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Federal Court of Australia |
Last Updated: 13 November 2000
Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609
NATIVE TITLE - estates in fee simple in land granted by the State of Western Australia to Guildford Municipality in 1916 pursuant to the Land Act 1898 (WA) and to the Commonwealth in 1962 pursuant to the Land Act 1933 (WA) - estates in fee simple in land acquired by the Commonwealth by compulsory process in 1943 from the State of Western Australia and in 1949 from Guildford Municipality pursuant to the Lands Acquisition Act 1906 (Cth), and in 1960 from the State of Western Australia pursuant to the Lands Acquisition Act 1955 (Cth) - transfers registered under the Transfer of Land Act 1893 (WA) - whether the grant of an estate in fee simple by the Crown in right of one polity to the Crown in right of another polity, or the acquisition of an estate in fee simple by the Crown in right of one polity from the Crown in right of another polity, extinguishes any native title which might previously have existed - whether Guildford Municipality, a body corporate under s 10 of the Municipal Corporations Act 1906 (WA), was to be taken as representing the Crown - whether the purposes of the 1943, 1949 and 1960 acquisitions were insufficiently expressed in the notifications in the Gazette so as to invalidate the acquisitions - whether the Minister was obliged by s 9(1) of the Lands Acquisition Act 1955 (Cth) to notify any native title holders of the 1960 acquisition, whether native title holders were "owners" within the meaning of s 9(1) and whether s 10(6) would, in any event, overcome any invalidity which would otherwise arise from a failure to comply with s 9(1) - whether, in circumstances where an estate in fee simple has been granted to a person who is not the Crown or a representative of the Crown but is subsequently granted to, or acquired by, the Crown or a representative of the Crown, native title rights can be revived
EQUITY - whether the Crown in right of the State of Western Australia or the Crown in right of the Commonwealth owed a general fiduciary duty to indigenous people in relation to dealings with land in respect of which those persons held native title rights - whether, if such a duty existed, the Crown had breached it by disposing of and acquiring such land, in accordance with legislation which in terms authorised those dealings, in a manner which had the effect of extinguishing native title rights - whether, if such a breach had occurred, it affected the validity of those dealings or their effect on native title rights - whether, if such a breach had occurred, a remedial constructive trust could now be imposed
Transfer of Land Act 1893 (WA), s 68
Land Act 1898 (WA), ss 4, 5
Land Act 1933 (WA), ss 3(1), 5, 7
Lands Acquisition Act 1906 (Cth), ss 15, 16, 17, 18, 20
Lands Acquisition Act 1955 (Cth), ss 9(1), 10, 11
Municipal Corporations Act 1906 (WA)
Real Property (Commonwealth Titles) Act 1925 (WA)
National Security (Supplementary) Regulations, reg 72
Grace Brothers Pty Ltd v The Commonwealth [1946] HCA 11; (1946) 72 CLR 269, followed
WH Blakely & Co. v The Commonwealth [1953] HCA 12; (1953) 87 CLR 501, referred to
Commonwealth v Anderson [1960] HCA 85; (1960) 105 CLR 303, referred to
Jones v The Commonwealth [1963] HCA 43; (1963) 109 CLR 475, referred to
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, referred to
Townsville Hospitals Board v Townsville City Council [1982] HCA 48; (1982) 149 CLR 282, referred to
Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, referred to
Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193, referred to
Sydney City Council v Reid (1994) 34 NSWLR 506, referred to
Western Australia v the Commonwealth [1995] HCA 47; (1995) 183 CLR 373, followed
Re Gurubana-Gunggandji Peoples (1995) 123 FLR 462, referred to
Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1, referred to
Breen v Williams [1995] HCA 63; (1996) 186 CLR 71, referred to
Thorpe v The Commonwealth [No. 3] [1997] HCA 21; (1997) 71 ALJR 767, referred to
Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, referred to
Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96, followed
Ward v Western Australia (1998) 159 ALR 483, referred to
Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, referred to
Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426, followed
Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159, followed
Guerin v The Queen (1985) 13 DLR (4th) 321, distinguished
R v Sparrow (1990) 70 DLR (4th) 385, considered
Delgamuukw v British Columbia (1997) 153 DLR (4th) 193, considered
Cherokee Nation v State of Georgia 8 L Ed 25 (1831), considered
US v Creek Nation 295 US 103 (1934), considered
Pyramid Lake Paiute Tribe of Indians v Morton 354 Supp 252 (1973), considered
US v Wheeler 435 US 313 (1978), considered
US v Mitchell 463 US 206 (1983), considered
Te Runanga o Wharekauri Rekohu Inc v A-G [1993] 2 NZLR 301, considered
Te Runanganui o Te Ika Whenua Inc Society v A-G [1994] 2 NZLR 20, considered
P D Finn "The Fiduciary Principle", in Youdan (Ed), Equity, Fiduciaries and Trusts, 1989
CHRISTOPHER ROBERT BODNEY on behalf of the Bodney family AND EDNA BROPHO and others v WESTRALIA AIRPORTS CORPORATION PTY LTD AND COMMONWEALTH OF AUSTRALIA AND STATE OF WESTERN AUSTRALIA
WAG 6009 OF 1996
LEHANE J
13 NOVEMBER 2000
SYDNEY (HEARD IN PERTH)
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
1. The questions to be separately decided be answered as follows:
1. Yes.
2. Yes.
3. To the extent that native title had not previously been extinguished, yes.
4. Native title had previously been extinguished: see the answer to question 1.
5. (a) No.
(b) Does not arise.
(c) Yes.
6. Unnecessary to answer.
7. Unnecessary to answer.
8. Unnecessary to answer.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
JUDGE: |
LEHANE J |
DATE: |
13 NOVEMBER 2000 |
PLACE: |
SYDNEY (HEARD IN PERTH) |
1 The first applicant, Mr Bodney, claims in this proceeding, on behalf of a native title claim group, a determination of native title in relation to certain land. The second applicants, who have been joined as parties, claim in other proceedings a determination of native title in relation to a much larger area which includes that land. The land concerned is held, under the Transfer of Land Act 1893 (WA), by the second respondent (the Commonwealth) as registered proprietor. It is leased to the first respondent (Westralia). It comprises a number of parcels, all of which adjoin Perth airport.
