Wilson v Anderson

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

DOUGLAS WILSON  APPLICANT

AND

MICHAEL ANDERSON & ORS  RESPONDENTS

Wilson v Anderson [2002] HCA 29
8 August 2002
S101/2000

ORDER

1.   Special leave to appeal granted and the appeal treated as instituted and heard instanter.

2.   Order 1 of the orders made by the Full Court of the Federal Court on 5 April 2000 is set aside and in its place order that the questions for separate decision be answered as follows:

Question (a):

By virtue only of

i.the Western Lands Act 1901 (NSW); and

ii.the regulations thereunder, as in force at the time of the grant of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

Question (b):

If the answer to question (a) is "No", by virtue of

i. the Western Lands Act 1901 (NSW);

ii.the regulations thereunder, as in force at the time of the grant of the Lease; and

iii. one or more of the terms and conditions of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

Answer to questions (a) and (b)

Save to say that the Lease conferred upon the lessee a right of exclusive possession over the land, the subject of the Lease, as the expression "a right of exclusive possession over … land" is used in s 23B(2)(c)(viii) and s 248A of the Native Title Act 1993 (Cth), it is inappropriate to answer questions (a) and (b).

Question (c)

If the answer to question (a) or question (b) is "Yes", were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

i. extinguished by the grant of the Lease; or alternatively

ii. suspended upon the grant of the Lease for the duration of the Lease?

Answer

Save to say that by operation of ss 23B and 23E of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW), the grant of the Lease extinguished any native title in relation to the land covered by the Lease and the extinguishment is to be taken to have happened when the Lease was granted, it is inappropriate to answer this question.

3.   Otherwise the appeal is dismissed.

4.   First respondent to pay the appellant's costs of the appeal in this Court.

On appeal from the Federal Court of Australia

Representation:

D F Jackson QC with J M C Emmerig for the applicant (instructed by Blake Dawson Waldron)

C J Birch SC with J J T Loofs for the first respondent (instructed by Craddock Murray Neumann)

V B Hughston with S B Lloyd for the second respondent (instructed by Crown Solicitor for New South Wales)

J Basten QC with R W Blowes for the third respondent (instructed by Chalk & Fitzgerald)

Intervener:

T I Pauling QC, Solicitor-General for the Northern Territory with R J Webb intervening on behalf of the Attorney-General for the Northern Territory (instructed by Solicitor for the Northern Territory)

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

CATCHWORDS

Wilson v Anderson

Aboriginals – Native title – Extinguishment – Application for determination of native title to land and waters – Claim area partly subject to lease granted "in perpetuity" under Western Lands Act 1901 (NSW), s 23 – Whether "lease in perpetuity" conferred upon lessee a right of exclusive possession over leased land – Whether grant of lease extinguished any native title in relation to land covered by lease – Operation of Div 2B of Pt 2 of Native Title Act 1993 (Cth) and Pt 4 of Native Title (New South Wales) Act 1994 (NSW) – Whether grant of lease a "previous exclusive possession act" under Native Title Act 1993 (Cth), s 23B.

Property – Real property – "Lease in perpetuity" – Operation of Real Property Act 1900 (NSW) in respect of perpetual leases – Historical development of statutory "lease in perpetuity" and other species of perpetual tenure as substitutes for Crown grant of determinable fee simple – Whether imposition of conditions and tenurial incidents on grantee of "lease in perpetuity" denied to grantee right of exclusive possession.

Practice and procedure – Observations on appropriateness of practice of reserving for separate determination questions respecting alleged extinguishment of native title.

Words and phrases – "previous exclusive possession act", "lease".

Native Title Act 1993 (Cth), ss 23B, 23E, 242(1), 248A.
Racial Discrimination Act 1975 (Cth).
Crown Lands Act 1884 (NSW).
Real Property Act 1900 (NSW).
Western Lands Act 1901 (NSW), ss 18, 23, Sched A.
Crown Lands Consolidation Act 1913 (NSW).
Native Title (New South Wales) Act 1994 (NSW), s 20.

1. GLEESON CJ.   This is an application for special leave to appeal from a decision of the Full Court of the Federal Court[1].  On the hearing of the application there was full argument on the merits of the proposed appeal.

   [1]Anderson v Wilson (2000) 97 FCR 453.

2. The central issue is whether native title rights and interests claimed in respect of land in the Western Division of New South Wales, assuming they otherwise existed, were extinguished in consequence of the grant in 1955 (with effect from 31 August 1953) of a lease in perpetuity pursuant to s 23 of the Western Lands Act 1901 (NSW) ("the Western Lands Act").

3. The nature of the proceedings, the facts, and the relevant statutory provisions are set out in the joint judgment of Gaudron, Gummow and Hayne JJ ("the joint judgment"). For the reasons there explained, the question to be addressed is whether the lease conferred upon the lessee a right of exclusive possession over the subject land, within the meaning of s 23B(2)(viii) and s 248A of the Native Title Act 1993 (Cth) ("the NTA"). If it did, then by operation of ss 23B and 23E of the NTA and s 20 of the Native Title (New South Wales) Act 1994 (NSW), the grant of the lease was a "previous exclusive possession act", it extinguished native title in relation to the subject land, and the extinguishment is taken to have happened when the act was done. I would answer the question in the affirmative.

4. The legislation governing the case was enacted, and amended, in response to decisions of this Court, notably Mabo v Queensland [No 2][2] and Wik Peoples v Queensland[3].  In Wik, Brennan CJ explained the principles as to extinguishment that were stated in Mabo[No 2], and taken up in legislation.  He said (omitting references)[4]:

   "As I held in Mabo [No 2], native title 'has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory'.  Those rights, although ascertained by reference to traditional laws and customs are enforceable as common law rights.  That is what is meant when it is said that native title is recognised by the common law.  Unless traditional law or custom so requires, native title does not require any conduct on the part of any person to complete it, nor does it depend for its existence on any legislative, executive or judicial declaration.  The strength of native title is that it is enforceable by the ordinary courts.  Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant.  Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it.  Such laws or acts may be of three kinds:  (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.

   A law or executive act which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect 'unless there be a clear and plain intention to do so'.  Such an intention is not to be collected by inquiry into the state of mind of the legislators or of the executive officer but from the words of the relevant law or from the nature of the executive act and of the power supporting it.  The test of intention to extinguish is an objective test.

   A law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title."

   [2](1992) 175 CLR 1.

   [3](1996) 187 CLR 1.

   [4](1996) 187 CLR 1 at 84-85.

5. In the majority judgment in Western Australia v Ward[5] there is a discussion, consistent with what Brennan CJ said in Wik, of the subject of "clear and plain intention".

   [5][2002] HCA 28 at [78].

6. Where, as in the present case, the Court is considering an argument as to whether there has been extinguishment by reason of the second of the three kinds of law or act referred to by Brennan CJ then, as his Honour said, and as was repeated by the majority in Ward, no question arises as to whether, at the time of the act said to extinguish native title, there was any specific intention to extinguish such title, or even as to whether anyone adverted to the existence of native title.  In such a case, the test is one of inconsistency.  If it is satisfied, the extinguishment results from the inconsistency, not from the existence of a purpose of abrogating native title rights or interests.

7. That is not to say that matters of intention are irrelevant.  A decision as to whether an act, such as the grant of an estate in land, creates rights inconsistent with native title rights and interests, may turn upon a question of construction of an instrument, or of a statute pursuant to which an instrument was made.  Questions of construction and interpretation are bound up with the matter of intention.  But it is necessary to keep in mind what intention involves, and the intention that is relevant.

8. The concepts of meaning and intention are related, but distinct.  It is not presently necessary to distinguish between construction and interpretation[6].  The words are often used interchangeably.  In the construction or interpretation of a statute, the object of a court is to ascertain, and give effect to, the will of Parliament.  Courts commonly refer to the "intention of the legislature".  This has been described as a "very slippery phrase"[7], but it reflects the constitutional relationship between the legislature and the judiciary.  Parliament itself uses the word "intention", in the Acts Interpretation Act 1901 (Cth), as a focal point for reference in construing its enactments. Certain words and phrases are said to have a certain meaning unless a contrary intention is manifested in a particular Act. Parliament manifests its intention by the use of language, and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the legislative will. This is a familiar judicial exercise. The law of contract seeks to give effect to the common intention of the parties to a contract. But the test is objective and impersonal. The common intention is to be ascertained by reference to what a reasonable person would understand by the language used by the parties to express their agreement[8].  If the contract is in the form of a document, then it is the meaning that the document would convey to a reasonable person that matters.  The reason for this appears most clearly in the case of commercial contracts.  Many such contracts pass through a succession of hands in the course of trade, and the rights and liabilities of parties other than the original contracting parties are governed by them.  As Lord Devlin observed, writing extra-judicially, it is only the document that can speak to the third person[9].  In the case of a will, or a deed, or other written instrument, the object of a court is to discover, and give effect to, the intention of the testator, or parties; but it is in the meaning of the instrument, discovered according to established principles of construction, that such intention is found.

   [6]cf Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78 per Isaacs J.

   [7]Salomon v Salomon & Co [1897] AC 22 at 38 per Lord Watson.

   [8]Gissing v Gissing [1971] AC 886 at 906 per Lord Diplock; Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441 at 502 per Lord Diplock; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540.

   [9]Devlin, The Enforcement of Morals, (1965) at 44.

9. This is not to say that the exercise is formal and literalistic.  On the contrary, common law and statutory principles of construction frequently demand consideration of background, purpose and object, surrounding circumstances, and other matters which may throw light on the meaning of unclear language[10].  And there are presumptions which may be called in aid to resolve uncertainty.

   [10]Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896; [1998] 1 All ER 98.

10. This is the context in which references to intention are made.

11. In the present case, the question for decision is whether an instrument of title to land, issued pursuant to a statutory power, conferred a certain right.  The answer to that question might directly affect, not only the original title-holder, but also transferees, mortgagees, and others who might later need to enforce the rights conferred by the instrument.  And it might indirectly affect others.  If there is a right of exclusive possession in the lessee, then plainly that has consequences for persons the lessee might wish to exclude; and for the means by which such exclusion might be achieved.  As the passage from the judgment of Brennan CJ shows, this being a case in which an act is said to fall within category (ii) of the three categories mentioned, the argument is about whether the instrument conferred a right of exclusive possession, which is a right inconsistent with the continued right to enjoy native title.  To the extent that there may be uncertainty about that matter, then it is necessary to decide the meaning of the instrument of title and the legislation pursuant to which it was issued.

