Western Australia v Ward

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Case Agency Issuance Number Published Date

Western Australia v Ward

[2002] HCA 28

Case

Western Australia v Ward

[2002] HCA 28

•

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
Matter No P59/2000
THE STATE OF WESTERN AUSTRALIA  APPELLANT
AND
BEN WARD & ORS RESPONDENTS
Matter No P62/2000
THE ATTORNEY-GENERAL OF THE
NORTHERN TERRITORY   APPELLANT
AND
BEN WARD & ORS RESPONDENTS
Matter No P63/2000
CECIL NINGARMARA & ORS   APPELLANTS
AND
THE NORTHERN TERRITORY OF
AUSTRALIA & ORS   RESPONDENTS
Matter No P67/2000
BEN WARD & ORS   APPELLANTS
AND
CROSSWALK PTY LTD & ORS  RESPONDENTS
Western Australia v Ward
Attorney-General (NT) v Ward
Ningarmara v Northern Territory
Ward v Crosswalk Pty Ltd
[2002] HCA 28
8 August 2002
P59/2000, P62/2000, P63/2000 and P67/2000
ORDER
1.   Each of the appeals is allowed.
2.   Paragraphs 4 and 6 of the orders of the Full Court of the Federal Court made on 3 March 2000, the whole of the order of the Full Court of the Federal Court made on 11 May 2000 and the determination of native title made on 11 May 2000 are set aside and the matters remitted to the Full Court for further hearing and determination.
3.   There is no order as to the costs of the appeals in this Court.
4.   The costs of the proceedings at trial and in the Full Court of the Federal Court, both before and after the making of this Court's orders disposing of these appeals, are to be in the discretion of the Full Court.
On appeal from the Federal Court of Australia
Representation:
Matter No P59/2000
R J Meadows QC, Solicitor-General for the State of Western Australia and C J L Pullin QC and K M Pettit for the appellant (instructed by the Crown Solicitor for Western Australia)
M L Barker QC and R H Bartlett for the first respondents (instructed by the Aboriginal Legal Service of Western Australia (Inc))
J Basten QC with K R Howie SC and S A Glacken for the second respondents (instructed by the Northern Land Council)
W Sofronoff QC and G M G McIntyre for the third respondents (instructed by the Kimberley Land Council)
Matter No P62/2000
T I Pauling QC, Solicitor-General for the Northern Territory and R J Webb for the appellant (instructed by the Solicitor for the Northern Territory)
M L Barker QC and R H Bartlett for the first respondents (instructed by the Aboriginal Legal Service of Western Australia (Inc))
J Basten QC with K R Howie SC and S A Glacken for the second respondents (instructed by the Northern Land Council)
Matter No P63/2000
J Basten QC with K R Howie SC and S A Glacken for the appellants (instructed by the Northern Land Council)
T I Pauling QC, Solicitor-General for the Northern Territory and R J Webb for the first respondent (instructed by the Solicitor for the Northern Territory)
B O'Loughlin for the second respondent (instructed by Clayton Utz)
R J Meadows QC, Solicitor-General for the State of Western Australia and C J L Pullin QC and K M Pettit for the third respondent (instructed by the Crown Solicitor for Western Australia)
M L Barker QC and R H Bartlett for the fourth respondents (instructed by the Aboriginal Legal Service of Western Australia (Inc))
W Sofronoff QC and G M G McIntyre for the fifth respondents (instructed by the Kimberley Land Council)
Matter No P67/2000
M L Barker QC and R H Bartlett for the appellants (instructed by the Aboriginal Legal Service of Western Australia (Inc))
N Johnson QC with M T McKenna for the first respondents (instructed by Hunt & Humphry)
J Basten QC with K R Howie SC and S A Glacken for the second respondents (instructed by the Northern Land Council)
T I Pauling QC, Solicitor-General for the Northern Territory and R J Webb for the third respondent (instructed by the Solicitor for the Northern Territory)
W Sofronoff QC and G M G McIntyre for the fourth and sixth respondents (instructed by the Kimberley Land Council)
R J Meadows QC, Solicitor-General for the State of Western Australia and C J L Pullin QC and K M Pettit for the fifth respondent (instructed by the Crown Solicitor for Western Australia)
D W McLeod with P L Wittkuhn for the seventh respondents (instructed by McLeod & Co)
H B Fraser QC with K R Jagger for the eighth respondents (instructed by Freehills)
Interveners:
Matter Nos P59/2000, P62/2000 and P63/200
D M J Bennett QC, Solicitor-General of the Commonwealth with M A Perry and J S Stellios intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
B M Selway QC, Solicitor-General for the State of South Australia with S T Hellams intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for South Australia)
B W Walker SC with S E Pritchard intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)
G M G McIntyre with D L Ritter intervening on behalf of the Yamatji Barna Baba Maaja Aboriginal Corporation (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)
Matter No P67/2000
D M J Bennett QC, Solicitor-General of the Commonwealth with M A Perry and J S Stellios intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
B M Selway QC, Solicitor-General for the State of South Australia with S T Hellams intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for South Australia)
J L Sher QC with M T Ritter intervening on behalf of the Goldfields Land Council (instructed by the Goldfields Land Council Aboriginal Corporation)
G E Hiley QC with G R Donaldson intervening on behalf of the Pastoralists and Graziers Association of WA (Inc) (instructed by the Pastoralists and Graziers Association of WA (Inc))
B W Walker SC with S E Pritchard intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)
G M G McIntyre with D L Ritter intervening on behalf of the Yamatji Barna Baba Maaja Aboriginal Corporation (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)
C F Thomson intervening on behalf of the Mirimbiak Nations Aboriginal Corporation (instructed by Mirimbiak Nations Aboriginal Corporation)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Western Australia v Ward
Aboriginals – Native title to land – Extinguishment – Extinguishment by grant of interest in land – Inconsistency between native title rights and interests and rights and interests under allegedly extinguishing grants – Adverse dominion test rejected.
Aboriginals – Native title to land – Native Title Act 1993 (Cth) – Previous exclusive possession acts – Previous non-exclusive possession acts – Past acts – Intermediate past acts – Public works.
Appeal – Federal Court of Australia – Nature of appeal – Rehearing – Principles applicable.
Aboriginals – Native title to land – Extinguishment – Partial extinguishment – Suspension of native title rights and interests – Partial extinguishment and suspension under the Native Title Act 1993 (Cth).
Aboriginals – Native title to land – Extinguishment – Crown lands – Particular kinds of transactions respecting Crown lands – Pastoral lease under Land Acts of Western Australia – Mining lease under Mining Acts of Western Australia – Reserves – Special purposes lease – Special lease – Resumption of land under the Land Act 1933 (WA) and Public Works Act 1902 (WA) – Grant to occupy land – Grant of leased reserve – Vacant Crown land.
Aboriginals – Native title to land – Validity of past acts – Racial Discrimination Act 1975 (Cth) – Inconsistency of State law authorising grant of interest in land.
Aboriginals – Native title to land – Rights in relation to land or waters – Cultural knowledge.
Constitutional law (Cth) – Territories – Relationship between Commonwealth and Territory laws.
Words and phrases –"past acts", "intermediate period acts", "exclusive possession", "previous exclusive possession acts", "previous non-exclusive possession acts", "non-exclusive pastoral leases", "public works", "works", "category A past act", "category B past act", "category C past act".
Australian Waste Lands Act 1855 (Imp), s 7.
Western Australia Constitution Act 1890 (Imp), s 3.
Federal Court of Australia Act 1976 (Cth), ss 24, 27.
Native Title Act 1993 (Cth), Pt 1, Pt 2 Div 1 (ss 11, 14, 15, 16, 19), Pt 2 Div 2 (ss 17, 20), Pt 2 Div 2A, Pt 2 Div 2B (ss 23B, 23C, 23E, 23F, 23G, 23J), Pt 2 Div 4 (s 45), Pt 2 Div 5, ss 223, 225, 226, 228, 231, 238, 242, 245, 248A, 248B.
Native Title Amendment Act 1998 (Cth).
Racial Discrimination Act 1975 (Cth), ss 9, 10.
Aboriginal Heritage Act 1972 (WA).
Land Act 1898 (WA), Pt I (ss 3, 4, 15, 16, 32, 33), Pt III, Pt V (s 62), Pt VI, Pt VII, Pt VIII, Pt IX, Pt X (ss 92, 93, 94, 95, 96, 97, 98, 99, 102, 104, 106, 107), Pt XI, Pt XII (ss 135, 138, 142, 143, 144, 150, 151, 154).
Land Act Amendment Act 1905 (WA), s 10.
Land Act 1933 (WA), Pt I (ss 3, 7, 11, 13), Pt III (ss 29, 30, 31, 32, 33, 34), Pt V Div 1, Pt V Div 2, Pt V Div 3, Pt V Div 4, Pt VI (ss 106, 109), Pt VII, Pt IX (ss 162, 163, 164).
Mining Act 1904 (WA), ss 117, 122, 123.
Mining Act 1978 (WA), s 8, Pt III Div 3 (ss 29, 35), Pt IV Div 3 (ss 71, 73, 78, 82, 85), Pt IV Div 4, ss 113, 123.
Public Works Act 1902 (WA), ss 18, 34.
Rights in Water and Irrigation Act 1914 (WA), ss 2, 3, 4.
Titles Validation Act 1995 (WA).
Titles Validation Amendment Act 1999 (WA).
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), Pt 2 (ss 5, 6, 7, 8, 9, 10, 11), Pt 2A (s 12A), Pt 2B (ss 12I, 12J, 12K, 12L, 12M, 12N, 12O, 12P).
Titles (Validation) and Native Title (Effect of Past Acts) Amendment Act 1999 (WA).
Wildlife Conservation Act 1950 (WA), ss 6, 23.
Validation (Native Title) Act 1994 (NT), Pt 1 (ss 3, 3A, 3B), Pt 2 (ss 4, 4A, 4C), Pt 3 (ss 5, 6, 7, 8, 9), Pt 3C (ss 9L, 9M), Pt 4 (s 10), Pt 5 (s 11).
GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ.
Introduction

The central issues in these four appeals from the Full Court of the Federal Court[1] were said to be whether there could be partial extinguishment of native title rights and interests, and what principles should be adopted in determining whether native title rights and interests have been extinguished in whole or in part. Those questions were framed in the abstract. The supposition appeared to be that the answer to them is to be found by an examination of the general law as revealed in previous decisions of this Court. The supposition cannot be supported.
[1]Western Australia v Ward (2000) 99 FCR 316.
As is apparent from the Preamble to the Native Title Act 1993 (Cth) ("the NTA"), that statute was introduced following the decision in Mabo v Queensland [No 2][2]. The subsequent decisions of this Court, Wik Peoples v Queensland[3], Fejo v Northern Territory[4] and Yanner v Eaton[5], were not given in appeals brought in respect of the determination by the Federal Court of applications under the NTA. In the present litigation, the determination provisions of the NTA are directly engaged. Thus, statute lies at the core of this litigation. The NTA has been amended from time to time, most significantly by the Native Title Amendment Act 1998 (Cth) ("the 1998 Act"). The relevant provisions of the 1998 Act commenced on 30 September 1998. Judgment at trial was delivered on 24 November 1998.
[2](1992) 175 CLR 1.
[3](1996) 187 CLR 1.
[4](1998) 195 CLR 96.
[5](1999) 201 CLR 351.
These reasons are organised as follows:
PART 1 – THE LEGISLATIVE SCHEME AND THE LITIGATION
A.       THE LEGISLATIVE SCHEME
1.General [4]-[13]
2.Native title [14]-[25]
3.Extinguishment of native title [26]-[29]
B.       THE LITIGATION BELOW
1.General [30]-[33]
2.The claim area [34]-[37]
3.The determination of the primary judge [38]-[40]
4.The 1998 Act [41]-[45]
5.The Full Court appeals [46]-[53]
C.THIS APPEAL
1.Parties and submissions [54]-[56]
2.Cultural knowledge and spiritual connection [57]-[64]
3.The applicable law [65]-[72]
PART 2 – EXTINGUISHMENT
D.THE CRITERION FOR EXTINGUISHMENT [73]-[82]
E.WARD SUBMISSIONS [83]-[95]
F.CONSIDERATION OF EXTINGUISHMENT SUBMISSIONS
1.        General [96]-[97]
2.The Racial Discrimination Act 1975 [98]-[100]
3.Section 9(1) of the RDA [101]-[103]
4.Section 10(1) of the RDA [104]-[134]
5.Divisions 2, 2A and 2B of Pt 2 of the NTA [135]-[140]
G.THE PROJECT AND "OPERATIONAL INCONSISTENCY" [141]‑[156]
H.       LAND LAW IN WESTERN AUSTRALIA
1.        History [157]-[168]
2.Pastoral lease provisions for Aboriginal people [169]
3.        Pastoral leases [170]-[196]
I.         RESERVES
1.Introduction [197]-[200]
2.Resumptions [201]-[208]
3.The effect of reservation [209]-[223]
4.Vesting of reserves [224]-[248]
Vesting under the Land Acts
The significance of the use of reserved land
Vesting under the Land Act 1933, s 33
Nature reserves
5.The effect on native title of vesting reserves under the Land Act 1933, s 33 [249]-[261]
6.Rights in Water and Irrigation Act 1914 [262]-[277]
7.The effect on native title of resumptions under the Public Works Act 1902 [278]-[280]
8.Vacant Crown land [281]
J.        MINING LEASES
1.Introduction [282]-[296]
2.The NTA and the State Validation Act [297]-[305]
3.        Extinguishment [306]-[321]
4.        The Argyle mining lease [322]-[335]
5.        The general purpose lease [336]-[342]
K.OTHER TRANSACTIONS ALLEGED TO EFFECT EXTINGUISHMENT IN WESTERN AUSTRALIA
1.Introduction [343]
2.Conditional purchase lease [344]-[350]
3.Special leases [351]-[357]
4.Leases of reserves [358]-[375]
L.        MINERALS AND PETROLEUM [376]-[385]
M.      FISHING [386]-[388]
N.       NORTHERN TERRITORY
1.        General [389]-[395]
2.        Pastoral leases [396]-[425]
3.The Keep River National Park and leases to the Conservation Land Corporation [426]-[460]
4.Minerals and petroleum in the Northern Territory [461]
PART 3 – OTHER
O.PROCEDURAL AND OTHER ISSUES [462]-[466]
P.SUMMARY [467]-[468]
Q.ORDERS AND FURTHER PROCEEDINGS [469]-[471]
PART 1 – THE LEGISLATIVE SCHEME AND THE LITIGATION
A.       THE LEGISLATIVE SCHEME
1.        General
It is convenient at this stage to refer, albeit in somewhat general terms, to the legislative scheme upon the operation of which turn the issues of extinguishment in this litigation. The chronology fixed by the legislative scheme is important for an understanding of the scheme. In particular, the temporal guide posts of 31 October 1975, 1 January 1994 and 23 December 1996 should be identified as follows.
The NTA contains provisions in Pt 2, Div 2 which provide for the "validation", by Div 2 itself (s 14) and corresponding provisions in State and Territory laws, of certain "past acts" attributable to the Commonwealth, a State or a Territory which, were it not for the NTA, would be invalid to any extent, in particular by operation of the Racial Discrimination Act 1975 (Cth) ("the RDA"). The relevant provisions of the RDA commenced on 31 October 1975. "Past act" is a somewhat misleading expression. Many previous acts which took effect at earlier times will not be "past acts" because they are not to any extent invalid by operation of the RDA. They may have been effective at common law to work extinguishment of native title.
Division 2 provides in respect of some "past acts" not only for their validation (by s 14 and corresponding State and Territory laws), but also (by s 15 and corresponding State and Territory laws) for the extinguishment wholly or partly of native title because they are to be classified as some particular species of "past act". Where the "past act" in question is, to put it broadly, the grant of a freehold estate or a lease, then for Div 2 to have its effect with respect both to validation and extinguishment, the grant must have been made before 1 January 1994 and the estate or lease must have been in force on that date. Grants of freehold and leases which post-dated 31 October 1975 and were "past acts" but which were not still in effect on 1 January 1994 will not be a "category A past act" or a "category B past act" and there will be no extinguishment of native title as provided in Div 2 by s 15 and corresponding State and Territory laws.
To other categories of "past act", including the grants of mining leases, the "non-extinguishment principle" applies. This "principle" is spelled out in s 238 of the NTA. In general terms it involves the suspension of what otherwise would be native title rights and interests so that, whilst they continue to exist, to the extent of any inconsistency (which may be entire) they have no effect in relation to the "past act" in question. The native title rights and interests again have full effect after the "past act" ceases to operate or its effects are wholly removed.
The 1998 Act introduced Div 2B into Pt 2. It has the stated object of confirming past extinguishment of native title by certain acts which were valid and not struck at by the RDA because, for example, they predated the RDA, or which are rendered valid by the NTA, including by s 14 of Div 2 (and State and Territory analogues). This object is achieved by Div 2B directly with respect to acts attributable to the Commonwealth; in respect of State and Territory acts, Div 2B supports State and Territory validating legislation. Division 2B fixes upon certain "previous" acts but not the definition of "past act". The previous act must have taken place before 23 December 1996 but need not still have been effective at that date. For example, Div 2B applies to certain pastoral leases granted before 31 October 1975 which had expired before 23 December 1996 and were not "past acts".
Sections 23C and 23G are the provisions in Div 2B which respectively (with corresponding State and Territory provisions) mandate entire and partial extinguishment. Section 23C deals with extinguishment by "previous exclusive possession acts". Section 23G deals with extinguishment by "previous non‑exclusive possession acts". "Previous exclusive possession act" is defined in s 23B so as to draw in a wider class of "act" than does the definition in s 23F of "previous non-exclusive possession act". The latter term is defined so as to be limited to the "non-exclusive agricultural lease" and "non‑exclusive pastoral lease". Thus, a "previous act" may be of a species which (exclusivity aside) falls within s 23B but not s 23F.
If Div 2B applies to a particular act, then, in general[6], s 15 (in Div 2) and State and Territory counterparts do not apply and the extinguishment regime which Div 2 otherwise in some cases might impose is put aside. In that way, Div 2B provides the analytical starting point and any overlapping between the two extinguishment regimes is resolved in favour of Div 2B and the corresponding State and Territory provisions.
[6]See s 23C(3) and s 23G(3), but note the restriction flowing from s 23G(2) and s 15(1)(a), a special provision dealing with public works.
The 1998 Act also introduced Div 2A into Pt 2. Division 2A provides for the validation of certain acts which took place on or after 1 January 1994 but on or before 23 December 1996 and which meet the definition in s 232A of "intermediate period acts". Division 2A also deals with the effect of that validation upon native title. Some acts in question in this litigation may be "intermediate period acts" and it will be necessary to say something about the operation of Div 2A but attention will be directed principally to Divs 2 and 2B[7].
[7]See [41]-[45] and [135]-[140].
It should be added that the NTA and certain State and Territory laws provide for compensation in respect of some acts of extinguishment of native title. Such provisions are found in Div 2 (ss 17, 20) and Div 2B (s 23J) of Pt 2 of the NTA. In this litigation, no issues under these provisions of Pt 2 directly arise. What has been sought is a determination of the existence of native title, not compensation for any extinguishment which may have occurred. However, as will appear[8], in considering the operation of the RDA (as construed in decisions of this Court)[9] upon certain post‑1975 alleged extinguishing acts under State and Territory legislation, the provisions (if any) for compensation under that legislation become important; if those provisions otherwise would have applied, it becomes necessary to consider s 45(1) of the NTA. This takes what otherwise would be a right to compensation under State or Territory law, being a right brought into existence by the operation of the RDA upon that law, and transmutes it into a right to compensation under Div 5 of Pt 2 (ss 48-54) of the NTA.
[8]See, for example, [321].
[9]See [98]-[134].