SEPARATE QUESTIONS
2 As a result of orders made on 27 March 2000, the following questions are to be decided separately before any other questions in the proceeding and before any further trial in the proceeding:
"(1) Did the grant of land, described as Swan location 2803, made on 17 August 1916 by the Governor of Western Australia on behalf of His Majesty George the Fifth pursuant to the Land Act 1898 (WA) to Guildford Municipality, and the registration in Register Book Volume 653 Folio 79 pursuant to the Transfer of Land Act 1893 (WA) of Guildford Municipality as the sole proprietor of an estate in fee simple in possession of the land granted, extinguish all native title rights and interests which may have existed in respect of the land granted;(2) Did the grant of land, described as Swan Location 6246, made on 26 March 1962 by the Governor of Western Australia on behalf of Her Majesty Elizabeth the Second pursuant to the Land Act 1933 (WA) to the Commonwealth of Australia, and the registration in Register Book 1245 Folio 581 pursuant to the Transfer of Land Act 1893 (WA) and the Real Property (Commonwealth Titles) Act 1925 (WA) of the Commonwealth of Australia as the proprietor of an estate in fee simple in the land granted, extinguish all native title rights and interests which may have existed in respect of the land granted;
(3) Did the acquisition by compulsory process on 13 May 1943 by the Commonwealth of Australia under the Lands Acquisition Act 1906 (Cth) under the authority of His Excellency the Governor-General pursuant to the said Act of the land firstly described in `Notification of the Acquisition of Land by the Commonwealth' dated 6 May 1943 and published in Commonwealth of Australia Gazette No 102 dated 13 May 1943, or both the transfer of the land acquired into the name of The Commonwealth of Australia and the registration in Register Book Volume 1083 Folio 760 of the Commonwealth of Australia as the proprietor of an estate in fee simple in the land acquired pursuant to the Transfer of Land Act 1893 (WA) and the Real Property (Commonwealth Titles) Act 1925 (WA), extinguish all native title rights and interests which may have existed in respect of the land acquired;
(4) Did the acquisition by compulsory process on 14 July 1949 by the Commonwealth of Australia under the Lands Acquisition Act 1906 (Cth) under the authority of His Excellency the Governor-General pursuant to the said Act of the land secondly described in `Notification of the Acquisition of Land by the Commonwealth' dated 5 July 1949 and published in Commonwealth of Australia Gazette No 52 dated 14 July 1949, or both the transfer of the land acquired into the name of the Commonwealth of Australia and the registration in Register Book Volume 1125 Folio 679 of the Commonwealth of Australia as the proprietor of an estate in fee simple in the land acquired pursuant to the Transfer of Land Act 1893 (WA) and the Real Property (Commonwealth Titles) Act 1925 (WA), extinguish all native title rights and interests which may have existed in respect of the land acquired.
(5)(a) Did Lands Acquisition Act 1955 (Cth) section 9 require notice to be served upon the First and Second Applicant native title claim groups prior to the compulsory acquisition referred to in (c) below?
(5)(b) If the answer to (a) is "yes", could any failure to serve notice upon the First and Second Applicant native title claim groups in accordance with Lands Acquisition Act 1955 (Cth) section 9 prior to the compulsory acquisition referred to in (c) below, have invalidated the acquisition?
(5)(c) If the answer to (a) or (b) above is "no", did the acquisition by compulsory process on 18 August 1960 by the Commonwealth of Australia under the Lands Acquisition Act 1955 (Cth) under the authority of His Excellency the Governor-General pursuant to the said Act of the land described in `Notice of Acquisition of Land by the Commonwealth' dated 3 August 1960 and published in Commonwealth of Australia Gazette No 58 dated 18 August 1960, or both the transfer of the land acquired into the name of the Commonwealth of Australia and the registration in Register Book Volume 1254 Folio 868 of the Commonwealth of Australia as the proprietor of an estate in fee simple in the land acquired pursuant to the Transfer of Land Act 1893 (WA) and the Real Property (Commonwealth Titles) Act 1925 (WA), extinguish all native title rights and interests which may have existed in respect of the land acquired.
(6) Did the vesting of the land pursuant to sections 23(1) and 28(1) of the Federal Airports Corporation Act 1986 (Cth) to the Federal Airports Corporation by virtue of the Commonwealth of Australia Gazette No 34 published 23 December 1987 and taking effect from 1 January 1988 pursuant to the Federal Airports Corporation Act 1986 (Cth) or both the vesting of the land acquired into the name of the Federal Airports Corporation and the registration in Register Book Volume 1245 Folio 581 of the Federal Airports Corporation as the proprietor of an estate in fee simple in the land acquired pursuant to the Transfer of Land Act 1893 (WA) and the Federal Airports Corporation Act 1986 (Cth), extinguish all native title rights and interests which may have existed in respect of the land acquired.
(7) Did the vesting of the land pursuant to sections 23(1) and 28(1) of the Federal Airports Corporation Act 1986 (Cth) to the Federal Airports Corporation by virtue of the Commonwealth of Australia Gazette No 34 published 23 December 1987 and taking effect from 1 January 1988 pursuant to the Federal Airports Corporation Act 1986 (Cth) or both the vesting of the land acquired into the name of the Federal Airports Corporation and the registration in Register Book Volume 1835 Folio 783 of the Federal Airports Corporation as the proprietor of an estate in fee simple in the land acquired pursuant to the Transfer of Land Act 1893 (WA) and the Federal Airports Corporation Act 1986 (Cth), extinguish all native title rights and interests which may have existed in respect of the land acquired.
(8) Did the vesting of the land pursuant to sections 23(1) and 28(1) of the Federal Airports Corporation Act 1986 (Cth) to the Federal Airports Corporation by virtue of the Commonwealth of Australia Gazette No 34 published 23 December 1987 and taking effect from 1 January 1988 pursuant to the Federal Airports Corporation Act 1986 (Cth) or both the vesting of the land acquired into the name of the Federal Airports Corporation and the registration in Register Book Volume 1852 in Folio 601 of the Federal Airports Corporation as the proprietor of an estate in fee simple in the land acquired pursuant to the Transfer of Land Act 1893 (WA) and the Federal Airports Corporation Act 1986 (Cth), extinguish all native title rights and interests which may have existed in respect of the land acquired."
3 The substance of what is to be decided separately is whether dealings with the land commencing in 1916 have necessarily extinguished any native title, to any part of it, which might otherwise have existed.
FACTS
4 Evidence was given by Mr Kim Robert Guthrie as to the present state of the registered title to the land and the successive dealings leading to that state. Mr Guthrie is the Manager of the Land Claims Mapping Unit of the Department of Land Administration of Western Australia. Mr Bodney cross-examined Mr Guthrie, but not as to the particular facts to which he had deposed. There was no other challenge to his evidence, and I accept it. It is necessary to summarise its effect.
5 Most of the land in respect of which a determination is sought (Mr Guthrie refers to it in his evidence, and I shall refer to it, as the "claim area") lies within what was formerly Crown Reserve B259. That reserve was created in 1877. It was vested in the Guildford Road Board for the purpose of "Commonage". The remainder of the claim area, a very small area lying to the northwest, was within Crown Reserve 276, also created in 1877 and vested in the Guildford Road Board for the purpose of "Quarry for Public Purposes". Part of Crown Reserve B259 fell, from 1910, within Crown Reserve 12720, created in that year for the purpose of "Aborigines camping". Then, before 1913, roads were created covering parts of the claim area.
6 On 17 August 1916 part of what had been Crown Reserve B259 was granted in fee simple to the Guildford Municipality "to be used and held upon trust solely for municipal purposes". The grant was registered under the Transfer of Land Act 1893 (WA) (the Transfer of Land Act) as Certificate of Title Volume 653 Folio 79. The certificate of title recorded the "trust".
7 In 1943 the Commonwealth, under Div 3 of Pt II of the Lands Acquisition Act 1906 (Cth) (the 1906 Acquisition Act), compulsorily acquired part of the land in Certificate of Title Volume 653 Folio 79, all of Crown Reserves 276 and 12720 and part of what remained of Crown Reserve B259. The land was transferred to the Commonwealth: Certificate of Title Volume 1083 Folio 760, dated 15 August 1944, was issued to the Commonwealth. Then, in 1949, the Commonwealth acquired, by a similar process, part of the land which had been retained by Guildford Municipality. A transfer was registered and Certificate of Title Volume 1125 Folio 679 was issued on 26 April 1950, in which the Commonwealth was named as registered proprietor. From that time all of the claim area, with two relatively small exceptions, was held by the Commonwealth as proprietor of an estate in fee simple under the Transfer of Land Act. The exceptions were a small parcel which remained vested in Guildford Municipality (Certificate of Title Volume 1134 Folio 150), on the north eastern corner of the claim area, and what remained of Crown Reserve B259, to the south east of the claim area, together with a road separating Crown Reserve B259 from the land which the Commonwealth had acquired in 1943. In 1960 the Commonwealth acquired the former parcel by compulsory process under the Lands Acquisition Act 1955 (Cth) (the 1955 Acquisition Act). A transfer was registered and the Commonwealth became registered proprietor under the Transfer of Land Act. Then, in 1962, the road and the remainder of Crown Reserve B259 were granted to the Commonwealth in fee simple under s 7(4) of the Land Act 1933 (WA). The grant was registered under the Transfer of Land Act as Certificate of Title Volume 1245 Folio 581.
