Constitution.

50. The Commonwealth does not argue that native title recognised at common law is not "property" within the meaning of s 51(xxxi) of the Constitution. To do so would be untenable. "Property" within the meaning of s 51(xxxi) cannot be "confined pedantically to ... some specific estate or interest in land recognized at law or in equity".[78] It "extends to every species of valuable right and interest including real and personal property",[79] and extends to a right or interest incapable of assignment.[80]

    [78]Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 349.

    [79]Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290.

    [80]Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 311-312.

51. Furthermore, the Commonwealth does not argue that an appropriation of an interest in land to itself or a grant of an interest in land to a third party by or under Commonwealth legislation is insufficient to satisfy the additional requirement that an "acquisition" of property from a State or person within the meaning of s 51(xxxi) involves conferring a corresponding benefit of a proprietary nature on the Commonwealth or another person.[81] To do so would again be untenable in light of Brennan J's observation in Mabo [No 2] that, upon the grant of a lease extinguishing native title, "[t]he Crown's title is thus expanded from the mere radical title"[82] and in light of acceptance in Newcrest that the "sterilising"[83] effect of a prohibition on mining imposed by Commonwealth legislation on the exercise of rights to mine conferred by mining tenements granted under Territory ordinances sufficiently enhanced property of the Commonwealth to amount to an acquisition of property insofar as the Commonwealth "was no longer liable to suffer the extraction of the minerals from its land in exercise of the rights conferred by [those] mining tenements".[84]

    [81]JT International SA v The Commonwealth (2012) 250 CLR 1 at 33-34 [42], 53 [118], 68 [169], 99 [278], 130-131 [365]; Cunningham v The Commonwealth (2016) 259 CLR 536 at 560 [58].

    [82](1992) 175 CLR 1 at 68.

    [83](1997) 190 CLR 513 at 533.

    [84]See Smith v ANL Ltd (2000) 204 CLR 493 at 504-505 [22], explaining Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 and The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 17 [17].

52. Consistently with an observation made by Gummow J immediately following the statement in Newcrest on which the Commonwealth relies,[85] the Commonwealth also accepts that Commonwealth legislation purporting to effect a wholesale "extinguishment" of native title along the lines of the State legislation held invalid under s 109 of the Constitution in Mabo v Queensland ("Mabo [No 1]")[86] and Western Australia v The Commonwealth (Native Title Act Case)[87] would attract the operation of s 51(xxxi) of the Constitution.

    [85](1997) 190 CLR 513 at 613.

    [86](1988) 166 CLR 186.

    [87](1995) 183 CLR 373.

53. The essence of the argument now advanced by the Commonwealth on the second ground of its appeal is that the "extinguishment" of a native title right or interest "recognised" at common law which occurred upon an appropriation or grant of an inconsistent right or interest by or pursuant to Commonwealth legislation is not an acquisition of property within the meaning of s 51(xxxi) of the Constitution as such "extinguishment" does not involve a "taking" of property. As framed in its notice of appeal, the argument of the Commonwealth is that property of native title holders was not taken upon an appropriation or grant of an inconsistent right or interest by or pursuant to Commonwealth legislation "because native title was inherently susceptible to a valid exercise of the Crown's sovereign power, derived from its radical title, to grant interests in land and to appropriate to itself unalienated land for Crown purposes".

54. The Commonwealth argues that this inherent susceptibility of native title rights and interests "recognised" at common law to the contingency of "extinguishment" in the event of such a valid exercise of "sovereign power" deriving from "radical title" lies behind repeated descriptions of native title as "inherently fragile".[88]

    [88]See Western Australia v The Commonwealth(Native Title Act Case) (1995) 183 CLR 373 at 453; Fejo v Northern Territory (1998) 195 CLR 96 at 151 [105]; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 51 [47]; Western Australia v Ward (2002) 213 CLR 1 at 93-94 [91].

55. The Commonwealth seeks to support the argument by analogy between a native title right or interest recognised at common law and a statutory right of property "created on terms which make that right susceptible to administrative or legislative alteration or extinguishment without acquisition" in the sense that susceptibility of the right to alteration or extinguishment by subsequent administrative or legislative action is "a characteristic of the right that is created – 'inherent at the time of its creation and integral to the property itself'".[89]

    [89]Cunningham v The Commonwealth (2016) 259 CLR 536 at 563 [66], quoting Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 165.

56. The Commonwealth seeks to support the argument further by calling in aid the observation that "even at general law, an estate or interest in land or other property may be defeasible upon the operation of a condition subsequent in the grant, without losing its proprietary nature".[90] The Commonwealth points out that the common law and equity both knew not only the "fee simple absolute" but also the "determinable fee simple": an estate which contained "within ... the words which define[d] [it] the seeds of [its] own destruction" in that it "automatically terminate[d] on the occurrence of a specified event which may or may not occur".[91] As a matter of fact, grants of fees simple determinable in whole or in part on breach or fulfilment of conditions subsequent were common during the early colonial period in New South Wales and Van Diemen's Land.[92] A notable example was the grant by the Governor of New South Wales in 1823 of 1400 acres of land "reserving to His Majesty ... any quantity of land, not exceeding ten acres, in any part of the said grant, as may be required for public purposes" held in Cooper v Stuart[93] to have "carried" to the grantee "the whole 1400 acres, but subject to a defeasance as to 10 acres".

    [90]JT International SA v The Commonwealth (2012) 250 CLR 1 at 49 [104]. See also The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 73 [196].

    [91]Helmore, The Law of Real Property in New South Wales, 2nd ed (1966) at 66-67, quoted in Wilson v Anderson (2002) 213 CLR 401 at 443 [89]. See also Western Australia v Ward (2002) 213 CLR 1 at 200 [432].

    [92]Campbell, "Conditional Land Grants by the Crown" (1966) 5 Sydney Law Review 267 at 267-269, 274-275; Campbell, "Conditional Land Grants by the Crown" (2006) 25 University of Tasmania Law Review 44 at 45-47, 55-56.

    [93](1889) 14 App Cas 286 at 288, 290.

57. The argument of the Commonwealth invites close attention to the common law rule according to which native title rights and interests were and continue to be "recognised" and according to which, before the commencement of the Native Title Act on 1 January 1994, native title rights and interests once "recognised" were able to be "extinguished".[94] The common law rule must be understood having regard to its formulation by Brennan J (with the agreement of Mason CJ and McHugh J) in Mabo [No 2] and to the considerations which informed that formulation. The common law rule so formulated must also be understood having regard to its subsequent exposition in Western Australia v The Commonwealth(Native Title Act Case),[95] Wik Peoples v Queensland,[96] Fejo v Northern Territory,[97] Yanner v Eaton,[98] The Commonwealth v Yarmirr,[99] Western Australia v Ward,[100] Yorta Yorta Aboriginal Community v Victoria,[101] Akiba v The Commonwealth,[102] Western Australia v Brown,[103] and Queensland v Congoo.[104]  

    [94]cf s 238(2) of the Native Title Act.