At all material times, s 10 of the NTA has declared that "[n]ative title is recognised, and protected", in accordance with the NTA, and s 11 has included a statement that "native title" cannot be extinguished contrary to the NTA. The starting point must be the meaning of the term "native title". An understanding of the answer to that question is a necessary pre‑condition to all that follows in these reasons and it is convenient to turn to the matter immediately.
2. Native title
As is now well recognised, the connection which Aboriginal peoples have with "country" is essentially spiritual. In Milirrpum v Nabalco Pty Ltd, Blackburn J said that[10]:
"the fundamental truth about the aboriginals' relationship to the land is that whatever else it is, it is a religious relationship. … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole."
It is a relationship which sometimes is spoken of as having to care for, and being able to "speak for", country. "Speaking for" country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer. Nor are they reduced by the requirement of the NTA, now found in par (e) of s 225, for a determination by the Federal Court to state, with respect to land or waters in the determination area not covered by a "non-exclusive agricultural lease" or a "non-exclusive pastoral lease", whether the native title rights and interests "confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others".
[10](1971) 17 FLR 141 at 167.
The expression "native title" or "native title rights and interests" is elaborately defined in s 223 of the NTA. For present purposes, it is sufficient to set out the text of sub‑ss (1) and (2). These have not changed since the statute was enacted. The statutory text is:
"(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)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
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
(2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests."
Much of the argument in the courts below, as in this Court, took as its starting point consideration of what was said in Mabo [No 2]. No doubt account may be taken of what was decided and what was said in that case when considering the meaning and effect of the NTA. This especially is so when it is recognised that pars (a) and (b) of s 223(1) plainly are based on what was said by Brennan J in Mabo [No 2][11]. It is, however, of the very first importance to recognise two critical points: that s 11(1) of the NTA provides that native title is not able to be extinguished contrary to the NTA and that the claims that gave rise to the present appeals are claims made under the NTA for rights that are defined in that statute. In particular, at the time of the decision of the Full Court of the Federal Court, the applicable legislation dealt at some length and in some detail with the question whether rights of the kind that are claimed have been extinguished or suspended. Full Court authority which obliged it to disregard the statutory text in its then current form should be overruled by this Court. The consequence, as will become apparent in these reasons, is that the course taken by the litigation in the Federal Court does not provide a sufficient foundation for this Court to determine the outcome which would be reached were the provisions of the legislation given their necessary operation upon the litigation.
[11](1992) 175 CLR 1 at 70.
However, as indicated, the immediately relevant elements in the definition in s 223(1) of "native title" and "native title rights and interests" have remained constant. Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly, the rights and interests consist "in relation to land or waters". Thirdly, the rights and interests must have three characteristics:
(a)they are rights and interests which are "possessed under the traditional laws acknowledged, and the traditional customs observed", by the relevant peoples;
(b)by those traditional laws and customs, the peoples "have a connection with" the land or waters in question; and
(c)the rights and interests must be "recognised by the common law of Australia".
The question in a given case whether (a) is satisfied presents a question of fact. It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by par (b) of s 223(1) is a connection with the land or waters "by those laws and customs". Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs.
The distinction is critical for any attempt (as is made in this litigation) to treat the maintenance and protection of cultural knowledge of native title holders as a matter with which the NTA is concerned. The cultural knowledge in question may be possessed under the traditional laws acknowledged and traditional customs observed by the relevant peoples. The issue which then arises is whether, by those laws and customs, there is "a connection with" the land or waters in question.
Paragraphs (a) and (b) of s 223(1) indicate that it is from the traditional laws and customs that native title rights and interests derive, not the common law. The common law is not the source of the relevant rights and interests; the role accorded to the common law by the statutory definition is that stated in par (c) of s 223(1). This is the "recognition" of rights and interests. To date, the case law does not purport to provide a comprehensive understanding of what is involved in the notion of "recognition".
There may be some laws and customs which meet the criteria in pars (a) and (b) of s 223(1), but which clash with the general objective of the common law of the preservation and protection of society as a whole[12], but the case law does not provide examples. Secondly, the statement in Mabo [No 2][13] that native title "may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence" is yet to be developed by decisions indicating what is involved in the notion of "appropriate" remedies. In Fejo[14], six members of the Court referred to the determination provisions of the NTA and continued:
"However, the [NTA] otherwise does not deal with the ascertainment or enforcement of native title rights by curial process. It provides for the establishment of native title and recognises and protects it in the manner we have outlined. But the protection which the [NTA] gives is protection 'in accordance with [the NTA]' (s 10). If actual or claimed native title rights are sought to be enforced or protected by court order, the party seeking that protection must take proceedings in a court of competent jurisdiction."
Thirdly, the recognition may cease where, as a matter of law[15], native title rights have been extinguished even though, but for that legal conclusion, on the facts native title would still subsist. Thus, for example, the circumstance that, perhaps by reason of the attitude adopted by the non‑indigenous owner of land in fee simple, indigenous people retain connections to the land in question does not derogate from the conclusion that the grant of the fee simple extinguished the native title. That conclusion would follow from the reasoning and the decision in Fejo.
[12]cf Church of the New Faith v Commissioner of Pay‑roll Tax (Vict) (1983) 154 CLR 120 at 135‑136; Mitchell v Minister of National Revenue [2001] 1 SCR 911 at 987 [153]-[154].
[13](1992) 175 CLR 1 at 61.
[14](1998) 195 CLR 96 at 120-121 [22].
[15]Yanner v Eaton (1999) 201 CLR 351 at 395 [107].
The actual holding in Wik touched upon some of these matters but was constrained by the course which had been taken in the Federal Court. There had been no determination at trial as to the existence or otherwise of native title rights and interests. Rather, by the formulation of questions for decision in advance of trial, an attempt had been made, as Toohey J put it, to[16]:
"reduce to straightforward propositions what are in truth complex issues of law and of fact. [The questions] look for a certainty in the answers which, in the circumstances of the present appeals, is a mirage. There have been no findings as to whether native title rights even exist in connection with the land, let alone the content of any such rights."
In the result, the Court determined that there was no necessary extinguishment of such native title rights as might otherwise exist by reason of the grant of pastoral leases under the Queensland statutes in question. However, with the concurrence of Gaudron, Gummow and Kirby JJ, Toohey J added[17]:
"Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees."
[16](1996) 187 CLR 1 at 131.
[17](1996) 187 CLR 1 at 133.
This passage was consistent with what by then had been provided in s 227 of the NTA. This states:
"An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise."
The term "act" is given a detailed definition in s 226[18].
[18]This states:
"(1)This section affects the meaning of act in references to an act affecting native title and in other references in relation to native title.
(2) An act includes any of the following acts:
(a)the making, amendment or repeal of any legislation;
(b)the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;
(c)the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;
(d)the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;
(e)the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;
(f)an act having any effect at common law or in equity.
(3)An act may be done by the Crown in any of its capacities or by any other person."
The 1998 Act substituted a fresh s 4 to the NTA[19]. This makes it plain that the amendments made by the 1998 Act were a legislative response to what was seen as the outcome in Wik. In particular, s 4(6) states:
"This Act also confirms that many acts done before the High Court's judgment [in Wik], that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non‑exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency."
Sections 23B and 23F are in Div 2B which was added by the 1998 Act. Division 2B is of central importance for these appeals.
[19]s 3 and Sched 1, Item 2.
Yet again it must be emphasised that it is to the terms of the NTA that primary regard must be had, and not the decisions in Mabo [No 2] or Wik. The only present relevance of those decisions is for whatever light they cast on the NTA.
3. Extinguishment of native title
Before the changes made by the 1998 Act, which came into effect after the institution of the present litigation, the NTA itself otherwise indicated little about what was involved in the notion of extinguishment of native title. Native title might be taken to have ceased to exist because, in a given case, those asserting title could not establish the present subsistence of the necessary connection required by par (b) of s 223(1), but it may be doubted that circumstances of this kind are at the core of the meaning to be given to the notion of extinguishment. The term "extinguishment" is most often used to describe the consequences in law of acts attributed to the legislative or executive branches of government. In addition, it was asserted that in some cases the native title claimed in these matters had been extinguished by acts of the executive branch of government, done pursuant to legislative authority, that were acts which did not constitute a grant of rights to any third party but were said to be the assertion, by the executive, of rights in respect of the land, or the exercise, again by the executive, of powers over the land, inconsistent with the continued existence of some or all native title rights and interests. It is important to recognise, however, that despite the grant of rights to others, or the assertion or exercise of rights or powers by the executive, to some extent the native title might survive or there might be no inconsistency in the relevant sense at all. Further, as Yanner v Eaton illustrates, statute may regulate the exercise of the native title right without abrogating it.
The amendments made to the NTA by the 1998 Act continue the distinction between the extinguishment of native title rights and interests and partial inconsistency. Section 237A states:
"The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect."
The NTA contains in s 242(1) a definition of "lease" which includes, as par (c), "anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease". The 1998 Act introduced a distinction, important for these appeals, between the exclusive pastoral lease and the non-exclusive pastoral lease. The latter is a pastoral lease that is not included in the former class (s 248B). A pastoral lease that confers a right of exclusive possession over the land or waters covered by the lease will be an exclusive pastoral lease (s 248A).
At trial, findings of fact were made by Lee J to underpin the conclusion that the claimants had satisfied the requirements of pars (a) and (b) of the definition in s 223(1) of the NTA. The Full Court was not persuaded by the submissions of Western Australia that the trial judge had erred in these findings; the evidence had been open to an interpretation that supported his findings[20]. The Northern Territory throughout has taken a position which differs from that of Western Australia. There has been no issue between the Territory and the Ningarmara claimants that the laws and customs of the three estate groups[21] connected them to the area claimed in the Territory and that it was reasonable to find (by inference) that those laws and customs were rooted in the pre‑sovereignty laws and customs.
[20](2000) 99 FCR 316 at 377‑378 [222]-[228].
[21]Bindjen, Damberal and Nyawamnyawam estate groups; see (2000) 99 FCR 316 at 371 [200].
The arguments in this Court focused upon questions of extinguishment rather than upon the anterior questions of the existence of native title and the particular content of native title rights and interests. That, as will appear, gives rise to some difficulty. The more general the terms in which the findings are made as to the subsistence of native title, the more difficult the giving of specificity to findings of extinguishment, particularly where, as the NTA postulates, there may be partial extinguishment. It may be observed that the specific finding at trial in Yanner v Eaton as to the existence of the hunting and fishing rights and interests which the appellant claimed to have exercised facilitated the finding in this Court of regulation rather than extinguishment.
B. THE LITIGATION BELOW
1. General
This litigation was instituted in the Federal Court on 2 February 1995. On that date, the Native Title Registrar ("the Registrar"), holding office under s 95 of the NTA, lodged with the Federal Court for decision an application under ss 13(1) and 61 of the NTA for "a determination of native title". This engaged the definition of "native title" in s 223 of the NTA. The application had been accepted on 26 May 1994 but the Native Title Tribunal ("the Tribunal") itself made no determination and, as a consequence, s 74 of the NTA obliged the Registrar to lodge the application for decision by the Federal Court. (Section 74 was later repealed by s 3 and Sched 2, Pt 1, Item 18 of the 1998 Act.)
Section 213(2) of the NTA conferred jurisdiction upon the Federal Court in relation to matters arising under that statute and s 81 provided that the Federal Court had jurisdiction to hear and determine applications lodged with it under s 74, that jurisdiction being exclusive of the jurisdiction of all other courts except the High Court. At the time of the institution of the litigation, the expression "determination of native title" was defined in s 225 as:
"a determination of the following:
(a)whether native title exists in relation to a particular area of land or waters;
(b) if it exists:
(i) who holds it; and
(ii)whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and
(iii)those native title rights and interests that the maker of the determination considers to be of importance; and
(iv)in any case – the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests."
Section 225 was repealed by the 1998 Act[22] and a new section substituted, with effect from 30 September 1998[23]. That was after the reservation but before the delivery of judgment by the primary judge[24]. It will be necessary later in these reasons to return to the significance of this and other changes to the NTA made by the 1998 Act and also to the significance of subsequent legislation enacted in Western Australia ("the State") and the Northern Territory ("the Territory").
[22]s 3 and Sched 2, Pt 1, Item 80.
[23]Commonwealth of Australia Gazette, S428, 28 August 1998.
[24]Ward v Western Australia (1998) 159 ALR 483.

At all material times, s 13(1) of the NTA has provided for the making of an application to the Federal Court for the subsequent variation or revocation of a determination of native title on the grounds stipulated in sub‑s (5), namely:
"(a)that events have taken place since the determination was made that have caused the determination no longer to be correct; or
(b)that the interests of justice require the variation or revocation of the determination."
Thus, an order in which the Federal Court makes a determination of native title has an indefinite character which distinguishes it from a declaration of legal right as ordinarily understood in such authorities as International General Electric Co of New York Ltd v Commissioners of Customs and Excise[25]. That indefinite character reflects the requirement for the continuing acknowledgment and observance of traditional laws and customs and continuing connection with land implicit in the definition of "native title" in s 223(1) of the NTA.
[25][1962] Ch 784 at 789. See also R v Inland Revenue Commissioners; Ex parte Rossminster Ltd [1980] AC 952 at 1014, 1027; Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 at 15; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355‑357 [45]-[49].
As the litigation was constituted after the making of interlocutory orders in the Federal Court, three groups of claimants sought determinations of native title. The first claimants (Ben Ward and others) applied on behalf of the Miriuwung and Gajerrong People, the second claimants comprised Cecil Ningarmara and others, and the third claimants (Delores Cheinmora and others) applied on behalf of the Balangarra Peoples.
2. The claim area
The whole of the claim area fell generally within the region known as the East Kimberley, comprising land and waters in the north of the State and some adjacent land in the Territory. The primary judge said of the settlement by Europeans of the East Kimberley[26]:
[26](1998) 159 ALR 483 at 489.
"Land in the East Kimberley was not made available to settlers by the Crown until late in the nineteenth century when a report on an expedition to the region, prepared by explorer and Crown surveyor Alexander Forrest and published in 1879, indicated that the area would be suitable for pastoral activities. Forrest stated that the Aboriginal people were friendly and in his view they were unlikely to be hostile to settlers, although he noted that they would 'have to learn' that the cattle that would come with settlers would not be available for hunting. As Sir Paul Hasluck commented in his work Black Australians[27], Aboriginal people in the north of Western Australia were left to 'learn' of the effects of European settlement in their region without guidance or protection from the Crown:
'No attempt was made in entering into this vast new region to prepare the natives for contact, to instruct them, to give them special protection or to ensure either their legal equality or their livelihood.
As settlement spread to remote corners of the colony the difficulty of doing anything became an excuse for forgetting that it was ever hoped to do something. Official intentions shrank. The local government ignored situations that were awkward or beyond its capacity to handle and the Colonial Office also overlooked or was unaware of any need for a positive policy.'
The first grants of rights to depasture stock in the region were for land undefined by survey. Pastoral rights were applied for by marking on maps the approximate positions of the areas sought. In 1881 two speculators acquired pastoral rights to approximately 800,000 hectares by 'marking off' an area that was assumed to follow the Ord River, on the 'understanding' that when the course of the Ord River was eventually mapped the pastoral areas would be 'transferred' to match the course of the river. Shortly thereafter, a group of pastoralists from the eastern colonies, among them Durack, Emanuel and Kilfoyle, 'reserved' approximately one million hectares, including land on the Ord River, wherever the course of that river may be shown to be by subsequent survey and mapping[28]. To discourage speculators the Land Regulations for the Kimberley District 1880 (WA) had provided that lands unstocked or understocked after the first two years of a pastoral lease be forfeited."
His Honour continued[29]:
"By the end of 1883 approximately 20 million hectares of the Kimberley had been included in pastoral leases. Within six months of that date pastoral leases covering almost one quarter of that area had been surrendered or forfeited. Further leases were abandoned over the next two years and by the end of 1885 the core of the Kimberley pastoral industry remained. That was further reduced in the 1920s when a downturn in the industry caused approximately four million hectares of pastoral lease land to be abandoned or forfeited for non-payment of rent or non-compliance with conditions. The only town in the region was the port of Wyndham founded in 1886. For many years settlers depended upon sea transport for travel to and from the East Kimberley and for delivery of supplies and export of cattle and frozen meat. An abattoir and meat freezing works operated at Wyndham from 1919 until 1985. The East Kimberley pastoral industry was based on small areas of land of high quality surrounded by large areas of land of very low potential. After 100 years of pastoral activity, it would be reported that over 60% of the pastoral area of the East Kimberley had very low cattle carrying capacity, in excess of 125 hectares being required to support each head of cattle. Further, much of the Crown land used for pastoral leases was grossly degraded by the impact of cattle on the soil and pasture and by the high rates of soil erosion which followed in each wet season[30]."
[27]2nd ed (1970) at 63.
[28]Durack, Kings in Grass Castles, (1973) at 209‑210.
[29](1998) 159 ALR 483 at 490.
[30]Graham-Taylor, The Ord River Scheme, at 6‑7.
In total, the claim area was approximately 7,900 square kilometres. Lee J gave the following summary description of the land and waters within the State in respect of which native title was claimed[31]:
[31](1998) 159 ALR 483 at 491‑492; a map appears at 641.
(i)Crown land in or about the town of Kununurra, the Ord River irrigation area, and Lake Argyle and several freehold lots;
(ii)Crown land in the Glen Hill pastoral lease south-west of Lake Argyle but separated from the area in (i);
(iii)Crown land and waters in the inter-tidal zones and mud flats on the eastern side of the Cambridge Gulf ("the Gulf") and on the north coast of the State between the Gulf and the border with the Territory;
(iv)Crown land in three small islands, "Booroongoong" (Lacrosse), "Kanggurryu" (Rocky) and "Ngarrmorr" (Pelican) near the mouth of the Gulf; and
(v)Crown land in an area loosely described as "Goose Hill", east of the town of Wyndham and south of the Ord River.
The areas in (i) and (ii) represent Crown land resumed or taken from pastoral leases at various stages in the development of what has been called the Ord River irrigation project ("the Project"). Further, the area in (i) contains part of the most significant tenement on which diamond mining operations are carried out on Crown land south-west of Lake Argyle by the Argyle Diamond Mine Joint Venture[32]. The rest of that tenement lay outside the claim area.
[32](1998) 159 ALR 483 at 492.
Lee J described the area comprised in (iii), (iv) and (v) as follows[33]:
[33](1998) 159 ALR 483 at 492‑493.
"The land in the inter-tidal zones and mud flats on the north coast of the State, described as vacant Crown land, is land between the low and high watermarks and a 40 metre strip of land between the high watermark and the boundary of the Carlton Hill pastoral lease. Whether the land included in any earlier pastoral lease extended to the high watermark or into parts of the inter-tidal zone is disputed. The mud flats and inter-tidal zones on the eastern side of the Gulf are Crown lands reserved for conservation purposes. The Goose Hill area is reserved Crown land part of which is used for grazing purposes under a special purpose lease. 'Booroongoong' (Lacrosse) which expression excludes an area described as King Location 230, and 'Kanggurryu' (Rocky) Islands are vacant Crown lands and 'Ngarrmorr' (Pelican) Island is Crown land reserved for the purpose of a nature reserve."
The variety of interests involved in the areas resumed or set aside for the Project appears in the following passage of his Honour's reasons[34]:
"Crown land in the claim area in the vicinity of Kununurra, Lake Argyle and the Ord River irrigation area is vacant and reserved Crown land formerly used for pastoral leases. Most of that land is the land covered by Lake Argyle and the land which surrounds it, formerly part of the Argyle Downs, Lissadell and Texas Downs pastoral leases, and the balance consists of small areas of land in and around Kununurra, or bordering the irrigated land north of the town and formerly part of the Ivanhoe pastoral lease. A small area of vacant Crown land near Kununurra is subject to a special lease for cultivation and grazing purposes. The reserved Crown land, in the main, is vested in the Shire of Wyndham‑East Kimberley … or in statutory authorities, for purposes which include conservation, recreation, parkland, agricultural research, gravel, quarry, drainage, preservation of Aboriginal paintings, the use and benefit of 'Aborigines' and purposes connected with the Project. Some of the reserved Crown land has been leased to Aboriginal corporations and some to community organisations. Crown land to the south-east of Lake Argyle is reserved for 'government requirements'. Part of that land is leased for grazing purposes. Some parts of that Crown land are subject to tenements granted under the Mining Act 1978 (WA) and the Petroleum Act 1967 (WA) and gravel and stone is quarried on Crown land at several sites in and around Kununurra."
Later in his reasons, his Honour gave a further description of the claim area near Kununurra and said[35]:
"A large part of the land resumed or acquired for the Project remains in unaltered form. Substantial areas have been used for reserves and a large part remains as vacant Crown land. The balance has been put to a variety of uses. The principal uses have been for the construction of the diversion and main dams and reservoirs, irrigation works and farmlands, and some land has been included within the townsite of Kununurra.
The claim area does not include land resumed or acquired for the Project developed as irrigated lands or used for roads or drains on that land, nor does it include the land resumed and used for an airfield, or the land which was resumed in 1947 to form the Kimberley Research Station. That part of the land resumed for the extension of the Kimberley Research Station which now forms Reserve 38358 is included in the claim area. The claim area does not include that part of the land resumed for the Project later included within the townsite and developed as the town of Kununurra other than specific reserves which are dealt with below."
It may be that some of the claim area was never subject to a pastoral lease and at all times was vacant Crown land[36]. The findings of fact below do not permit us to assume the contrary.
[34](1998) 159 ALR 483 at 492.
[35](1998) 159 ALR 483 at 584-585.
[36]cf [189], [281].
With respect to the claim area in the Territory, Lee J observed that part of it was in the Keep River National Park, having been excised in 1979 from the Newry pastoral lease. A further area, adjacent to the Keep River National Park, was excised from the Newry pastoral lease in 1987. Other land in the Territory, contiguous with or formerly within the Keep River National Park, had been granted in 1990 and 1993 as freehold land to Aboriginal corporations[37].
3. The determination of the primary judge
[37](1998) 159 ALR 483 at 493.
By orders made on 24 November 1998 and 26 February 1999, Lee J made a determination as to the existence of native title in respect of a very large portion of the claim area.
In the form in which it stood at the time of these orders, s 225 of the NTA stated that a determination of native title was:
"a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others." (emphasis added)
The determination made at trial proceeded upon a view of the requirements for extinguishment which some parties sought to have this Court reinstate. As will later appear, the Full Court was correct in rejecting the view which had been taken at trial. Paragraph 3(d) of the determination gave as a particular of the rights and interests exercisable by reason of the existence of native title "a right to control the access of others to the 'determination area'". Paragraph 3(j) gave as another particular:
"a right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the 'determination area'."
It is unnecessary to set out the balance of the text of the determination. The Full Court later set the determination aside[38]. The Full Court substituted a fresh determination, which in turn is the subject of contention in this Court.
4. The 1998 Act
[38](2000) 99 FCR 316.
The term "non-exclusive pastoral lease" which appears in par (e) of s 225 and elsewhere in the NTA has particular significance for the present litigation. As already indicated, the meaning of the term is to be gauged from ss 248A and 248B of the NTA. Sections 248A and 248B were added by the 1998 Act[39]. The 1998 Act thus was immediately attracted by s 225 as it stood at the time of the determination by the primary judge. Division 2B (ss 23A‑23JA) also was added by the 1998 Act. It uses the notions of "exclusive pastoral lease" and "non‑exclusive pastoral lease" as integers in the definitions of the expressions "previous exclusive possession acts" and "previous non-exclusive possession acts". These govern the operation of Div 2B. Section 23A is a summary of the operation of Div 2B. It states:
[39]s 3 and Sched 1, Item 54.
"(1)In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title.
(2)If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title.
(3)If the acts were previous non-exclusive possession acts (involving grants of non-exclusive agricultural leases or non-exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency.
(4)This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under this Division for Commonwealth acts."
Section 239 of the NTA deals with the attribution of acts to the Commonwealth, States and Territories. It states:
"An act is attributable to the Commonwealth, a State or a Territory if the act is done by:
(a)the Crown in right of the Commonwealth, the State or the Territory; or
(b)the Parliament or Legislative Assembly of the Commonwealth, the State or the Territory; or
(c)any person under a law of the Commonwealth, the State or the Territory."
The expression "any person under" in par (c) of s 239 significantly extends the notion of attribution.
It may be added that provisions in Div 2B[40] respecting the suspension rather than extinguishment of native title rights and interests have a significant impact upon the content of the obligation under s 23J to compensate native title holders in respect of extinguishment effected under the NTA. The entitlement to compensation will arise only to the extent of extinguishment, so that any legislative treatment of inconsistency as leading to no more than suspension of native title rights and interests will have the effect of diminishing what would otherwise be the obligation to compensate native title holders.
[40]Particularly in s 23G(1)(b)(ii).
The 1998 Act[41] amended s 11, a central provision of the NTA. Section 11 states, as it did at the time of the decision and the making of the determination at first instance, that:
"(1) Native title is not able to be extinguished contrary to this Act.
(2)An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:
(a)in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc and native title) of Part 2; or
(b)by validating past acts, or intermediate period acts, in relation to the native title."
Section 11, therefore, expressly provided for consideration of the operation of Div 2B, albeit in relation to the making, amendment or repeal of legislation on or after 1 July 1993.
[41]s 3 and Sched 1, Item 4.
In the proceeding before Lee J, the State did seek to rely upon Div 2B. It submitted that, by reason of the Western Australia Agreement (Ord River Irrigation)Act 1968 (Cth) ("the 1968 Ord River Act"), the construction within the claim area of the main dam and associated works for the Project was an act done by a person under a law of the Commonwealth, thereby engaging Div 2B. That submission was rejected by his Honour[42], and is not a live issue in this Court. But Div 2B was drawn into the decision‑making process leading to the determination reflected in the orders made by the primary judge in other ways as well. In so far as acts attributable to the Commonwealth which were done on or before 23 December 1996 (when Wik was decided) were relied upon in the litigation to extinguish native title wholly or partially, consideration had to be given to the operation of Div 2B.
[42](1998) 159 ALR 483 at 635-636.
Moreover, s 23A(4) indicates that Div 2B also allows the States and Territories to legislate in the same way as is done under the Division in respect of Commonwealth acts. Such a provision with respect to the States and Territories is then made specifically, in ss 23E and 23I, permitting the confirmation of extinguishment, or partial extinguishment, of native title by previous exclusive possession acts or previous non‑exclusive possession acts of a State or Territory. At the time of the decision at trial, no such legislation of Western Australia was in force. However, the Territory had legislated. The Validation of Titles and Actions Amendment Act 1998 (NT) ("the 1998 NT Act"), which amended the Validation of Titles and Actions Act 1994 (NT), had commenced on 1 October 1998. The 1998 NT Act also substituted a new short title for the 1994 principal Act, the Validation (Native Title) Act. It is convenient to refer to the 1994 Act, as amended by the 1998 NT Act, as "the Territory Validation Act". No reliance appears to have been placed upon that statute before Lee J when the parties responded to an invitation to make further submissions with respect to the effect of the 1998 NT Act.
5. The Full Court appeals