8 Thus, from 28 March 1962 the whole of the claim area was within land of which the Commonwealth was the proprietor, under the Transfer of Land Act, of an estate in fee simple. That was equally the case at the time of the trial of the issues raised by the separate questions. The Federal Airports Corporation (FAC), a body corporate established by the Federal Airports Corporation Act 1986 (Cth) (the FAC Act), had, however, become registered proprietor of certain of the land by registration in accordance with s 30 of the FAC Act on 6 February 1990 and of the balance by registration of a transfer from the Commonwealth on 8 December 1993. At a time and in circumstances which the evidence does not precisely reveal, the Commonwealth became once again registered proprietor of the whole of the land: it is now leased to Westralia.
9 The orders made on 27 March 2000 included the following:
"4. For the purpose of deciding the questions referred to previously in orders 1 and 2, the case for the First and Second Applicants shall comprise all pleadings of fact set out in documents filed in these proceedings and shall include pleadings of fact in the terms set out in Appendix 2 to the Minute of Proposed Orders submitted by the State of Western Australia."
I have made findings of fact in relation to the matters to which Mr Guthrie has deposed. The essential facts found are recounted in my summary of his evidence. On the other hand, the pleaded facts are no more than that. Their significance for present purposes is that the parties accept that the questions are to be answered on the assumption that the applicants will be able to establish certain facts which they have pleaded: facts, particularly, going to the nature of traditional rights enjoyed by the applicants, and those whom they represent, in relation to the claim area and the enjoyment and exercise of those rights continuously to the present day; the knowledge on the part of the Crown, before any of the grants or acquisitions of which Mr Guthrie gave evidence, of the use and occupation of the claim area by predecessors of the applicants and the establishment (within part of the claim area) of areas reserved from sale and designated to be for the use and benefit of Aboriginal people (as I have mentioned, that latter matter is dealt with in Mr Guthrie's evidence as to the establishment of Crown Reserve 12720 and I shall return to it); the lack of notice to, or consultation with, the Aboriginal people concerned before any acquisition by the Crown (facts admitted by the third respondent, the State); and that no compensation was paid by the Crown in respect of any native title affecting any of the land acquired. Those matters have particular significance to one of the bases - which relies on an assertion of the existence of a fiduciary duty and its breach, giving rise to a constructive trust - on which the second applicants resist a conclusion that any native title affecting the claim area has been extinguished.
STATUTORY PROVISIONS
10 The grant to Guildford Municipality, of 17 August 1916, was made under the Land Act 1898 (WA) (the 1898 Land Act). Section 4 of that Act provided that:
"The Governor is authorised, in the name and on behalf of Her Majesty, to dispose of the Crown lands within the Colony, in the manner and upon the conditions prescribed by this Act or by any Regulations made thereunder, and all grants and other instruments disposing of any portion of Crown lands in fee simple or for any less estate made in accordance with this Act or such regulations shall be valid and effectual in law to transfer to and vest in possession in the purchasers the land described in such grants or other instruments for the estate or interest therein mentioned. The Governor is authorised to make such grants and other instruments, upon such terms and conditions as to resumption of the land or otherwise as to him shall seem fit."
The grant to the Municipality took the form of a grant of an estate in fee simple. The subject matter of the grant was "the natural surface and so much of the [land concerned] as is below the natural surface to a depth of two hundred feet". The certificate of title issued on registration of the grant recorded that Guildford Municipality was the sole proprietor of an estate in fee simple of the land granted (the natural surface and to a depth of two hundred feet) "to be used and held upon trust solely for municipal purposes". Section 68 of the Transfer of Land Act provided that:
"Notwithstanding the existence in any other person of any estate or interest ... which but for this Act might be held to be paramount or to have priority the proprietor of land or of any estate or interest in land under the operation of this Act shall except in case of fraud hold the same subject to such encumbrances as may be notified on the folium of the register book constituted by the certificate of title; but absolutely free from all other encumbrances whatsoever..."
subject to certain exceptions, none of which is relevant for present purposes.
11 Guildford Municipality was, at the time of the grant to it, a body corporate under s 10 of the Municipal Corporations Act 1906 (WA). (There is no direct evidence that that was so, but it was not disputed; particularly, it was not disputed by counsel for the second applicants, whose clients' interests in this respect - though not by any means in all respects - coincide with those of Mr Bodney. It is in any event, I think, an appropriate inference from the documents exhibited to Mr Guthrie's affidavit. And, perhaps more significantly, Guildford Municipality is listed in the Sixteenth Schedule to the Act, which indicates that it was a municipal corporation in existence when the Act took effect: see s 294 and s 10(2).) There is a question whether, as a body corporate under that Act, Guildford Municipality was to be taken to represent the Crown. I shall come to that question later in these reasons.
12 The acquisitions by the Commonwealth in 1943 and 1949 were effected by compulsory process under Div 3 of Pt II of the 1906 Acquisition Act. Sections 15 to 18 of that Act provided:
"15. (1) The Governor-General may direct that any land may be acquired by the Commonwealth from the owner by compulsory process.(2) The Governor-General may thereupon, by notification published in the Gazette, declare that the land has been acquired under this Act for the public purpose therein expressed.
(3) A copy of the notification shall be laid before both Houses of the Parliament within fourteen days after its publication in the Gazette if the Parliament is then sitting, and if not then within fourteen days after the next meeting of the Parliament.
16. (1) Upon the publication of the notification in the Gazette, the land described therein shall, by force of this Act:
(a) be vested in the Commonwealth; and
(b) be freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements,
to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth.
(2) Where the land described in the notification is Crown land of a State or is by virtue of any law of a State vested in any person on behalf of the Crown or for any public purpose, the notification shall also have the effect of cancelling any dedication or reservation to which the land was subject at the date of the publication of the notification.
17. Upon the publication of the notification in the Gazette, the estate and interest of every person entitled to the land specified in the notification, and the title of the State to any Crown land specified in the notification, shall be taken to have been converted into a claim for compensation.
18. (1) Forthwith after the publication of the notification in the Gazette, the Minister shall cause a copy of the notification, together with a plan of the land, to be served upon the owners of the land or such of them as can with reasonable diligence be ascertained, either personally or by registered letter posted to their last known places of abode.
(2) If the owner cannot after diligent inquiry be found, a copy of the notification, together with a plan of the land, shall be left with the occupier of the land, or if there is no occupier, shall be affixed upon some conspicuous part of the land."
Section 20 provided for the registration of a notification in the Gazette as if it were an instrument or memorandum of transfer.