    [95](1995) 183 CLR 373.

    [96](1996) 187 CLR 1.

    [97](1998) 195 CLR 96.

    [98](1999) 201 CLR 351.

    [99](2001) 208 CLR 1.

    [100](2002) 213 CLR 1.

    [101](2002) 214 CLR 422.

    [102](2013) 250 CLR 209.

    [103](2014) 253 CLR 507.

    [104](2015) 256 CLR 239.

58. Native title is "not an institution of the common law".[105] That is to say, "native title rights and interests are not created by and do not derive from the common law".[106] There is accordingly no reason why native title rights and interests should be thought to correspond in their nature or incidents to any right or interest known to the common law or equity to be capable of being created by grant, whether conditional or unconditional.

    [105]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 59.

    [106]The Commonwealth v Yarmirr (2001) 208 CLR 1 at 51 [48].

59. "Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory."[107] "The nature and incidents of native title" are "ascertained as a matter of fact by reference to those laws and customs".[108] The underlying existence of the traditional laws and customs ascertained as a matter of fact is accordingly "a necessary pre-requisite for native title".[109]

    [107]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 58.

    [108]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 58.

    [109]Fejo v Northern Territory (1998) 195 CLR 96 at 128 [46] (emphasis in original).

60. Whilst the underlying existence of the traditional laws and customs is a necessary pre-requisite for native title, the underlying existence of those traditional laws and customs is not "a sufficient basis for recognising native title".[110] "Recognition" of native title at common law is by force of the common law itself:[111]

    "The theory accepted by this Court in Mabo [No 2] was not that the native title of indigenous Australians was enforceable of its own power or by legal techniques akin to the recognition of foreign law. It was that such title was enforceable in Australian courts because the common law in Australia said so".

    [110]Fejo v Northern Territory (1998) 195 CLR 96 at 128 [46] (emphasis in original).

    [111]WikPeoples v Queensland (1996) 187 CLR 1 at 237-238.

61. Native title is "recognised" at common law in the sense that the common law "will, by the ordinary processes of law and equity, give remedies in support of the relevant rights and interests to those who hold them".[112] Thus, to say that native title rights and interests are "recognised" at common law is to mean that "[t]hose rights, although ascertained by reference to traditional laws and customs are enforceable as common law rights [and interests]".[113] In other words, the concept of "recognition" "translates" native title rights and interests existing under traditional laws and customs into "a set of rights and interests existing at common law".[114]

    [112]The Commonwealth v Yarmirr (2001) 208 CLR 1 at 49 [42], citing Mabo v Queensland [No 2] (1992) 175 CLR 1 at 61.

    [113]WikPeoples v Queensland (1996) 187 CLR 1 at 84.

    [114]Queensland v Congoo (2015) 256 CLR 239 at 263 [31].

62. "Extinguishment" of native title, which is the concern of the argument of the Commonwealth and the statement by Gummow J in Newcrest on which that argument relies, is a concept which was introduced into the common law in Mabo [No 2] contemporaneously with the introduction of the concept of recognition of native title despite no issue of extinguishment having arisen for determination in that case.

63. Extinguishment of native title "is the obverse of recognition" of native title.[115] Extinguishment "does not mean that native title rights and interests are extinguished for the purposes of the traditional laws acknowledged and customs observed by the native title holders". What it means is that "the native title rights and interests cease to be recognised by the common law":[116] they cease to be enforceable as common law rights as the withdrawal of the common law's recognition of the native title rights and interests means the withdrawal of the common law's protection of those native title rights and interests.

    [115]Akiba v The Commonwealth (2013) 250 CLR 209 at 219 [10].

    [116]Akiba v The Commonwealth (2013) 250 CLR 209 at 219 [10]. See also 226 [24].

64. Native title recognised at common law could, and could only, be extinguished "by a valid exercise of sovereign power inconsistent with the continued enjoyment ... of native title".[117] Reference to "sovereign power" in the context of native title rights and interests ceasing to be recognised by the common law serves to emphasise that recognition of native title rights and interests at common law is the result of an "intersection" of traditional laws and customs with the common law which occurred at the time of acquisition of sovereignty. Such native title rights and interests as were and have continued to be recognised at common law since the time of acquisition of sovereignty in the absence of extinguishment are "those which existed at [the time of acquisition of] sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected".[118] The new legal order which came into being at the time of acquisition of sovereignty entailed "the power to create and to extinguish private rights and interests", and native title rights and interests recognised at common law became "liable to extinction by exercise of the new sovereign power".[119]

    [117]Western Australia v The Commonwealth(Native Title Act Case) (1995) 183 CLR 373 at 439.

    [118]Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 453-454 [77]. See also Fejo v Northern Territory (1998) 195 CLR 96 at 128 [46].

    [119]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 63.

65. The concept of "radical title" is linked in the argument of the Commonwealth on the second ground of its appeal to the existence of sovereign power to extinguish native title rights and interests recognised at common law. In particular, the Commonwealth notes that in Mabo [No 2] Brennan J accepted that the common law's recognition of native title could not fracture a "skeletal principle of our legal system"[120] and that native title survived the Crown's acquisition of sovereignty but "burdens the Crown's radical title".[121] In describing the power to extinguish native title upon the acquisition of sovereignty, Brennan J observed 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".[122] On the Commonwealth's argument, that should be taken to mean that the common law's recognition of native title was subject to the exercise of that new sovereign power. The submissions of the Attorney-General for Queensland, supported by the Attorney-General for Western Australia, are to similar effect.

    [120](1992) 175 CLR 1 at 43.

    [121](1992) 175 CLR 1 at 58.

    [122](1992) 175 CLR 1 at 63 (emphasis added).

66. The Commonwealth's argument invites consideration of the significance of radical title and the nature of that "new sovereign power". The concept of "radical title" was introduced in Mabo [No 2] by reference to St Catherine's Milling and Lumber Co v The Queen[123] and Amodu Tijani v Secretary, Southern Nigeria,[124] not to explain recognition or cessation of recognition of native title at common law but to explain how common law doctrines which assume the ultimate legal title of the Crown to land (notably the doctrines of estates and tenures) can coexist with common law recognition of native title rights and interests in relation to that land.[125]

    [123](1888) 14 App Cas 46.

    [124][1921] 2 AC 399.

    [125]See The Commonwealth v Yarmirr (2001) 208 CLR 1 at 49-51 [44]-[48].