Several of the parties to the proceedings at trial were dissatisfied with the determination that was made and appealed to the Full Court of the Federal Court. The judgment on the appeals was reserved on 13 August 1999 and, on 3 March 2000, the Full Court (Beaumont and von Doussa JJ; North J dissenting) delivered its reasons for judgment and made orders setting aside the orders made by Lee J. In place thereof, by orders entered on 13 July 2000, the Full Court made a determination of native title in substitution for that made at trial. That order by the Full Court then answered the statutory description of an approved determination of native title (s 13(6) of the NTA).
The order of the Full Court containing that determination was as follows[43]:
[43](2000) 99 FCR 316 at 542‑543.
"The Court orders, declares and determines that:
1.Native title exists in the 'determination area' save for the areas of land or waters described in the Second Schedule. The determination area is that part of the land or waters within the area depicted by red outline on the map in the First Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged with the [Tribunal] referred to the Court by the Tribunal.
2.Native title existing in the determination area is held by the Miriuwung and Gajerrong People, and in respect of that part of the determination area known as Booroon[g]oong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title.
3.Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in:
The whole of the land in the Glen Hill pastoral lease;
The whole of Reserve 40260;
Booroongoong (Lacrosse Island);
Kanggurryu (Rocky Island);
The north-west extremity of the mainland portion of the determination area encompassing Shakespeare Hill and Cape Donnet, being the mainland lying outside the limits of the following former leases 3114/1058, 396/508 and 2163/98;
The whole of NT portion 3541 (Policeman's Hole);
The whole of NT portion 3542 (Bucket Springs); and
The whole of NT portion 3863 (Bubble Bubble)
are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area.
4.Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in Reserves 26600, 31221, 40536 and 41401, each for 'Use and Benefit of Aboriginal Inhabitants', Reserve 31504 for 'Arts and Historical – Aborigines' and Reserve 32446 'Native Paintings', being reserves within the [Project] area to which s 47A of the [NTA] applies, are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area, save that their entitlement does not affect the public works comprising the [Project].
5.Subject to paragraphs 7, 8, 9 and 10 hereof the nature and extent of the native title rights and interests existing in the balance of the determination area are as follows:
(a)      a right to possess, occupy, use and enjoy the land;
(b)a right to make decisions about the use and enjoyment of the land;
(c)      a right of access to the land;
(d)      a right to use and enjoy the traditional resources of the land;
(e)a right to maintain and protect places of importance under traditional laws, customs and practices in the determination area.
6.The nature and extent of other interests in relation to the determination area are the interests created by the Crown or created otherwise, as set out in the Third Schedule.
7.There is no native title right or interest in minerals and petroleum in the State as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA), or in the Territory as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT). In all nature reserves or wildlife sanctuaries created in [the State] in the determination area before the [RDA] came into operation, native title to take fauna has been wholly extinguished.
8.To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph 5 hereof and the rights conferred by other interests referred to in paragraph 6 hereof the native title rights and interests must yield to such other rights.
9.The native title rights and interests referred to in paragraph 5 hereof are not exclusive of the rights and interests of others.
10.The native title rights and interests described in paragraphs 3, 4 and 5 are subject to regulation, control, curtailment or restriction by valid laws of Australia.
11.(a)      Declare that the rights and interests from time to time comprising the native title area are held by the common law holders.
(b)Direct that, within three months of the date of this determination, a representative of the common law holders nominate in writing to the Federal Court a prescribed body corporate to perform the functions mentioned in s 57(3) of the NTA. Reserve liberty to apply to a single judge of the Court in that connection."
The Second Schedule listed those parts of the determination area in which native title had been wholly extinguished. The Third Schedule detailed a range of "other interests", including interests under a number of statutes of the State[44].
[44](2000) 99 FCR 316 at 546. These "other interests" were:
"(a)Interests of persons in whom Crown reserves are vested under the Land Act 1898 (WA) or [the] Land Act 1933 (WA) or under a lease of the reserve.
(b)Interests of persons entitled to use reserves according to a purpose for which Crown land is reserved, or under a lease of the reserve.
(c)   Interests of lessees under:
(i)Leases granted under the Land Act 1933 (WA);
(ii)Leases granted under the Crown Lands Act 1978 (NT);
(iii)Leases granted under the Special Purposes Leases Act 1953 (NT);
(iv)Leases granted under the Mining Act 1978 (WA);
(v)Leases granted under the Aboriginal Affairs Planning Authority Act 1972 (Cth).
(d)   Interests of licensees under:
(i)Licences issued under the Land Act 1933 (WA);
(ii)Licences issued under the Fish Resources Management Act 1994 (WA);
(iii)Licences issued under the Jetties Act 1926 (WA);
(iv)Licences issued under the Mining Act 1978 (WA);
(v)Licences issued under the Wildlife Conservation Act 1950 (WA);
(vi)Licences issued under the Rights in Water and Irrigation Act 1914 (WA);
(vii)Licences issued under the Transport Co‑ordination Act 1966 (WA).
(e)   Interests of holders of permits issued under:
(i)                  The Land Act 1933 (WA);
(ii)The Ord Irrigation District By-Laws under the Rights in Water and Irrigation Act 1914 (WA).
(f)Interests of holders of tenements under the Mining Act 1904 (WA).
(g)Interests of holders of tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA).
(h)Interests of grantees under s 46(1A) of the Lands Acquisition Act 1979 (NT).
(i)Other interests held by members of the public arising under the common law."
The form of the determination that was made must be understood in the light of the way in which the proceedings had been conducted at trial. Prior to the hearing before Lee J, the Ward claimants had filed a statement of the nature of the rights which it was contended were exercisable in relation to the land or waters claimed. That statement took each area of land or waters claimed, and stated the rights that were said to be exercisable over that area. Typically, more than 20 rights were claimed in respect of each area. Those rights were variously expressed. At the widest, the claim made was for "the right to possession, occupation, use and enjoyment of the land". Other, narrower, claims were made. These claims included rights "to derive sustenance from the land", "to hunt and gather food on the land", "to hold ceremonies on the land", "to hold ceremonies concerning the land", "to care for the land according to environmental requirements, including burning the land", and "to regulate access to the land". The debate at trial, however, appears to have focused largely on the widest of the claims – the claim to the right to possession, occupation, use and enjoyment of the land – and on claims to control access to or use of the land.
It is convenient to notice, at this point, some aspects of the determination that was made by the Full Court. First, on its face, there appears to be tension between par 5(b), stating that the native title rights and interests include a right to make decisions about the use and enjoyment of the land, and par 9 which provides that this, and the other rights and interests described in par 5 of the determination, are not exclusive of the rights and interests of others. Identifying the content of a right to make decisions about use and enjoyment of land that is a right which is not exclusive of the rights of others in that regard is not easy. Providing that, to the extent that any inconsistency exists, native title rights and interests must yield to the rights of others does not help in identifying the content of a non‑exclusive right to make decisions about use and enjoyment.
Secondly, although there would be little or no difficulty in identifying those who hold most of the "other interests" set out in the Third Schedule to the determination, it may not always be easy to identify "persons entitled to use reserves according to a purpose for which Crown land is reserved", at least in those cases where the purpose is stated in general terms. Further, it is by no means clear exactly what is encompassed by the reference in the Third Schedule to "other interests held by members of the public arising under the common law".
A determination of native title must comply with the requirements of s 225. In particular, it must state the nature and extent of the native title rights and interests in relation to the determination area[45]. Where, as was the case here in relation to some parts of the claim area, native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.
[45]s 225(b).
It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead. Rather, as the form of the Ward claimants' statement of alleged rights might suggest, it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.
Further, to find that, according to traditional law and culture, there is a right to control access to land, or to make decisions about its use, but that the right is not an exclusive right, may mask the fact that there is an unresolved question of extinguishment. At the least, it requires close attention to the statement of "the relationship" between the native title rights and interests and the "other interests" relating to the determination area[46].
C. THIS APPEAL
1. Parties and submissions
[46]s 225(d).
Two of the groups of claimants (Ben Ward and others on behalf of the Miriuwung and Gajerrong People, and Cecil Ningarmara and others) and two of the respondents at trial (the State and the Territory), being dissatisfied with the determination made by the Full Court, now appeal to this Court. There are four appeals. Matter No P59/2000 is brought by the State, Matter No P62/2000 by the Territory, Matter No P63/2000 by Cecil Ningarmara and others, and Matter No P67/2000 by Ben Ward and others. Matter Nos P62 and P67 are confined to grounds narrower than those on which special leave was sought.
The appeals have been heard together. Applications for leave to cross‑appeal have been filed by some parties; notices of contention have been given by some parties.
By their appeals, the Ward and Ningarmara claimants sought to have the determination made by the Full Court set aside and a determination made which would give more extensive native title rights and interests. The Cheinmora claimants, who made a claim in respect of land or waters which include Booroongoong or Lacrosse Island, and the sixth respondent (in Matter No P67), Kimberley Land Council, supported those submissions. Several other bodies intervened in support[47]. Submissions to the contrary were advanced on behalf of the State, the Territory, the Conservation Land Council (a Territory statutory corporation), and what may be referred to collectively as the private respondents: the group comprising the Alligator respondents; Crosswalk Pty Ltd ("Crosswalk") and Baines River Cattle Co Pty Ltd; and Argyle Diamond Mines Pty Ltd and the Argyle Diamond Mine Joint Venture. The Attorneys‑General for the Commonwealth and South Australia intervened substantially in support of some or all of the submissions advanced on behalf of the State and the Territory, as did the Pastoralists and Graziers Association of WA (Inc).
2. Cultural knowledge and spiritual connection
[47]Human Rights and Equal Opportunity Commission, the Goldfields Land Council, Yamatji Barna Baba Maaja Aboriginal Corporation, and Mirimbiak Nations Aboriginal Corporation.
The determination made by the Full Court omitted any provision such as that in par 3(j) of the determination made at trial. The majority of the Full Court took that course saying[48]:
"Although the relationship of Aboriginal people to their land has a religious or spiritual dimension, we do not think that a right to maintain, protect and prevent the misuse of cultural knowledge is a right in relation to land of the kind that can be the subject of a determination of native title."
[48](2000) 99 FCR 316 at 483 [666].
In this Court, it was submitted that the Full Court erred in this respect and that this Court should restore par 3(j) of the first determination. The first difficulty in the path of that submission is the imprecision of the term "cultural knowledge" and the apparent lack of any specific content given it by factual findings made at trial. In submissions, reference was made to such matters as the inappropriate viewing, hearing or reproduction of secret ceremonies, artworks, song cycles and sacred narratives.
To some degree, for example respecting access to sites where artworks on rock are located, or ceremonies are performed, the traditional laws and customs which are manifested at these sites answer the requirement of connection with the land found in par (b) of the definition in s 223(1) of the NTA. However, it is apparent that what is asserted goes beyond that to something approaching an incorporeal right akin to a new species of intellectual property to be recognised by the common law under par (c) of s 223(1). The "recognition" of this right would extend beyond denial or control of access to land held under native title. It would, so it appears, involve, for example, the restraint of visual or auditory reproductions of what was to be found there or took place there, or elsewhere. It is here that the second and fatal difficulty appears.
In Bulun Bulun v R & T Textiles Pty Ltd[49], von Doussa J observed that a fundamental principle of the Australian legal system was that the ownership of land and ownership of artistic works are separate statutory and common law institutions. That is the case, but the essential point for present purposes is the requirement of "connection" in par (b) of the definition in s 223(1) of native title and native title rights and interests. The scope of the right for which recognition by the common law is sought here goes beyond the content of the definition in s 223(1).
[49](1998) 86 FCR 244 at 256.
That is not to say that in other respects the general law and statute do not afford protection in various respects to matters of cultural knowledge of Aboriginal peoples or Torres Strait Islanders. Decided cases apply in this field the law respecting confidential information, copyright, and fiduciary duties[50]. Provision respecting moral rights is now made by Pt IX (ss 189‑195AZO) of the Copyright Act 1968 (Cth).
[50]See, for example, Foster v Mountford and Rigby Ltd (1976) 14 ALR 71; [1978] FSR 582; Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244.
Many, but not all, of the remaining issues turn upon questions of extinguishment. Other questions arise in relation to claims relating to minerals and petroleum and to fishing and will be dealt with later in these reasons. However, there was one issue about the establishment of native title rights and interests with which it is convenient to deal now. Western Australia contended that there were parts of the areas in respect of which native title rights and interests were claimed which, so it was submitted, were not shown to have been visited or used by any Aboriginal person in recent times or in the past. The Full Court[51] rejected the submission by the State that physical occupation of the land is a necessary requirement for there to be a connection with the land or waters as required by par (b) of the definition in s 223(1) of native title rights and interests.
[51](2000) 99 FCR 316 at 383 [245] per Beaumont and von Doussa JJ, 486‑487 [682] per North J.
Western Australia maintained a generally similar submission in this Court – that proof of continued use of land or waters was essential to establishment of connection with that land or those waters. That submission should be rejected.
In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a "connection" with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a "connection" of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by "connection" by those laws and customs. This latter question was not the subject of submissions in the present matters, the relevant contention being advanced in the absolute terms we have identified and without examination of the particular aspects of the relationship found below to have been sufficient. We, therefore, need express no view, in these matters, on what is the nature of the "connection" that must be shown to exist. In particular, we need express no view on when a "spiritual connection" with the land (an expression often used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice.
3. The applicable law