12. It is consistent with the decision in Wik that, just as a grant of an estate in fee simple of a parcel of land in a rural area would extinguish native title, so also would a grant of a residential tenancy of land on which there was a dwelling house, where the instrument of lease conferred a right of exclusive possession on the tenant.  Depending on the circumstances, it may be unlikely in the extreme that either party to the lease paid any attention to the subject of native title.  It is not suggested that, in deciding whether a grant of an estate in fee simple extinguishes native title, it is relevant to enquire whether the parties to the grant addressed their minds to the position of people who might have had native title rights and interests in the land.  What is relevant is that, objectively considered, there was an intention to create an estate that was inconsistent in its incidents with continuing native title rights and interests.  The same applies to the creation of a leasehold estate which confers a right of exclusive possession in the lessee.  That statement may appear tautologous.  But the decision in Wik shows that "lease", like "intention", can be a slippery word.  In a straightforward case, such as a residential tenancy, it may be easy to conclude that a lessee was intended to have a right of exclusive possession.  Such a conclusion would then lead directly to the assignment of the case to category (ii) of Brennan CJ's three categories.

13. In Wik, some members of the Court, in dealing with questions of construction of statutory provisions, and instruments of title issued under those provisions, for the purpose of considering whether rights of exclusive possession were conferred, took account of circumstances, including the situation of Aboriginal people, as throwing light on intention.  For example, Toohey J, after referring to colonial history, and relations between pastoral activities and Aboriginal people, said[11]:

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

    [11](1996) 187 CLR 1 at 120.

14. A majority of the Court in Wik accepted that if, as a matter of construction, the leases there in question conferred a right of exclusive possession, native title was extinguished[12].  Partly because of the size and location of the subject land (one holding was 1,119 square miles in area; another was 535 square miles[13]), the consequences for Aboriginal people were regarded by some members of the Court as having a bearing upon the question of construction[14].  But, insofar as there was a question of intention to be decided, the question was whether the intention was that the lessees should have exclusive possession of the land.

    [12](1996) 187 CLR 1 at 84-86 per Brennan CJ, 100 per Dawson J, 155 per Gaudron J, 167 per McHugh J, 176 per Gummow J.

    [13](1996) 187 CLR 1 at 71.

    [14]eg (1996) 187 CLR 1 at 154 per Gaudron J.

15. It was not submitted by any party, in the present case, that the Court should refuse to follow Wik.  Any such submission would have faced the obvious difficulty that Parliament has enacted legislation in response to, and on the basis of the principles accepted and applied in, Wik.  In Brodie v Singleton Shire Council[15] I stated my views about the importance of adherence to precedent in cases where the legislature has acted on the faith of judicial decisions.  Some of the considerations that applied there operate even more powerfully in the case of Wik.

    [15](2001) 75 ALJR 992; 180 ALR 145.

16. Wik decided that, having regard to the legislation under which they were granted, and the terms and conditions of the instruments of lease, certain pastoral leases did not confer upon the lessees a right of exclusive possession.

17. The Court is presently concerned with different legislation, and different instruments of lease.  Uninformed by Wik, I would readily have come to the conclusion that the lease in perpetuity presently in question conferred a right of exclusive possession.  The decision in Wik does not require any different conclusion.

18. The nature of the incidents of a statutory lease in perpetuity under the Western Lands Act was considered by the Court of Appeal of New South Wales in Minister for Lands and Forests v McPherson[16].  The issue in that case concerned whether a lessee could obtain relief against forfeiture.  The argument against such relief was that the statute embodied a self-contained scheme, and that the incidents of a statutory lease were to be found within the four corners of the statute.  In rejecting that argument, Kirby P, with whom Meagher JA agreed, said:  "In the case of an interest called a 'lease', long known to the law, the mere fact that it also exists under a statute will not confine its incidents exclusively to those contained in the statute."[17]  Later, he said:  "Whilst the 'leasehold' envisaged by the Act has particular incidents, it remained a 'leasehold'."[18] Mahoney JA, referring to earlier legislation which was followed by the Western Lands Act, said that "the rights described as 'lease' in the 1884 Act were essentially the rights given to a lessee under a lease of land as understood under the common law"[19].

    [16](1991) 22 NSWLR 687.

    [17](1991) 22 NSWLR 687 at 696.

    [18](1991) 22 NSWLR 687 at 702.

    [19](1991) 22 NSWLR 687 at 707.

19. The decision in Wik makes it necessary now to approach such general statements with caution.  Even so, as the joint judgment in the present case demonstrates comprehensively, the history of perpetual leases of Crown land in New South Wales shows a strong affinity between the interests granted under such leases and freehold estates.  There is nothing surprising or novel about a conclusion that the incidents of a statutory lease are not exhaustively defined by statute, and may include the incidents of a lease as provided by the common law.  Exactly such a conclusion underlay the decision of the Privy Council in Southern Centre of Theosophy Inc v South Australia[20].  That case concerned a perpetual lease of land pursuant to South Australian Crown lands legislation.  The issue was as to the application to the land of the common law doctrine of accretion.  The land was bordered by an inland lake.  An area of about 20 acres was added to the land by the deposit of soil and sand resulting from longshore drift, the retreat of water, and wind-blown sand.  The State of South Australia argued, unsuccessfully, that the doctrine of accretion did not apply to an interest in land granted pursuant to a statutory scheme[21].  Reliance was placed on passages in the judgment of this Court in Davies v Littlejohn[22] referring to the statutory basis of interests in land created under Crown lands legislation.  Lord Wilberforce, who delivered the judgment of the Privy Council, saw no reason why the doctrine of accretion should not apply to the leasehold interest in question[23].  That decision was not referred to either in argument, or in the judgments, in the later case of McPherson, but it reached that same conclusion with respect to the common law doctrine of accretion as was reached in McPherson with respect to the equitable doctrine of relief against forfeiture.  Essential to both decisions was a finding that the incidents of a statutory perpetual leasehold were not exhaustively defined by the statute.

    [20][1982] AC 706.

    [21][1982] AC 706 at 711.

    [22](1923) 34 CLR 174.

    [23][1982] AC 706 at 716.

20. Section 23 of the Western Lands Act, pursuant to which the lease in the present case was granted, in the form it took at the time of the grant, empowered the Minister to grant leases of Crown lands as leases in perpetuity or for a term. The Act enabled leases for a term to be extended to leases in perpetuity (s 18E). Such an extension had occurred in the case of the lease in McPherson[24].  Such leases might be of land set apart for grazing (s 19B), or of land set apart for agriculture, or for agriculture and grazing combined, or for mixed farming or any similar purposes (s 19C).  It may be doubted that the juristic nature of the leases referred to in the opening words of s 23 would vary, in relation to the matter of rights of exclusive possession, according to whether they were perpetual or for a term, but that issue does not arise for decision.  It is also unlikely that their relevant juristic nature would vary according to whether the subject land had been set apart for grazing, agriculture, or mixed farming.  But the various possibilities emphasise the difference between the lease holding presently in contemplation and those of the lessees in Wik.

    [24](1991) 22 NSWLR 687 at 705.

21. As the joint judgment shows, when regard is had to the genesis of the interest in land referred to in the Western Lands Act as a lease in perpetuity, and its affinity with freehold title, the inference that it was the intention of the legislation that the Minister should be empowered to grant leases which conferred upon lessees a right to exclusive possession of land is compelling. Wik does not deny the relevance of the use by the statute of the term "lease".  But it requires a court to look further.  In the present case, when one considers the object and purpose of the legislation, the primary impression created by the statutory language is not weakened; it is strongly reinforced.  And the language of the instrument of lease, which uses the language of demise historically associated with the conferring of a right of exclusive possession, read in the light of the statutory power and purpose, evinces the same intention.

22. I agree with the orders proposed by Gaudron, Gummow and Hayne JJ.

23. GAUDRON, GUMMOW AND HAYNE JJ.   This application for special leave to appeal arises from the determination by the Full Court of the Federal Court (Black CJ, Beaumont and Sackville JJ)[25] of several questions reserved for separate decision by that Full Court.  This Court heard full argument on the special leave application.

    [25](2000) 97 FCR 453.

    The proceedings in the Federal Court

24. Section 81 of the Native Title Act 1993 (Cth) ("the NTA") confers jurisdiction, exclusive of other courts except the High Court, on the Federal Court to hear and determine applications relating to native title. The first respondent, Mr Anderson, instituted for and on behalf of the Euahlay-i Dixon Clan proceedings in the Federal Court pursuant to ss 13 and 61 of the NTA for a determination of native title. The native title rights and interests sought to be established by the determination were expressed in the application as an entitlement of the Euahlay-i Dixon Clan "as against the whole world to the use, possession and enjoyment of their country, including all waters and land within the area of the application, subject to and in accordance with the customs and laws of the Euahlay-i Dixon clans"[26].

    [26]cf Western Australia v Ward [2002] HCA 28 at [51]-[53].

25. The application for determination was dated 18 July 1996.  It covered certain land under the Western Lands Act 1901 (NSW) ("the Western Lands Act") and within the Western Division of New South Wales ("the claim area"). New South Wales was first divided into three Divisions by s 8 of the Crown Lands Act 1884 (NSW) ("the 1884 Act") and the Western Division later fell under the distinct provisions of the Western Lands Act. The tripartite division was continued, after the repeal of the 1884 Act, by s 7 of the Crown Lands Consolidation Act 1913 (NSW) ("the Consolidation Act")[27].  The total area of the Western Division is approximately 80 million acres[28].  The claim area was stated to include:

    "all Crown Land, Crown Roads, Crown Leases, waters, creeks, reserves, National Parks, State Forests, and land held by local Aboriginal Land Councils within the area of the application".

    Excluded from the ambit of the application was any "land subject to freehold grants, except such grants made for the benefit of Aboriginal people".