13 The acquisition by the Commonwealth in 1960 was made under Pt II Div 3 of the 1955 Acquisition Act. The process under that Act, unlike that under its predecessor of 1906, commenced with notification to the owners of the land concerned (the expression "owner" was not defined). Section 9(1) provided:
"The Minister shall not recommend to the Governor-General the acquisition by the Commonwealth of land by compulsory process unless he has first caused to be served upon each of the owners of the land, or such of them as can, after diligent inquiry, be ascertained, a notice inviting the person on whom the notice is served to treat with the Minister for the sale to the Commonwealth of the interest of that person in the land."
A series of steps was then to be followed which might lead to acquisition by agreement. Ultimately, however, there was provision for compulsory acquisition by a procedure similar to that for which the 1906 Acquisition Act provided. Upon the publication of a notice in the Gazette, the land vested in the Commonwealth "freed and discharged from all interests, trusts, restrictions, dedications, reservations, obligations, contracts, licences, charges and rates" so that "the legal estate in the land and all rights and powers incident to that legal estate or conferred by this Act are vested in the Commonwealth" (s 10(4)). Interests held by others in the land before the notification were, as under the earlier Act, converted into rights to compensation (s 11).
14 The Commonwealth legislation was, as it affected each of the three Commonwealth acquisitions, complemented by the Real Property (Commonwealth Titles) Act 1925 (WA) (the Commonwealth Titles Act), which provided a mechanism for bringing land, not already under the Transfer of Land Act, under that Act and for registering the Commonwealth (or the acquiring Commonwealth body) as proprietor and issuing a certificate of title in its name.
15 The final acquisition by the Commonwealth, in 1962, was effected by grant under s 7(4) of the Land Act 1933 (WA) (the 1933 Land Act). That subsection provided:
The Governor is authorised to agree with the Governor-General of the Commonwealth or other appropriate authority of the Commonwealth for the sale or lease of any Crown lands to the Commonwealth and to execute any instruments or assurance for granting, conveying or leasing the land to the Commonwealth.
Authority actually to make grants of Crown lands was conferred upon the Governor by s 7(1) and (2). "Crown Lands" were defined in s 3(1) to mean and include "all lands of the Crown vested in Her Majesty, except land which is, for the time being, reserved for or dedicated to any public purpose, or granted or lawfully contracted to be granted in fee simple or with the right of purchase under this Act...". "Public purpose" was defined to include any purpose declared by the Governor, by notification in the Gazette, to be a public purpose within the meaning of the Act.
SUMMARY OF CONTENTIONS
16 The respondents contended that authority required the conclusion that the grant, or acquisition, of an estate in fee simple necessarily extinguished any native title which might previously have existed; and that this was so, as a matter of both authority and principle, equally where the grantee or acquirer was the Crown, or a body representing the Crown, as it was where an estate in fee simple was granted to (or acquired by) a person other than the Crown. Equally, authority established conclusively that native title, once extinguished, is not revived where land the subject of a grant of an estate in fee simple is later acquired (or reacquired) by the Crown. Guildford Municipality was not, and did not represent, the Crown. Accordingly, if native title ever existed in relation to the land granted to Guildford Municipality, it was extinguished when the grant was made and was not revived when the land was subsequently acquired by the Commonwealth. Equally, however, native title was extinguished when the Commonwealth compulsorily acquired what was previously Crown land or was granted, by the Crown in right of the State of Western Australia, an estate in fee simple in such land. Furthermore, the 1906 and 1955 Acquisition Acts made it clear that land acquired under them was acquired free of prior interests and claims, those interests and claims being converted into rights to receive compensation. No deficiency in compliance with those Acts, in relation to any of the acquisitions by the Commonwealth, had been established; in any event, having become registered proprietor of an estate in fee simple, the Commonwealth had the benefit of immediate indefeasibility under the Transfer of Land Act.
17 Mr Bodney's principal contention was that the decision in Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 exploded the notion that, at the time of colonisation, Western Australia was terra nullius. On the assumption that he would make good the factual basis of the claims of those whom he represents, the predecessors of that group had, at the time of colonisation, a title to the claim area, a title which, through the continuous exercise of rights derived from it, persisted to the present. Western Australia had not been taken by conquest. Nor had the Crown, in any of its manifestations, treated with those represented by Mr Bodney, or their predecessors, for the acquisition of the claim area. Although Mr Bodney was prepared reluctantly to accept that the grant of an estate in fee simple to a party other than the Crown (or a representative of the Crown) might extinguish native title, there was no basis on which that could be so where, since colonisation, land had been held only (apart from those entitled to native title) by emanations or representatives of the Crown. Each of those (including Guildford Municipality) which had, according to Mr Guthrie's evidence, held title to any part of the lands since 1917 was to be regarded as representing the Crown.
18 Counsel for the second applicants submitted that an acquisition of an estate in fee simple by the Crown did not (or at least did not necessarily) extinguish native title. His principal contention, however, was that the Crown, in its dealings with the indigenous people in relation to land in Western Australia, owed duties of a fiduciary kind and, in disposing of and acquiring land including the claim area, had breached those duties. As a result, the argument proceeded, all the land within the claim area held by the Commonwealth was (or should be declared to be) held subject to a constructive trust for those Aboriginal people who would, if none of the grants or acquisitions referred to by Mr Guthrie had occurred, have held native title to the claim area. The rights of those persons, as beneficiaries of the trust, were (or would be) substantially coextensive with the rights flowing from the native title. Counsel relied on United States, Canadian and New Zealand authorities (as well as certain statements in Australian cases) in support of those propositions.
19 The respondents submitted, by way of reply, that the course of Australian authority was contrary to the existence of the fiduciary duty contended for; that the alleged constructive trust was inconsistent with the principles, now well established, as to extinguishment of native title; and that, to the extent that authorities in other jurisdictions suggested a different view, they were the product of different conditions and a different legal environment and could have no operation in Australia.
20 There are also issues concerning the validity of the procedures followed by the Commonwealth in relation to the compulsory acquisitions, issues raised in part by the second applicants and in part by the Commonwealth itself: they relate to the questions whether the purposes for which the acquisitions were made were sufficiently stated and whether, in relation to the acquisition under the 1955 Acquisition Act, the Commonwealth had complied with its obligation to give notice to such of the owners of the land as could, after diligent inquiry, be ascertained. The Commonwealth, with the support of the other respondents, contended that the requirements had been met. It contended also that, whether that was so or not, the acquisitions were effective and, by virtue of the Transfer of Land Act, the title acquired by the Commonwealth was indefeasible.
21 Finally, there was a separate contention advanced by Westralia, relying on the acquisition of the land, including the claim area, by the Federal Airports Corporation. The contention was that, whatever the effect of earlier grants and acquisitions may have been, the acquisition by the Corporation necessarily extinguished native title. The response of the applicants to that contention was that the Corporation represented the Crown; thus the acquisition by it did not extinguish native title or, if it did, then the Corporation held the land subject to the constructive trust.
THE GRANTS AND ACQUISITIONS: CONSIDERATION IN LIGHT OF HIGH COURT AND FEDERAL COURT AUTHORITY
22 It is common ground that the question whether any of the dealings of which Mr Guthrie gave evidence extinguished any native title which may have existed in relation to the claim area is to be decided by reference to the common law principles expounded in Mabo [No 2] and subsequent cases. There can be no doubt that, as a general proposition, a grant in fee simple extinguishes native title - any native title - to the land granted. The judgment of the majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) in Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 at 126 could hardly have stated the proposition in clearer or less qualified terms:
"Native title is extinguished by a grant in fee simple. And it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title. An estate in fee simple is, "for almost all practical purposes, the equivalent of full ownership of the land" and confers "the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination." It simply 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."