I turn now to the third and most adventurous of the submissions. Its flavour can be derived from these extracts[1044]:
[It cannot] be disputed that the Constitution bespeaks an underlying commitment to the rule of law. While the occasion has yet to arise for consideration of all that may follow from Dixon J's statement in The Communist Party case that the rule of law forms an assumption in accordance with which the Constitution is framed, it is tolerably clear that government under the Constitution requires lawful conduct by all organs of government … Covering clause 5 and s 71 combine to institutionalise the rule of law, which includes an expectation that all organs of government will act and have acted lawfully. The Constitution makes no allowance for any organ of government to behave unlawfully. Hence, the heavy onus on those asserting unlawful breach of constitutional limits on legislative competence. The Executive is bound to work under laws made by the Parliament. And the separation of judicial power guards against unlawfulness in the exercise of legislative and executive power.
The Commission submits that it is but a small and logically compelling step to say that lawfulness is supplied not only by national law, but also by international law … So long as the capacity of the Commonwealth Parliament to legislate contrary to the requirements of international law is fully recognised and conceded, the High Court should continue to expect (that is, unless disallowed by explicit contrary words) that the Commonwealth has exercised its legislative powers in accordance with that law. To interpret the Constitution as intended to set up a nation which could be an outlaw in the international community of nations by reason of mere incidental implication would violate the underlying value of a nation committed to the rule of law."
[1044]Submissions of HREOC, pars 25-26 (footnotes omitted).
Many things could be said about this submission, but I will confine myself to three. First, if HREOC is claiming that there is a constitutional implication that prevents the legislature and Executive from acting in violation of international law, then it is flatly contrary to authority and principle. The provisions of the Constitution are not to be read in conformity with international law[1045]. It is an anachronistic error to believe that the Constitution, which was drafted and adopted by the people of the colonies well before international bodies such as the United Nations came into existence, should be regarded as speaking to the international community[1046]. The Constitution is our fundamental law, not a collection of principles amounting to the rights of man, to be read and approved by people and institutions elsewhere. The approbation of nations does not give our Constitution any force, nor does its absence deny it effect. Such a consideration should, therefore, have no part to play in interpreting our basic law[1047].
[1045]Polites v The Commonwealth (1945) 70 CLR 60 at 68-69 per Latham CJ, 74 per Rich J, 75-76 per Starke J, 77-78 per Dixon J, 79 per McTiernan J, 81 per Williams J; Horta v The Commonwealth (1994) 181 CLR 183 at 195; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 383-386 per Gummow and Hayne JJ; AMS v AIF (1999) 199 CLR 160 at 180 per Gleeson CJ, McHugh and Gummow JJ.
[1046]Kartinyeri v Commonwealth (1998) 195 CLR 337 at 417-418.
[1047]Compare Stanford v Kentucky 492 US 361 (1989), where the United States Supreme Court rejected the use of international norms in determining the scope of the Eighth Amendment.
Secondly, if HREOC is claiming that there is a constitutional implication preventing the Executive alone from acting in breach of international law, it is also mistaken. The scope of the Commonwealth's executive power is generally coterminous with the scope of its legislative powers[1048]. It has been recognised that the Commonwealth, in reliance on the external affairs power, can legislate in a manner that is inconsistent with our international obligations[1049]. It can, for example, give force to treaties that would be void at international law[1050]. Once that is accepted, it follows that the Executive cannot be bound by international law in the manner that HREOC asserts. If the "rule of law" allows legislative power to make laws in breach of international law, how can the executive power – which generally encompasses matters that could validly be effected by legislation – be fettered? To that there seems no satisfactory answer.
[1048]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 362-363 per Barwick CJ, 373-374 per Gibbs J, 396-398 per Mason J.
[1049]Polites v The Commonwealth (1945) 70 CLR 60 at 68-69 per Latham CJ, 74 per Rich J, 75-76 per Starke J, 77-78 per Dixon J, 79 per McTiernan J, 81 per Williams J.
[1050]Horta v The Commonwealth (1994) 181 CLR 183 at 195.
Finally, the submission by HREOC would undermine the long settled principle that provisions of an international treaty do not form part of Australian law unless validly incorporated by statute. It has repeatedly been held that the separation of the legislative and executive arms of government necessitates that treaties be implemented domestically under statute[1051]. However, HREOC's approach would effectively reverse that principle. By giving priority to the principles assumed by the Executive, by permitting judges to construe legislation in a way that violated the intention of Parliament, it would elevate the Executive to a position that it has never enjoyed under our Constitution. That is another reason for rejecting the submission[1052].
[1051]Bradley v The Commonwealth (1973) 128 CLR 557 at 582-583 per Barwick CJ and Gibbs J; Simsek v Macphee (1982) 148 CLR 636 at 641-642 per Stephen J; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 193 per Gibbs CJ, 224 per Mason J, 253 per Brennan J; Kioa v West (1985) 159 CLR 550 at 570-571 per Gibbs CJ; Dietrich v The Queen (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287 per Mason CJ and Deane J, 316-317 per McHugh J. A contrast may be drawn with the position under the Constitution of the United States of America. Article VI of the United States Constitution relevantly provides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land". As a result, self-executing treaties can create rights and impose liabilities without being implemented by legislation passed in Congress.
[1052]I would add that the statement of Dixon J in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 that the rule of law was an assumption in accordance with which the Constitution was framed meant no more than that the Parliament could not decide the limits of its constitutional power. It simply expresses the notion encapsulated in the saying "The stream cannot rise above its source." Fairly interpreted, it provides no support for the notion that judges are empowered to strike down legislation on the basis that it infringes some unwritten aspect of the rule of law.
V. SUMMARY OF HOLDINGS
It is useful to summarise the conclusions that I have reached. Before doing so, however, I emphasise that what follows is no more than a summary, and is not a substitute for the reasons that I have given.
1.The resolution of these appeals requires consideration of the effect of legislative and executive action on native title under the general law. It also requires ascertaining whether s 10 of the RDA applied to invalidate the legislation or act in question, whether the amended Native Title Act and complementary State or Territory legislation validates the legislation or act, and, if so, what the effect of that validation is.

2.Partial extinguishment of native title is recognised both at common law and under the Native Title Act.
3.Inconsistency between the legislation or executive action and native title will result in extinguishment of native title rights and interests. To determine whether there is inconsistency, it is generally necessary to compare native title rights and interests with the interests granted or authorised by the Executive or a law. It is not, however, necessary to do so when the interest validly granted confers a right of exclusive possession. That right is inconsistent with the existence of native title. The "adverse dominion" approach to extinguishment, and the approach espoused by North J in the Full Court, should both be rejected.
4.Native title that has previously been extinguished at common law by legislation or by executive action cannot be recognised under s 223(1)(c) of the Native Title Act. There is nothing about the "previous exclusive possession act" regime in the Native Title Act which indicates that native title that has been extinguished over the past two centuries may be restored in order to be extinguished by previous exclusive possession acts.
5.Native title does not include the right to exploit minerals. No evidence was presented which demonstrated that there were native title rights to exploit minerals or petroleum, or any right to inhibit the exploitation of those resources.
6.Cultural knowledge does not constitute a native title right or interest "in relation to land or waters".
7.Operational inconsistency as a test for extinguishment must be treated with caution as it affords only an analogy for testing whether acts which are authorised by enactment are inconsistent with native title.
8.The maintenance of a spiritual connexion does not suffice to found a "connection with the land or waters" under s 223(1)(b) of the Native Title Act. It is essential that claimants maintain a physical presence on the land. In relation to some areas, the claimants did not do so.
9.Section 10(1) of the RDA applies to racially discriminatory legislation and acts authorised by such legislation if they took place after 31 October 1975. Laws of general application, the purpose of which is not to create racial distinctions, restrictions, exclusions or preferences are not racially discriminatory laws. Section 10(1) operates on discriminatory laws either by invalidating them or the acts which they authorise, or by conferring upon native title holders the right which has been denied them. The precise way in which it operates depends on characterisation of the racially discriminatory legislation.
10.The grant of pastoral leases in Western Australia extinguished all native title rights and interests. The decision of this Court in Wik is distinguishable. It should be confined largely to its own situation.
11.The grant of a permit to occupy land under the Land Act 1898 extinguished all native title rights and interests over the land.
12.The conditional purchase lease granted under the Land Act 1898 conferred on the lessee a right of exclusive possession that extinguished all native title rights and interests over the leased land.
13.The grant of special leases under the Land Regulations and Land Acts conferred on lessees a right of exclusive possession. All native title rights and interests over the leased lands were therefore extinguished.
14.The dedication or identification by the State of land for road or road purposes or the regular (not unlawful) use of a strip of land for road purposes extinguished native title in respect of land otherwise subject to native title rights.
15.Leases of reserves under s 32 of the Land Act 1933 extinguished native title completely. The RDA did not invalidate the grant of those leases.
16.The creation of reserves under the Land Regulations, the Land Act 1898 and the Land Act 1933 involved the creation of rights in the public that were inconsistent with native title. All native title rights and interests over the lands reserved were extinguished. The RDA did not operate to invalidate the creation of reserves after 31 October 1975.
17.By-laws enacted to preserve fauna under the Wildlife Conservation Act were inconsistent with the existence of any remaining native title right to hunt fauna in nature reserves in Western Australia. These by-laws were of general application and did not attract the RDA.
18.The vesting of "irrigation works" in the Minister under s 3 of the Rights in Water and Irrigation Act extinguished all proprietary and personal interests in those works. The Crown land set apart for future expansion of the Ord Project and used, among other things, as buffer zones fell within the definition of "irrigation works". Native title over that land was therefore extinguished.
19.The application of Pt III of the Rights in Water and Irrigation Act extinguished all native title rights to control the flow and use of water in the Ord Irrigation District and any native title to property in the beds of water-courses, lakes, lagoons, swamps and marshes.
20.The by-laws made under the Rights in Water and Irrigation Act extinguished native title rights to hunt fauna and enter certain areas. Those by-laws were of general application and were not racially discriminatory. The by-laws made in 1991 by the Shire of Wyndham-East Kimberley were valid and effective.
21.Resumptions of land under the Public Works Act extinguished all native title rights and interests over that land. The RDA did not invalidate the resumption that took place in December 1975.
22.The "public works" provisions of the Native Title Act and the State Validation Act extinguished native title over vacant Crown land used, among other things, as buffer zones and as areas for future expansion of the Ord Project. There is no sound basis for disturbing the findings of the Full Court which led to this result.
23.The grant of mining leases under the Mining Act 1978 conferred on the lessees a right of exclusive possession over the land. That right was inconsistent with, and thus extinguished, all native title. The RDA did not invalidate the grant of any mining lease.
24.The grant of the Argyle lease extinguished all native title rights and interests. It was not invalidated by the RDA.
25.The general purpose lease granted under the Mining Act 1978 extinguished all native title rights and interests. The RDA did not invalidate that grant.
26.Pastoral leases and other leases registered under the Transfer of Land Act were rendered indefeasible and were freed from all encumbrances not notified on the register. The effect of registering such leases was to extinguish any surviving native title in respect of the land.
27.Section 47B of the Native Title Act did not apply to areas of the Ord Project to revive extinguished native title.

28.The public right to fish should be recorded in the determination because it is an interest under s 225(c) of the Native Title Act, and any exclusive right to fish cannot be recognised by the common law.
29.Several interests of the Alligator appellants, such as the grant of licences to construct, use and maintain private jetties under the Jetties Act, extinguished any surviving native title. Aquaculture licences granted under the Fish Resources Management Act, however, did not. If it is necessary to decide whether the leases of the Old Laboratory Building and Yard extinguished native title, the matter should be remitted to the Full Court.

30.The grant of pastoral leases in the Northern Territory extinguished all native title rights and interests over that land. The decision of this Court in Wik is distinguishable.
31.The perpetual leases in the Northern Territory granted under the Crown Lands Act and the Special Purposes Leases Act extinguished all native title rights and interests. The RDA did not operate to invalidate the grant of those leases.
32.The declaration under s 12(1) of the TerritoryParks and Wildlife Conservation Act in 1981 did not extinguish native title rights and interests that might have survived the grant of the perpetual leases.
33.The by-laws promulgated under s 71 of the TerritoryParks and Wildlife Conservation Act extinguished any surviving native title rights to light fires, hunt and dig. But neither the management plan for the Keep River National Park nor the Keep River National Park Local Management Committee Regulations brought about any further extinguishment of native title.
34.On the present facts, it is inappropriate to decide whether improvements in the Keep River National Park extinguished native title.
35.There is no warrant for moulding the common law of native title to meet our international obligations or for straining the language of the Native Title Act to achieve the same result.

VI. CONCLUSION AND ORDERS

It follows from what I have said that the title of the claimants has been extinguished with respect to all lands the subject of these appeals. That extinguishment occurred for the most part on the grant of pastoral leases over the lands. Most of the further dealings that have occurred have, or would have, produced the same result.
I add this. The first non-indigenous people who occupied this country brought with them their common and statutory law which had long included a doctrine of adverse possession and settled notions about the use and occupation of land[1053]. These were closely connected ideas: land was to be used and enjoyed, and those who possessed, used and enjoyed the land should own it, albeit, at first, transiently. As Blackstone put it[1054]:
"For, by the law of nature and reason, he, who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer: or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted."
[1053]Cholmondeley v Clinton (1820) 2 Jac & W 1 at 141 [37 ER 527 at 577-578] (referring to Bracton and Plowden).
[1054]Commentaries on the Laws of England, Am ed (1803), bk 2, c 1 at 3 (footnote omitted).
Those early non-indigenous settlers also brought with them a knowledge of agriculture and husbandry, and of domestic, commercial and official construction of a kind completely different from that of the indigenous peoples. To the undiscriminating, and perhaps insensitive and unimaginative eyes of the former it must have appeared that much of this large continent was not in fact being used or enjoyed, or certainly not so in a way that was familiar. After discussing the use and occupation of Crown lands by reference to the Old Testament, Blackstone says this of migration[1055]:
"Upon the same principle was founded the right of migration, or sending colonies to find out new habitations, when the mother-country was over-charged with inhabitants; which was practised as well by the Phoenicians and Greeks, as the Germans, Scythians, and other northern people. And, so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, government, or in colour; how far such a conduct was consonant to nature, to reason, or to christianity, deserved well to be considered by those, who have rendered their names immortal by thus civilizing mankind."
[1055]Commentaries on the Laws of England, Am ed (1803), bk 2, c 1 at 6.

Activities of this kind undoubtedly occurred in Australia. Some were utterly indefensible. It is possible to understand, again without condoning, that others of them might have occurred, in part because of different conceptions about land and how it might be possessed, used or owned. The different conceptions held by the new settlers, much the stronger of the peoples, were bound to prevail. This was inevitable when those who were more powerful had a well settled, longstanding body of property law in written texts, statutes and cases, and those whom they dispossessed depended for the assertions of their rights to occupy and use the land upon traditional oral customs and practices. Perhaps it was equally significant that the new settlers brought with them a transparent system of legal enforcement and courts to give effect to the resolution of disputes over property. To these new settlers, it might also have appeared, whether it was true or not, that the country was so sparsely populated that disputes did not arise between competing indigenous people over land.
The problems for the indigenous people were compounded by the difficulty of finding any conceptual common ground between the common and statutory law of real property and Aboriginal law with respect to land. It seems likely that the first settlers would have regarded the two as incompatible, that whatever the Aboriginal peoples possessed by way of title to land was too foreign, fragile and elusive to withstand and survive the common law[1056]. Mabo [No 2] was a brave judicial attempt to redress the wrongs of dispossession. But its "recognition" of native title has involved the courts in categorising and charting the bounds of something that, being sui generis, really has no parallel in the common law. The Court has endeavoured to find a way of recognising, and to a degree protecting, that anomalous interest without unduly disturbing the law of Australian property[1057]. The results of this enterprise can hardly be described as satisfactory. The decisions of this Court and of lower courts have resulted in something that is not strictly property, as common lawyers would understand it, being regarded as a burden on the Crown's radical title. Long settled understandings about land law relating to exclusive possession and leases have been questioned[1058]. Parliament has been compelled to intervene, repeatedly, to secure the validity of acts that were never before thought to be problematic[1059]. And we now have a body of law that is so complicated, shifting and abstruse that it continues to require the intervention of this Court to resolve even the most basic issues, such as the effect of freehold[1060] or leases on native title[1061]. Judging from the submissions to this Court and the native title legislation that we have had to consider, few people, if any, have been able to thread this labyrinth of Minos unscathed[1062]. To these drawbacks flowing from the recognition of native title may be added others: considerable uncertainty has been created; commercial activity and therefore national prosperity has been inhibited; much time and money have been expended on litigation[1063]; and, I fear, the expectations of the indigenous people have been raised and dashed.
[1056]On the fragility of native title, see Fejo (1998) 195 CLR 96 at 151 [106] per Kirby J; Yanner v Eaton (1999) 201 CLR 351 at 408 [152].
[1057]Sackville, "The Emerging Australian Law of Native Title: Some North American Comparisons", (2000) 74 Australian Law Journal 820 at 833.
[1058]Wik (1996) 187 CLR 1, which distinguished or did not apply statements in Macdonald v Tully (1870) 2 QSCR 99, Wildash v Brosnan (1870) 1 QCLLR 17, O'Keefe v Malone [1903] AC 365, O'Keefe v Williams (1910) 11 CLR 171 and Mabo [No 2] (1992) 175 CLR 1. See also Sackville, "The Emerging Australian Law of Native Title: Some North American Comparisons", (2000) 74 Australian Law Journal 820 at 833-834; Anderson v Wilson (2000) 97 FCR 453 at 463 [45] per Black CJ and Sackville J (querying the utility of the concept of exclusive possession in determining whether extinguishment of native title has occurred).
[1059]See Native Title Act, Pt 2, Divs 2, 2A, 2B; Brennan, The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners, (1998) at 40-43; Sackville, "The Emerging Australian Law of Native Title: Some North American Comparisons", (2000) 74 Australian Law Journal 820 at 831.
[1060]Fejo (1998) 195 CLR 96.
[1061]So far, these appeals have generated two different views of the effect of true leases on native title – that of Lee J, with whose opinions North J agreed in substance, and those of Beaumont and von Doussa JJ. This is despite the fact that leases were the subject of dicta by members of this Court in several cases commencing with Mabo [No 2].
[1062]It is clear from submissions to this Court, for instance, that several parties relied heavily upon dicta in Mabo [No 2] (1992) 175 CLR 1 at 68 per Brennan J relating to the "use" of reserved land. Language reflecting the idea that "use" may bring about extinguishment is also found in the Native Title Act, s 23B(9C)(b). It will be apparent from these reasons and those of Gleeson CJ, Gaudron, Gummow and Hayne JJ, however, that Brennan J's references to "use" give rise to different understandings. The issue is really whether the rights created in persons or the rights asserted by the Crown are inconsistent with native title.
Likewise, language in s 23G(1)(b)(ii) of the Native Title Act suggesting that native title may be "suspended" upon the grant of rights and interests that are inconsistent with it can only be attributed to the uncertainty created by Wik (1996) 187 CLR 1 at 133. The use of terms such as "suspended" and "extinguished" in s 23G(1)(b) demonstrates emphatically that the legislators and their legal advisers could not ascertain the outcome of Wik with anything resembling confidence.
[1063]On the time taken for native title hearings, see M Boge, "The Emerging Law of Native Title Practice: Select Issues and Observations", in Boge (ed), Justice for All? Native Title in the Australian Legal System, (2001) 101 at 102-103. On the inhibition of commercial activity and the uncertainty to which the Native Title Act and Wik gave rise, see Brennan, The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners, (1998) at 21-29, 40-43, 49-50. These appeals illustrate the extraordinary time spent in resolving native title claims. The hearing at first instance, which began on 17 February 1997, lasted 83 days. The appeals to the Full Court of the Federal Court occupied a total of two weeks. The appeals to this Court were heard over two sitting weeks in March 2001. The decision has been reserved for a year and a half. Resolution of many of the issues raised has not occurred and the cases are now to be remitted to the Full Court. It is difficult to be confident that this Court has seen the last of them.
I do not disparage the importance to the Aboriginal people of their native title rights, including those that have symbolic significance. I fear, however, that in many cases because of the chasm between the common law and native title rights, the latter, when recognised, will amount to little more than symbols. It might have been better to redress the wrongs of dispossession by a true and unqualified settlement of lands or money than by an ultimately futile or unsatisfactory, in my respectful opinion, attempt to fold native title rights into the common law[1064].
[1064]In Mabo [No 2] (1992) 175 CLR 1 at 42 per Brennan J, it was stated that a change in the law was necessary to make the common law non-discriminatory. But this Court and other legal bodies are founded on a post-dream time legal order. Although some may contend that we should, we do not in fact recognise Aboriginal criminal law, tort law or any aspects of indigenous laws, nor do we pretend to. The question then is why the common law of property, which had been regarded as settled for more than a century, should have been changed to recognise sui generis interests in land that had no counterpart in our legal system. See Sackville, "The Emerging Australian Law of Native Title: Some North American Comparisons", (2000) 74 Australian Law Journal 820 at 830 (observing that the discrimination argument is not obvious).
I remain bound by Mabo [No 2] and Wik to the extent that they are reflected in the Native Title Act. Until such time as parties wish to question their correctness, I must apply them. In the meantime, however, this Court should do what it can to provide indigenous people, governments, lawyers, academics and members of the general community with clear, logical and final rules for determinations of native title. It is for this reason that I have attempted to deal with all interests and, where possible, to avoid remitter to the Federal Court.
In accordance with these reasons, I would dismiss the claimants' appeals and allow the appeals by the State, Crosswalk, the Alligator appellants, and the Northern Territory.
The claimants should pay the costs of the appeals.