67. The Commonwealth's notion that sovereign power to grant or appropriate an interest in land, which operates to extinguish a native title right or interest at common law, somehow "derives" from "radical title" finds no support in Mabo [No 2] or in any subsequent authority. The existence of radical title has never been a pre-requisite to the common law recognising a native title right or interest: hence, a native title right or interest can be recognised in relation to waters at common law on the same basis as it can be recognised in relation to land at common law.[126] Nor has the existence of radical title ever been a pre-requisite to the common law ceasing to recognise a native title right or interest in consequence of an exercise of sovereign power: hence, a native title right or interest could be extinguished in relation to waters at common law on the same basis as it could be extinguished in relation to land at common law.[127] There is also no reason in principle why a native title right or interest could not be extinguished by paramount operation of Commonwealth legislation in relation to land situated in a State in respect of which radical title was held by the Crown in right of that State.[128]

    [126]The Commonwealth v Yarmirr (2001) 208 CLR 1 at 51 [49]-[50].

    [127]The Commonwealth v Yarmirr (2001) 208 CLR 1 at 67-68 [96]-[100].

    [128]Queensland v Congoo (2015) 256 CLR 239 at 276 [72].

68. What is critical to appreciating the nature of "sovereign power", exercise of which can result in cessation of recognition of native title rights or interests at common law, is the explanation given in Mabo [No 2] that "under the constitutional law of this country, the legality (and hence the validity) of an exercise of a sovereign power depends on the authority vested in the organ of government purporting to exercise it: municipal constitutional law determines the scope of authority to exercise a sovereign power over matters governed by municipal law, including rights and interests in land".[129] Sovereign power in the relevant municipal law sense is power to create and to extinguish rights and interests by force of law. It need hardly be added that, under the constitutional law of this country, a valid – that is to say, legally authorised and legally effective – exercise of governmental power to create or to extinguish a right or interest protected by the common law could only be constituted by either a constitutionally authorised exercise of legislative power or a constitutionally authorised and statutorily permitted exercise of executive power.

    [129](1992) 175 CLR 1 at 63.

69. In short, "[n]ative 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 upon [the executive]".[130] Not otherwise.

    [130]WikPeoples v Queensland (1996) 187 CLR 1 at 84.

70. There was much discussion in Mabo [No 2] of the prerogative power to dedicate or alienate interests in land, which was conceded by the common law to the Crown, and which was exercisable by the executive for and on behalf of the Crown at the time of the acquisition of sovereignty. As noted in Mabo [No 2], however, the prerogative was abrogated by statute in Queensland[131] with the result that the power of the Crown to grant an interest in land became exclusively statutory,[132] as it did in South Australia[133] and elsewhere throughout the Australian colonies in the course of the nineteenth century.

    [131]Constitution Act 1867 (Qld), ss 30 and 40.

    [132](1992) 175 CLR 1 at 63, citing Cudgen Rutile (No 2) Ltd v Chalk [1975] AC 520 at 533-534.

    [133]South Australia Act 1834 (4 & 5 Will IV c 95), s 6. See Selway, The Constitution of South Australia (1997) at 5 [1.2], 202 [16.1.5].

71. By force of the Northern Territory Acceptance Act 1910 (Cth) operating to pick up its prior abrogation by South Australian legislation,[134] the prerogative was never "carried into the executive authority of the Commonwealth"[135] in relation to land in the Northern Territory. On and from the acceptance of the Northern Territory by the Commonwealth upon its surrender by South Australia in 1911, the creation or extinguishment of a right or interest in relation to land in the Northern Territory protected by the common law has only ever been able to occur by or under Commonwealth or Territory legislation. In the context of the alleged acts of extinguishment the subject of this appeal, that is the only relevant form of "new sovereign power" spoken of in Mabo [No 2] and that power must be exercised in conformity with the Constitution.

    [134]See ss 6(2) and 7 of the Northern Territory Acceptance Act 1910 (Cth) and the Northern Territory Act 1863 (SA), s 6 of the Northern Territory Land Act 1872 (SA), s 6 of the Northern Territory Crown Lands Consolidation Act 1882 (SA) and s 6 of the Northern Territory Crown Lands Act 1890 (SA).

    [135]Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 at 226 [86], quoting Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 304.

72. Whatever form a constitutionally authorised exercise of legislative power or a constitutionally authorised and statutorily permitted exercise of executive power might have taken in the Northern Territory or in any other part of Australia before the commencement of the Native Title Act, however, such an exercise of power resulted in the extinguishment – cessation of recognition – of a native title right or interest previously recognised at common law only if the exercise of power created a right or interest (whether by appropriation or conferral)[136] or imposed a prohibition[137] which was "inconsistent" with the native title right or interest continuing to be translated into a right or interest existing at common law.

    [136]Western Australia v Ward (2002) 213 CLR 1 at 89 [78], 91 [82]; Queensland v Congoo (2015) 256 CLR 239 at 272 [57].

    [137]WikPeoples v Queensland (1996) 187 CLR 1 at 185; Queensland v Congoo (2015) 256 CLR 239 at 300 [157].

73. Whether or not there was an inconsistency which resulted in the extinguishment of a native title right or interest is a question of law.[138] The answer to that question of law depends solely on a comparison of the legal incidents of the native title right or interest previously recognised at common law with the legal incidents of the right or interest appropriated or conferred or of the prohibition imposed. Either the two are inconsistent or they are not. Recognition of the native title right or interest at common law would cease if, and only if, there was "logical antinomy between them".[139]

    [138]Yanner v Eaton (1999) 201 CLR 351 at 395 [107].

    [139]Western Australia v Brown (2014) 253 CLR 507 at 523 [38], quoting Western Australia v Ward (2002) 213 CLR 1 at 91 [82]. See also WikPeoples v Queensland (1996) 187 CLR 1 at 185; Queensland v Congoo (2015) 256 CLR 239 at 273 [60]-[61], 281-282 [88]-[91], 299-300 [156].

74. Is the cessation of recognition of a native title right or interest upon the creation of an inconsistent right or interest a consequence of the inherent defeasibility of the native title right or interest upon the occurrence of such a contingency? Or is the cessation of recognition of the native title right or interest no more than an orthodox instance of an authorised and legally effective exercise of legislative or executive power prevailing over the operation of the antecedent common law? Putting it another way, is the common law rule of recognition of native title rights and interests a conditional rule in the sense that such rights and interests are recognised only on condition that recognition will be withdrawn on an authorised and legally effective exercise of legislative or executive power which is inconsistent with continued recognition? Or is the common law rule of recognition of native title rights and interests an absolute rule in the sense that such rights and interests are recognised but if there is a subsequent authorised and legally effective exercise of legislative or executive power which is inconsistent with continued recognition, recognition will be withdrawn not as a result of the inherent defeasibility of the native title right or interest but because of the effect of the subsequent exercise of power on the antecedent recognition? If the former, there is no "taking" of the bundle of rights comprising the enforceability and protection of native title rights and interests that the common law rule of recognition provides. If the latter, there is such a "taking" as the withdrawal of recognition takes from the native title holders that bundle of rights. In neither case are the underlying native title rights and interests themselves acquired. Those native title rights and interests continue for so long as traditional laws and customs dictate.