    [27]The Consolidation Act was repealed by s 185 of the Crown Lands Act 1989 (NSW), but the Western Division is continued under the Western Lands Act and the Western Lands (Crown Lands) Amendment Act 1989 (NSW) deals with the interaction between the two legislative regimes. The provisions respecting the interaction between the Consolidation Act and the Western Lands Act gave rise to difficulties in construction considered by the Full Court in Smith v Ward (1920) 20 SR (NSW) 299. In argument in the present matter, doubt was cast upon the correctness of that decision, but the appeal may be disposed of without resolving those doubts.

    [28]Lang, Crown Land in New South Wales, (1973) at 461.

26. The applicant, Mr Wilson, is the current lessee of Western Lands Lease 7951 ("the Lease"). The Lease was granted to Ross Patrick Smith "in perpetuity" by the Minister for Lands on behalf of the Crown in right of New South Wales and under s 23 of the Western Lands Act. The instrument was recorded and enrolled on 16 March 1955 in the Register of Western Lands Leased at the Office of the Western Lands Commissioner ("the Commissioner") at Sydney. Subsequent dealings were noted thereon, before computerisation some time after 1980. Mr Wilson acquired the Lease by transfer by way of sale in 1984. In the intervening period since the grant, there had been several transfers by way of sale and by way of mortgage to banks, with transfers by way of release by those mortgagees.

27. The area of the land the subject of the Lease ("the Leased Land") was reduced in 1965 from 11,118 acres to 11,099 acres. The Leased Land lies within the claim area. Section 18 of the Western Lands Act required the Lease to contain the covenants, reservations and exemptions set out in Sched A, "or such of the same as the Minister may deem applicable". Schedule A contained 17 such covenants, reservations and exceptions, many of which were reflected in the terms of the Lease. Clauses 3 and 4 of the Lease obliged the lessee not to use or permit the use of the Leased Land for any purpose other than grazing and cl 2 required the lessee to make his bona fide residence there.

28. The Leased Land had been located within the area of the pastoral lease granted under the 1884 Act to the Australian Mortgage Land and Finance Company Limited and known as "Angledool". After the commencement of the Western Lands Act, the holding under the 1884 Act became Western Lands Lease No 33. Section 17 of the Western Lands Act empowered the Governor to withdraw any lands held under lease whenever it might be deemed expedient to do so for the purpose of providing for settlement, such lands to be disposed of under the provisions of the statute and not to exceed one-eighth of the area of the lease. In pursuance of the provisions of s 17, one‑eighth of the area that was Angledool, including what became the Leased Land, was withdrawn therefrom in 1911 for the purpose of providing small holdings in accordance with the provisions of the Western Lands Act.

29. The applicant, by notice of motion dated 23 March 1999, sought orders that would avoid the mediation procedures contemplated by the NTA[29].  The applicant also sought, pursuant to par (a) of O 29 r 2 of the Federal Court Rules, an order that certain questions be answered prior to and separately from the remainder of proceedings for the determination of native title.  That is to say, the separate questions were to be answered prior to any factual inquiry respecting the existence or content of any native title rights and interests in respect of the claim area.

    [29]The applicant sought orders pursuant to s 86B(2) or, in the alternative, s 86C(2) of the NTA. Section 86B(1) of the NTA requires the Federal Court to refer every application under s 61 to the National Native Title Tribunal for mediation, unless an order is made under s 86B(2) that there be no mediation. Section 86C(2) provides that a party to proceedings may, at any time after three months of mediation, apply to the Federal Court for an order that mediation cease.

30. On 29 April 1999, Beaumont J made the orders sought. Thereafter, the Chief Justice of the Federal Court, acting pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth), directed that the original jurisdiction of the Court be exercised by a Full Court. There was a Statement of Agreed Facts that Mr Wilson was the lessee, that the Lease was validly granted under the Western Lands Act, that Mr Anderson was a claimant under the NTA, and that the Leased Land was subject to that claim; a copy of the Lease was annexed to the statement. On these materials, the Full Court heard the matter on 18 and 19 October 1999; judgment was delivered on 5 April 2000.

31. Before turning to consider the separate questions, it is necessary to make reference to one further matter. Before the commencement of the Full Court hearing, the first respondent moved under s 64 of the NTA to amend the Native Title Application. The motion came before Hill J and on 8 May 2000, pursuant to leave granted by Hill J on that day, the application for determination of native title was amended so that it differed from the previous application in two major respects. First, the applicants in respect of the application for determination of native title were now "Michael Anderson, Roger Gordon and Eric James Dixon on behalf of the direct descendants of Ethel and Tinka Dixon of the Nyoongah Ghurradjong Murri (Granny Ethel) clan of the Euahlayi People who lived in the Narran-Warrambool area of north-western New South Wales from the 1830's to about 1931". Secondly, the amended application clarified the areas that are excluded from the application by expressly excluding any land or waters covered by, amongst other things:

    "(iv)an exclusive agricultural lease or an exclusive pastoral lease;

    …

    (viii)any lease (other than a mining lease) that confers a right of exclusive use over particular land or waters;

    (ix)any other exclusive possession act as defined by s 23B of the [NTA]

    which was validly vested or granted on or before 23 December 1996".

    The separate questions

32. The separate questions which the applicant sought to have answered were expressed in the following terms:

    "(a)     By virtue only of:

    (i)       the [Western Lands Act]; and

    (ii)the regulations thereunder, as in force at the time of the grant of the lease;

    did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

    (b)If the answer to the question (a) is 'No', by virtue of:

    (i)the [Western Lands Act];

    (ii)the regulations thereunder, as in force at the time of the grant of the Lease; and

    (iii)one or more of the terms and conditions of the Lease;

    did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

    (c)If the answer to question (a) or question (b) is 'Yes', were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

    (i)extinguished by the grant of the Lease; or alternatively

    (ii)suspended upon the grant of the Lease for the duration of the Lease?"

33. A number of points should be made here. First, the separate questions, if answered favourably to Mr Wilson, would have the consequence of excluding, prior to trial, the Leased Land from the ambit of the determination of native title sought by the first respondent. Secondly, the separate questions are framed in the absence of factual findings respecting the existence and content of any native title rights which existed before the alleged extinguishing act, the grant of the Lease, and in a manner similar to that of the questions which arose for determination in Wik Peoples v Queensland[30]. Thirdly, the separate questions make no reference to the provisions of Div 2B (ss 23A‑23JA) of Pt 2 of the NTA, particularly to the concept of "previous exclusive possession act" in s 23B thereof. It will be necessary to return to consider the last of these points later in these reasons.

    [30](1996) 187 CLR 1.

    The practice of reserving questions for separate decision

34. It is convenient now to say something respecting the practice of reserving questions for separate determination, particularly respecting alleged extinguishment of native title.  The difficulties that arise when an attempt is made to determine, in the absence of adequate findings of fact, issues of extinguishment of native title are well known.  They were referred to in Wik[31] and Yanner v Eaton[32] and exemplify the general considerations referred to in Bass v Permanent Trustee Co Ltd[33].

    [31](1996) 187 CLR 1 at 131, 169‑171, 204‑205, 210‑213.

    [32](1999) 201 CLR 351 at 396 [109].

    [33](1999) 198 CLR 334 at 357‑358 [51]-[53].

35. In the Full Court, Black CJ and Sackville J observed that, while the identification of separate questions for determination can be a convenient procedure, there "are dangers in adopting the procedure, especially where no findings of fact have been made and the questions are capable of different interpretations"[34].  Their Honours recognised that the procedure had been adopted in this case as "a 'short cut' designed, depending on the outcome, 'to obviate the necessity for [a] very complex, lengthy and expensive factual inquiry'"[35].

    [34](2000) 97 FCR 453 at 461.

    [35](2000) 97 FCR 453 at 461.

36. In some circumstances it is possible to determine issues of extinguishment in advance of findings as to the existence and content of the anterior native title rights and interests in question.  One such example is where the extinguishing act relied upon is the grant of an estate in fee simple or of a common law lease.  The grant of a fee simple extinguishes all native title rights that may exist in relation to the land the subject of the grant.  This is so because the estate of fee simple "does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title"[36].  The same reasoning applies to the grant of a common law leasehold estate[37].  In both instances "the comprehensiveness of the grant precludes any question of partial extinguishment"[38].

    [36]Fejo v Northern Territory (1998) 195 CLR 96 at 126 [43].

    [37]Yanner v Eaton (1999) 201 CLR 351 at 395-396 [108].

    [38]Yanner v Eaton (1999) 201 CLR 351 at 396 [108].

37. Questions respecting the satisfaction of the criteria contained in s 23B of the NTA may provide a further occasion where findings of fact that establish the ambit of any native title rights and interests claimed are not required. This is because an "act"[39] which satisfies the criteria in s 23B is a "previous exclusive possession act".

    [39]See s 226 of the NTA.

38. The identification of separate questions for determination must also be considered having regard to the provisions of s 84C of the NTA which permit a party to apply on stated grounds to strike out an application filed in the Federal Court that relates to native title. Those grounds include non‑compliance with the basic requirements for an application and non‑compliance with s 61A of the NTA. This section, among other things, prohibits the making of a native title determination application if a previous exclusive possession act was done in relation to the area and that act either was an act attributable to the Commonwealth or it was attributable to a State or Territory and a law of the State or Territory has made provision of the kind mentioned in s 23E in relation to the act.

    The Full Court decision

39. Black CJ and Sackville J delivered a joint judgment.  Their Honours found it unnecessary to answer questions (a) and (b).  Their Honours answered question (c) as follows[40]:

    "Strictly unnecessary to answer, but on the materials presently before the Court, it cannot be said that any native title rights, the exercise of which involved the presence on the Leased Land by the holders of the native title, were extinguished by the grant of the Lease or suspended upon the grant of the Lease for the duration of the Lease."

    [40](2000) 97 FCR 453 at 484.

40. Their Honours answered question (c) as indicated on the basis that Mr Wilson had failed to show that the rights granted under the Lease were "necessarily inconsistent with all native title rights that may exist over or in relation to the Leased Land"[41].

    [41](2000) 97 FCR 453 at 484.

41. Beaumont J, in a separate judgment, did not answer question (a), and answered questions (b) and (c) as follows[42]:

    "[(b)]   The Lease confers upon the Lessee a right to the possession of the leased land.  This right is subject to certain exceptions and reservations that are not presently material.  It is not appropriate to answer this question further at this stage of the principal proceedings."