Case

Western Australia v Ward

[2002] HCA 28

•

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
Matter No P59/2000
THE STATE OF WESTERN AUSTRALIA  APPELLANT
AND
BEN WARD & ORS RESPONDENTS
Matter No P62/2000
THE ATTORNEY-GENERAL OF THE
NORTHERN TERRITORY   APPELLANT
AND
BEN WARD & ORS RESPONDENTS
Matter No P63/2000
CECIL NINGARMARA & ORS   APPELLANTS
AND
THE NORTHERN TERRITORY OF
AUSTRALIA & ORS   RESPONDENTS
Matter No P67/2000
BEN WARD & ORS   APPELLANTS
AND
CROSSWALK PTY LTD & ORS  RESPONDENTS
Western Australia v Ward
Attorney-General (NT) v Ward
Ningarmara v Northern Territory
Ward v Crosswalk Pty Ltd
[2002] HCA 28
8 August 2002
P59/2000, P62/2000, P63/2000 and P67/2000
ORDER
1.   Each of the appeals is allowed.
2.   Paragraphs 4 and 6 of the orders of the Full Court of the Federal Court made on 3 March 2000, the whole of the order of the Full Court of the Federal Court made on 11 May 2000 and the determination of native title made on 11 May 2000 are set aside and the matters remitted to the Full Court for further hearing and determination.
3.   There is no order as to the costs of the appeals in this Court.
4.   The costs of the proceedings at trial and in the Full Court of the Federal Court, both before and after the making of this Court's orders disposing of these appeals, are to be in the discretion of the Full Court.
On appeal from the Federal Court of Australia
Representation:
Matter No P59/2000
R J Meadows QC, Solicitor-General for the State of Western Australia and C J L Pullin QC and K M Pettit for the appellant (instructed by the Crown Solicitor for Western Australia)
M L Barker QC and R H Bartlett for the first respondents (instructed by the Aboriginal Legal Service of Western Australia (Inc))
J Basten QC with K R Howie SC and S A Glacken for the second respondents (instructed by the Northern Land Council)
W Sofronoff QC and G M G McIntyre for the third respondents (instructed by the Kimberley Land Council)
Matter No P62/2000
T I Pauling QC, Solicitor-General for the Northern Territory and R J Webb for the appellant (instructed by the Solicitor for the Northern Territory)
M L Barker QC and R H Bartlett for the first respondents (instructed by the Aboriginal Legal Service of Western Australia (Inc))
J Basten QC with K R Howie SC and S A Glacken for the second respondents (instructed by the Northern Land Council)
Matter No P63/2000
J Basten QC with K R Howie SC and S A Glacken for the appellants (instructed by the Northern Land Council)
T I Pauling QC, Solicitor-General for the Northern Territory and R J Webb for the first respondent (instructed by the Solicitor for the Northern Territory)
B O'Loughlin for the second respondent (instructed by Clayton Utz)
R J Meadows QC, Solicitor-General for the State of Western Australia and C J L Pullin QC and K M Pettit for the third respondent (instructed by the Crown Solicitor for Western Australia)
M L Barker QC and R H Bartlett for the fourth respondents (instructed by the Aboriginal Legal Service of Western Australia (Inc))
W Sofronoff QC and G M G McIntyre for the fifth respondents (instructed by the Kimberley Land Council)
Matter No P67/2000
M L Barker QC and R H Bartlett for the appellants (instructed by the Aboriginal Legal Service of Western Australia (Inc))
N Johnson QC with M T McKenna for the first respondents (instructed by Hunt & Humphry)
J Basten QC with K R Howie SC and S A Glacken for the second respondents (instructed by the Northern Land Council)
T I Pauling QC, Solicitor-General for the Northern Territory and R J Webb for the third respondent (instructed by the Solicitor for the Northern Territory)
W Sofronoff QC and G M G McIntyre for the fourth and sixth respondents (instructed by the Kimberley Land Council)
R J Meadows QC, Solicitor-General for the State of Western Australia and C J L Pullin QC and K M Pettit for the fifth respondent (instructed by the Crown Solicitor for Western Australia)
D W McLeod with P L Wittkuhn for the seventh respondents (instructed by McLeod & Co)
H B Fraser QC with K R Jagger for the eighth respondents (instructed by Freehills)
Interveners:
Matter Nos P59/2000, P62/2000 and P63/200
D M J Bennett QC, Solicitor-General of the Commonwealth with M A Perry and J S Stellios intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
B M Selway QC, Solicitor-General for the State of South Australia with S T Hellams intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for South Australia)
B W Walker SC with S E Pritchard intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)
G M G McIntyre with D L Ritter intervening on behalf of the Yamatji Barna Baba Maaja Aboriginal Corporation (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)
Matter No P67/2000
D M J Bennett QC, Solicitor-General of the Commonwealth with M A Perry and J S Stellios intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
B M Selway QC, Solicitor-General for the State of South Australia with S T Hellams intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for South Australia)
J L Sher QC with M T Ritter intervening on behalf of the Goldfields Land Council (instructed by the Goldfields Land Council Aboriginal Corporation)
G E Hiley QC with G R Donaldson intervening on behalf of the Pastoralists and Graziers Association of WA (Inc) (instructed by the Pastoralists and Graziers Association of WA (Inc))
B W Walker SC with S E Pritchard intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)
G M G McIntyre with D L Ritter intervening on behalf of the Yamatji Barna Baba Maaja Aboriginal Corporation (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)
C F Thomson intervening on behalf of the Mirimbiak Nations Aboriginal Corporation (instructed by Mirimbiak Nations Aboriginal Corporation)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Western Australia v Ward
Aboriginals – Native title to land – Extinguishment – Extinguishment by grant of interest in land – Inconsistency between native title rights and interests and rights and interests under allegedly extinguishing grants – Adverse dominion test rejected.
Aboriginals – Native title to land – Native Title Act 1993 (Cth) – Previous exclusive possession acts – Previous non-exclusive possession acts – Past acts – Intermediate past acts – Public works.
Appeal – Federal Court of Australia – Nature of appeal – Rehearing – Principles applicable.
Aboriginals – Native title to land – Extinguishment – Partial extinguishment – Suspension of native title rights and interests – Partial extinguishment and suspension under the Native Title Act 1993 (Cth).
Aboriginals – Native title to land – Extinguishment – Crown lands – Particular kinds of transactions respecting Crown lands – Pastoral lease under Land Acts of Western Australia – Mining lease under Mining Acts of Western Australia – Reserves – Special purposes lease – Special lease – Resumption of land under the Land Act 1933 (WA) and Public Works Act 1902 (WA) – Grant to occupy land – Grant of leased reserve – Vacant Crown land.
Aboriginals – Native title to land – Validity of past acts – Racial Discrimination Act 1975 (Cth) – Inconsistency of State law authorising grant of interest in land.
Aboriginals – Native title to land – Rights in relation to land or waters – Cultural knowledge.
Constitutional law (Cth) – Territories – Relationship between Commonwealth and Territory laws.
Words and phrases –"past acts", "intermediate period acts", "exclusive possession", "previous exclusive possession acts", "previous non-exclusive possession acts", "non-exclusive pastoral leases", "public works", "works", "category A past act", "category B past act", "category C past act".
Australian Waste Lands Act 1855 (Imp), s 7.
Western Australia Constitution Act 1890 (Imp), s 3.
Federal Court of Australia Act 1976 (Cth), ss 24, 27.
Native Title Act 1993 (Cth), Pt 1, Pt 2 Div 1 (ss 11, 14, 15, 16, 19), Pt 2 Div 2 (ss 17, 20), Pt 2 Div 2A, Pt 2 Div 2B (ss 23B, 23C, 23E, 23F, 23G, 23J), Pt 2 Div 4 (s 45), Pt 2 Div 5, ss 223, 225, 226, 228, 231, 238, 242, 245, 248A, 248B.
Native Title Amendment Act 1998 (Cth).
Racial Discrimination Act 1975 (Cth), ss 9, 10.
Aboriginal Heritage Act 1972 (WA).
Land Act 1898 (WA), Pt I (ss 3, 4, 15, 16, 32, 33), Pt III, Pt V (s 62), Pt VI, Pt VII, Pt VIII, Pt IX, Pt X (ss 92, 93, 94, 95, 96, 97, 98, 99, 102, 104, 106, 107), Pt XI, Pt XII (ss 135, 138, 142, 143, 144, 150, 151, 154).
Land Act Amendment Act 1905 (WA), s 10.
Land Act 1933 (WA), Pt I (ss 3, 7, 11, 13), Pt III (ss 29, 30, 31, 32, 33, 34), Pt V Div 1, Pt V Div 2, Pt V Div 3, Pt V Div 4, Pt VI (ss 106, 109), Pt VII, Pt IX (ss 162, 163, 164).
Mining Act 1904 (WA), ss 117, 122, 123.
Mining Act 1978 (WA), s 8, Pt III Div 3 (ss 29, 35), Pt IV Div 3 (ss 71, 73, 78, 82, 85), Pt IV Div 4, ss 113, 123.
Public Works Act 1902 (WA), ss 18, 34.
Rights in Water and Irrigation Act 1914 (WA), ss 2, 3, 4.
Titles Validation Act 1995 (WA).
Titles Validation Amendment Act 1999 (WA).
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), Pt 2 (ss 5, 6, 7, 8, 9, 10, 11), Pt 2A (s 12A), Pt 2B (ss 12I, 12J, 12K, 12L, 12M, 12N, 12O, 12P).
Titles (Validation) and Native Title (Effect of Past Acts) Amendment Act 1999 (WA).
Wildlife Conservation Act 1950 (WA), ss 6, 23.
Validation (Native Title) Act 1994 (NT), Pt 1 (ss 3, 3A, 3B), Pt 2 (ss 4, 4A, 4C), Pt 3 (ss 5, 6, 7, 8, 9), Pt 3C (ss 9L, 9M), Pt 4 (s 10), Pt 5 (s 11).
GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ.
Introduction

The central issues in these four appeals from the Full Court of the Federal Court[1] were said to be whether there could be partial extinguishment of native title rights and interests, and what principles should be adopted in determining whether native title rights and interests have been extinguished in whole or in part. Those questions were framed in the abstract. The supposition appeared to be that the answer to them is to be found by an examination of the general law as revealed in previous decisions of this Court. The supposition cannot be supported.
[1]Western Australia v Ward (2000) 99 FCR 316.
As is apparent from the Preamble to the Native Title Act 1993 (Cth) ("the NTA"), that statute was introduced following the decision in Mabo v Queensland [No 2][2]. The subsequent decisions of this Court, Wik Peoples v Queensland[3], Fejo v Northern Territory[4] and Yanner v Eaton[5], were not given in appeals brought in respect of the determination by the Federal Court of applications under the NTA. In the present litigation, the determination provisions of the NTA are directly engaged. Thus, statute lies at the core of this litigation. The NTA has been amended from time to time, most significantly by the Native Title Amendment Act 1998 (Cth) ("the 1998 Act"). The relevant provisions of the 1998 Act commenced on 30 September 1998. Judgment at trial was delivered on 24 November 1998.
[2](1992) 175 CLR 1.
[3](1996) 187 CLR 1.
[4](1998) 195 CLR 96.
[5](1999) 201 CLR 351.
These reasons are organised as follows:
PART 1 – THE LEGISLATIVE SCHEME AND THE LITIGATION
A.       THE LEGISLATIVE SCHEME
1.General [4]-[13]
2.Native title [14]-[25]
3.Extinguishment of native title [26]-[29]
B.       THE LITIGATION BELOW
1.General [30]-[33]
2.The claim area [34]-[37]
3.The determination of the primary judge [38]-[40]
4.The 1998 Act [41]-[45]
5.The Full Court appeals [46]-[53]
C.THIS APPEAL
1.Parties and submissions [54]-[56]
2.Cultural knowledge and spiritual connection [57]-[64]
3.The applicable law [65]-[72]
PART 2 – EXTINGUISHMENT
D.THE CRITERION FOR EXTINGUISHMENT [73]-[82]
E.WARD SUBMISSIONS [83]-[95]
F.CONSIDERATION OF EXTINGUISHMENT SUBMISSIONS
1.        General [96]-[97]
2.The Racial Discrimination Act 1975 [98]-[100]
3.Section 9(1) of the RDA [101]-[103]
4.Section 10(1) of the RDA [104]-[134]
5.Divisions 2, 2A and 2B of Pt 2 of the NTA [135]-[140]
G.THE PROJECT AND "OPERATIONAL INCONSISTENCY" [141]‑[156]
H.       LAND LAW IN WESTERN AUSTRALIA
1.        History [157]-[168]
2.Pastoral lease provisions for Aboriginal people [169]
3.        Pastoral leases [170]-[196]
I.         RESERVES
1.Introduction [197]-[200]
2.Resumptions [201]-[208]
3.The effect of reservation [209]-[223]
4.Vesting of reserves [224]-[248]
Vesting under the Land Acts
The significance of the use of reserved land
Vesting under the Land Act 1933, s 33
Nature reserves
5.The effect on native title of vesting reserves under the Land Act 1933, s 33 [249]-[261]
6.Rights in Water and Irrigation Act 1914 [262]-[277]
7.The effect on native title of resumptions under the Public Works Act 1902 [278]-[280]
8.Vacant Crown land [281]
J.        MINING LEASES
1.Introduction [282]-[296]
2.The NTA and the State Validation Act [297]-[305]
3.        Extinguishment [306]-[321]
4.        The Argyle mining lease [322]-[335]
5.        The general purpose lease [336]-[342]
K.OTHER TRANSACTIONS ALLEGED TO EFFECT EXTINGUISHMENT IN WESTERN AUSTRALIA
1.Introduction [343]
2.Conditional purchase lease [344]-[350]
3.Special leases [351]-[357]
4.Leases of reserves [358]-[375]
L.        MINERALS AND PETROLEUM [376]-[385]
M.      FISHING [386]-[388]
N.       NORTHERN TERRITORY
1.        General [389]-[395]
2.        Pastoral leases [396]-[425]
3.The Keep River National Park and leases to the Conservation Land Corporation [426]-[460]
4.Minerals and petroleum in the Northern Territory [461]
PART 3 – OTHER
O.PROCEDURAL AND OTHER ISSUES [462]-[466]
P.SUMMARY [467]-[468]
Q.ORDERS AND FURTHER PROCEEDINGS [469]-[471]
PART 1 – THE LEGISLATIVE SCHEME AND THE LITIGATION
A.       THE LEGISLATIVE SCHEME
1.        General
It is convenient at this stage to refer, albeit in somewhat general terms, to the legislative scheme upon the operation of which turn the issues of extinguishment in this litigation. The chronology fixed by the legislative scheme is important for an understanding of the scheme. In particular, the temporal guide posts of 31 October 1975, 1 January 1994 and 23 December 1996 should be identified as follows.
The NTA contains provisions in Pt 2, Div 2 which provide for the "validation", by Div 2 itself (s 14) and corresponding provisions in State and Territory laws, of certain "past acts" attributable to the Commonwealth, a State or a Territory which, were it not for the NTA, would be invalid to any extent, in particular by operation of the Racial Discrimination Act 1975 (Cth) ("the RDA"). The relevant provisions of the RDA commenced on 31 October 1975. "Past act" is a somewhat misleading expression. Many previous acts which took effect at earlier times will not be "past acts" because they are not to any extent invalid by operation of the RDA. They may have been effective at common law to work extinguishment of native title.
Division 2 provides in respect of some "past acts" not only for their validation (by s 14 and corresponding State and Territory laws), but also (by s 15 and corresponding State and Territory laws) for the extinguishment wholly or partly of native title because they are to be classified as some particular species of "past act". Where the "past act" in question is, to put it broadly, the grant of a freehold estate or a lease, then for Div 2 to have its effect with respect both to validation and extinguishment, the grant must have been made before 1 January 1994 and the estate or lease must have been in force on that date. Grants of freehold and leases which post-dated 31 October 1975 and were "past acts" but which were not still in effect on 1 January 1994 will not be a "category A past act" or a "category B past act" and there will be no extinguishment of native title as provided in Div 2 by s 15 and corresponding State and Territory laws.
To other categories of "past act", including the grants of mining leases, the "non-extinguishment principle" applies. This "principle" is spelled out in s 238 of the NTA. In general terms it involves the suspension of what otherwise would be native title rights and interests so that, whilst they continue to exist, to the extent of any inconsistency (which may be entire) they have no effect in relation to the "past act" in question. The native title rights and interests again have full effect after the "past act" ceases to operate or its effects are wholly removed.
The 1998 Act introduced Div 2B into Pt 2. It has the stated object of confirming past extinguishment of native title by certain acts which were valid and not struck at by the RDA because, for example, they predated the RDA, or which are rendered valid by the NTA, including by s 14 of Div 2 (and State and Territory analogues). This object is achieved by Div 2B directly with respect to acts attributable to the Commonwealth; in respect of State and Territory acts, Div 2B supports State and Territory validating legislation. Division 2B fixes upon certain "previous" acts but not the definition of "past act". The previous act must have taken place before 23 December 1996 but need not still have been effective at that date. For example, Div 2B applies to certain pastoral leases granted before 31 October 1975 which had expired before 23 December 1996 and were not "past acts".
Sections 23C and 23G are the provisions in Div 2B which respectively (with corresponding State and Territory provisions) mandate entire and partial extinguishment. Section 23C deals with extinguishment by "previous exclusive possession acts". Section 23G deals with extinguishment by "previous non‑exclusive possession acts". "Previous exclusive possession act" is defined in s 23B so as to draw in a wider class of "act" than does the definition in s 23F of "previous non-exclusive possession act". The latter term is defined so as to be limited to the "non-exclusive agricultural lease" and "non‑exclusive pastoral lease". Thus, a "previous act" may be of a species which (exclusivity aside) falls within s 23B but not s 23F.
If Div 2B applies to a particular act, then, in general[6], s 15 (in Div 2) and State and Territory counterparts do not apply and the extinguishment regime which Div 2 otherwise in some cases might impose is put aside. In that way, Div 2B provides the analytical starting point and any overlapping between the two extinguishment regimes is resolved in favour of Div 2B and the corresponding State and Territory provisions.
[6]See s 23C(3) and s 23G(3), but note the restriction flowing from s 23G(2) and s 15(1)(a), a special provision dealing with public works.
The 1998 Act also introduced Div 2A into Pt 2. Division 2A provides for the validation of certain acts which took place on or after 1 January 1994 but on or before 23 December 1996 and which meet the definition in s 232A of "intermediate period acts". Division 2A also deals with the effect of that validation upon native title. Some acts in question in this litigation may be "intermediate period acts" and it will be necessary to say something about the operation of Div 2A but attention will be directed principally to Divs 2 and 2B[7].
[7]See [41]-[45] and [135]-[140].
It should be added that the NTA and certain State and Territory laws provide for compensation in respect of some acts of extinguishment of native title. Such provisions are found in Div 2 (ss 17, 20) and Div 2B (s 23J) of Pt 2 of the NTA. In this litigation, no issues under these provisions of Pt 2 directly arise. What has been sought is a determination of the existence of native title, not compensation for any extinguishment which may have occurred. However, as will appear[8], in considering the operation of the RDA (as construed in decisions of this Court)[9] upon certain post‑1975 alleged extinguishing acts under State and Territory legislation, the provisions (if any) for compensation under that legislation become important; if those provisions otherwise would have applied, it becomes necessary to consider s 45(1) of the NTA. This takes what otherwise would be a right to compensation under State or Territory law, being a right brought into existence by the operation of the RDA upon that law, and transmutes it into a right to compensation under Div 5 of Pt 2 (ss 48-54) of the NTA.
[8]See, for example, [321].
[9]See [98]-[134].