75. Acceptance or rejection of the statement by Gummow J in Newcrest, and with it the argument of the Commonwealth, turns on the choice between these competing views.

76. Three considerations combine to warrant rejection of the statement of Gummow J, and with it the argument of the Commonwealth. The preferable view is that the common law rule of recognition was and remains absolute. On that view, cessation of recognition of a native title right or interest at common law upon a valid exercise of legislative or executive power before the commencement of the Native Title Act was, and was no more than, the consequence of a subsequent legally authorised and legally effective exercise of legislative or executive power operating of its own inherent force to prevail over the operation of the antecedent common law rule of recognition.

77. The first consideration is as obvious as it is fundamental. It is that our constitutional system makes it unnecessary to postulate the inherent defeasibility of a native title right or interest recognised at common law in order for the recognition of the native title right or interest to yield to a subsequent legally authorised and legally effective exercise of legislative or executive power. Inherent in the nature of a subsequent legally effective exercise of legislative or executive power which is inconsistent with an antecedent common law rule is that the subsequent exercise of power will prevail over the operation of the antecedent common law rule.

78. The second consideration is that to postulate the inherent defeasibility of a native title right or interest recognised at common law is to attribute to the right or interest translated by the common law rule of recognition and enforceable at and protected by the common law a new characteristic, extrapolated from the reasoning of Gummow J in Newcrest. The newly attributed characteristic of inherent defeasibility would be one which, as a matter of law, would not need to be a characteristic of the same native title right or interest as existing under traditional laws and customs to be capable of common law recognition and which, as a matter of fact, would almost certainly not be a characteristic of that native title right or interest as so existing. The protection afforded to the native title holders by the common law rule of recognition would therefore be of a right or interest that is, by reason and to the extent of the inherent defeasibility, less than the right or interest which the native title holders have under their traditional laws and customs. The native title right or interest as translated by the common law rule would be different from and inferior to the underlying native title right or interest existing under traditional laws and customs.

79. The third consideration is that to attribute such a characteristic to a native title right or interest as translated by the common law rule of recognition in the absence of constitutional necessity for doing so would run counter to the fundamental consideration which impelled the formulation of the common law rule of recognition explained in Mabo [No 2]. The fundamental consideration was there explained to have been to bring the common law into conformity with "the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system".[140] The reference to "human rights" in this explanation must be understood as encompassing "the human right to own and inherit property (including ... to be immune from arbitrary deprivation of property)" identified in Mabo [No 1].[141]

    [140](1992) 175 CLR 1 at 30.

    [141](1988) 166 CLR 186 at 217.

80. Were a native title right or interest as recognised under the common law rule to be treated as defeasible at common law in circumstances where the native title right or interest existing under traditional laws and customs is not, the common law rule of recognition formulated in Mabo [No 2] would undermine the motivating rationale of the decision in that case, of ensuring that all persons, including native title holders, are equal before the law in the enjoyment of their human right to own and inherit property. As was stated in Mabo [No 2], to continue adherence to the common law's enlarged notion of terra nullius (that the prior occupation of indigenous inhabitants of a colony could be ignored if those inhabitants were perceived to be "without laws, without a sovereign and primitive in their social organization"[142]) so that "the Crown acquired absolute beneficial ownership of land" on the acquisition of sovereignty would have "destroy[ed] the equality of all Australian citizens before the law" and perpetuated injustice based on an historical fiction.[143] In the present case, to adopt the conditional common law rule of recognition of native title rights and interests would destroy that equality and perpetuate its own form of injustice. In the end, it is adherence to that motivating rationale of equality before the law that compels rejecting the statement by Gummow J in Newcrest, and with it the argument of the Commonwealth.

    [142](1992) 175 CLR 1 at 36.

    [143](1992) 175 CLR 1 at 58.

81. In consequence, the Commonwealth's argument, relying on descriptions of native title rights and interests recognised at common law as inherently fragile, goes too far in equating the metaphor of inherent fragility with the legal status of inherent defeasibility. The true position is that:[144]

    "Unless traditional law or custom so requires, native title does not require any conduct on the part of any person to complete it, nor does it depend for its existence on any legislative, executive or judicial declaration. The strength of native title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant."

    [144]Wik Peoples v Queensland (1996) 187 CLR 1 at 84. See also Fejo v Northern Territory (1998) 195 CLR 96 at 127 [44]; Wilson v Anderson (2002) 213 CLR 401 at 416-417 [4].

82. Native title rights and interests recognised at common law can be described as inherently fragile at common law, not because they are inherently defeasible at common law, but insofar as (before the Native Title Act) they would have been susceptible to executive extinguishment without compensation through the paramount force of an exercise of prerogative power (absent abrogation of that power by statute)[145] and insofar as a statute authorising the grant or appropriation of a right or interest in land conveys a clear and plain intention to extinguish, rather than merely to regulate, native title rights and interests.[146] That is all.

    [145]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 63, 70-71.

    [146]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 64.

83. To sum up, the common law rule by which native title rights and interests existing under traditional laws and customs are recognised at common law is and always has been a rule of unconditional recognition. Before the commencement of the Native Title Act on 1 January 1994, cessation of recognition of a native title right or interest previously recognised at common law was not the result of an inherent or innate susceptibility of that right or interest as recognised at common law to defeasance. Cessation of recognition was wholly and solely the result of a legally authorised and legally effective exercise of legislative or executive power operating of its own force to prevail over the operation of a rule of the common law. From 1 January 1994, s 238 of the Native Title Act, in providing that if an act affects any native title the native title is not extinguished (the "non-extinguishment principle" under that Act), modifies the common law rule of recognition in accordance with its terms.

84. The second of the propositions on which the claim made by the Gumatj Clan is founded is therefore correct. The second ground of the appeal fails. The theory of the claim is sound.

    The 1903 pastoral lease

85. The final ground of the Commonwealth's appeal by special leave to this Court raises a discrete issue concerning the extent to which native title rights and interests of the Gumatj Clan recognised at common law were extinguished upon the grant of a pastoral lease over land in the Gove Peninsula in 1903 by the Governor of South Australia under the Northern Territory Land Act.

86. The premise of the Gumatj Clan's claim is that common law recognition of their (by then) non-exclusive rights and interests in relation to minerals in the land continued despite the grant of the pastoral lease. The Commonwealth disputes that premise. According to the Commonwealth, continuing recognition of any native title rights to or interests in minerals after the grant of the pastoral lease would have been inconsistent with a provision of the pastoral lease which is properly to be construed as having: (1) severed title to those minerals from the leasehold interest granted to the lessee; and (2) conferred, by way of appropriation, title to those minerals exclusively on the Crown in right of South Australia.