(I have omitted the footnoted references to authority). The grant with which Fejo was concerned was not a grant to the Crown or a representative of the Crown. The land was, however, later compulsorily acquired by the Commonwealth under the 1906 Acquisition Act. The High Court rejected an argument that the grant had merely suspended native title so that it might again be asserted when the land was, once more, held by the Crown. The majority said at 131:
"That the grant of freehold title extinguishes rather than suspends native title rights follows from the way in which the sovereign power to create rights and interests in land was exercised. The legislation that provided for the making of grants in fee simple of waste lands provided for the creation of rights in respect of the land that were inconsistent with any continued right to native title. The rights created by the exercise of sovereign power being inconsistent with native title, the rights and interests that together make up that native title were necessarily at an end. There can be no question, then, of those rights springing forth again when the land came to be held again by the Crown. Their recognition has been overtaken by the exercise of "the power to create and to extinguish private rights and interests in land within the Sovereign's territory". The 1882 grant extinguished native title to the land."
(The emphasis appears in the judgment; once again I have omitted the footnoted references). Since native title rights are necessarily extinguished as a result of their inconsistency with the rights of the holder of an estate in fee simple, they do not continue to exist (and are not revived) merely because, perhaps with the permission of the holder of the estate, indigenous people retain connections with the land. In Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, Gummow J said, at 288:
"Whether in a given case native title rights have been extinguished is a question of law. The inquiry turns on the legal criterion of inconsistency. Where there has been a grant of a fee simple, the application of this criterion is not determined by the existence, as a matter of fact, of an indigenous community's attachment or connection to the land, whether spiritual, cultural, social or economic. This inquiry relates to the anterior question of whether, but for the relevant inconsistency, native title would still subsist. For example, a non-indigenous owner of land in fee simple may continue to permit indigenous people to retain connections to the land but this will not derogate from the conclusion that the grant of fee simple extinguished native title on that land. Further, the existence, as a matter of fact, of indigenous peoples' continued connection to land which has been the subject of a grant in fee simple does not permit a "springing" back of native title at some future time."
23 Those statements of principle offer little encouragement to a notion that matters might be different where an estate in fee simple was granted to the Crown or was, for example, acquired by the Commonwealth from a State which, holding radical title, had not otherwise previously disposed of it. It may be that they do not conclude that question as a matter of authority. But whether or not that is so is, I think, for present purposes, academic. The possibility that there was a fiduciary duty and that it was breached (and the possible consequences of such a breach) must be separately considered. Subject to that question, however, authority binding on me requires the conclusion that the acquisition by the Crown of an estate in fee simple extinguishes native title, just as a grant to any other person does so. In the course of rejecting a submission that native title to land in Western Australia had been extinguished upon colonisation, the High Court said in Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 433, 434:
"...since the establishment of the Colony native title in respect of particular parcels of land has been extinguished only parcel by parcel. It has been extinguished by the valid exercise of power to grant interests in some of those parcels and to appropriate others of them for the use of the Crown inconsistently with the continuing right of Aborigines to enjoy native title."
In Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1, Brennan CJ, after dealing with other ways in which native title might be extinguished, said at 85, 86:
"The third category are laws and acts by which the Crown acquires a full beneficial ownership that extinguishes native title. That may occur by acquisition of native title by or under a statute, in which case the question is simply whether the power of acquisition has been validly exercised. Or the Crown, without statutory authority, may have acquired beneficial ownership simply by appropriating land in which no interest has been alienated by the Crown ... In the latter case, the appropriation of the land gives rise to the Crown's beneficial ownership only when the land is actually used for some purpose inconsistent with the continued enjoyment of native title ... Until such a use takes place, nothing has occurred that might effect the legal status quo."
His Honour dissented in Wik but that fact does not affect the authority of the passage I have quoted. There may be a question whether, given that Brennan CJ was discussing circumstances in which the Crown acquired a full beneficial ownership, his Honour intended the phrase "native title" rather than simply "title" in the second sentence. However that may be, what is clear is that his Honour drew a distinction between statutory acquisition of title and non-statutory appropriation, the former giving rise to the immediate extinguishment of native title, the latter extinguishing native title only when the land was actually used for a purpose for which it had been appropriated. Importantly, that is the way in which the observations were read by Beaumont and von Doussa JJ, both in Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 at 437 and in Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159 at 181. Lee J held in the first instance in Ward v Western Australia (1998) 159 ALR 483 at 568 that a grant (following compulsory acquisition) to the Commonwealth in fee simple extinguished native title; in the judgment of the appeal, Beaumont and von Doussa JJ recorded, at 252, 253, that there was no cross-appeal in respect of that finding. And a resumption by the State under the Public Works Act 1902 (WA), resulting in the vesting in the Crown of an estate in fee simple, was held in Ward, on appeal at 271, to have:
"...had the effect that the Crown became the absolute beneficial owner of the land, and clearly and plainly evidenced an intention that any remaining native title be wholly extinguished."
In that state of the authorities, I am bound to conclude that the doubts expressed by French J (sitting as president of the National Native Title Tribunal) in Re Gurubana-Gunggandji Peoples (1995) 123 FLR 462 at 475, 476 have been resolved and that a grant of a fee simple estate to the Crown (or the acquisition by the Crown of such an estate) extinguishes native title to the same extent, and for the same reasons, as a similar grant to a private person does. In each case, the rights acquired by the holder of the estate in fee simple are equally inconsistent with the continued enjoyment of rights associated with native title. That is a conclusion, of course, which will require further consideration in the light of the argument as to fiduciary duty and constructive trust.
24 The individual transactions can now be considered further in the light of those principles.
(a) Grant to Guildford Municipality
25 As I have mentioned, the respondents contended that Guildford Municipality did not represent the Crown. The applicants contended that it was to be regarded as the Crown but did not make detailed submissions in support of that contention. In my view, (though, given the conclusion I have already reached, it does not affect the answers to any of the questions) Guildford Municipality should not be regarded as representing the Crown. In Townsville Hospitals Board v Townsville City Council [1982] HCA 48; (1982) 149 CLR 282 at 291, Gibbs CJ, with whom the other members of the Court agreed, referred to authorities displaying "a strong tendency to regard a statutory corporation formed to carry on public functions as distinct from the Crown unless Parliament has by express provision given it the character of a servant of the Crown". Townsville Hospitals Board indicates also that a substantial degree of executive control over aspects of a body's activities will not necessarily suffice to characterise it as a representative of the Crown. That is demonstrated as well by the decision of the New South Wales Court of Appeal in Sydney City Council v Reid (1994) 34 NSWLR 506. That case is significant both because it held that a local government council was not to be regarded, as Meagher JA put it at 521, as "the Crown, or an arm of the Crown, or an emanation of the Crown, or an agent of the Crown" and because it did so in relation to a body which in several respects was subject to significant executive intervention and control.