    "[(c)] The grant of the Lease extinguished such incidents of native title (as may be held to exist), as were inconsistent with the rights conferred by the Lease upon the Lessee. It is not appropriate to answer this question further at this stage of the principal proceedings."

    [42](2000) 97 FCR 453 at 517, 518.

42. The answers given by Black CJ and Sackville J, and Beaumont J, respectively allow of the possibility that some native title rights and interests may continue to exist in respect of the Leased Land and thus favour the interests of the native title claimants represented by the first respondent. The applicant now seeks from this Court answers to the separate questions which would indicate that all the then subsisting native title rights and interests in respect of the Leased Land were completely extinguished by the grant of the Lease.

    The other parties to the proceedings

43. Section 84(4) of the NTA provides in this litigation for the second respondent, the Minister for Land and Water Conservation for the State of New South Wales, to be a party. The third respondent, the New South Wales Aboriginal Land Council ("the Land Council") is a body identified in s 66(3)(a) and thus is a party as an "affected person" within the meaning of s 84(3). The Attorney-General for the Northern Territory sought and was granted leave to intervene before this Court.

    Division 2B of Pt 2 of the NTA
    and Pt 4 of the Native Title (New South Wales) Act 1994 (NSW)

44. It is convenient here to note that Div 2B of Pt 2 of the NTA commenced operation on 30 September 1998 and was therefore in force when the matter was argued before the Full Court. The provisions of Div 2B are adopted, in respect of acts attributable[43] to New South Wales, by Pt 4 of the Native Title (New South Wales) Act 1994 (NSW) ("the State Act"). Part 4 of the State Act (added by the Native Title (New South Wales) Amendment Act 1998 (NSW)) also commenced operation on 30 September 1998.

    [43]The term "act" is defined by s 226 of the NTA so as to include, relevantly, "the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters" (sub‑s (2)(c)). Section 239 provides:

    "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."

45. In their joint judgment, Black CJ and Sackville J observed[44]:

    "The parties differed as to the significance of the legislative scheme contained in the NTA. [Counsel for the applicant] founded the submissions on behalf of [the applicant] on general law principles governing the extinguishment of native title. According to [the applicant], the Lease granted in 1955 conferred exclusive possession on [the applicant's] predecessor in title. It followed that, in accordance with the principles formulated and applied by the High Court in Wik and Fejo v Northern Territory[45], any native title rights in the leasehold area had been extinguished. There was simply no occasion to have recourse to the provisions of the NTA or the [State Act]. Native title rights in the Leased Land had been extinguished long before the NTA had come into force.

    …

    [Counsel for the Land Council] submitted that the question of extinguishment of native title could not be addressed in the present case without reference to the NTA."

    [44](2000) 97 FCR 453 at 459.

    [45](1998) 195 CLR 96.

46. The submission by the Land Council should have been accepted. However, their Honours said that it was "clearly correct" that "native title rights in respect of particular land might have been extinguished prior to the commencement of the legislation, independently of the regime established by Pt 2, Div 2B of the NTA"[46]. Undoubtedly native title may have been extinguished before the enactment of the NTA and of Div 2B of Pt 2 in particular. But that does not entitle a court charged with the determination of a native title application under the NTA to ignore the operation of that statute (and of satellite State and Territory laws) upon the acts constituting the alleged prior extinguishment. Section 10 of the NTA states that native title is recognised and protected, in accordance with the NTA, and s 11(1) that native title cannot be extinguished contrary to the NTA.

    [46](2000) 97 FCR 453 at 460.

47. Black CJ and Sackville J relied upon the statement in this Court in Western Australia v The Commonwealth (Native Title Act Case)[47] that an act which was wholly valid when it was done and was effective then to extinguish or impair native title is "unaffected" by the NTA. Their Honours continued[48]:

    "While that observation was made before the enactment of Div 2B of Pt 2, it remains true."

    As a result, Black CJ and Sackville J, and Beaumont J, respectively applied the "common law" test of extinguishment exemplified in Wik and did not apply the provisions of Div 2B of Pt 2 of the NTA. For reasons that will become apparent, their Honours were in error in failing to deal with the operation of the NTA and the State Act. Indeed, before the Court, all parties appeared to accept that these provisions applied and they presented their arguments accordingly.

    [47](1995) 183 CLR 373 at 454.

    [48](2000) 97 FCR 453 at 460.

48. The scheme of Div 2B was explained in Ward[49].  The Division provides for the characterisation of certain "acts" as either "previous exclusive possession acts"[50] or "previous non-exclusive possession acts"[51]. That characterisation then has consequences respecting extinguishment of native title. By force of s 23C, a "previous exclusive possession act" completely extinguishes all native title in relation to land (or waters) covered by that "act". Section 23G, on the other hand, applies to "previous non-exclusive possession acts" and, in broad terms, provides for the partial extinguishment of native title. It should be emphasised that, whilst the expressions "previous exclusive possession act" and "previous non-exclusive possession act" are defined so as to apply to Commonwealth, State and Territory "acts", ss 23C and 23G only have effect in respect of "acts" attributable to the Commonwealth. Provision is then made for States and Territories to legislate, subject to satisfaction of certain conditions, to the same effect as ss 23C and 23G in respect of all or any previous exclusive or non-exclusive possession acts attributable to the State or Territory in question (ss 23E and 23I).

    [49][2002] HCA 28 at [8]-[10], [41]-[45], [135]-[140].

    [50]s 23B.

    [51]s 23F.

49. Part 4 (ss 19‑25) of the State Act was enacted in accordance with the power conferred by ss 23E and 23I of the NTA. The objects of Pt 4, as set out in sub‑s (1) of s 19, are:

    "(a)to confirm the complete extinguishment of native title by previous exclusive possession acts attributable to the State, and

    (b)to confirm the partial extinguishment of native title by previous non-exclusive possession acts attributable to the State".

    Section 20 of the State Act picks up those acts characterised as "previous exclusive possession acts" under s 23B of the NTA that are attributable to the State. The section then provides, in terms that reflect s 23C of the NTA, that (sub‑s (1)):

    "(a)the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned, and

    (b)the extinguishment is taken to have happened when the act was done".

    Section 23 of the State Act provides, in the same terms as s 23G of the NTA, for the partial extinguishment of native title as a result of a "previous non-exclusive possession act" attributable to the State.

50. Provision for compensation in respect of extinguishment effected by a previous exclusive or non-exclusive possession act is made by s 23J of the NTA. No question of compensation arises at this stage of the litigation, but reference to s 23J demonstrates the point that questions of extinguishment and the degree thereof do not fall for consideration purely under the common law and divorced from statute. Section 23J provides:

    "Entitlement

    (1)The native title holders are entitled to compensation in accordance with Division 5 for any extinguishment under this Division of their native title rights and interests by an act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act.

    Commonwealth acts

    (2)If the act is attributable to the Commonwealth, the compensation is payable by the Commonwealth.

    State and Territory acts

    (3)If the act is attributable to a State or Territory, the compensation is payable by the State or Territory."

51. Sub‑section (1) of s 23J has the effect of conferring upon native title holders an entitlement to compensation only where the statutory extinguishment exceeds the extinguishment that would have occurred at common law.  The evident purpose of s 23J is to limit, so far as possible, the entitlement to compensation under s 23J, to cases where the "act" is invalid by reason of the Racial Discrimination Act 1975 (Cth) ("the RDA") and is subsequently validated by s 14 of the NTA or s 8 of the State Act[52]. However, s 23J also may be attracted in respect of a valid "act" which, although satisfying the definition of "previous exclusive possession act", would not completely extinguish native title at common law. That a different result may be reached under Div 2B of Pt 2 of the NTA or Pt 4 of the State Act emphasises the point that it is the statutory criteria provided for by those provisions which are to be applied when determining issues of extinguishment.

    [52]The requirement of validity in ss 23B(2)(a) and 23F(2)(a) respectively is satisfied by validation under s 14 of the NTA or s 8 of the State Act.

52. As s 23B is of central importance to these proceedings, it is appropriate to say something more respecting that provision. It contains certain criteria, the satisfaction of which, by an "act", results in the characterisation of that "act" as a "previous exclusive possession act". Three requirements must be satisfied.

53. First, the "act" must be valid (s 23B(2)(a)). The "act" may be valid either because (as in this case) it was valid when done and it occurred before the commencement of the RDA or because it was a "past act" under s 228 of the NTA and was validated by s 14 of the NTA or s 8 of the State Act. Given the date of the grant of the Lease, more than 20 years before the commencement of the RDA, the "past act" provisions have no role in this case. The "act" here was valid in any event.

54. The second requirement of s 23B is that the "act" occurred on or prior to 23 December 1996 (s 23B(2)(b)). Thirdly, the "act" must have consisted of the grant or vesting of an interest which falls within any of eight specified categories. Those categories of "previous exclusive possession act" are (s 23B(2)(c)):

    "any of the following:

    (i)       a Scheduled interest (see section 249C);

    (ii)      a freehold estate;

    (iii)a commercial lease that is neither an agricultural lease nor a pastoral lease;

    (iv)an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

    (v)a residential lease;

    (vi)a community purposes lease (see section 249A);

    (vii)what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to '1 January 1994' were instead a reference to '24 December 1996';

    (viii)any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters". (emphasis added)

    The opening phrase "any of the following" indicates that, whilst the existence of any one of the listed "acts" is sufficient, the circumstances in a given case may answer the description of more than one "act" in the listed categories.

55. The term "pastoral lease" is defined as follows in s 248:

    "A pastoral lease is a lease that:

    (a)permits the lessee to use the land or waters covered by the lease solely or primarily for:

    (i)maintaining or breeding sheep, cattle or other animals; or

    (ii)any other pastoral purpose; or

    (b)contains a statement to the effect that it is solely or primarily a pastoral lease or that it is granted solely or primarily for pastoral purposes."

    The expression "exclusive pastoral lease" upon which par (iv) of s 23B(2)(c) operates is defined in s 248A as follows:

    "An exclusive pastoral lease is a pastoral lease that:

    (a)confers a right of exclusive possession over the land or waters covered by the lease; or

    (b)is a Scheduled interest."