At all material times, s 10 of the NTA has declared that "[n]ative title is recognised, and protected", in accordance with the NTA, and s 11 has included a statement that "native title" cannot be extinguished contrary to the NTA. The starting point must be the meaning of the term "native title". An understanding of the answer to that question is a necessary pre‑condition to all that follows in these reasons and it is convenient to turn to the matter immediately.
2. Native title
As is now well recognised, the connection which Aboriginal peoples have with "country" is essentially spiritual. In Milirrpum v Nabalco Pty Ltd, Blackburn J said that[10]:
"the fundamental truth about the aboriginals' relationship to the land is that whatever else it is, it is a religious relationship. … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole."
It is a relationship which sometimes is spoken of as having to care for, and being able to "speak for", country. "Speaking for" country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer. Nor are they reduced by the requirement of the NTA, now found in par (e) of s 225, for a determination by the Federal Court to state, with respect to land or waters in the determination area not covered by a "non-exclusive agricultural lease" or a "non-exclusive pastoral lease", whether the native title rights and interests "confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others".
[10](1971) 17 FLR 141 at 167.
The expression "native title" or "native title rights and interests" is elaborately defined in s 223 of the NTA. For present purposes, it is sufficient to set out the text of sub‑ss (1) and (2). These have not changed since the statute was enacted. The statutory text is:
"(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)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
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
(2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests."
Much of the argument in the courts below, as in this Court, took as its starting point consideration of what was said in Mabo [No 2]. No doubt account may be taken of what was decided and what was said in that case when considering the meaning and effect of the NTA. This especially is so when it is recognised that pars (a) and (b) of s 223(1) plainly are based on what was said by Brennan J in Mabo [No 2][11]. It is, however, of the very first importance to recognise two critical points: that s 11(1) of the NTA provides that native title is not able to be extinguished contrary to the NTA and that the claims that gave rise to the present appeals are claims made under the NTA for rights that are defined in that statute. In particular, at the time of the decision of the Full Court of the Federal Court, the applicable legislation dealt at some length and in some detail with the question whether rights of the kind that are claimed have been extinguished or suspended. Full Court authority which obliged it to disregard the statutory text in its then current form should be overruled by this Court. The consequence, as will become apparent in these reasons, is that the course taken by the litigation in the Federal Court does not provide a sufficient foundation for this Court to determine the outcome which would be reached were the provisions of the legislation given their necessary operation upon the litigation.
[11](1992) 175 CLR 1 at 70.
However, as indicated, the immediately relevant elements in the definition in s 223(1) of "native title" and "native title rights and interests" have remained constant. Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly, the rights and interests consist "in relation to land or waters". Thirdly, the rights and interests must have three characteristics:
(a)they are rights and interests which are "possessed under the traditional laws acknowledged, and the traditional customs observed", by the relevant peoples;
(b)by those traditional laws and customs, the peoples "have a connection with" the land or waters in question; and
(c)the rights and interests must be "recognised by the common law of Australia".
The question in a given case whether (a) is satisfied presents a question of fact. It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by par (b) of s 223(1) is a connection with the land or waters "by those laws and customs". Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs.
The distinction is critical for any attempt (as is made in this litigation) to treat the maintenance and protection of cultural knowledge of native title holders as a matter with which the NTA is concerned. The cultural knowledge in question may be possessed under the traditional laws acknowledged and traditional customs observed by the relevant peoples. The issue which then arises is whether, by those laws and customs, there is "a connection with" the land or waters in question.
Paragraphs (a) and (b) of s 223(1) indicate that it is from the traditional laws and customs that native title rights and interests derive, not the common law. The common law is not the source of the relevant rights and interests; the role accorded to the common law by the statutory definition is that stated in par (c) of s 223(1). This is the "recognition" of rights and interests. To date, the case law does not purport to provide a comprehensive understanding of what is involved in the notion of "recognition".
There may be some laws and customs which meet the criteria in pars (a) and (b) of s 223(1), but which clash with the general objective of the common law of the preservation and protection of society as a whole[12], but the case law does not provide examples. Secondly, the statement in Mabo [No 2][13] that native title "may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence" is yet to be developed by decisions indicating what is involved in the notion of "appropriate" remedies. In Fejo[14], six members of the Court referred to the determination provisions of the NTA and continued:
"However, the [NTA] otherwise does not deal with the ascertainment or enforcement of native title rights by curial process. It provides for the establishment of native title and recognises and protects it in the manner we have outlined. But the protection which the [NTA] gives is protection 'in accordance with [the NTA]' (s 10). If actual or claimed native title rights are sought to be enforced or protected by court order, the party seeking that protection must take proceedings in a court of competent jurisdiction."
Thirdly, the recognition may cease where, as a matter of law[15], native title rights have been extinguished even though, but for that legal conclusion, on the facts native title would still subsist. Thus, for example, the circumstance that, perhaps by reason of the attitude adopted by the non‑indigenous owner of land in fee simple, indigenous people retain connections to the land in question does not derogate from the conclusion that the grant of the fee simple extinguished the native title. That conclusion would follow from the reasoning and the decision in Fejo.
[12]cf Church of the New Faith v Commissioner of Pay‑roll Tax (Vict) (1983) 154 CLR 120 at 135‑136; Mitchell v Minister of National Revenue [2001] 1 SCR 911 at 987 [153]-[154].
[13](1992) 175 CLR 1 at 61.
[14](1998) 195 CLR 96 at 120-121 [22].
[15]Yanner v Eaton (1999) 201 CLR 351 at 395 [107].
The actual holding in Wik touched upon some of these matters but was constrained by the course which had been taken in the Federal Court. There had been no determination at trial as to the existence or otherwise of native title rights and interests. Rather, by the formulation of questions for decision in advance of trial, an attempt had been made, as Toohey J put it, to[16]:
"reduce to straightforward propositions what are in truth complex issues of law and of fact. [The questions] look for a certainty in the answers which, in the circumstances of the present appeals, is a mirage. There have been no findings as to whether native title rights even exist in connection with the land, let alone the content of any such rights."
In the result, the Court determined that there was no necessary extinguishment of such native title rights as might otherwise exist by reason of the grant of pastoral leases under the Queensland statutes in question. However, with the concurrence of Gaudron, Gummow and Kirby JJ, Toohey J added[17]:
"Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees."
[16](1996) 187 CLR 1 at 131.
[17](1996) 187 CLR 1 at 133.
This passage was consistent with what by then had been provided in s 227 of the NTA. This states:
"An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise."
The term "act" is given a detailed definition in s 226[18].
[18]This states:
"(1)This section affects the meaning of act in references to an act affecting native title and in other references in relation to native title.
(2) An act includes any of the following acts:
(a)the making, amendment or repeal of any legislation;
(b)the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;
(c)the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;
(d)the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;
(e)the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;
(f)an act having any effect at common law or in equity.
(3)An act may be done by the Crown in any of its capacities or by any other person."
The 1998 Act substituted a fresh s 4 to the NTA[19]. This makes it plain that the amendments made by the 1998 Act were a legislative response to what was seen as the outcome in Wik. In particular, s 4(6) states:
"This Act also confirms that many acts done before the High Court's judgment [in Wik], that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non‑exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency."
Sections 23B and 23F are in Div 2B which was added by the 1998 Act. Division 2B is of central importance for these appeals.
[19]s 3 and Sched 1, Item 2.
Yet again it must be emphasised that it is to the terms of the NTA that primary regard must be had, and not the decisions in Mabo [No 2] or Wik. The only present relevance of those decisions is for whatever light they cast on the NTA.
3. Extinguishment of native title
Before the changes made by the 1998 Act, which came into effect after the institution of the present litigation, the NTA itself otherwise indicated little about what was involved in the notion of extinguishment of native title. Native title might be taken to have ceased to exist because, in a given case, those asserting title could not establish the present subsistence of the necessary connection required by par (b) of s 223(1), but it may be doubted that circumstances of this kind are at the core of the meaning to be given to the notion of extinguishment. The term "extinguishment" is most often used to describe the consequences in law of acts attributed to the legislative or executive branches of government. In addition, it was asserted that in some cases the native title claimed in these matters had been extinguished by acts of the executive branch of government, done pursuant to legislative authority, that were acts which did not constitute a grant of rights to any third party but were said to be the assertion, by the executive, of rights in respect of the land, or the exercise, again by the executive, of powers over the land, inconsistent with the continued existence of some or all native title rights and interests. It is important to recognise, however, that despite the grant of rights to others, or the assertion or exercise of rights or powers by the executive, to some extent the native title might survive or there might be no inconsistency in the relevant sense at all. Further, as Yanner v Eaton illustrates, statute may regulate the exercise of the native title right without abrogating it.
The amendments made to the NTA by the 1998 Act continue the distinction between the extinguishment of native title rights and interests and partial inconsistency. Section 237A states:
"The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect."
The NTA contains in s 242(1) a definition of "lease" which includes, as par (c), "anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease". The 1998 Act introduced a distinction, important for these appeals, between the exclusive pastoral lease and the non-exclusive pastoral lease. The latter is a pastoral lease that is not included in the former class (s 248B). A pastoral lease that confers a right of exclusive possession over the land or waters covered by the lease will be an exclusive pastoral lease (s 248A).
At trial, findings of fact were made by Lee J to underpin the conclusion that the claimants had satisfied the requirements of pars (a) and (b) of the definition in s 223(1) of the NTA. The Full Court was not persuaded by the submissions of Western Australia that the trial judge had erred in these findings; the evidence had been open to an interpretation that supported his findings[20]. The Northern Territory throughout has taken a position which differs from that of Western Australia. There has been no issue between the Territory and the Ningarmara claimants that the laws and customs of the three estate groups[21] connected them to the area claimed in the Territory and that it was reasonable to find (by inference) that those laws and customs were rooted in the pre‑sovereignty laws and customs.
[20](2000) 99 FCR 316 at 377‑378 [222]-[228].
[21]Bindjen, Damberal and Nyawamnyawam estate groups; see (2000) 99 FCR 316 at 371 [200].
The arguments in this Court focused upon questions of extinguishment rather than upon the anterior questions of the existence of native title and the particular content of native title rights and interests. That, as will appear, gives rise to some difficulty. The more general the terms in which the findings are made as to the subsistence of native title, the more difficult the giving of specificity to findings of extinguishment, particularly where, as the NTA postulates, there may be partial extinguishment. It may be observed that the specific finding at trial in Yanner v Eaton as to the existence of the hunting and fishing rights and interests which the appellant claimed to have exercised facilitated the finding in this Court of regulation rather than extinguishment.
B. THE LITIGATION BELOW
1. General
This litigation was instituted in the Federal Court on 2 February 1995. On that date, the Native Title Registrar ("the Registrar"), holding office under s 95 of the NTA, lodged with the Federal Court for decision an application under ss 13(1) and 61 of the NTA for "a determination of native title". This engaged the definition of "native title" in s 223 of the NTA. The application had been accepted on 26 May 1994 but the Native Title Tribunal ("the Tribunal") itself made no determination and, as a consequence, s 74 of the NTA obliged the Registrar to lodge the application for decision by the Federal Court. (Section 74 was later repealed by s 3 and Sched 2, Pt 1, Item 18 of the 1998 Act.)
Section 213(2) of the NTA conferred jurisdiction upon the Federal Court in relation to matters arising under that statute and s 81 provided that the Federal Court had jurisdiction to hear and determine applications lodged with it under s 74, that jurisdiction being exclusive of the jurisdiction of all other courts except the High Court. At the time of the institution of the litigation, the expression "determination of native title" was defined in s 225 as:
"a determination of the following:
(a)whether native title exists in relation to a particular area of land or waters;
(b) if it exists:
(i) who holds it; and
(ii)whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and
(iii)those native title rights and interests that the maker of the determination considers to be of importance; and
(iv)in any case – the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests."
Section 225 was repealed by the 1998 Act[22] and a new section substituted, with effect from 30 September 1998[23]. That was after the reservation but before the delivery of judgment by the primary judge[24]. It will be necessary later in these reasons to return to the significance of this and other changes to the NTA made by the 1998 Act and also to the significance of subsequent legislation enacted in Western Australia ("the State") and the Northern Territory ("the Territory").
[22]s 3 and Sched 2, Pt 1, Item 80.
[23]Commonwealth of Australia Gazette, S428, 28 August 1998.
[24]Ward v Western Australia (1998) 159 ALR 483.

At all material times, s 13(1) of the NTA has provided for the making of an application to the Federal Court for the subsequent variation or revocation of a determination of native title on the grounds stipulated in sub‑s (5), namely:
"(a)that events have taken place since the determination was made that have caused the determination no longer to be correct; or
(b)that the interests of justice require the variation or revocation of the determination."
Thus, an order in which the Federal Court makes a determination of native title has an indefinite character which distinguishes it from a declaration of legal right as ordinarily understood in such authorities as International General Electric Co of New York Ltd v Commissioners of Customs and Excise[25]. That indefinite character reflects the requirement for the continuing acknowledgment and observance of traditional laws and customs and continuing connection with land implicit in the definition of "native title" in s 223(1) of the NTA.
[25][1962] Ch 784 at 789. See also R v Inland Revenue Commissioners; Ex parte Rossminster Ltd [1980] AC 952 at 1014, 1027; Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 at 15; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355‑357 [45]-[49].
As the litigation was constituted after the making of interlocutory orders in the Federal Court, three groups of claimants sought determinations of native title. The first claimants (Ben Ward and others) applied on behalf of the Miriuwung and Gajerrong People, the second claimants comprised Cecil Ningarmara and others, and the third claimants (Delores Cheinmora and others) applied on behalf of the Balangarra Peoples.
2. The claim area
The whole of the claim area fell generally within the region known as the East Kimberley, comprising land and waters in the north of the State and some adjacent land in the Territory. The primary judge said of the settlement by Europeans of the East Kimberley[26]:
[26](1998) 159 ALR 483 at 489.
"Land in the East Kimberley was not made available to settlers by the Crown until late in the nineteenth century when a report on an expedition to the region, prepared by explorer and Crown surveyor Alexander Forrest and published in 1879, indicated that the area would be suitable for pastoral activities. Forrest stated that the Aboriginal people were friendly and in his view they were unlikely to be hostile to settlers, although he noted that they would 'have to learn' that the cattle that would come with settlers would not be available for hunting. As Sir Paul Hasluck commented in his work Black Australians[27], Aboriginal people in the north of Western Australia were left to 'learn' of the effects of European settlement in their region without guidance or protection from the Crown:
'No attempt was made in entering into this vast new region to prepare the natives for contact, to instruct them, to give them special protection or to ensure either their legal equality or their livelihood.
As settlement spread to remote corners of the colony the difficulty of doing anything became an excuse for forgetting that it was ever hoped to do something. Official intentions shrank. The local government ignored situations that were awkward or beyond its capacity to handle and the Colonial Office also overlooked or was unaware of any need for a positive policy.'
The first grants of rights to depasture stock in the region were for land undefined by survey. Pastoral rights were applied for by marking on maps the approximate positions of the areas sought. In 1881 two speculators acquired pastoral rights to approximately 800,000 hectares by 'marking off' an area that was assumed to follow the Ord River, on the 'understanding' that when the course of the Ord River was eventually mapped the pastoral areas would be 'transferred' to match the course of the river. Shortly thereafter, a group of pastoralists from the eastern colonies, among them Durack, Emanuel and Kilfoyle, 'reserved' approximately one million hectares, including land on the Ord River, wherever the course of that river may be shown to be by subsequent survey and mapping[28]. To discourage speculators the Land Regulations for the Kimberley District 1880 (WA) had provided that lands unstocked or understocked after the first two years of a pastoral lease be forfeited."
His Honour continued[29]:
"By the end of 1883 approximately 20 million hectares of the Kimberley had been included in pastoral leases. Within six months of that date pastoral leases covering almost one quarter of that area had been surrendered or forfeited. Further leases were abandoned over the next two years and by the end of 1885 the core of the Kimberley pastoral industry remained. That was further reduced in the 1920s when a downturn in the industry caused approximately four million hectares of pastoral lease land to be abandoned or forfeited for non-payment of rent or non-compliance with conditions. The only town in the region was the port of Wyndham founded in 1886. For many years settlers depended upon sea transport for travel to and from the East Kimberley and for delivery of supplies and export of cattle and frozen meat. An abattoir and meat freezing works operated at Wyndham from 1919 until 1985. The East Kimberley pastoral industry was based on small areas of land of high quality surrounded by large areas of land of very low potential. After 100 years of pastoral activity, it would be reported that over 60% of the pastoral area of the East Kimberley had very low cattle carrying capacity, in excess of 125 hectares being required to support each head of cattle. Further, much of the Crown land used for pastoral leases was grossly degraded by the impact of cattle on the soil and pasture and by the high rates of soil erosion which followed in each wet season[30]."
[27]2nd ed (1970) at 63.
[28]Durack, Kings in Grass Castles, (1973) at 209‑210.
[29](1998) 159 ALR 483 at 490.
[30]Graham-Taylor, The Ord River Scheme, at 6‑7.
In total, the claim area was approximately 7,900 square kilometres. Lee J gave the following summary description of the land and waters within the State in respect of which native title was claimed[31]:
[31](1998) 159 ALR 483 at 491‑492; a map appears at 641.
(i)Crown land in or about the town of Kununurra, the Ord River irrigation area, and Lake Argyle and several freehold lots;
(ii)Crown land in the Glen Hill pastoral lease south-west of Lake Argyle but separated from the area in (i);
(iii)Crown land and waters in the inter-tidal zones and mud flats on the eastern side of the Cambridge Gulf ("the Gulf") and on the north coast of the State between the Gulf and the border with the Territory;
(iv)Crown land in three small islands, "Booroongoong" (Lacrosse), "Kanggurryu" (Rocky) and "Ngarrmorr" (Pelican) near the mouth of the Gulf; and
(v)Crown land in an area loosely described as "Goose Hill", east of the town of Wyndham and south of the Ord River.
The areas in (i) and (ii) represent Crown land resumed or taken from pastoral leases at various stages in the development of what has been called the Ord River irrigation project ("the Project"). Further, the area in (i) contains part of the most significant tenement on which diamond mining operations are carried out on Crown land south-west of Lake Argyle by the Argyle Diamond Mine Joint Venture[32]. The rest of that tenement lay outside the claim area.
[32](1998) 159 ALR 483 at 492.
Lee J described the area comprised in (iii), (iv) and (v) as follows[33]:
[33](1998) 159 ALR 483 at 492‑493.
"The land in the inter-tidal zones and mud flats on the north coast of the State, described as vacant Crown land, is land between the low and high watermarks and a 40 metre strip of land between the high watermark and the boundary of the Carlton Hill pastoral lease. Whether the land included in any earlier pastoral lease extended to the high watermark or into parts of the inter-tidal zone is disputed. The mud flats and inter-tidal zones on the eastern side of the Gulf are Crown lands reserved for conservation purposes. The Goose Hill area is reserved Crown land part of which is used for grazing purposes under a special purpose lease. 'Booroongoong' (Lacrosse) which expression excludes an area described as King Location 230, and 'Kanggurryu' (Rocky) Islands are vacant Crown lands and 'Ngarrmorr' (Pelican) Island is Crown land reserved for the purpose of a nature reserve."
The variety of interests involved in the areas resumed or set aside for the Project appears in the following passage of his Honour's reasons[34]:
"Crown land in the claim area in the vicinity of Kununurra, Lake Argyle and the Ord River irrigation area is vacant and reserved Crown land formerly used for pastoral leases. Most of that land is the land covered by Lake Argyle and the land which surrounds it, formerly part of the Argyle Downs, Lissadell and Texas Downs pastoral leases, and the balance consists of small areas of land in and around Kununurra, or bordering the irrigated land north of the town and formerly part of the Ivanhoe pastoral lease. A small area of vacant Crown land near Kununurra is subject to a special lease for cultivation and grazing purposes. The reserved Crown land, in the main, is vested in the Shire of Wyndham‑East Kimberley … or in statutory authorities, for purposes which include conservation, recreation, parkland, agricultural research, gravel, quarry, drainage, preservation of Aboriginal paintings, the use and benefit of 'Aborigines' and purposes connected with the Project. Some of the reserved Crown land has been leased to Aboriginal corporations and some to community organisations. Crown land to the south-east of Lake Argyle is reserved for 'government requirements'. Part of that land is leased for grazing purposes. Some parts of that Crown land are subject to tenements granted under the Mining Act 1978 (WA) and the Petroleum Act 1967 (WA) and gravel and stone is quarried on Crown land at several sites in and around Kununurra."
Later in his reasons, his Honour gave a further description of the claim area near Kununurra and said[35]:
"A large part of the land resumed or acquired for the Project remains in unaltered form. Substantial areas have been used for reserves and a large part remains as vacant Crown land. The balance has been put to a variety of uses. The principal uses have been for the construction of the diversion and main dams and reservoirs, irrigation works and farmlands, and some land has been included within the townsite of Kununurra.
The claim area does not include land resumed or acquired for the Project developed as irrigated lands or used for roads or drains on that land, nor does it include the land resumed and used for an airfield, or the land which was resumed in 1947 to form the Kimberley Research Station. That part of the land resumed for the extension of the Kimberley Research Station which now forms Reserve 38358 is included in the claim area. The claim area does not include that part of the land resumed for the Project later included within the townsite and developed as the town of Kununurra other than specific reserves which are dealt with below."
It may be that some of the claim area was never subject to a pastoral lease and at all times was vacant Crown land[36]. The findings of fact below do not permit us to assume the contrary.
[34](1998) 159 ALR 483 at 492.
[35](1998) 159 ALR 483 at 584-585.
[36]cf [189], [281].
With respect to the claim area in the Territory, Lee J observed that part of it was in the Keep River National Park, having been excised in 1979 from the Newry pastoral lease. A further area, adjacent to the Keep River National Park, was excised from the Newry pastoral lease in 1987. Other land in the Territory, contiguous with or formerly within the Keep River National Park, had been granted in 1990 and 1993 as freehold land to Aboriginal corporations[37].
3. The determination of the primary judge
[37](1998) 159 ALR 483 at 493.
By orders made on 24 November 1998 and 26 February 1999, Lee J made a determination as to the existence of native title in respect of a very large portion of the claim area.
In the form in which it stood at the time of these orders, s 225 of the NTA stated that a determination of native title was:
"a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others." (emphasis added)
The determination made at trial proceeded upon a view of the requirements for extinguishment which some parties sought to have this Court reinstate. As will later appear, the Full Court was correct in rejecting the view which had been taken at trial. Paragraph 3(d) of the determination gave as a particular of the rights and interests exercisable by reason of the existence of native title "a right to control the access of others to the 'determination area'". Paragraph 3(j) gave as another particular:
"a right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the 'determination area'."
It is unnecessary to set out the balance of the text of the determination. The Full Court later set the determination aside[38]. The Full Court substituted a fresh determination, which in turn is the subject of contention in this Court.
4. The 1998 Act
[38](2000) 99 FCR 316.
The term "non-exclusive pastoral lease" which appears in par (e) of s 225 and elsewhere in the NTA has particular significance for the present litigation. As already indicated, the meaning of the term is to be gauged from ss 248A and 248B of the NTA. Sections 248A and 248B were added by the 1998 Act[39]. The 1998 Act thus was immediately attracted by s 225 as it stood at the time of the determination by the primary judge. Division 2B (ss 23A‑23JA) also was added by the 1998 Act. It uses the notions of "exclusive pastoral lease" and "non‑exclusive pastoral lease" as integers in the definitions of the expressions "previous exclusive possession acts" and "previous non-exclusive possession acts". These govern the operation of Div 2B. Section 23A is a summary of the operation of Div 2B. It states:
[39]s 3 and Sched 1, Item 54.
"(1)In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title.
(2)If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title.
(3)If the acts were previous non-exclusive possession acts (involving grants of non-exclusive agricultural leases or non-exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency.
(4)This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under this Division for Commonwealth acts."
Section 239 of the NTA deals with the attribution of acts to the Commonwealth, States and Territories. It states:
"An act is attributable to the Commonwealth, a State or a Territory if the act is done by:
(a)the Crown in right of the Commonwealth, the State or the Territory; or
(b)the Parliament or Legislative Assembly of the Commonwealth, the State or the Territory; or
(c)any person under a law of the Commonwealth, the State or the Territory."
The expression "any person under" in par (c) of s 239 significantly extends the notion of attribution.
It may be added that provisions in Div 2B[40] respecting the suspension rather than extinguishment of native title rights and interests have a significant impact upon the content of the obligation under s 23J to compensate native title holders in respect of extinguishment effected under the NTA. The entitlement to compensation will arise only to the extent of extinguishment, so that any legislative treatment of inconsistency as leading to no more than suspension of native title rights and interests will have the effect of diminishing what would otherwise be the obligation to compensate native title holders.
[40]Particularly in s 23G(1)(b)(ii).
The 1998 Act[41] amended s 11, a central provision of the NTA. Section 11 states, as it did at the time of the decision and the making of the determination at first instance, that:
"(1) Native title is not able to be extinguished contrary to this Act.
(2)An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:
(a)in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc and native title) of Part 2; or
(b)by validating past acts, or intermediate period acts, in relation to the native title."
Section 11, therefore, expressly provided for consideration of the operation of Div 2B, albeit in relation to the making, amendment or repeal of legislation on or after 1 July 1993.
[41]s 3 and Sched 1, Item 4.
In the proceeding before Lee J, the State did seek to rely upon Div 2B. It submitted that, by reason of the Western Australia Agreement (Ord River Irrigation)Act 1968 (Cth) ("the 1968 Ord River Act"), the construction within the claim area of the main dam and associated works for the Project was an act done by a person under a law of the Commonwealth, thereby engaging Div 2B. That submission was rejected by his Honour[42], and is not a live issue in this Court. But Div 2B was drawn into the decision‑making process leading to the determination reflected in the orders made by the primary judge in other ways as well. In so far as acts attributable to the Commonwealth which were done on or before 23 December 1996 (when Wik was decided) were relied upon in the litigation to extinguish native title wholly or partially, consideration had to be given to the operation of Div 2B.
[42](1998) 159 ALR 483 at 635-636.
Moreover, s 23A(4) indicates that Div 2B also allows the States and Territories to legislate in the same way as is done under the Division in respect of Commonwealth acts. Such a provision with respect to the States and Territories is then made specifically, in ss 23E and 23I, permitting the confirmation of extinguishment, or partial extinguishment, of native title by previous exclusive possession acts or previous non‑exclusive possession acts of a State or Territory. At the time of the decision at trial, no such legislation of Western Australia was in force. However, the Territory had legislated. The Validation of Titles and Actions Amendment Act 1998 (NT) ("the 1998 NT Act"), which amended the Validation of Titles and Actions Act 1994 (NT), had commenced on 1 October 1998. The 1998 NT Act also substituted a new short title for the 1994 principal Act, the Validation (Native Title) Act. It is convenient to refer to the 1994 Act, as amended by the 1998 NT Act, as "the Territory Validation Act". No reliance appears to have been placed upon that statute before Lee J when the parties responded to an invitation to make further submissions with respect to the effect of the 1998 NT Act.
5. The Full Court appeals