26 The Municipal Corporations Act 1906 (WA) is a great deal less complex than the Local Government Act 1993 (NSW), with which Reid was concerned. It did, however, constitute the Municipality as a body corporate "with perpetual succession and a common seal ... capable in law of suing and being sued, of purchasing, holding and alienating land, and of doing and suffering all such other acts and things as bodies corporate may by law do and suffer" (s 10(1)). By a series of provisions in Pt III the Governor was given wide powers to constitute municipalities, split and amalgamate municipalities, adjust their boundaries and change their names. Mayors and councils were elected (Pt IV). Part VIII conferred on a council power to make by-laws upon a wide range of matters; by-laws came into effect when confirmed by the Governor and published in the Gazette (s 186). A council had wide and largely unfettered powers to acquire property and enter into contracts in order to perform its functions (Pt IX and Pt X). Certain sales and other dispositions of land required the approval of the Governor (see, for example, s 209 and s 210). A council had wide powers to borrow for the purpose, particularly, of certain kinds of works and undertakings (ss 434-438): notably, the fetter on that power was a form of direct democracy rather than executive or ministerial control (ss 445-448). There were provisions for the creation of a sinking fund to provide for repayment of monies borrowed (s 454 ff) which involved a degree of executive control, but the auditors for the municipality were to be elected (s 477) (the Governor might in certain circumstances appoint a "special auditor": s 490).
27 That is, of course, a sketchy and incomplete account of the legislation. But it is sufficient to indicate, I think, that the case is a fortiori Reid (see particularly the summary, in the judgment of Kirby P at 517-519, of the matters relied upon as indicating that the Sydney City Council represented the Crown).
28 I have already (par 10) quoted s 4 of the 1898 Land Act, under which the grant to Guildford Municipality was made. The grant was in the form required by s 15 and the Third Schedule of the Act. The Crown was expressed by the grant to:
"... Give and Grant unto Guildford Municipality, of Guildford in our said state ... the natural surface and so much of the land as is below the natural surface to a depth of two hundred feet of ALL THAT Tract or Parcel of Land ... TOGETHER with all Profits, Commodities, Hereditaments, and Appurtenances whatsoever thereunto belonging or in anywise appertaining: To HAVE AND TO HOLD the said Tract or Parcel of Land to the depth aforesaid, and all and singular the Premises hereby granted, with their appurtenances, unto the said Grantee for ever ..."
The trust to which I have already referred (par 6) was recorded as part of the consideration for the grant. A rent of one peppercorn per annum was reserved. The words of grant plainly are apt to confer an estate in fee simple and the reservation of the peppercorn rent is not inconsistent with that: Ward, 159 ALR 483 at 567. The result, consistently with Fejo, is that upon the grant being made any native title was extinguished. It would, in my view, be inconsistent with the reasoning in Fejo to hold that the trust (assuming it to be, strictly speaking, a trust) made any difference: a fee simple estate is no less inconsistent with rights arising from native title if it is held on trust than it is if held beneficially. In any event, the grant was registered under the Transfer of Land Act. The certificate of title recorded Guildford Municipality as "the sole proprietor of an estate in fee simple" in the land (subject, once again, to the "trust"). Guildford Municipality thus acquired an indefeasible title under that Act and the benefit of s 68: see par 10. Fejo directly holds that native title, once extinguished, is not revived if land is subsequently acquired by the Crown. It follows that, unless some qualification is required arising from the contentions as to fiduciary duty and constructive trust, the first of the questions to be determined separately must be answered "yes'.
(b) The 1962 Grant to the Commonwealth
1 On the part of the Commonwealth, this transaction appears to have proceeded as an acquisition by agreement under Pt II Div 2 of the 1955 Acquisition Act. The authority, under State law, to make the grant to the Commonwealth is to be found in s 7 of the 1933 Land Act. The form of grant recited a consideration of £4770. The grant was expressed to "Give and Grant unto THE COMMONWEALTH OF AUSTRALIA [the land] together with all Profits, Commodities, Hereditaments, and Appurtenances whatsoever thereunto belonging, or in anywise appertaining: To have and to hold the said Piece or Parcel of Land and all and singular the Premises hereby granted, with their Appurtenances, unto the said THE COMMONWEALTH OF AUSTRALIA for ever": plainly a grant of an estate in fee simple. The grant was signed by the Governor of the State. It was registered under the Transfer of Land Act. There was no suggestion that there was any deficiency in any of those processes. Nor is any apparent. Again, unless any qualification arises from the arguments about fiduciary duty and constructive trust, the Commonwealth acquired an estate in fee simple and, under the Transfer of Land Act, an indefeasible title. In accordance with the principles already discussed, it thus acquired a title conferring rights inconsistent with the continued enjoyment of native title so that (subject to anything arising from a fiduciary duty or a constructive trust) any native title was extinguished and the second question must be answered "yes".
(c) The 1943 Commonwealth Acquisition
30 Part of the land acquired by the Commonwealth in 1943 was land included in the grant to Guildford Municipality in 1916. To that extent, any native title had, as I have already held, been extinguished.
31 The acquisition was effected by compulsory process under Pt II Div 3 of the 1906 Acquisition Act. The scheme of the provisions is important (see par 12). The Governor-General might direct that land be acquired by compulsory process (s 15(1)). The next step was the publication of a notification in the Gazette declaring "that the land has been acquired under this Act for the public purpose therein expressed" (s 15(2)). Upon publication of the notification, the land, by force of the Act, was vested in the Commonwealth "freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates and easements" (s 16); and the estate and interest of every person entitled to the land (including the title of the State to any Crown land) was converted into a claim for compensation (s 17). After publication of the notification, a copy was required to be served upon the owners of the land "or such of them as can with reasonable diligence be ascertained" (s 18).
32 For present purposes, an important aspect of that scheme is that no notification to owners was required before the publication in the Gazette; and the publication in the Gazette vested the land in the Commonwealth and converted former estates or interests in the land into claims for compensation. The scheme excludes the possibility that a failure to notify owners under s 18 would prevent the acquisition from becoming effective.
33 The notification published in the Gazette read:
"It is hereby notified and declared by His Excellency the Governor-General, acting with the advice of the Federal Executive Council, that the land hereunder described has been acquired by the Commonwealth under the Lands Acquisition Act 1906 - 1936, for the following public purpose, namely: Purposes of the Commonwealth at South Guildford, Western Australia."
It is highly probable that, but for the regulations to which I shall refer, that notification did not sufficiently state the public purpose for which the land was acquired with the result that, subject to whatever might have been the effect of registration under the Transfer of Land Act, the acquisition was ineffective: Jones v The Commonwealth [1963] HCA 43; (1963) 109 CLR 475. When the acquisition occurred, however, reg 72 of the National Security (Supplementary) Regulations was in force. That regulation provided:
"Notwithstanding anything contained in section 15 of the Lands Acquisition Act 1906-1936, the public purpose for which any land has been acquired shall be deemed to be expressed sufficiently if the notification declares that the land has been acquired under that Act for the purposes of the Commonwealth."
A regulation in similar terms was considered by the High Court in Grace Brothers Pty Ltd v The Commonwealth [1946] HCA 11; (1946) 72 CLR 269 and held to be valid. That being so, reg 72 was valid. The result is that the purpose of the 1943 acquisition was sufficiently stated in the notification. There is no other reason to doubt the efficacy of the acquisition; and, of course, the Commonwealth, having by the acquisition acquired the legal estate freed from other interests, subsequently became registered proprietor of an estate in fee simple under the Transfer of Land Act.