    Section 249C and Sched 1 of the Act specify those interests that are referred to in par (i) of s 23B(2)(c) as Scheduled interests. Part 1 of Sched 1 lists various interests arising under certain New South Wales statutes. Some kinds of lease under s 23 of the Western Lands Act are listed[53] – those leases which permit the lessee to use the land or waters covered by the lease solely or primarily for any of several identified purposes: "agriculture or any similar purpose; agriculture (or any similar purpose) and grazing combined; mixed farming or any similar purpose other than grazing". As has been noted, covenants in the Lease with which this case is concerned required the Leased Land to be used only for grazing purposes. Accordingly, it was not submitted that the Lease was a lease for one of the purposes identified in the Schedule and it was, therefore, not submitted that the Lease was a "Scheduled interest".

    [53]Sched 1, Pt 1, Item 3(4).

56. A number of observations may also be made respecting the other categories of previous exclusive possession act specified in s 23B(2)(c). First, the grant or vesting of a freehold estate would, at common law (and any application of the RDA aside), completely extinguish native title[54]. Thus, the effect provided for by Div 2B of Pt 2 in respect of the grant or vesting of a freehold estate (par (ii) of s 23B(2)(c)) coincides with the result reached by the common law.

    [54]Fejo v Northern Territory (1998) 195 CLR 96 at 126 [43].

57. Paragraphs (iii)‑(viii) of s 23B(2)(c) identify certain categories of "leases". For the purposes of the NTA, the expression "lease" is defined in s 242(1) to include:

    "(a)a lease enforceable in equity; or

    (b)a contract that contains a statement to the effect that it is a lease; or

    (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". (emphasis added)

58. It will be apparent that the expression "lease" as defined in s 242 is wide enough to encompass for the purposes of the NTA statutory interests which may not necessarily amount to a lease as understood by the common law. The Lease at issue in this case satisfies the above definition. It was granted under s 23(1)(a) of the Western Lands Act. This section was substituted for the original s 23 by s 8 of the Western Lands (Amendment) Act 1934 (NSW) ("the 1934 Act"). The new s 23(1)(a) provided that it was lawful for the Minister to grant "leases" of Crown lands as "leases in perpetuity". Paragraph (c) of s 242(1) of the NTA therefore is satisfied.

59. The definition in s 242 of "lease" is of importance in the present proceedings because it demonstrates that the NTA postulates the existence of an interest which, although described as a "lease", is not a lease at common law. Further, the scheme of Div 2B of Pt 2 is premised upon the fact that a "lease" under the NTA may or may not confer a right of exclusive possession[55].  These considerations illustrate the flaw in reasoning that as an interest was described as a "lease" it is to be presumed that a right of exclusive possession was conferred.

    [55]cf Street v Mountford [1985] AC 809 at 816, 827.

60. It is possible that, as an exclusive pastoral lease or as a lease conferring a right of exclusive possession over particular land, the Lease, being a "lease in perpetuity" under the Western Lands Act, satisfies either or both of pars (iv) and (viii) of s 23B(2)(c) of the NTA; par (iv) engages the definition of "exclusive pastoral lease" in s 248A. It is in this way that the issue for determination arises – whether on grant in 1955 the Lease conferred a right of exclusive possession upon the grantee thereof[56]. That issue turns upon the meaning of the statutory expression "lease in perpetuity" and requires an examination of the nature of the perpetual holdings created under the Western Lands Act and the Consolidation Act.

    [56]There is no doubt that pars (a) and (b) of s 23B(2) are satisfied, and if the Lease confers a right of exclusive possession the grant of the Lease is a "previous exclusive possession act" by reason of satisfaction of pars (iv) and (viii) of s 23B(2)(c) of the NTA.

61. No doubt it is right to say that rights and interests are not to be held to have been abrogated by statute, except where the intention to do so is plainly expressed. But the relevant question in the present matter is what are the rights that were created by the grant of the Lease. In particular, did the holder of the Lease acquire a right to exclusive possession of the Leased Land? That question is not to be answered by presuming its answer any more than it is to be answered by noticing that later legislation has attributed certain legal consequences to the fact of the grant of such rights. It is to be answered by analysing the nature and extent of the rights that were conferred by the grant.

    Submissions in this Court

62. As already mentioned, in this Court all parties appeared to accept that Div 2B of Pt 2 of the NTA and Pt 4 of the State Act applied. The applicant submitted that the grant of the Lease under s 23 of the Western Lands Act conferred a right of exclusive possession and that, therefore, the grant was a "previous exclusive possession act" within the meaning of s 23B of the NTA. This had the result that all native title rights and interests in the Leased Land were extinguished by operation of s 20 of the State Act.

63. The third respondent submitted that it was inappropriate to answer the separate questions because they were not expressed in terms appropriate to the application of Div 2B of Pt 2. In the alternative, the third respondent, together with the first and second respondents, submitted that the Lease did not confer a right of exclusive possession upon the applicant. The respondents accept that, if the grant of the Lease is properly characterised as a "previous exclusive possession act" under s 23B of the NTA, s 20 of the State Act has the effect contended for by the applicant.

    The Western Lands Act

64. It is convenient to preface consideration of the issue for decision by attention to the scope and purpose of the perpetual lease provisions of the Western Lands Act.

65. The Lease referred to s 23 of the Western Lands Act. As that statute stood, after amendment by the 1934 Act, sub‑ss (1) and (4) of s 23 stated:

    "(1)It shall be lawful for the Minister to grant leases of Crown lands –

    (a)as leases in perpetuity; or

    (b)for any term expiring not later than the thirtieth day of June, one thousand nine hundred and seventy-three.

    Any lease so granted shall except as otherwise provided in this Act be subject to the general provisions of this Act.

    …

    (4)(a)      Upon the granting of any lease under this Act the name of the lessee, together with particulars of the area leased, the term of the lease, the amount of rent and survey fee payable to the Crown, and such other particulars as the Minister may deem desirable shall be notified in the Gazette.

    (b)The amount of the first year's rent, and the amount of the survey fee or the first instalment thereof, and any other amount lawfully due and payable to the Crown by the lessee, shall be paid by the lessee to the Colonial Treasurer within one month after the date of such notification.  If such amounts be not so paid the lease shall be liable to be forfeited."

    The term "Crown lands" appearing in s 23(1) was defined in s 3 as meaning Crown lands within the meaning of the Consolidation Act and as including "land held under occupation license or annual lease".

66. The definition appearing in s 5(1) of the Consolidation Act stated:

    "'Crown Lands' means lands vested in His Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee-simple under the Crown Lands Acts."

    The expression "Crown Lands Acts" was defined in terms which included a chain of legislation commencing in 1861.

67. Of this, Jordan CJ observed in Re E W Hawkins[57]:

    "Provision by New South Wales statutes for the alienation of Crown lands was first made in 1861 by the two Acts 25 Vict Nos 1 and 2. In each Act 'Crown Lands' was defined as 'All lands vested in Her Majesty which have not been dedicated to any public purpose or which have not been granted or lawfully contracted to be granted in fee simple.' This definition was obviously derived from the definition of 'Waste Lands of the Crown' in s 9 of the Imperial Act 1846 (9 and 10 Vict c 104). The former of the two local Acts provided by s 3 that 'Any Crown Lands may lawfully be granted in fee simple or dedicated to any public purpose under and subject to the provisions of this Act but not otherwise', and the Governor with the advice of the Executive Council was authorised in the name and on the behalf of Her Majesty so to grant or dedicate any Crown lands. It proceeded to make provision for the sale of Crown lands and for the dedication of Crown lands to public purposes. Such sales might be conditional. The latter of the two authorised the Governor, with the advice of the Executive Council and on behalf of Her Majesty, to lease Crown lands for periods and on conditions varying with the purposes of the leases. No provision was made conferring on the lessees any right to purchase the land so leased to them."

    [57](1948) 49 SR (NSW) 114 at 117; affd sub nom Hawkins v Minister for Lands (NSW) (1949) 78 CLR 479.

68. His Honour then observed[58] that Crown lands legislation was not long allowed to remain in "this pristine state of simplicity".  After referring to the statement made by the Privy Council in 1893[59] of the difficulties brought about by the "somewhat complex course" of Crown lands legislation in New South Wales, Jordan CJ continued[60]:

    "As the result of another half century of legislation, the general statute law on the subject is now to be found in a much amended statute of more than three hundred sections providing, in elaborate detail, in a jungle penetrable only by the initiate, for various ways in which various special and peculiar forms of interests in Crown lands may be acquired from the Crown."

    [58](1948) 49 SR (NSW) 114 at 118.

    [59]Ricketson v Barbour [1893] AC 194 at 206.

    [60](1948) 49 SR (NSW) 114 at 118.

69. The reference to "the general statute law on the subject" was to the Consolidation Act. But, as already indicated by reference to the Western Lands Act, that did not present the full picture. In the authoritative New South Wales text first published in 1961, shortly after the commencement of the Lease, the learned author explained the general legislative structure as follows[61]:

    "Lands disposed of by the Crown in right of the State are mostly alienated under the provisions of [the Consolidation Act], [the Western Lands Act] and the Closer Settlement Acts, the two first-mentioned relating to lands previously unalienated, and the last-mentioned to lands purchased or resumed from private owners for the purpose of subdivision to promote closer settlement of rural lands. These statutes … constitute tangled masses of legislation reflecting various shifts in governmental policy, in which new forms of tenure have, from time to time, been added to the original ones. Unlike the [Real Property Act 1900 (NSW) ('the RP Act')], they do not contain a code of conveyancing principles, and sections dealing with title and alienation are incidental only.

    Broadly speaking tenures under these Acts fall into three groups, viz:  (i) purchases, which sooner or later lead to the issue of a Crown grant in fee simple; (ii) perpetual leases, which, in most cases, but not all, result in the eventual issue of a grant to the grantee 'his heirs and assigns', and (iii) leases for a limited term and licences." (footnotes omitted)

    [61]Helmore, The Law of Real Property in New South Wales, (1961) at 353.

70. As already indicated, the Western Division was established by the 1884 Act. Thereafter, the Western Lands Act was introduced following the report of a Royal Commission into the condition of Crown tenants in the Western Division which made recommendations concerning the special problems surrounding land settlement in the dry western-fringe country of the State[62]. As enacted in 1901, s 13 of the Western Lands Act provided for application by any registered holder under the 1884 Act and succeeding legislation of a pastoral lease, such as "Angledool", and of other interests in the Western Division to bring the holding under the provisions of the Western Lands Act. Section 14 empowered the Governor to extend the term of any lease up to 30 June 1943. The control of the lands in the Western Division was taken from the Lands Department and placed with the Western Lands Commission.