87. The inclusion in the pastoral lease of the provision on which the Commonwealth relies was mandated by a provision of the Northern Territory Land Act which required the grant of the pastoral lease to be subject to "[a]n exception or reservation in favor of the Crown, and all persons authorised of all minerals, metals, gems, precious stones, coal, and mineral oils together with all necessary rights of access, search, procuration, and removal, and all incidental rights and powers".[147] The provision in the pastoral lease itself was relevantly expressed in terms of "excepting and reserving out of this lease under His Majesty His Heirs and Successors ... all minerals metals ... ores and substances containing metals gems precious stones coal and mineral oils ... with full and free liberty of access ingress egress and regress to and for the ... Minister and his agents lessees and workmen and all other persons authorised by him or other lawful authority with horses carts engines and carriages or without in over through and upon the said land to ... dig try search for and work the said minerals metals ... ores and substances containing metals gems precious stones coal and mineral oils ... and to take the same from the said lands and to erect buildings and machinery and generally to do such other work as may be required".

    [147]See s 24 and item (l) of Sch A to the Northern Territory Land Act.

88. The Full Court concluded that this provision created no title to minerals in the Crown in right of South Australia. In reaching that conclusion, the Full Court drew on an observation made in Wade v New South Wales Rutile Mining Co Pty Ltd,[148] with reference to a line of cases in New South Wales which commenced with Attorney-General v Brown,[149] and repeated in WikPeoples v Queensland,[150] to the effect that "the words 'reservation', 'reserving' etc" when used in Crown grants have long been understood and should continue to be understood to mean "a keeping back of a physical part of a thing otherwise granted". Conformably with that observation, the Full Court construed the words "excepting and reserving out of this lease ... all minerals" as having constituted "a withholding or keeping back" of minerals as distinct from the creation of any right in the Crown.[151]

    [148](1969) 121 CLR 177 at 194.

    [149](1847) 1 Legge 312 at 322.

    [150](1996) 187 CLR 1 at 200-201.

    [151]Yunupingu v The Commonwealth (2023) 298 FCR 160 at 191 [109].

89. The Commonwealth's argument against the Full Court's construction on the appeal is that, unless the provision created a right to the minerals the subject of the exception and reservation in the Crown, the provision would not have been efficacious. This is because, the Commonwealth argues, an unauthorised taking of those minerals would have been remediable at the time of the grant of the pastoral lease only by an information of intrusion at common law. According to the Commonwealth, the information of intrusion would have been available only if the Crown had "exclusive possession", equating to full beneficial ownership, of those minerals. Merely to have withheld the minerals or kept them back from the grant, and thereby to have done no more than to have retained radical title to the minerals, the Commonwealth argues, would have been insufficient to support the information of intrusion.

90. The correctness of the proposition that the Crown's recourse against an unauthorised taking of minerals the subject of the exception or reservation was limited to an information of intrusion at common law can be assumed in the Commonwealth's favour without needing to be decided. The argument that the Crown required full beneficial ownership of the minerals to maintain the information of intrusion must be rejected.

91. An information of intrusion was a prerogative remedy "in the nature of a civil action at the suit of the Crown" able to be "instituted for the purpose of obtaining satisfaction in damages for some injury to Crown possessions".[152] The civil action was understood to be "in the nature of an action of trespass quare clausum fregit", meaning that it "lay for an invasion of the plaintiff's land and damage to that land – the ordinary trespass of modern law – rather than for a dispossession".[153] By the common form of the information, the Attorney-General asserted that specified land was in the "possession" of the Crown and that the defendant had "intruded" into that possession.[154] A defendant who had in fact intruded onto the land needed to establish a superior right to possession of the land to that of the Crown in order not to be found liable as a trespasser.[155]

    [152]Chitty, A Treatise on the Law of the Prerogatives of the Crown (1820) at 332.

    [153]The Commonwealth v Anderson (1960) 105 CLR 303 at 322.

    [154]Attorney-General v Brown (1847) 1 Legge 312 at 313.

    [155]See generally McNeil, Common Law Aboriginal Title (1989) at 98-103.

390. By reason of the foregoing, the parties here were correct in observing that s 107 of the Mining Ordinance 1939 (NT) ("the 1939 Mining Ordinance") had the effect, subject to the Constitution, of extinguishing any native title rights to minerals over the claim area. Section 107 provided:

     "Subject to the provisions of this Ordinance and the regulations, gold, silver and all other minerals and metals on or below the surface of any land in the Territory, whether alienated or not alienated from the Crown, shall be and be deemed to be the property of the Crown:

     Provided that this section shall not apply in the case of land granted by the Crown in fee simple, in which case the ownership of gold and minerals shall depend on the terms of any reservation (if any) of gold or other minerals."

391. The foregoing is consistent with the conclusion of this Court in Western Australia v Ward,[771] which, amongst other issues, addressed the effect of s 117 of the Mining Act 1904 (WA). Section 117 vested property in minerals in the Crown. Gleeson CJ, Gaudron, Gummow and Hayne JJ said:[772]

     "[U]nlike the fauna legislation considered in Yanner v Eaton, the vesting of property in minerals was no mere fiction expressing the importance of the power to preserve and exploit these resources. Vesting of property and minerals was the conversion of the radical title to land which was taken at sovereignty to full dominion over the substances in question no matter whether the substances were on or under alienated or unalienated land."

     [771](2002) 213 CLR 1.

     [772]Western Australia v Ward (2002) 213 CLR 1 at 186 [384] (footnotes omitted).

392. As it happens, and for the reasons given below, the Crown had already asserted its sovereign rights over minerals in the Northern Territory before that territory was surrendered to the Commonwealth. That assertion by the Crown was inconsistent with any enduring native title rights to minerals.

     South Australian regulation of mining in the Northern Territory

393. At common law, apart from royal metals, the owner of an estate in fee simple owned all of the minerals under the land. In Australia the law has since changed. The position may be summarised thus:[773]

     "The present position in Australia regarding mineral ownership stands in stark contrast with the common law. The norm is public rather that private ownership."

     [773]Lang and Crommelin, Australian Mining and Petroleum Laws (1979) at 12 [202].

394. That "norm" existed in the Northern Territory since at least 1903. That is the short answer to ground three. An examination of the law concerning the mining of natural resources in the Northern Territory before 1911 bears that out.

395. In 1873, the Northern Territory Gold Mining Act 1873 (SA) was passed into law. Section 26 of that Act prescribed the rights which were to be conferred on the holder of a miner's right in the Northern Territory. One of these, contained in s 26(x), conferred ownership of gold found by a miner who held a miner's right. It provided:

     "And subject as aforesaid, during such continuance as aforesaid, all gold then being in and upon any such parcel, shall (except as against Her Majesty) be the absolute property of the person or persons for the time being in the lawful occupation of such parcel".