(d) The 1949 Commonwealth Acquisition
34 This acquisition also was effected by compulsory process under the 1906 Acquisition Act. The land was acquired from Guildford Municipality; it was part of the land which had been granted to the Municipality in 1916. Thus, for the reasons already given, any native title had already been extinguished. The purpose stated in the notification in the Gazette was "Purposes of the Department of Civil Aviation at Guildford, Western Australia". WH Blakely & Co. v The Commonwealth [1953] HCA 12; (1953) 87 CLR 501 establishes that, though the purpose or object for which the land is needed must be one in respect of which the Parliament has power to make laws, a statement of it in general terms may be sufficient (in that case, the description was "postal purposes"). It could hardly be supposed that, if "postal purposes" is sufficient, "the purposes of the Post Office" or "the purposes of the Postmaster-General's Department" would be insufficient. On that basis, I see no reason to doubt the sufficiency of the purpose stated for the 1949 acquisition. Otherwise, there are no considerations affecting the 1949 acquisition which differ from those to which the 1943 acquisition gave rise.
(e) The 1960 Commonwealth Acquisition
35 This acquisition was effected under the 1955 Acquisition Act. Once again, all the land acquired was, immediately before the acquistion, held by Guildford Municipality. It was the remaining portion of the land granted to the Municipality in 1916. Once again, therefore, any native title had already been extinguished in 1917 and, consistently with Fejo, has not been revived. Again, it remains to consider the possible implications of the arguments about fiduciary duty and constructive trust. It is, however, desirable to consider the effect of the acquisition on the assumption that native title had not previously been extinguished.
36 There are similarities between the 1955 Acquisition Act and its predecessor of 1906, but there are also significant differences. Two of those differences require particular mention. First, under the 1955 Acquisition Act the process of compulsory acquisition commenced with a notice to "owners" (a term which the Act does not define). Section 9(1) (reproduced in par 13) prohibited the Minister from recommending an acquisition unless the Minister had first caused a notice to be served "upon each of the owners of the land, or such of them as can, after diligent inquiry, be ascertained". It is alleged, admitted by the State and not denied by any other respondent, that no notice was given to any of the persons on whose behalf native title is claimed or to any of their predecessors. Secondly, s 10(6) provided:
"An authorisation by the Governor-General under sub-section (2) of this section shall not be invalidated or called into question by reason of any failure to comply with any of the provisions of this Act."
Section 10(2) empowered the Governor-General, on the recommendation of the Minister, to authorise the acquisition of land by compulsory process.
37 There is, I think, a good deal to be said for the argument that s 10(6) overcomes any invalidity which would otherwise arise from a failure to comply with s 9(1). Of course, if I am right in holding that any native title had already been extinguished by the grants to Guildford Municipality in 1916, there was no obligation, in 1960, to give notice to any native title holder: there was none. On the assumption, however, that that is incorrect and the further assumption that s 10(6) does not have the saving effect which it appears to have, the question would remain, were holders of native title among the class of "owners" whose existence might be ascertained by diligent inquiry and to whom, therefore, notice was required to be given? That question must be answered on the basis that the applicants will be able to establish that, in 1960, indigenous people exercised, on the land, rights derived from native title and that inquiry by the Commonwealth would have revealed that that was so.
38 I accept the submission of the Commonwealth, supported by the other respondents, that a judgment about what diligence required must take into account the generally accepted view of the law in 1960. If at that date it was generally believed that native title, as now understood, did not affect land in Western Australia (or in Australia as a whole), the existence of persons holding what is now recognised as native title would not be revealed by any inquiry. Though the Commonwealth might become aware of activities conducted on the land, or of a continued association of a group of indigenous people with the land, facts of that kind (which inquiry might have revealed) would not have resulted in the "ascertainment" of any person as an "owner". There is no reason to think that the views expressed by Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 were unorthodox when his Honour expressed them, or any less so in 1960.
39 The approved public purpose was again stated, in the notice published in the Gazette, to be "Purposes of the Department of Civil Aviation at Perth Airport in the State of Western Australia". That, for the reasons already given, was sufficient. It was not suggested that in any other respect the requirements of the 1955 Acquisition Act were not observed and the evidence suggests no reason to suppose that there was any deficiency in compliance with them. The acquisition was completed. A transfer of the land (which was already under the Transfer of Land Act) was registered following application under the Commonwealth Titles Act. The Commonwealth became the registered proprietor of an estate in fee simple. Apart, again, from the contentions about fiduciary duty and constructive trust, the title which the Commonwealth acquired was inconsistent with the continued existence of native title.
PARTICULAR ARGUMENTS AS TO "CROWN TO CROWN" TRANSACTIONS
40 In the foregoing discussion I have not explicitly considered two groups of arguments, one advanced by Mr Bodney and the other on behalf of the second applicants, about the effect of grants to, and acquisitions by, the Commonwealth. In my view, the arguments should not be accepted, largely because they are inconsistent with the authorities and statutory provisions to which I have referred. But I shall explain that conclusion in a little more detail.
(a) Mr Bodney's Submission: Lack of any Transaction between the Commonwealth and the Holders of Native Title
41 Mr Bodney's argument was that sovereignty over Western Australia had not been obtained by conquest, nor had the territory of Western Australia been ceded by treaty. On the other hand, Mabo [No 2] had rejected the theory that, at the time of settlement, Western Australia was terra nullius. Mabo [No 2] and later authorities established that native title survived European settlement. Thus it must be taken to persist, at least in land which continues to be (or, perhaps, is once again) held by the Crown, unless it has been acquired by the Crown as a result of a transaction between the Crown and the owners of native title. There has, in relation to the land with which this case is concerned, been no such transaction. A purported acquisition - or extinguishment - by other means would, Mr Bodney argued, be regarded by the common law as theft; and the law would not treat it as effective.
42 That submission cannot be accepted. It is contrary to the authority to which I have referred, binding on this Court, as to the effect of a grant in fee simple and, in the case of acquisitions by the Commonwealth, to the provisions, to which again I have referred, of the 1906 and 1955 Acquisition Acts. The events with which this case is concerned occurred at times when none of the constraints arising under the Native Title Act 1993 (Cth) or, for that matter, the Racial Discrimination Act 1975 (Cth) applied. The position remained as Gummow J described it, by reference to authorities including Mabo [No 2], Western Australia v The Commonwealth and Wik, in Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 613:
"The characteristics of native title as recognised at common law include an inherent susceptibility to extinguishment or defeasance by the grant of freehold or of some lesser estate which is inconsistent with native title rights; this is so whether the grant be supported by the prerogative or by legislation."
(b) "Fiction" Involved in Grant to Crown or Dealing Between the Crown in Right of One Polity and the Crown in Right of Another
43 The argument had at least two aspects. One was that the grant of a fee simple title from the Crown in one capacity to the Crown in another capacity does not evince a clear and plain intention to extinguish native title. That contention is inconsistent with Ward, and for that reason cannot be accepted. It is in any event, in my view, inconsistent with the reasoning in Fejo. Once it is accepted that the Crown may hold an estate in fee simple, or its substantial equivalent, its rights as holder of that estate cannot be distinguished from the rights of any other holder of a similar estate. If in the one case those rights are inconsistent with the continued existence of native title, they are equally so in the other.