Several of the parties to the proceedings at trial were dissatisfied with the determination that was made and appealed to the Full Court of the Federal Court. The judgment on the appeals was reserved on 13 August 1999 and, on 3 March 2000, the Full Court (Beaumont and von Doussa JJ; North J dissenting) delivered its reasons for judgment and made orders setting aside the orders made by Lee J. In place thereof, by orders entered on 13 July 2000, the Full Court made a determination of native title in substitution for that made at trial. That order by the Full Court then answered the statutory description of an approved determination of native title (s 13(6) of the NTA).
The order of the Full Court containing that determination was as follows[43]:
[43](2000) 99 FCR 316 at 542‑543.
"The Court orders, declares and determines that:
1.Native title exists in the 'determination area' save for the areas of land or waters described in the Second Schedule. The determination area is that part of the land or waters within the area depicted by red outline on the map in the First Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged with the [Tribunal] referred to the Court by the Tribunal.
2.Native title existing in the determination area is held by the Miriuwung and Gajerrong People, and in respect of that part of the determination area known as Booroon[g]oong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title.
3.Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in:
The whole of the land in the Glen Hill pastoral lease;
The whole of Reserve 40260;
Booroongoong (Lacrosse Island);
Kanggurryu (Rocky Island);
The north-west extremity of the mainland portion of the determination area encompassing Shakespeare Hill and Cape Donnet, being the mainland lying outside the limits of the following former leases 3114/1058, 396/508 and 2163/98;
The whole of NT portion 3541 (Policeman's Hole);
The whole of NT portion 3542 (Bucket Springs); and
The whole of NT portion 3863 (Bubble Bubble)
are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area.
4.Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in Reserves 26600, 31221, 40536 and 41401, each for 'Use and Benefit of Aboriginal Inhabitants', Reserve 31504 for 'Arts and Historical – Aborigines' and Reserve 32446 'Native Paintings', being reserves within the [Project] area to which s 47A of the [NTA] applies, are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area, save that their entitlement does not affect the public works comprising the [Project].
5.Subject to paragraphs 7, 8, 9 and 10 hereof the nature and extent of the native title rights and interests existing in the balance of the determination area are as follows:
(a)      a right to possess, occupy, use and enjoy the land;
(b)a right to make decisions about the use and enjoyment of the land;
(c)      a right of access to the land;
(d)      a right to use and enjoy the traditional resources of the land;
(e)a right to maintain and protect places of importance under traditional laws, customs and practices in the determination area.
6.The nature and extent of other interests in relation to the determination area are the interests created by the Crown or created otherwise, as set out in the Third Schedule.
7.There is no native title right or interest in minerals and petroleum in the State as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA), or in the Territory as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT). In all nature reserves or wildlife sanctuaries created in [the State] in the determination area before the [RDA] came into operation, native title to take fauna has been wholly extinguished.
8.To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph 5 hereof and the rights conferred by other interests referred to in paragraph 6 hereof the native title rights and interests must yield to such other rights.
9.The native title rights and interests referred to in paragraph 5 hereof are not exclusive of the rights and interests of others.
10.The native title rights and interests described in paragraphs 3, 4 and 5 are subject to regulation, control, curtailment or restriction by valid laws of Australia.
11.(a)      Declare that the rights and interests from time to time comprising the native title area are held by the common law holders.
(b)Direct that, within three months of the date of this determination, a representative of the common law holders nominate in writing to the Federal Court a prescribed body corporate to perform the functions mentioned in s 57(3) of the NTA. Reserve liberty to apply to a single judge of the Court in that connection."
The Second Schedule listed those parts of the determination area in which native title had been wholly extinguished. The Third Schedule detailed a range of "other interests", including interests under a number of statutes of the State[44].
[44](2000) 99 FCR 316 at 546. These "other interests" were:
"(a)Interests of persons in whom Crown reserves are vested under the Land Act 1898 (WA) or [the] Land Act 1933 (WA) or under a lease of the reserve.
(b)Interests of persons entitled to use reserves according to a purpose for which Crown land is reserved, or under a lease of the reserve.
(c)   Interests of lessees under:
(i)Leases granted under the Land Act 1933 (WA);
(ii)Leases granted under the Crown Lands Act 1978 (NT);
(iii)Leases granted under the Special Purposes Leases Act 1953 (NT);
(iv)Leases granted under the Mining Act 1978 (WA);
(v)Leases granted under the Aboriginal Affairs Planning Authority Act 1972 (Cth).
(d)   Interests of licensees under:
(i)Licences issued under the Land Act 1933 (WA);
(ii)Licences issued under the Fish Resources Management Act 1994 (WA);
(iii)Licences issued under the Jetties Act 1926 (WA);
(iv)Licences issued under the Mining Act 1978 (WA);
(v)Licences issued under the Wildlife Conservation Act 1950 (WA);
(vi)Licences issued under the Rights in Water and Irrigation Act 1914 (WA);
(vii)Licences issued under the Transport Co‑ordination Act 1966 (WA).
(e)   Interests of holders of permits issued under:
(i)                  The Land Act 1933 (WA);
(ii)The Ord Irrigation District By-Laws under the Rights in Water and Irrigation Act 1914 (WA).
(f)Interests of holders of tenements under the Mining Act 1904 (WA).
(g)Interests of holders of tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA).
(h)Interests of grantees under s 46(1A) of the Lands Acquisition Act 1979 (NT).
(i)Other interests held by members of the public arising under the common law."
The form of the determination that was made must be understood in the light of the way in which the proceedings had been conducted at trial. Prior to the hearing before Lee J, the Ward claimants had filed a statement of the nature of the rights which it was contended were exercisable in relation to the land or waters claimed. That statement took each area of land or waters claimed, and stated the rights that were said to be exercisable over that area. Typically, more than 20 rights were claimed in respect of each area. Those rights were variously expressed. At the widest, the claim made was for "the right to possession, occupation, use and enjoyment of the land". Other, narrower, claims were made. These claims included rights "to derive sustenance from the land", "to hunt and gather food on the land", "to hold ceremonies on the land", "to hold ceremonies concerning the land", "to care for the land according to environmental requirements, including burning the land", and "to regulate access to the land". The debate at trial, however, appears to have focused largely on the widest of the claims – the claim to the right to possession, occupation, use and enjoyment of the land – and on claims to control access to or use of the land.
It is convenient to notice, at this point, some aspects of the determination that was made by the Full Court. First, on its face, there appears to be tension between par 5(b), stating that the native title rights and interests include a right to make decisions about the use and enjoyment of the land, and par 9 which provides that this, and the other rights and interests described in par 5 of the determination, are not exclusive of the rights and interests of others. Identifying the content of a right to make decisions about use and enjoyment of land that is a right which is not exclusive of the rights of others in that regard is not easy. Providing that, to the extent that any inconsistency exists, native title rights and interests must yield to the rights of others does not help in identifying the content of a non‑exclusive right to make decisions about use and enjoyment.
Secondly, although there would be little or no difficulty in identifying those who hold most of the "other interests" set out in the Third Schedule to the determination, it may not always be easy to identify "persons entitled to use reserves according to a purpose for which Crown land is reserved", at least in those cases where the purpose is stated in general terms. Further, it is by no means clear exactly what is encompassed by the reference in the Third Schedule to "other interests held by members of the public arising under the common law".
A determination of native title must comply with the requirements of s 225. In particular, it must state the nature and extent of the native title rights and interests in relation to the determination area[45]. Where, as was the case here in relation to some parts of the claim area, native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.
[45]s 225(b).
It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead. Rather, as the form of the Ward claimants' statement of alleged rights might suggest, it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.
Further, to find that, according to traditional law and culture, there is a right to control access to land, or to make decisions about its use, but that the right is not an exclusive right, may mask the fact that there is an unresolved question of extinguishment. At the least, it requires close attention to the statement of "the relationship" between the native title rights and interests and the "other interests" relating to the determination area[46].
C. THIS APPEAL
1. Parties and submissions
[46]s 225(d).
Two of the groups of claimants (Ben Ward and others on behalf of the Miriuwung and Gajerrong People, and Cecil Ningarmara and others) and two of the respondents at trial (the State and the Territory), being dissatisfied with the determination made by the Full Court, now appeal to this Court. There are four appeals. Matter No P59/2000 is brought by the State, Matter No P62/2000 by the Territory, Matter No P63/2000 by Cecil Ningarmara and others, and Matter No P67/2000 by Ben Ward and others. Matter Nos P62 and P67 are confined to grounds narrower than those on which special leave was sought.
The appeals have been heard together. Applications for leave to cross‑appeal have been filed by some parties; notices of contention have been given by some parties.
By their appeals, the Ward and Ningarmara claimants sought to have the determination made by the Full Court set aside and a determination made which would give more extensive native title rights and interests. The Cheinmora claimants, who made a claim in respect of land or waters which include Booroongoong or Lacrosse Island, and the sixth respondent (in Matter No P67), Kimberley Land Council, supported those submissions. Several other bodies intervened in support[47]. Submissions to the contrary were advanced on behalf of the State, the Territory, the Conservation Land Council (a Territory statutory corporation), and what may be referred to collectively as the private respondents: the group comprising the Alligator respondents; Crosswalk Pty Ltd ("Crosswalk") and Baines River Cattle Co Pty Ltd; and Argyle Diamond Mines Pty Ltd and the Argyle Diamond Mine Joint Venture. The Attorneys‑General for the Commonwealth and South Australia intervened substantially in support of some or all of the submissions advanced on behalf of the State and the Territory, as did the Pastoralists and Graziers Association of WA (Inc).
2. Cultural knowledge and spiritual connection
[47]Human Rights and Equal Opportunity Commission, the Goldfields Land Council, Yamatji Barna Baba Maaja Aboriginal Corporation, and Mirimbiak Nations Aboriginal Corporation.
The determination made by the Full Court omitted any provision such as that in par 3(j) of the determination made at trial. The majority of the Full Court took that course saying[48]:
"Although the relationship of Aboriginal people to their land has a religious or spiritual dimension, we do not think that a right to maintain, protect and prevent the misuse of cultural knowledge is a right in relation to land of the kind that can be the subject of a determination of native title."
[48](2000) 99 FCR 316 at 483 [666].
In this Court, it was submitted that the Full Court erred in this respect and that this Court should restore par 3(j) of the first determination. The first difficulty in the path of that submission is the imprecision of the term "cultural knowledge" and the apparent lack of any specific content given it by factual findings made at trial. In submissions, reference was made to such matters as the inappropriate viewing, hearing or reproduction of secret ceremonies, artworks, song cycles and sacred narratives.
To some degree, for example respecting access to sites where artworks on rock are located, or ceremonies are performed, the traditional laws and customs which are manifested at these sites answer the requirement of connection with the land found in par (b) of the definition in s 223(1) of the NTA. However, it is apparent that what is asserted goes beyond that to something approaching an incorporeal right akin to a new species of intellectual property to be recognised by the common law under par (c) of s 223(1). The "recognition" of this right would extend beyond denial or control of access to land held under native title. It would, so it appears, involve, for example, the restraint of visual or auditory reproductions of what was to be found there or took place there, or elsewhere. It is here that the second and fatal difficulty appears.
In Bulun Bulun v R & T Textiles Pty Ltd[49], von Doussa J observed that a fundamental principle of the Australian legal system was that the ownership of land and ownership of artistic works are separate statutory and common law institutions. That is the case, but the essential point for present purposes is the requirement of "connection" in par (b) of the definition in s 223(1) of native title and native title rights and interests. The scope of the right for which recognition by the common law is sought here goes beyond the content of the definition in s 223(1).
[49](1998) 86 FCR 244 at 256.
That is not to say that in other respects the general law and statute do not afford protection in various respects to matters of cultural knowledge of Aboriginal peoples or Torres Strait Islanders. Decided cases apply in this field the law respecting confidential information, copyright, and fiduciary duties[50]. Provision respecting moral rights is now made by Pt IX (ss 189‑195AZO) of the Copyright Act 1968 (Cth).
[50]See, for example, Foster v Mountford and Rigby Ltd (1976) 14 ALR 71; [1978] FSR 582; Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244.
Many, but not all, of the remaining issues turn upon questions of extinguishment. Other questions arise in relation to claims relating to minerals and petroleum and to fishing and will be dealt with later in these reasons. However, there was one issue about the establishment of native title rights and interests with which it is convenient to deal now. Western Australia contended that there were parts of the areas in respect of which native title rights and interests were claimed which, so it was submitted, were not shown to have been visited or used by any Aboriginal person in recent times or in the past. The Full Court[51] rejected the submission by the State that physical occupation of the land is a necessary requirement for there to be a connection with the land or waters as required by par (b) of the definition in s 223(1) of native title rights and interests.
[51](2000) 99 FCR 316 at 383 [245] per Beaumont and von Doussa JJ, 486‑487 [682] per North J.
Western Australia maintained a generally similar submission in this Court – that proof of continued use of land or waters was essential to establishment of connection with that land or those waters. That submission should be rejected.
In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a "connection" with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a "connection" of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by "connection" by those laws and customs. This latter question was not the subject of submissions in the present matters, the relevant contention being advanced in the absolute terms we have identified and without examination of the particular aspects of the relationship found below to have been sufficient. We, therefore, need express no view, in these matters, on what is the nature of the "connection" that must be shown to exist. In particular, we need express no view on when a "spiritual connection" with the land (an expression often used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice.
3. The applicable law