396. In 1882, South Australia enacted the Northern Territory Crown Lands Consolidation Act 1882 (SA). Part V of that Act was headed "Provisions respecting Mining". Pursuant to s 61 in Pt V of that Act, waste land in the Northern Territory could be leased for the purposes of mining for any mineral or metal, other than gold. Pursuant to s 65, each lease bound the lessee to mine and work the land. Leases were to be in the form appearing in the Tenth Schedule to the Act. One of the clauses which appeared in the Tenth Schedule gave a lessee the liberty "to dig sink drive make and use all such pits shafts levels watercourses and other works which it may be necessary to use in finding seeking for winning working and obtaining the copper and other ores not being gold therein". The lease also permitted the lessee to separate ores and minerals from the soil and to smelt or reduce such ore into metal.

397. In 1888, South Australia enacted the Northern Territory Mineral Act 1888 (SA). It repealed Pt V of the Northern Territory Crown Lands Consolidation Act 1882 (SA).[774] It provided in s 9 for the grant of leases of Crown lands "for mineral purposes". The term "Crown lands" was defined in s 3 to mean all lands in the Northern Territory except lands reserved for or dedicated to any public purpose, lands granted in fee simple by or on behalf of the Crown, and lands subject to any lease with a right of purchase or any lease or licence for mineral purposes granted by or on behalf of the Crown. Pursuant to s 10, a mineral lease conferred ownership of minerals (except gold) found in the leased land on the leaseholder. It provided:

     "Every mineral lease ... shall entitle the lessee during the currency [of the lease] to mine for and dispose of for his own benefit all metals and minerals upon the leased land except gold".

     [774]Northern Territory Mineral Act 1888 (SA), s 2.

398. In 1893, South Australia enacted the Mining Act 1893 (SA). It did not apply to the Northern Territory.[775] It was otherwise a comprehensive Act for the public administration of mining in South Australia and provided for ownership of any minerals found and won by miners. By s 13, the province of South Australia was to be divided into "mining districts". Section 26 provided:

     "Prospecting and mining shall be permitted pursuant to this Act by virtue of—

     (a)      A miners' right:

     (b)      A gold lease:

     (c)      A mineral lease:

     (d)      A coal lease:

     (e)      An oil lease: or

     (f)       A miscellaneous lease".

     [775]Mining Act 1893 (SA), s 6.

399. Each of the foregoing (with the exception of "miscellaneous lease") was a defined term. Thus, for example, pursuant to s 32(b), the holder of a miner's right had "the preferential right to a mineral lease, and in the meantime the right to mine on the claim for any metals or minerals, except gold, and the ownership of all such metals and minerals when found". The holder of a miner's right could obtain a mineral lease. Pursuant to s 58(ii), the holder of such a lease could only use the leased land for mining. Pursuant to s 55, "[t]he holder of a gold lease under this Act shall be entitled by virtue of his lease to mine for all metals, minerals, coal, and oil". The word "metals" was defined to include gold.[776] This Act also specifically encouraged mining. Pursuant to s 89, the Minister could grant a reward to the "actual discoverer of any new mineral district, or of any new and valuable deposit of metals, minerals, coal, or oil".

     [776]Mining Act 1893 (SA), s 4.

400. In 1903, South Australia passed the Northern Territory Mining Act 1903 (SA) ("the NT Mining Act"). Like the Mining Act 1893 (SA), this Act was a sweeping measure for the exploitation of mining. It represented a comprehensive exercise of sovereignty over the natural resources of the Northern Territory. Section 6 provided that the Minister may from time to time "erect the whole or any portion of the Northern Territory into a mining district or districts". Pursuant to s 16, a "miner's right" could be granted and, by reason of s 17, such a right would have been "available for the whole of the Northern Territory" (with a limited exception). Section 19 set out the entitlements of the holder of a miner's right. The first listed was to "take possession of, mine, and occupy Crown lands for mining purposes". The term "Crown lands" was defined in s 4 to be all lands "vested in His Majesty in the Northern Territory" except lands dedicated to any public purpose, lands granted in fee simple, lands subject to any lease with a right to purchase, lands held under any gold mining lease or mineral lease, and certain other lands. Section 20(1) provided that any person or company taking up and occupying Crown lands by reason of a miner's right shall "be deemed in law to be possessed (except as against His Majesty) of such land so taken up and occupied".

401. Section 20(2) is important. It provided for a miner to take title absolutely to minerals won under a miner's right. It stated (emphasis added):

     "All gold and other minerals found upon any land so taken up and occupied for the purpose of mining for gold, and all minerals other than gold found upon any land so taken up and occupied for the purpose of mining for minerals other than gold, shall be the absolute property of the holder of such miner's right in lawful occupation of such land."

402. Part VI of the NT Mining Act also addressed gold mining leases. Pursuant to s 32, gold mining leases could be issued for, amongst other purposes, "mining for gold".[777] Pursuant to s 33, the holder of a gold mining lease was entitled to mine for "all" metals and minerals upon the land. Pursuant to s 34, rent was payable out of the net profits from the sale of all metals and minerals obtained from the land the subject of the lease.

     [777]NT Mining Act, s 32(1).

403. Part VII of the NT Mining Act also dealt with mineral leases.[778] Section 40 provided that a mineral lease "shall entitle the lessee ... to mine for and dispose of for his own benefit all metals and minerals upon the leased land except gold" (emphasis added). Pursuant to s 43 rent was payable from the "net profits obtained from the occupation and working of all mines and the sale of all metals and minerals" (emphasis added).

     [778]It should be noted that the NT Mining Act did not create any entitlement to a mineral lease: see s 56.

404. The NT Mining Act otherwise had extensive provisions about, for example, the "Amalgamation of Claims and Leases" (Pt IX); the "Forfeiture of Leases" (Pt X); "Wardens, Their Powers and Duties" (Pt XI); "Inspection of Mines" (Pt XIII); and the making of regulations (Pt XIV). Part XVI dealt with "Miscellaneous Matters". Section 138, found in that Part, is important. It rendered it illegal for any person to mine or prospect without lawful authority granted under the NT Mining Act or some preceding Act. It provided:

     "If any person not holding a miner's right, or not otherwise authorised to mine or prospect by virtue of this Act or some enactment heretofore in force, shall mine or prospect, whether on his own behalf or on behalf of any other person, whether or not the lawful possessor of any claim, or as partner with any such person, he shall be liable, on conviction, to pay for each such offence a penalty not exceeding Two Pounds; and the burden of proving that he is the holder of a miner's right, or otherwise authorised as aforesaid, shall rest upon him."