    [62]New South Wales, Legislative Assembly, Royal Commission to inquire into the Condition of the Crown Tenants – Western Division of New South Wales, 8 October 1901.

71. In the Second Reading Speech in the Legislative Assembly on the Bill for the Western Lands Act, the Secretary for Lands said[63]:

    "[W]e are told in a way that we cannot doubt that there is hardly a solvent man in the western division.  If this be true it means that to bring the western division into a state to carry stock there must be money expended upon it whether in water conservation, clearing, or scrubbing, and if these men [the present settlers] have no money, they must borrow to enable them to carry on.  When a man lends money he naturally asks upon what security he is making the loan, and if the applicant can say, 'Here I have an absolute lease for forty-two years, and at the very most I am assessed at three or four acres to a sheep, and no matter what Government comes in or what Parliament may be sitting, the greatest rental they can put upon me is 7d per sheep,' then the man who contemplates lending the money can calculate his security.  That is an absolute security, and the man who has money to lend knows what he is lending it upon."

    [63]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 28 November 1901 at 3779. Regard may be had to the Second Reading Speech pursuant to s 34 of the Interpretation Act 1987 (NSW) and, in any event, under the "mischief rule": Wacando v The Commonwealth (1981) 148 CLR 1 at 25‑27; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, 112‑113; Attorney-General (Cth) v Oates (1999) 198 CLR 162 at 175 [28].

72. Nevertheless, difficulties remained in raising the necessary finance and in response the legislature enacted the Government Savings Bank (Rural Bank) Act 1920 (NSW). This introduced into the Government Savings Bank Act 1906 (NSW), s 48A, which empowered the Commissioners of the Bank to carry on the business of a Rural Bank, and s 62, which empowered the Commissioners to grant fixed or amortisation loans from the Rural Bank Department upon mortgage of, among other interests, any holding or tenure under the Western Lands Act and other Crown lands legislation. The security which might be provided was later enhanced by the insertion, by s 2 of the Western Lands (Amendment) Act 1930 (NSW), of s 17B into the Western Lands Act. This provided for the extension of leases thereunder, otherwise due to expire in 1943, to 30 June 1968. Then, as the Depression deepened, a further measure was taken by the Western Lands (Amendment) Act 1932 (NSW) ("the 1932 Act"). This provided, by s 3, for the insertion into the Western Lands Act of a new s 18E empowering the holder of a subsisting lease to apply for its extension "to a lease in perpetuity". Provision, already set out, then was made by the 1934 Act for the grant of leases in perpetuity by the insertion of a new s 23 of the Western Lands Act.

73. In the Second Reading Speech for the Bill for the 1932 Act, the Attorney-General, Sir Henry Manning, said to the Legislative Council that one of the objects of the Bill was[64]:

    "to enable the owners of leases … to convert them into perpetual leases, with the idea of enabling holders to obtain the necessary finances to carry them on.  At present, as these are merely leases, it is impossible to obtain advances on them, but if they are converted into perpetual leases, advances will be made upon the security of the holding."

    It was later pointed out by Mr Sheahan, the Minister for Lands, on the Second Reading Speech for the Bill for the Western Lands (Amendment) Act 1949 (NSW)[65] that the advent of the perpetual lease, with its concessional rental, created a goodwill value for those holdings.

    [64]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 14 December 1932 at 2916‑2917.

    [65]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 19 October 1949 at 4276.

74. Finally, s 3(1) of the War Service Land Settlement Act 1941 (NSW) ("the War Service Land Act") empowered the Minister, by notification published in the Gazette, to set apart any area of Crown land or of land acquired under the Closer Settlement Acts to be disposed of under statutes including the Western Lands Act to classes of persons including members of the forces and discharged members of the forces.

75. It was pursuant to that provision that there appeared in the Gazette[66] notification that Crown land including the Leased Land had been set apart to be disposed of under the Western Lands Act for the purpose of grazing exclusively to members of the forces and discharged members of the forces. Thereafter[67], there appeared notification that under the provisions of s 23 of the Western Lands Act, and in accordance with the War Service Land Act, leases of land, including the Leased Land, had been granted. The lessee of the Leased Land was identified as Ross Patrick Smith, the area as 10,820 acres and the term as from 31 August 1953 in perpetuity.

    [66]No 17, 16 January 1953 at 164.

    [67]New South Wales Gazette, No 137, 31 July 1953 at 2497.

76. The Lease itself was dated some time thereafter, 11 January 1955. The instrument recited various matters and continued:

    "NOW KNOW YE that in pursuance of the provisions of the said Acts WE DO HEREBY grant unto the said ROSS PATRICK SMITH (who with his executors administrators and assigns is hereinafter referred to as the Lessee) ALL THAT piece or parcel of land being portion numbered WL.3878 containing ten thousand eight hundred and twenty (10,820) acres more or less … TO HOLD the said land unto the Lessee as a Western Lands Lease from the thirty-first day of August 1953 in perpetuity subject to the provisions of the said Acts and the Regulations thereunder and to the Reservations Exceptions Conditions and Provisions herein contained YIELDING AND PAYING therefor the yearly rent of two hundred and twenty-five pounds eight shillings and four pence or such other rent as shall be or become payable by reason of the annual rent having been or being fixed or determined in due course of law (whether because of the capital value having been or being re‑determined or otherwise)".

77. The objective in making provision for holdings identified as leases in perpetuity under the Western Lands Act had been to strengthen the tenure thereby provided and to attract the provision of finance for development of the land. However, provision previously had been made in various provisions of the Consolidation Act for the grant of what were described as leases in perpetuity. Controversy had arisen whether some of those species of perpetual lease were grants in fee simple. That controversy throws light on what was involved in the strengthening of tenure under the Western Lands Act and the affinity between that tenure and grants of a freehold estate, which plainly would extinguish native title (par (ii) of s 23B(2)(c) of the NTA).

    Other leases in perpetuity

78. At the time the Lease was granted under the Western Lands Act, the Consolidation Act provided for various species of lease "in perpetuity". There were (i) the conditional lease (ss 52, 185(1)(a)), (ii) leases for business purposes (s 75B), (iii) town leases (s 82A), (iv) conditional purchase leases (s 107), (v) Crown leases (s 134), (vi) week‑end leases (s 136F), (vii) homestead farms (s 123), (viii) suburban holdings (s 128), and (ix) in irrigation areas, the irrigation farm lease and the town land lease (s 142D).

79. In the case of leases in categories (vii), (viii) and (ix), the Consolidation Act provided for the issue by the Governor of grants "to the lessee his heirs and assigns for ever" (ss 123(2), 128(2) and 144(1) respectively). At common law, that expression was peculiarly appropriate for the creation of a fee simple[68]. Section 13 of the RP Act as enacted subjected to the provisions of that statute lands unalienated from the Crown "when alienated in fee". The Registrar-General treated grants under the Consolidation Act in the categories just mentioned as grants of a fee simple thereby attracting s 13 and the RP Act as a whole[69].

    [68]Ryall, "Perpetual Leaseholds in New South Wales", (1937) 11 Australian Law Journal 223 at 225; Butt, Land Law, 4th ed (2001) at [807]-[809].  As the latter author points out, the Torrens legislation contains in prescribed forms the words required for the creation and transfer of interests thereunder, to the displacement of the requirements of old system conveyancing.

    [69]Helmore, The Law of Real Property in New South Wales, 2nd ed (1966) at 383; Baalman, The Torrens System in New South Wales, (1951) at 35‑36.

80. That practice of the Registrar-General had two consequences.  First, as Roper J accepted in Nolan v Willimbong Shire Council[70], the issue of a certificate of title was conclusive evidence of the fact that the grantee had an estate in fee simple. Secondly, the registered proprietor of land under the provisions of the RP Act held the same with the benefit of the indefeasibility provisions of the legislation, in particular s 42.

    [70](1939) 14 LGR 89 at 90.

81. Section 2 of the Conveyancing (Strata Titles) Act 1961 (NSW) declared that that statute applied to land "under the provisions of the [RP Act] held … under perpetual lease from the Crown or in fee simple". Thereafter, in 1970, s 13 of the RP Act was amended by s 5 of the Real Property (Amendment) Act 1970 (NSW) to make it clear that land "leased as a perpetual lease under grant from the Crown" was subjected to the provisions of the RP Act.

82. Subsequently, the Real Property (Crown Land Titles) Amendment Act 1980 (NSW) took matters further by inserting into the RP Act a new Pt 3 (ss 13‑13M) headed "Crown Lands and Lands Acquired from the Crown to be Subject to the Act". In particular, s 13B(1) provided:

    "Where land to which this Part applies is held under perpetual lease from the Crown, the Registrar-General may, by creating a folio of the Register in the name of the person who, in the opinion of the Registrar-General, is entitled to be the registered proprietor of the perpetual lease from the Crown, bring the land under the provisions of this Act."

    Pursuant to this legislation the Leased Land was brought under the provisions of the RP Act and a computer folio was issued on 8 April 1987.

83. The present litigation has been so conducted that no question is raised respecting the effect that registration under the RP Act (with its consequences about indefeasibility of title) might have had upon any native title rights and interests which may then have been still subsisting. Accordingly, any consequential questions about the operation of the RDA and the validation provisions of the NTA and the State Act that would then arise have not been raised. Rather, the focus is upon the effect of the grant of the Lease many years before the commencement of the RDA and the changes to the RP Act.

84. However, in the Second Reading Speech in the Legislative Council on the Bill for the 1970 statute, the Minister said[71]:

    "The bill will clarify the status, under the principal Act, of a Crown grant of a perpetual lease, an anomalous tenure in the context of the principal Act.  As the principal Act is now drafted, grants from the Crown are automatically registered as Torrens title, provided the land so granted has been alienated in fee.  In fact, thanks to the provisions of Crown lands legislation introduced after the passage of the [RP Act], much land has since been alienated on a perpetual leasehold basis.  It has been the practice of the Registrar-General to record these grants as though they were grants of a fee simple, and to treat them as such for the purposes of subsequent registration procedures.  This is a common-sense approach and no mischief has flowed from it.  The bill ratifies that practice."