I turn now to the third and most adventurous of the submissions. Its flavour can be derived from these extracts[1044]:
[It cannot] be disputed that the Constitution bespeaks an underlying commitment to the rule of law. While the occasion has yet to arise for consideration of all that may follow from Dixon J's statement in The Communist Party case that the rule of law forms an assumption in accordance with which the Constitution is framed, it is tolerably clear that government under the Constitution requires lawful conduct by all organs of government … Covering clause 5 and s 71 combine to institutionalise the rule of law, which includes an expectation that all organs of government will act and have acted lawfully. The Constitution makes no allowance for any organ of government to behave unlawfully. Hence, the heavy onus on those asserting unlawful breach of constitutional limits on legislative competence. The Executive is bound to work under laws made by the Parliament. And the separation of judicial power guards against unlawfulness in the exercise of legislative and executive power.
The Commission submits that it is but a small and logically compelling step to say that lawfulness is supplied not only by national law, but also by international law … So long as the capacity of the Commonwealth Parliament to legislate contrary to the requirements of international law is fully recognised and conceded, the High Court should continue to expect (that is, unless disallowed by explicit contrary words) that the Commonwealth has exercised its legislative powers in accordance with that law. To interpret the Constitution as intended to set up a nation which could be an outlaw in the international community of nations by reason of mere incidental implication would violate the underlying value of a nation committed to the rule of law."
[1044]Submissions of HREOC, pars 25-26 (footnotes omitted).
Many things could be said about this submission, but I will confine myself to three. First, if HREOC is claiming that there is a constitutional implication that prevents the legislature and Executive from acting in violation of international law, then it is flatly contrary to authority and principle. The provisions of the Constitution are not to be read in conformity with international law[1045]. It is an anachronistic error to believe that the Constitution, which was drafted and adopted by the people of the colonies well before international bodies such as the United Nations came into existence, should be regarded as speaking to the international community[1046]. The Constitution is our fundamental law, not a collection of principles amounting to the rights of man, to be read and approved by people and institutions elsewhere. The approbation of nations does not give our Constitution any force, nor does its absence deny it effect. Such a consideration should, therefore, have no part to play in interpreting our basic law[1047].
[1045]Polites v The Commonwealth (1945) 70 CLR 60 at 68-69 per Latham CJ, 74 per Rich J, 75-76 per Starke J, 77-78 per Dixon J, 79 per McTiernan J, 81 per Williams J; Horta v The Commonwealth (1994) 181 CLR 183 at 195; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 383-386 per Gummow and Hayne JJ; AMS v AIF (1999) 199 CLR 160 at 180 per Gleeson CJ, McHugh and Gummow JJ.
[1046]Kartinyeri v Commonwealth (1998) 195 CLR 337 at 417-418.
[1047]Compare Stanford v Kentucky 492 US 361 (1989), where the United States Supreme Court rejected the use of international norms in determining the scope of the Eighth Amendment.
Secondly, if HREOC is claiming that there is a constitutional implication preventing the Executive alone from acting in breach of international law, it is also mistaken. The scope of the Commonwealth's executive power is generally coterminous with the scope of its legislative powers[1048]. It has been recognised that the Commonwealth, in reliance on the external affairs power, can legislate in a manner that is inconsistent with our international obligations[1049]. It can, for example, give force to treaties that would be void at international law[1050]. Once that is accepted, it follows that the Executive cannot be bound by international law in the manner that HREOC asserts. If the "rule of law" allows legislative power to make laws in breach of international law, how can the executive power – which generally encompasses matters that could validly be effected by legislation – be fettered? To that there seems no satisfactory answer.
[1048]Victoria v The Commonwealth and Hayden (1975) 134 CLR 338 at 362-363 per Barwick CJ, 373-374 per Gibbs J, 396-398 per Mason J.
[1049]Polites v The Commonwealth (1945) 70 CLR 60 at 68-69 per Latham CJ, 74 per Rich J, 75-76 per Starke J, 77-78 per Dixon J, 79 per McTiernan J, 81 per Williams J.
[1050]Horta v The Commonwealth (1994) 181 CLR 183 at 195.
Finally, the submission by HREOC would undermine the long settled principle that provisions of an international treaty do not form part of Australian law unless validly incorporated by statute. It has repeatedly been held that the separation of the legislative and executive arms of government necessitates that treaties be implemented domestically under statute[1051]. However, HREOC's approach would effectively reverse that principle. By giving priority to the principles assumed by the Executive, by permitting judges to construe legislation in a way that violated the intention of Parliament, it would elevate the Executive to a position that it has never enjoyed under our Constitution. That is another reason for rejecting the submission[1052].
[1051]Bradley v The Commonwealth (1973) 128 CLR 557 at 582-583 per Barwick CJ and Gibbs J; Simsek v Macphee (1982) 148 CLR 636 at 641-642 per Stephen J; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 193 per Gibbs CJ, 224 per Mason J, 253 per Brennan J; Kioa v West (1985) 159 CLR 550 at 570-571 per Gibbs CJ; Dietrich v The Queen (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287 per Mason CJ and Deane J, 316-317 per McHugh J. A contrast may be drawn with the position under the Constitution of the United States of America. Article VI of the United States Constitution relevantly provides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land". As a result, self-executing treaties can create rights and impose liabilities without being implemented by legislation passed in Congress.
[1052]I would add that the statement of Dixon J in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 that the rule of law was an assumption in accordance with which the Constitution was framed meant no more than that the Parliament could not decide the limits of its constitutional power. It simply expresses the notion encapsulated in the saying "The stream cannot rise above its source." Fairly interpreted, it provides no support for the notion that judges are empowered to strike down legislation on the basis that it infringes some unwritten aspect of the rule of law.
V. SUMMARY OF HOLDINGS
It is useful to summarise the conclusions that I have reached. Before doing so, however, I emphasise that what follows is no more than a summary, and is not a substitute for the reasons that I have given.
1.The resolution of these appeals requires consideration of the effect of legislative and executive action on native title under the general law. It also requires ascertaining whether s 10 of the RDA applied to invalidate the legislation or act in question, whether the amended Native Title Act and complementary State or Territory legislation validates the legislation or act, and, if so, what the effect of that validation is.

2.Partial extinguishment of native title is recognised both at common law and under the Native Title Act.
3.Inconsistency between the legislation or executive action and native title will result in extinguishment of native title rights and interests. To determine whether there is inconsistency, it is generally necessary to compare native title rights and interests with the interests granted or authorised by the Executive or a law. It is not, however, necessary to do so when the interest validly granted confers a right of exclusive possession. That right is inconsistent with the existence of native title. The "adverse dominion" approach to extinguishment, and the approach espoused by North J in the Full Court, should both be rejected.
4.Native title that has previously been extinguished at common law by legislation or by executive action cannot be recognised under s 223(1)(c) of the Native Title Act. There is nothing about the "previous exclusive possession act" regime in the Native Title Act which indicates that native title that has been extinguished over the past two centuries may be restored in order to be extinguished by previous exclusive possession acts.
5.Native title does not include the right to exploit minerals. No evidence was presented which demonstrated that there were native title rights to exploit minerals or petroleum, or any right to inhibit the exploitation of those resources.
6.Cultural knowledge does not constitute a native title right or interest "in relation to land or waters".
7.Operational inconsistency as a test for extinguishment must be treated with caution as it affords only an analogy for testing whether acts which are authorised by enactment are inconsistent with native title.
8.The maintenance of a spiritual connexion does not suffice to found a "connection with the land or waters" under s 223(1)(b) of the Native Title Act. It is essential that claimants maintain a physical presence on the land. In relation to some areas, the claimants did not do so.
9.Section 10(1) of the RDA applies to racially discriminatory legislation and acts authorised by such legislation if they took place after 31 October 1975. Laws of general application, the purpose of which is not to create racial distinctions, restrictions, exclusions or preferences are not racially discriminatory laws. Section 10(1) operates on discriminatory laws either by invalidating them or the acts which they authorise, or by conferring upon native title holders the right which has been denied them. The precise way in which it operates depends on characterisation of the racially discriminatory legislation.
10.The grant of pastoral leases in Western Australia extinguished all native title rights and interests. The decision of this Court in Wik is distinguishable. It should be confined largely to its own situation.
11.The grant of a permit to occupy land under the Land Act 1898 extinguished all native title rights and interests over the land.
12.The conditional purchase lease granted under the Land Act 1898 conferred on the lessee a right of exclusive possession that extinguished all native title rights and interests over the leased land.
13.The grant of special leases under the Land Regulations and Land Acts conferred on lessees a right of exclusive possession. All native title rights and interests over the leased lands were therefore extinguished.
14.The dedication or identification by the State of land for road or road purposes or the regular (not unlawful) use of a strip of land for road purposes extinguished native title in respect of land otherwise subject to native title rights.
15.Leases of reserves under s 32 of the Land Act 1933 extinguished native title completely. The RDA did not invalidate the grant of those leases.
16.The creation of reserves under the Land Regulations, the Land Act 1898 and the Land Act 1933 involved the creation of rights in the public that were inconsistent with native title. All native title rights and interests over the lands reserved were extinguished. The RDA did not operate to invalidate the creation of reserves after 31 October 1975.
17.By-laws enacted to preserve fauna under the Wildlife Conservation Act were inconsistent with the existence of any remaining native title right to hunt fauna in nature reserves in Western Australia. These by-laws were of general application and did not attract the RDA.
18.The vesting of "irrigation works" in the Minister under s 3 of the Rights in Water and Irrigation Act extinguished all proprietary and personal interests in those works. The Crown land set apart for future expansion of the Ord Project and used, among other things, as buffer zones fell within the definition of "irrigation works". Native title over that land was therefore extinguished.
19.The application of Pt III of the Rights in Water and Irrigation Act extinguished all native title rights to control the flow and use of water in the Ord Irrigation District and any native title to property in the beds of water-courses, lakes, lagoons, swamps and marshes.
20.The by-laws made under the Rights in Water and Irrigation Act extinguished native title rights to hunt fauna and enter certain areas. Those by-laws were of general application and were not racially discriminatory. The by-laws made in 1991 by the Shire of Wyndham-East Kimberley were valid and effective.
21.Resumptions of land under the Public Works Act extinguished all native title rights and interests over that land. The RDA did not invalidate the resumption that took place in December 1975.
22.The "public works" provisions of the Native Title Act and the State Validation Act extinguished native title over vacant Crown land used, among other things, as buffer zones and as areas for future expansion of the Ord Project. There is no sound basis for disturbing the findings of the Full Court which led to this result.
23.The grant of mining leases under the Mining Act 1978 conferred on the lessees a right of exclusive possession over the land. That right was inconsistent with, and thus extinguished, all native title. The RDA did not invalidate the grant of any mining lease.
24.The grant of the Argyle lease extinguished all native title rights and interests. It was not invalidated by the RDA.
25.The general purpose lease granted under the Mining Act 1978 extinguished all native title rights and interests. The RDA did not invalidate that grant.
26.Pastoral leases and other leases registered under the Transfer of Land Act were rendered indefeasible and were freed from all encumbrances not notified on the register. The effect of registering such leases was to extinguish any surviving native title in respect of the land.
27.Section 47B of the Native Title Act did not apply to areas of the Ord Project to revive extinguished native title.

28.The public right to fish should be recorded in the determination because it is an interest under s 225(c) of the Native Title Act, and any exclusive right to fish cannot be recognised by the common law.
29.Several interests of the Alligator appellants, such as the grant of licences to construct, use and maintain private jetties under the Jetties Act, extinguished any surviving native title. Aquaculture licences granted under the Fish Resources Management Act, however, did not. If it is necessary to decide whether the leases of the Old Laboratory Building and Yard extinguished native title, the matter should be remitted to the Full Court.

30.The grant of pastoral leases in the Northern Territory extinguished all native title rights and interests over that land. The decision of this Court in Wik is distinguishable.
31.The perpetual leases in the Northern Territory granted under the Crown Lands Act and the Special Purposes Leases Act extinguished all native title rights and interests. The RDA did not operate to invalidate the grant of those leases.
32.The declaration under s 12(1) of the TerritoryParks and Wildlife Conservation Act in 1981 did not extinguish native title rights and interests that might have survived the grant of the perpetual leases.
33.The by-laws promulgated under s 71 of the TerritoryParks and Wildlife Conservation Act extinguished any surviving native title rights to light fires, hunt and dig. But neither the management plan for the Keep River National Park nor the Keep River National Park Local Management Committee Regulations brought about any further extinguishment of native title.
34.On the present facts, it is inappropriate to decide whether improvements in the Keep River National Park extinguished native title.
35.There is no warrant for moulding the common law of native title to meet our international obligations or for straining the language of the Native Title Act to achieve the same result.

VI. CONCLUSION AND ORDERS

It follows from what I have said that the title of the claimants has been extinguished with respect to all lands the subject of these appeals. That extinguishment occurred for the most part on the grant of pastoral leases over the lands. Most of the further dealings that have occurred have, or would have, produced the same result.
I add this. The first non-indigenous people who occupied this country brought with them their common and statutory law which had long included a doctrine of adverse possession and settled notions about the use and occupation of land[1053]. These were closely connected ideas: land was to be used and enjoyed, and those who possessed, used and enjoyed the land should own it, albeit, at first, transiently. As Blackstone put it[1054]:
"For, by the law of nature and reason, he, who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer: or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted."
[1053]Cholmondeley v Clinton (1820) 2 Jac & W 1 at 141 [37 ER 527 at 577-578] (referring to Bracton and Plowden).
[1054]Commentaries on the Laws of England, Am ed (1803), bk 2, c 1 at 3 (footnote omitted).
Those early non-indigenous settlers also brought with them a knowledge of agriculture and husbandry, and of domestic, commercial and official construction of a kind completely different from that of the indigenous peoples. To the undiscriminating, and perhaps insensitive and unimaginative eyes of the former it must have appeared that much of this large continent was not in fact being used or enjoyed, or certainly not so in a way that was familiar. After discussing the use and occupation of Crown lands by reference to the Old Testament, Blackstone says this of migration[1055]:
"Upon the same principle was founded the right of migration, or sending colonies to find out new habitations, when the mother-country was over-charged with inhabitants; which was practised as well by the Phoenicians and Greeks, as the Germans, Scythians, and other northern people. And, so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, government, or in colour; how far such a conduct was consonant to nature, to reason, or to christianity, deserved well to be considered by those, who have rendered their names immortal by thus civilizing mankind."
[1055]Commentaries on the Laws of England, Am ed (1803), bk 2, c 1 at 6.

Activities of this kind undoubtedly occurred in Australia. Some were utterly indefensible. It is possible to understand, again without condoning, that others of them might have occurred, in part because of different conceptions about land and how it might be possessed, used or owned. The different conceptions held by the new settlers, much the stronger of the peoples, were bound to prevail. This was inevitable when those who were more powerful had a well settled, longstanding body of property law in written texts, statutes and cases, and those whom they dispossessed depended for the assertions of their rights to occupy and use the land upon traditional oral customs and practices. Perhaps it was equally significant that the new settlers brought with them a transparent system of legal enforcement and courts to give effect to the resolution of disputes over property. To these new settlers, it might also have appeared, whether it was true or not, that the country was so sparsely populated that disputes did not arise between competing indigenous people over land.
The problems for the indigenous people were compounded by the difficulty of finding any conceptual common ground between the common and statutory law of real property and Aboriginal law with respect to land. It seems likely that the first settlers would have regarded the two as incompatible, that whatever the Aboriginal peoples possessed by way of title to land was too foreign, fragile and elusive to withstand and survive the common law[1056]. Mabo [No 2] was a brave judicial attempt to redress the wrongs of dispossession. But its "recognition" of native title has involved the courts in categorising and charting the bounds of something that, being sui generis, really has no parallel in the common law. The Court has endeavoured to find a way of recognising, and to a degree protecting, that anomalous interest without unduly disturbing the law of Australian property[1057]. The results of this enterprise can hardly be described as satisfactory. The decisions of this Court and of lower courts have resulted in something that is not strictly property, as common lawyers would understand it, being regarded as a burden on the Crown's radical title. Long settled understandings about land law relating to exclusive possession and leases have been questioned[1058]. Parliament has been compelled to intervene, repeatedly, to secure the validity of acts that were never before thought to be problematic[1059]. And we now have a body of law that is so complicated, shifting and abstruse that it continues to require the intervention of this Court to resolve even the most basic issues, such as the effect of freehold[1060] or leases on native title[1061]. Judging from the submissions to this Court and the native title legislation that we have had to consider, few people, if any, have been able to thread this labyrinth of Minos unscathed[1062]. To these drawbacks flowing from the recognition of native title may be added others: considerable uncertainty has been created; commercial activity and therefore national prosperity has been inhibited; much time and money have been expended on litigation[1063]; and, I fear, the expectations of the indigenous people have been raised and dashed.
[1056]On the fragility of native title, see Fejo (1998) 195 CLR 96 at 151 [106] per Kirby J; Yanner v Eaton (1999) 201 CLR 351 at 408 [152].
[1057]Sackville, "The Emerging Australian Law of Native Title: Some North American Comparisons", (2000) 74 Australian Law Journal 820 at 833.
[1058]Wik (1996) 187 CLR 1, which distinguished or did not apply statements in Macdonald v Tully (1870) 2 QSCR 99, Wildash v Brosnan (1870) 1 QCLLR 17, O'Keefe v Malone [1903] AC 365, O'Keefe v Williams (1910) 11 CLR 171 and Mabo [No 2] (1992) 175 CLR 1. See also Sackville, "The Emerging Australian Law of Native Title: Some North American Comparisons", (2000) 74 Australian Law Journal 820 at 833-834; Anderson v Wilson (2000) 97 FCR 453 at 463 [45] per Black CJ and Sackville J (querying the utility of the concept of exclusive possession in determining whether extinguishment of native title has occurred).
[1059]See Native Title Act, Pt 2, Divs 2, 2A, 2B; Brennan, The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners, (1998) at 40-43; Sackville, "The Emerging Australian Law of Native Title: Some North American Comparisons", (2000) 74 Australian Law Journal 820 at 831.
[1060]Fejo (1998) 195 CLR 96.
[1061]So far, these appeals have generated two different views of the effect of true leases on native title – that of Lee J, with whose opinions North J agreed in substance, and those of Beaumont and von Doussa JJ. This is despite the fact that leases were the subject of dicta by members of this Court in several cases commencing with Mabo [No 2].
[1062]It is clear from submissions to this Court, for instance, that several parties relied heavily upon dicta in Mabo [No 2] (1992) 175 CLR 1 at 68 per Brennan J relating to the "use" of reserved land. Language reflecting the idea that "use" may bring about extinguishment is also found in the Native Title Act, s 23B(9C)(b). It will be apparent from these reasons and those of Gleeson CJ, Gaudron, Gummow and Hayne JJ, however, that Brennan J's references to "use" give rise to different understandings. The issue is really whether the rights created in persons or the rights asserted by the Crown are inconsistent with native title.
Likewise, language in s 23G(1)(b)(ii) of the Native Title Act suggesting that native title may be "suspended" upon the grant of rights and interests that are inconsistent with it can only be attributed to the uncertainty created by Wik (1996) 187 CLR 1 at 133. The use of terms such as "suspended" and "extinguished" in s 23G(1)(b) demonstrates emphatically that the legislators and their legal advisers could not ascertain the outcome of Wik with anything resembling confidence.
[1063]On the time taken for native title hearings, see M Boge, "The Emerging Law of Native Title Practice: Select Issues and Observations", in Boge (ed), Justice for All? Native Title in the Australian Legal System, (2001) 101 at 102-103. On the inhibition of commercial activity and the uncertainty to which the Native Title Act and Wik gave rise, see Brennan, The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners, (1998) at 21-29, 40-43, 49-50. These appeals illustrate the extraordinary time spent in resolving native title claims. The hearing at first instance, which began on 17 February 1997, lasted 83 days. The appeals to the Full Court of the Federal Court occupied a total of two weeks. The appeals to this Court were heard over two sitting weeks in March 2001. The decision has been reserved for a year and a half. Resolution of many of the issues raised has not occurred and the cases are now to be remitted to the Full Court. It is difficult to be confident that this Court has seen the last of them.
I do not disparage the importance to the Aboriginal people of their native title rights, including those that have symbolic significance. I fear, however, that in many cases because of the chasm between the common law and native title rights, the latter, when recognised, will amount to little more than symbols. It might have been better to redress the wrongs of dispossession by a true and unqualified settlement of lands or money than by an ultimately futile or unsatisfactory, in my respectful opinion, attempt to fold native title rights into the common law[1064].
[1064]In Mabo [No 2] (1992) 175 CLR 1 at 42 per Brennan J, it was stated that a change in the law was necessary to make the common law non-discriminatory. But this Court and other legal bodies are founded on a post-dream time legal order. Although some may contend that we should, we do not in fact recognise Aboriginal criminal law, tort law or any aspects of indigenous laws, nor do we pretend to. The question then is why the common law of property, which had been regarded as settled for more than a century, should have been changed to recognise sui generis interests in land that had no counterpart in our legal system. See Sackville, "The Emerging Australian Law of Native Title: Some North American Comparisons", (2000) 74 Australian Law Journal 820 at 830 (observing that the discrimination argument is not obvious).
I remain bound by Mabo [No 2] and Wik to the extent that they are reflected in the Native Title Act. Until such time as parties wish to question their correctness, I must apply them. In the meantime, however, this Court should do what it can to provide indigenous people, governments, lawyers, academics and members of the general community with clear, logical and final rules for determinations of native title. It is for this reason that I have attempted to deal with all interests and, where possible, to avoid remitter to the Federal Court.
In accordance with these reasons, I would dismiss the claimants' appeals and allow the appeals by the State, Crosswalk, the Alligator appellants, and the Northern Territory.
The claimants should pay the costs of the appeals.

Western Australia v Ward

Western Australia v Ward

[2002] HCA 28

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Western Australia v Ward

[2002] HCA 28

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Western Australia v Ward

[2002] HCA 28