405. Section 139 is also important. It permitted the warden to impose an on the spot "miner's right fee", and also a fine, on a person found to be mining or prospecting on any Crown lands who was unable to produce their miner's right authorising such activity, or where they could not satisfactorily account to the warden for not having a miner's right. If the fee and fine was not paid immediately, the warden could cause the offender to be arrested and to be imprisoned "in the nearest lockup or the nearest gaol".

406. Section 142 is again important. Any person found working for or removing gold or minerals without permission could be forcibly ejected by a warden or a police officer and "on conviction thereof shall forfeit and pay for every such offence any sum not exceeding Fifty Pounds, or in default of payment to be imprisoned for any term not exceeding six months".

407. Several features of the NT Mining Act should be noted:

     (a)first, the Act was an unambiguous legislative regime for the public control of all minerals under Crown lands in the Northern Territory;

     (b)secondly, the Act was not limited to the mere regulation of natural resources. It delivered title to those minerals to the holder of a miner's right, or a gold or mineral lease;

     (c)thirdly, to be able to deliver unencumbered title to the natural resources an implied, but nonetheless necessary, conclusion must be drawn that there had been, at least by the enactment of the NT Mining Act, an assertion of state sovereignty or complete dominion over all relevant minerals on Crown lands.[779] Whether this amounted to beneficial ownership is of no moment; what is crucial is that the State had aggregated to itself all such minerals for their eventual disposal to the holders of mineral tenements;

     (d)fourthly, in the case of each mineral tenement, title was capable of being won in relation to "all" minerals in the claim area. There was no possibility of any sharing of title with a third party without the permission of the owner of the mineral tenement;

     (e)fifthly, all mining on Crown lands in the Northern Territory could only take place in accordance with the regime set out in the NT Mining Act. Otherwise, a fine had to be paid and, if not paid, imprisonment might have followed; and

     (f)sixthly, the reach of the regime created by the NT Mining Act was exhaustive. Save for exceptions inter alia for previously issued mining rights, it covered all of the Crown lands of the Northern Territory.[780] In that respect, the mineral resources of the Northern Territory are finite and the design of the NT Mining Act was to facilitate "operations for getting at and getting out minerals".[781] And when such minerals were found and then won, they were expected to be used or sold in some way.[782] Such a regime necessarily could not co-exist with a native title right to take and use mineral resources. And mineral resources are unlike other natural resources, such as fish stocks, that can be replenished and more naturally shared.[783]

     [779]Insofar as there had not been previous mineral tenements granted under previous enactments, such as the Northern Territory Mineral Act 1888 (SA).

     [780]NT Mining Act, s 4.

     [781]Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 194.

     [782]See, for example, s 41(3) of the NT Mining Act.

     [783]cf The Commonwealth v Yarmirr (2001) 208 CLR 1.

408. The foregoing is consistent with the requirement that pastoral leases in the Northern Territory contain a reservation in favour of the Crown of all minerals. Thus, in the NT Land Act, s 24 provided that every pastoral lease must contain the "covenants, exceptions, reservations, and provisions" set out in Sch A to that Act. Schedule A contained the following reservation in respect of minerals in favour of the Crown:

     "An exception or reservation in favor of the Crown, and all persons authorised of all minerals, metals, gems, precious stones, coal, and mineral oils together with all necessary rights of access, search, procuration, and removal, and all incidental rights and powers".

409. In the case of the claim area, and consistently with the foregoing, Pastoral Lease No 2229, relied upon by the appellant, contained the following reservation of minerals:

     "AND ALSO excepting and reserving out of this lease under His Majesty His Heirs and Successors ... all minerals metals (including Royal metals) ores and substances containing metals gems precious stones coal and mineral oils guano claystone and sand with full and free liberty of access ingress egress and regress to and for the said Minister and his agents ... to dig try search for and work the said minerals metals (including Royal metals)".

410. That a reservation like this might be capable of creating title to minerals is illustrated by the decision of this Court in Colon Peaks Mining Co v Wollondilly Shire Council.[784] There, in the context of New South Wales law, Griffith CJ explained that the effect of this type of reservation was to create an independent title to minerals in favour of the Crown. Griffith CJ thus said:[785]

     "In the case of grants not containing a reservation of minerals the owner of the fee simple was also the owner of the minerals, and the whole property was held under a single title—the Crown Grant; while in the case of grants containing such a reservation there were two independent titles—one to the land excepting the minerals, the other to the minerals, to which the grantee had no title, and the property in which remained in the Crown until demised under the Act."

     [784](1911) 13 CLR 438.

     [785]Colon Peaks Mining Co v Wollondilly Shire Council (1911) 13 CLR 438 at 444.

     The right to access, take and use for any purpose the minerals of the claim area

411. Ground three is not concerned with the extinguishment of all of the alleged native title rights claimed by the Gumatj clan. It is concerned only with the non-exclusive claim made to "access, take and use for any purpose" the "minerals" in the claim area. In that respect, two observations should be made. First, it is accepted that native title may comprise a "bundle of rights".[786] Here the asserted right to take and use minerals is one such right. Secondly, it is also accepted that native title may be extinguished in part.[787] That can include one or more of the rights held as part of a bundle of rights. That principle is applicable here.

     [786]Western Australia v Ward (2002) 213 CLR 1 at 95 [95].

     [787]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 69.

412. I agree with Gordon J that the reservation in favour of minerals in Pastoral Lease No 2229 did not of itself constitute an assertion of absolute beneficial ownership of all minerals in the claim area. But, for the reasons set out above, that reservation is nonetheless consistent with the complete dominion over minerals by the Crown which, at the latest, existed from when the NT Mining Act came into law. Whilst the appellant did not rely upon the operation of that Act in order to contend for the extinguishment of the claimed right to minerals, that proposition was raised in argument, and is too important to be cast aside. For the reasons set out below, the operation of the NT Mining Act did extinguish any native title right to take and use minerals in the claim area.

413. In that respect, this is not a case about the mere regulation of rights although, plainly, the NT Mining Act is concerned with the regulation of natural resources in the Northern Territory. The case is unlike, for instance, the decision of this Court in Yanner v Eaton.[788] That case concerned the operation of the Fauna Conservation Act 1974 (Qld). Section 7 of that Act purported to make fauna the "property of the Crown". Section 54 of that Act prohibited a person from taking or keeping fauna without a necessary licence or other authority. That Act was found not to be inconsistent with a native title right to hunt for particular fauna, namely juvenile crocodiles. That was because s 7 did not really operate to confer beneficial ownership in the fauna on the Crown. The plurality[789] quoted Holmes J in Missouri v Holland,[790] who wrote "[w]ild birds are not in the possession of anyone; and possession is the beginning of ownership". It followed from this that:[791]

     "[T]he statutory vesting of 'property' in the Crown by the successive Queensland fauna Acts can be seen to be nothing more than 'a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource'[792]."

     [788](1999) 201 CLR 351.