    [71]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 11 March 1970 at 4107.

85. As Dr Helmore pointed out[72], the Crown lands legislation did not provide for Crown grants to issue in respect of all types of perpetual lease. In particular, with respect to categories (i) and (vi) listed above, Crown grants did not issue; nor, significantly for the purposes of this case, did they issue for perpetual leases under the Western Lands Act.

    [72]The Law of Real Property in New South Wales, 2nd ed (1966) at 383.

86. The litigation which reached this Court as Hawkins v Minister for Lands (NSW)[73] concerned the status of a Crown lease under the Consolidation Act, that is to say a category (v) lease "in perpetuity" for which the legislation did not stipulate the issue of a Crown grant. The point, noted by Baalman[74], was that the lease in Hawkins did not appear to have been the subject of a Crown grant; the result (as with the Lease in issue in the present litigation) was that no question arose respecting the operation of the Torrens system by the attraction of s 13 of the RP Act. In Hawkins, this Court held that land comprised in a Crown lease remained vested in the Crown for the purposes of the definition of "Crown Lands" in s 5 of the Consolidation Act. Nor at the date of an application for conversion of the Crown lease into a conditional purchase was the land taken outside that definition; it was not land "lawfully contracted to be granted in fee-simple under the Crown Lands Acts".

    [73](1949) 78 CLR 479.

    [74]The Torrens System in New South Wales, (1951) at 36.

87. To appreciate that the practice of the Registrar-General respecting s 13 of the RP Act had no application to the Lease is not to foreclose further consideration of the juristic nature of the issue of a statutory "lease in perpetuity".

    The lease in perpetuity and the determinable fee simple

88. Dr Helmore explained[75]:

    "A 'perpetual lease' is a contradiction of terms, and the conditions to which these tenures are subject are in no way inconsistent with the incidents of a fee simple upon condition, the right of forfeiture for non‑payment of rent or breach of condition being equivalent to the right of re‑entry on breach of a condition subsequent."

    [75]The Law of Real Property in New South Wales, 2nd ed (1966) at 70.

89. The starting point for further analysis is indicated by Dr T P Fry in the following passage[76]:

    "Freehold tenure confers upon the Crown tenant, his successors and assigns, an estate in fee simple, which is usually said to confer 'perpetual' title.  'Tenant in fee simple,' it is said in Coke on Littleton's Tenures, 'is he which hath lands or tenements to hold for him and his heirs for ever.'  It is a rule of the Common Law which cannot be disproved by any mathematical or other argument, that a fee simple is a 'larger' estate than any leasehold estate, however long the term of years conferred by the latter, even if it be 10,000 or 100,000 years.

    Common Law does not recognize perpetual leasehold as a valid kind of mesne tenancy; although, if a mesne leasehold is validly created for a term of limited duration, it can be made perpetually renewable."

    Dr Helmore made the point[77]:

    "The ordinary type of fee simple encountered in practice is a fee simple absolute, but there are also defeasible[78] fees simple, namely, determinable fees and a [fee] simple upon condition.  These contain within their limitations, that is to say the words which define them, the seeds of their own destruction.  They both may exist at law or in equity.[79]  The distinction between the two types is in form rather than substance.  The former is one which automatically terminates on the occurrence of a specified event which may or may not occur, the latter is one which has a condition annexed to it (called a condition subsequent[80]) upon the non‑fulfilment of which either the grantor, or whoever succeeds to the grantor's interest, is entitled to re‑enter and determine the fee simple.  In other words, in the case of a fee simple upon condition, some positive action on the part of the person to whom the fee would pass is necessary to effect the termination."

    [76]"Land Tenures in Australian Law", (1946) 3 Res Judicatae 158 at 167.

    [77]The Law of Real Property in New South Wales, 2nd ed (1966) at 66‑67.  See also Butt, Land Law, 4th ed (2001) at [821]-[824].

    [78]This is the comprehensive term used in the American Restatement of the Law of Property, vol 1 at 43.

    [79]For an example of an equitable determinable fee simple, see In re Leach, Leach v Leach [1912] 2 Ch 422.

    [80]Such a condition is distinguished from a condition precedent which is one which must be fulfilled before an interest comes into being at all.

188. Section 44 empowered the Governor to withdraw the whole or any part of land comprised in a lease for the purpose of settlement and to pay the lessee compensation therefor.

189. In Sched A to the State Act there were set out the standard covenants, exceptions and reservations referred to in s 18. They included a covenant not to interfere with any reserves, roads, tracks or the use thereof by any person; a covenant to permit the Commissioner and all persons authorised by the Minister or the Commissioner to enter and view the whole or any part of the lease or buildings or other improvements thereon; reservations in favour of the Crown of all minerals, gems and precious stones; and the conferral of an unrestricted right to proclaim travelling stock, camping or other reserves, along with a right to withdraw land for the purposes of roads or travelling stock, camping or other reserves.

     The lease

190. The lease was expressed to be a lease of the land in perpetuity for the purpose of grazing. Covenants in the lease obliged the lessee, among other things, to make the land the place of his bona fide residence; to use it for grazing purposes only; to improve it; to enclose the land with a substantial stock-proof fence; to eradicate pests and vermin; not to over-clear the land; not to obtain property rights in any timber on the land and not to ringbark or otherwise destroy timber or scrub without the Minister's permission; and not to overstock. Other provisions of the lease were designed to give effect to Sched A of the State Act.

191. The rights of the parties in this case are governed by the Native Title Act and complementary State legislation. Section 223 of the Native Title Act describes what native title is and what it encompasses. It relevantly provides:

     "(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."

192. Division 2B of Pt 2 of the Native Title Act deals with "previous exclusive possession acts"[189]. Section 23B(2) relevantly defines the term as follows:

     [189]It is unnecessary in this case to determine whether the grant of an interest conferring exclusive possession extinguishes native title at common law and hence precludes recognition of the extinguished native title under s 223(1)(c). The issue is discussed in Western Australia v Ward [2002] HCA 28 at [628]-[635].

     "(2)     An act is a previous exclusive possession act if:

     (a)it is valid (including because of Division 2 or 2A of Part 2); and

     (b)it took place on or before 23 December 1996; and

     (c)it consists of the grant or vesting of any of the following:

     …

     (iv)an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

     …

     (viii)any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters."

     Section 248A defines an exclusive pastoral lease in these terms:

     "An exclusive pastoral lease is a pastoral lease that:

     (a)confers a right of exclusive possession over the land or waters covered by the lease; or

     (b)is a Scheduled interest."

     A previous exclusive possession act extinguishes native title in relation to the land or waters covered by the lease, with the extinguishment taken to have happened when the grant was made (s 23C(1)). All parties agreed, and it is correct, that s 23C(1) was mirrored in s 20 of the Native Title (New South Wales) Act 1994 (NSW).

193. The question that the applicant wishes answered is whether the grant of the lease was a previous exclusive possession act which extinguished native title.

194. In Western Australia v Ward, I referred to the reality that in modern times exclusive possession in absolute terms has long since ceased to exist[190].  I adhere to the opinions I expressed there that the fact that timber[191] and minerals may be reserved to the lessor or others, that identified categories of persons may pass across the land for certain purposes, and that there may be special statutory provisions for vindication of a right of possession which are different from the common law right to bring an action in ejectment do not deprive a lease for pastoral purposes issued pursuant to an enactment of the character of a lease.  Nor would I depart from the opinion that I formed in Ward, that the pursuit of pastoral purposes, properly understood, is incompatible with the pursuit of any other activity involving unrestricted access to or physical presence upon the land.  I accept that whether an instrument is described as a "statutory lease" or a "lease" may not necessarily be decisive of the question whether the instrument has conferred a right of exclusive possession, although the use of the word "lease"
     

     [190][2002] HCA 28 at [694].

     [191]See also, for example, the Vegetation Management Act 1999 (Q), the purpose of which is to regulate the clearing of vegetation on freehold land (s 3) and which, in practice, empowers the State of Queensland to forbid land clearing without compensation: ss 3, 4, 7, 8, 9, 10.

     [192]I would continue to start from a presumption that when the legislature uses the word "lease", what is intended is a relationship between the parties to such an instrument that conforms to the relationship of landlord and tenant, except to the extent that the empowering enactment or the instrument granted under it varies the incidents of that relationship.  There is an abundance of case law to justify that starting point:  see Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199 at 212; American Dairy Queen (Q'ld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 at 686 per Brennan J; Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 691 per Kirby P, 712 per Mahoney JA; Wik (1996) 187 CLR 1 at 74-81 per Brennan CJ, 151 per Gaudron J.

     [193]Ward [2002] HCA 28 at [619], [625].

     should be given much weight[192].  Again, I would reject the notion that has unnecessarily complicated, and, if unchecked, will continue to complicate the resolution of claims for native title:  the imputation to the parties to pastoral and other leases of an entirely artificial intention, contrary to the known facts, that native title was or was not to subsist.  It is for that reason and the reasons that I also gave in Ward that the notion of a "clear and plain intention" to extinguish native title forms no part of our law, and courts should be careful to look to the legal effect of what was granted[193].

195. It is unnecessary for me to repeat what I said in Ward concerning the absence of a clear majority opinion in Wik (or relevantly its statutory enactment) as to the factors determinative of a lack of exclusive possession because, on any view, this case is distinguishable. 

196. The area and location of land here in question could not be described as vast or remote, a factor which some Justices in Wik thought very significant[194].  I prefer the view of Beaumont J in the Full Court[195] that there is no principled basis on which to hold that large and remote pastoral leases do not confer exclusive possession but smaller ones supposedly nearer to more closely settled places do.

     [194](1996) 187 CLR 1 at 130 per Toohey J, 147, 154 per Gaudron J, 232-233 per Kirby J.

     [195](2000) 97 FCR 453 at 514-515 [252]-[253].

197. In Wik, in Pt III of the Land Act 1962 (Q), "pastoral leases" were dealt with in Div I, "stud holdings" in Div II, and "occupation licenses" in Div III.  In Pt IV, "agricultural selections" were dealt with in Div II and "grazing homestead perpetual leases" were dealt with in Div IV.  Similar parts had been included in the Land Act 1910 (Q).  Some of the majority judges in Wik regarded these features as providing a basis for holding that a pastoral lease was a special kind of statutory interest[196]. In contrast, the State Act here contains no special part, or set of special provisions, dealing with pastoral leases to distinguish them from common law leases. All leases here, no matter what the purpose for which the land subject to them could be used, were granted in exercise of the power conferred by s 23 of the State Act.

     [196](1996) 187 CLR 1 at 112-113 per Toohey J, 144-149 per Gaudron J, 199-200 per Gummow J.

198. Justices in the majority in Wik placed weight upon provisions that, in their view, obscured or blurred the distinction between various kinds of "leases" and "licences"[197]. The State Act, however, consistently distinguished between "leases" and "licenses". Thus, leases required payment of "rent"[198], while licences required payment of a licence "fee"[199].

     [197](1996) 187 CLR 1 at 113 per Toohey J, 194, 199-201 per Gummow J.

     [198]State Act, ss 19B-21.

     [199]State Act, s 21.

199. In Wik, Gummow J[200] and Kirby J[201], and perhaps to a lesser extent Gaudron J[202], regarded as relevant the provisions of the Queensland enactments which suggested to them that the Crown enjoyed possession of the land rather than the lessee[203]. Those Queensland provisions have no analogues in the State Act. Section 255 of the Crown Lands Consolidation Act 1913 (NSW), set out below, never had application to land leased under the State Act[204]:  

     "On information in writing preferred in that behalf by any person duly authorized to any justice of the peace setting forth that any person is in the unlawful occupation or use of any Crown land, or in the occupation or use of any Crown land in virtue or under colour of any purchase lease or license, although such purchase lease or license shall have been forfeited or otherwise made void, or although the conditions thereof shall have been broken or unfulfilled, or although such lease or license shall have expired, such justice shall issue his summons for the appearance of the person so informed against before two or more justices of the peace at the nearest court of petty sessions to such Crown land at a time to be specified in such summons.  And at such time and place such court, on the appearance of such person or on due proof of the service of such summons on him or at his usual or last known place of abode or business, shall hear and inquire into the subject-matter of such information.  And on being satisfied of the truth thereof either by the admission of the person informed against or on other sufficient evidence such justices shall issue their warrant addressed to any officer duly authorized in that behalf requiring him forthwith to dispossess and remove such person or any buildings from such land, and to take possession of the same on behalf of His Majesty, and the person to whom such warrant is addressed shall forthwith carry the same into execution."

     [200](1996) 187 CLR 1 at 191-195.

     [201](1996) 187 CLR 1 at 246.

     [202](1996) 187 CLR 1 at 146, 148.

     [203]Land Act 1910 (Q), s 204; Land Act 1962 (Q), s 373(1).

     [204]Smith v Ward (1920) 20 SR (NSW) 299 at 302-303, 304.

200. In Wik, Gaudron J referred to s 135 of the Queensland enactment regarding forfeiture.  Her Honour explained its effect in this way[205]:

     "[It brings about] what may be called a statutory reversion in the event of 'determinat[ion] by forfeiture or other cause before the expiration of the period or term for which it was granted', specifically that in that event it should 'revert to His Majesty and become Crown land', able to be 'dealt with under [the] Act accordingly'. In the event of forfeiture or early determination, the clear effect of s 135 was to assimilate the land involved to land which had not been alienated, reserved or dedicated for public purposes and which, therefore, was 'Crown land' as defined in s 4 of the Act. In other words, the effect of s 135 was, in that event, to assimilate the previously alienated land to land in respect of which the Crown had radical title, and not to land in respect of which it had beneficial ownership."

     Her Honour then stated[206]:

     "The fact that in these … respects the 1910 Act proceeded on a basis which was at odds with the common law principles with respect to reversionary interests tends to confirm the conclusion … that the grant of a pastoral lease under the 1910 Act did not confer a right of exclusive possession."

     The State Act had no corresponding provision. The incidents of forfeiture under the State Act are those attendant upon the forfeiture of a common law lease[207]. 

     [205](1996) 187 CLR 1 at 156.

     [206](1996) 187 CLR 1 at 156.

     [207]See the State Act, ss 17C(4)(e), 18.

201. Two of the majority Justices in Wik[208] saw as significant the provisions in the Land Act 1910 (Q) and Land Act 1962 (Q) providing that pastoral leases vest upon the making of the grants and not – as at common law under the doctrine of interesse termini – upon entry into possession. In New South Wales, however, the State Act, as originally enacted and amended, never made a distinction of that kind between statutory pastoral leases and common law leases.

     [208](1996) 187 CLR 1 at 153 per Gaudron J, 198-199 per Gummow J.

202. In Wik, two of the Justices in the majority suggested that the extensive reservations of rights of entry were indications that pastoral leases there did not confer a right of exclusive possession[209].  The three minority judges, Brennan CJ, Dawson and McHugh JJ, on the other hand, thought that the rights of entry were indications that a general right to exclusive possession (subject only to specified rights and reservations) was intended[210].  Toohey J, who was also in the majority, noted that the "lessee's right to possession must yield to [the] reservations".  His Honour stated that, insofar as indigenous rights and interests involved entering or remaining on the land, "it [could] not be said that the lease conferred on the grantee rights to exclusive possession"[211]. 

     [209](1996) 187 CLR 1 at 154 per Gaudron J, 246-247 per Kirby J. Gummow J simply said that the fact of the reservations did not necessarily mean that, without them, the lessee had a right to refuse entry to all persons: (1996) 187 CLR 1 at 201.

     [210](1996) 187 CLR 1 at 73-74 per Brennan CJ.

     [211](1996) 187 CLR 1 at 122.

203. With respect, I prefer the view of Brennan CJ, Dawson and McHugh JJ that the reservations do not tell against a right of exclusive possession.  It has long been established that even very extensive reservations of rights of entry for official and other purposes are entirely compatible with ordinary leaseholds and also with freehold titles[212]. Nothing about pastoral leases places them in a peculiar category in this respect. In any case, the reservations in Sched A of the State Act applied to all leases granted under s 18, some of which undoubtedly conferred a right of exclusive possession.

     [212]See Campbell v Dent (1864) 3 SCR (NSW) 58; Radaich v Smith (1959) 101 CLR 209 at 222 per Windeyer J; Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199 at 213 per Mason J; ICI Alkali (Australia) Pty Ltd v Commissioner of Taxation (Cth) (1978) 53 ALJR 220 at 223 per Barwick CJ; 22 ALR 465 at 470-471.

204. I do not think that the fact that the lease here is a lease in perpetuity is indicative of an absence of exclusive possession in the lessee[213].  Certainly, the fact that there is no apparent right of reversion is a concept foreign to a common law notion of a lease.  Nonetheless, Dixon J in Hawkins v Minister for Lands (NSW) was able to describe the reversionary interest in the Crown in relation to such a lease as "slight" and "technical"[214].  It is, moreover, not difficult to see why, in circumstances and places far removed from those of the United Kingdom, there should not be a special form of "statutory lease" adapted from a conventional lease at common law but retaining as far as possible the characteristics of such a lease, including a right of exclusive possession.  A lease in perpetuity confers certain advantages on the Crown as lessor:  it can enforce a greater measure of control over the land and the uses to which it may be put; it has what may be an easier or more attractive means of obtaining revenue by rent instead of by the exaction of a land tax or some other tax.  It would be anomalous, in my opinion, to hold that a lessee in perpetuity should be in a worse position than a lessee for a term of years or months, and that the former could not exclude others from the land and would have what in substance would only be a grazing licence, whereas the latter would have a lease with common law incidents (subject to statutory modifications).

     [213]Wik (1996) 187 CLR 1 at 153 per Gaudron J, 201 per Gummow J.

     [214](1949) 78 CLR 479 at 492.

205. I have not found it necessary to decide whether the extrinsic materials relied on by the applicant should be referred to.  That is because what I have said so far leads me to conclude that the lease here is distinguishable from the leases before the Court in Wik, and that it does confer a right of exclusive possession within the meaning of the Native Title Act and its State analogue[215].  For the same reason, it is unnecessary for me to deal with other points of distinction between this case and Wik and the other submissions made by the applicant.

     [215]I would point out, lest there be any possibility of misunderstanding, that the meaning of exclusive possession under s 248A and other provisions of the Native Title Act is the same as that under the common law.

206. There remains the question whether the applicant should be granted special leave to appeal.  In my opinion, he should be.  The case has been fully argued.  Many, many thousands, possibly hundreds of thousands, of dollars of public and other money must have been spent to this point.  There is sufficient material before the Court to provide substantial answers to the questions.  Answers to the questions should resolve many other cases and reduce much uncertainty.  I would therefore grant special leave and answer the questions as follows:

     (a)      By virtue only of:

     (i)the Western Lands Act 1901 (NSW); and

     (ii)the regulations thereunder, as in force at the time of the grant of the lease;

     did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

     Answer to (a):  Yes.  The lease conferred on the lessee a right of exclusive possession of the leased land within the meaning of that term in:

     (a)par (a) of the definition of exclusive pastoral lease in s 248A of the Native Title Act; and

     (b) s 23B(2)(c)(viii) of that Act.

     (b)If the answer to the question (a) is "No", by virtue of:

     (i)the Western Lands Act 1901 (NSW);

     (ii)the regulations thereunder, as in force at the time of the grant of the Lease; and

     (iii)one or more of the terms and conditions of the Lease;

     did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

     Answer to (b):  Yes.  The lease conferred on the lessee a right of exclusive possession of the leased land within the meaning of that term in:

     (a)par (a) of the definition of exclusive pastoral lease in s 248A of the Native Title Act; and

     (b)s 23B(2)(c)(viii) of that Act.

     (c)If the answer to question (a) or question (b) is "Yes", were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

     (i)extinguished by the grant of the Lease; or alternatively

     (ii)suspended upon the grant of the Lease for the duration of the Lease?

     Answer to (c): Native title rights were extinguished, not suspended, by the grant of the lease in accordance with s 20 of the Native Title (New South Wales) Act 1994 (NSW). Extinguishment is taken to have occurred upon the making of the grant.

207. The respondents should pay the applicant's costs of the application, the appeal to this Court, and the proceedings in the Federal Court and the Full Court of the Federal Court.