     [789]Yanner v Eaton (1999) 201 CLR 351 at 368 [25].

     [790](1920) 252 US 416 at 434.

     [791]Yanner v Eaton (1999) 201 CLR 351 at 369 [28].

     [792]Toomer v Witsell (1948) 334 US 385 at 402 per Vinson CJ (footnote omitted).

414. The Court otherwise decided that the Fauna Conservation Act1974 (Qld) merely regulated the particular native title right to hunt. Regulating a right did not result in any necessary inconsistency and thus extinguishment. Thus, the plurality observed:[793]

     "Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, 'You may not hunt or fish without a permit', does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing."

     [793](1999) 201 CLR 351 at 373 [38].

415. Nor is this case analogous to the decision of this Court in Akiba v The Commonwealth.[794] That case concerned whether a series of legislative regimes since 1877 for the management of commercial fishing had extinguished native title fishing rights in the Torres Strait. Again, this was a case of mere regulation. Moreover, the native title right identified – namely the right to access and to take resources from the identified waters for any purpose – was much broader than the activity that required management under the Act.[795] Thus, Hayne, Kiefel and Bell JJ observed:[796]

     "The repeated statutory injunction, 'no commercial fishing without a licence', was not, and is not, inconsistent with the continued existence of the relevant native title rights and interests."

     [794](2013) 250 CLR 209.

     [795]Akiba v The Commonwealth (2013) 250 CLR 209 at 241-242 [65]-[69].

     [796]Akiba v The Commonwealth (2013) 250 CLR 209 at 244 [75].

416. This is a case where the NT Mining Act went further than mere regulation. It provided for the giving of title to third parties in the very thing – namely minerals – which is the subject matter of the particular native title right in question. And in order for this to be possible, the Crown had to have asserted lawful dominion or sovereignty over all minerals on Crown lands in the Northern Territory. Any competing native title right would have been necessarily inconsistent with such a regime. That is because it is simply not possible to share a non-exclusive right to a particular mineral, say a singular globule of bauxite. And moreover, for reasons already given, the miner's right, gold mining lease and mineral lease convey rights to mine all relevant minerals within a given mining tenement. Save with the consent of the holder of such a right or lease, the regime for the management of minerals on Crown lands created by the NT Mining Act did not permit or countenance non-exclusive ownership of minerals. Instead, the very point of the legislative regime was to confer exclusive rights to mine; to use the language of Windeyer J, a mining lease is "a means by which the Crown disposes of minerals the property in which it has retained".[797]

     [797]Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 193.

417. In that respect, it is simplistic to contend that the NT Mining Act falls short of necessary inconsistency because it, unlike the 1939 Mining Ordinance, contains no express provision stating that all "gold, silver and all other minerals and metals ... in the Territory" was the property of the Crown.[798] That Ordinance traversed the same field of operation as the NT Mining Act. So, for example, s 30(2) provided that the holder of a miner's right obtained "absolute property" of minerals (other than gold) found in land taken up by the right. There were also similar provisions dealing with "Gold-mining Leases" (Div 1 of Pt V of the 1939 Mining Ordinance) and "Mineral Leases" (Div 2 of Pt V of the 1939 Mining Ordinance).

     [798]1939 Mining Ordinance, s 107.

418. In that respect it should be inferred that s 107 (which provided for the Crown to own all minerals) was enacted out of an abundance of caution. That is because it appears in Pt VII of the 1939 Mining Ordinance, which addressed mining on private land, and also because s 107 stated that the Crown's ownership of minerals did not apply to land held in fee simple; in such a case "the ownership of gold and minerals shall depend on the terms of any reservation (if any) of gold or other minerals". In contrast, the NT Mining Act did not address mining on private land at all. In other words, the section was no doubt included to make the public ownership of minerals clearer, in circumstances where at common law the owner of land owned the minerals beneath it (save for royal metals).[799]

     [799]Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 185.

419. Nor should it be accepted that inconsistency would only ever arise upon the actual and subsequent issue of a miner's right, gold mining lease or mineral lease pursuant to the NT Mining Act. It is the exercise of sovereign power, as manifested by the terms of that Act, which is necessarily inconsistent with any native title rights to minerals from the moment of enactment. That exercise is exhaustive in nature and necessarily asserted immediate public control of all mineral resources on Crown lands. In effect, there had been a full nationalisation of those resources of the Northern Territory on Crown lands for the benefit of the people of the territory. And that nationalisation admitted of no exceptions;[800] duality of title was impossible.[801] In that respect, the NT Mining Act is distinguishable from laws regulating flora, fauna and aquatic resources; those resources are, by nature, replenishable and thus non-exclusive native title rights to them may simply endure.[802] As described above, the mineral resources of the Northern Territory are finite. Moreover, the foregoing is consistent with the agreement of the parties that, subject to the Constitution, s 107 of the 1939 Mining Ordinance, and not any mining tenement thereafter issued, immediately extinguished native title to minerals on Crown lands.

     [800]Save for past grants of mineral tenements.

     [801]cf Western Australia v Ward (2002) 213 CLR 1 at 161 [292].

     [802]See, eg, Yanner v Eaton (1999) 201 CLR 351; Akiba v The Commonwealth (2013) 250 CLR 209.

     Disposition

420. I would answer the questions relating to grounds one and two in the same way as Gordon J. Question two of the questions answered by the Full Court of the Federal Court of Australia, from which the third ground of appeal before this Court arises, relevantly asks whether the first respondent's claim, insofar as it relates to the vesting of property in minerals on Crown lands by reason of s 107 of the 1939 Mining Ordinance, necessarily fails because any native title rights to such minerals had already been extinguished by reason of the grant of certain pastoral leases, in particular Pastoral Lease No 2229. For the reasons given by Gordon J, the pastoral leases had no such effect. Nonetheless, as set out above, native title rights to such minerals were extinguished for another reason before the surrender of the Northern Territory to the Commonwealth.

421. It follows that, like the question posed by the Administrative Appeals Tribunal in Hepples v Federal Commission of Taxation,[803] the wrong question has been asked. In that respect, it should be repeated that the possible legal effect of the NT Mining Act on native title was raised with the parties during oral argument. In these circumstances, I would remit the proceeding back to a docket judge for the determination of the first respondent's claims in accordance with these reasons.

     [803](1992) 173 CLR 492 at 552-553.

422. It should also be noted that it is presently impossible to identify with any precision any other particular native title rights, assuming they exist, that have been extinguished by reason of the NT Mining Act. As Gleeson CJ, Gaudron, Gummow and Hayne JJ observed in Western Australia v Ward,[804] in analogous circumstances, the identification of such rights "requires further findings of fact and a more precise determination of the content of the native title rights and interests being asserted".[805] That can be achieved on remittal.

     [804](2002) 213 CLR 1.

     [805](2002) 213 CLR 1 at 176 [341].