44 Nor do I accept the submission in its second aspect. That involved, as I understood it, the proposition that, while the assumption by the Crown (as holder of the radical title) of ownership in fee simple might extinguish native title, a "grant" from one manifestation of the Crown to another was only a fiction which did not expand the radical title into absolute and beneficial ownership, so that any native title remained intact. There are a number of difficulties with that proposition, which prevent it being accepted. One is that in this case only one of the acquisitions by the Commonwealth was by way of direct grant by the State. That grant was made under s 7(4) of the 1933 Land Act. That provision empowered the Governor to sell or lease Crown land to the Commonwealth and to execute instruments for granting, conveying or leasing the land to the Commonwealth. The grants contemplated plainly are, or at least include, the grants in fee simple or any less estate which, under s 7(2), were to be valid and effectual in law to vest the land in possession for the estate or interest granted. There is no reason not to give those provisions their clear apparent meaning. And, so far as the Commonwealth is concerned, I have referred to the provisions of the 1955 Acquisition Act which authorised the acquisition. There is no reason to deny a transaction thus authorised, and subsequently registered under the Transfer of Land Act, its apparent effect. In Commonwealth v Anderson [1960] HCA 85; (1960) 105 CLR 303 at 324, 325 Windeyer J said, in relation to land acquired by the Commonwealth for postal purposes:
"The Commonwealth acquired this land for the purposes of the Post Office. It acquired it pursuant to the Lands Acquisition Act 1906 - 1936, s. 57 (1). By that section the Commonwealth held the land as a body corporate, as it does now (see s. 61 of the present Act). As a matter of title it holds it as a tenant in fee simple of the Crown in right of the State of New South Wales. Tenancy in fee simple here describes, not a feudal relationship of the Queen and those who hold land of her, but the nature and quantum of the estate and interest that the Commonwealth has in the land."
That was said in relation to the effect of an acquisition from - apparently - private persons. But if the relationship is one which can in law exist, there is no reason why it should not be created directly by grant of one polity to another.
45 Counsel for the second applicants made a related submission concerning the effect of the acquisitions by the Commonwealth under the 1906 and 1955 Acquisition Acts. It was to the effect that what the Commonwealth acquired was ownership of the land, comprehending all estates and interests in it, including any native title interest. Thus, if the Commonwealth acquires land in which indigenous people hold native title, that native title is acquired and remains identifiable as such, as a separate interest in relation to which equity can impose an obligation on the Commonwealth that it be held in trust (in effect) for the indigenous people from whom it was acquired. Again, that submission must be rejected. It can apply, I think, only to compulsory acquisitions: where the Commonwealth acquired land by agreement, it acquired the interest agreed to be acquired. "Land" is defined by s 5 of each Act as including interests in land. Where it acquired land by compulsory process, the Commonwealth acquired, under s 16(1) of the 1906 Acquisition Act and under s 10(4) of the 1955 Acquisition Act, "the legal estate" in the land freed and discharged from other interests: a legal estate, in other words, not burdened by any previously existing interest in the land (all such interests being converted into claims for compensation). It would be inconsistent with those provisions to hold that the Commonwealth acquired, as separate interests, all the individual interests in the land (native title or other) which had existed before the acquisition.
FIDUCIARY DUTY; CONSTRUCTIVE TRUST
46 The submission that there was a constructive trust (or that one might be imposed) arising out of a breach of fiduciary duty was put by counsel for the second applicants. It was accepted that the "pleaded facts" to be assumed for the purposes of the argument were to be found in allegations in the second applicants' amended statement of facts, issues and contentions dated 10 April 2000. The facts alleged relate principally to general executive and legislative attitudes to relations with indigenous people from the time of settlement. There are, however, some more specific facts alleged. I have referred already to particular allegations as to the continuing exercise by the applicants and their predecessors of the rights which they assert in relation to the claim area. The other particular allegations, specific to the claim area, are these:
"1.8 The Crown in right of the State of Western Australia, prior to the acquisitions taking place, had taken steps to protect the presence, occupation, use and enjoyment of the area by the native title parties and their predecessors by establishing areas within the area the subject to [sic] the acquisitions which were reserved from sale and were designated to be for the use and benefit of Aboriginal people; and such areas were used and occupied by the native title parties and their predecessors.1.9 The Crown in right of the Commonwealth knew or, after reasonably diligent inquiry, was capable of knowing of the fact of the setting aside of such areas for the use and benefit of Aboriginal people and the occupation of those areas by Aboriginal people, whom they were capable of ascertaining by reasonably diligent inquiry were the native title parties or their predecessors."
Those allegations were by no means prominent in the argument, which concentrated almost exclusively on the more general allegations to which I shall come. It should be pointed out, however, that Mr Guthrie's evidence, which the second applicants did not dispute, was that the whole of the claim area falls within land "originally" (Mr Guthrie's word) comprised in two reserves, both created in 1877: one for "Commonage" and one for "Quarry for Public Purposes". His evidence traces the title to the land from that time. He records that in 1910 Crown Reserve 12720 was created for "Aborigines camping"; that reserve covered land which was originally part of the "Commonage" Reserve B259. Reserve 12720 covered a relatively small area on the north west corner of the land with which this case is concerned and included a relatively small portion of the claim area. It was not within the land granted to Guildford Municipality. It was part of the land acquired by the Commonwealth in 1943 by way of acquisition by compulsory process under the 1906 Acquisition Act. In short, no particulars are given of the "steps" referred to in par 1.8 of the second applicants' amended statement of facts, issues and contentions; on the evidence, what might be described as one such step was taken - the creation of Reserve 12720 - but no other.
47 The general allegations commence with a proclamation made by the first Governor, Captain James Stirling, which included the paragraph:
"And whereas the protection of Law doth of right belong to all People who come or be found within the Territory aforesaid I do hereby give notice that if any person shall be convicted of behaving in a fraudulent cruel or felonious manner to the Aboriginal race of inhabitants of this Country such person shall be liable to be prosecuted and tried for the offence as if the same had been committed against any others of His Majesty's subjects."
48 The allegations then refer to much colonial legislation, commencing from the 1840s (and largely long since repealed), making particular provision for indigenous people and their protection. The legislation related, for example, to restrictions on access to alcohol, to the provision of reserves and their management and the provision of medical services and education. Particularly, the second applicant relied on the effect of s 70 of the Constitution Act 1889 (WA) and certain provisions of the Aborigines Act 1905 (WA). The former provision required the appropriation of an annual sum to be applied by the Aborigines Protection Board in promoting the welfare and education of Aborigines (and by s 73 of the Constitution Act, any bill to amend s 70 was to be reserved "to the Governor for the signification of Her Majesty's pleasure thereon"). The provisions of the Aborigines Act, the effect of which is pleaded in the amended statement of facts, issues and contentions, established an Aborigines Department to exercise supervision and care over matters affecting the interests and welfare of Aborigines and to protect them against injustice, imposition and fraud; and provided for the establishment of reserves, their management and regulation and for the making of regulations for the control, care and education of Aborigines in institutions. Certain observations made in the Legislative Council in 1883 by the then Premier are referred to as well.
49 That history was said to show that the Crown had recognised or assumed general tutelary obligations in relation to Aboriginal people. That was said to have given rise to a "fiduciary expectation": that is, that the Crown would act in the interests of the Aboriginal people and for the purpose of the relationship with them which it had assumed (P D Finn "The Fiduciary Principle", in Youdan (Ed), Equity, Fiduciaries and Trusts, 1989, pp 46, 47). The Crown had asserted sovereignty over the Aboriginal people; it had adopted a protective role; it had power to abrogate their interests (and had performed acts in exercise of that power). Those circumstances, it was said, together with the creation of the "fiduciary expectation", gave rise to fiduciary obligations on the part of the Crown. As well as general statements in the cases about circumstances giving rise to fiduciary duties, the second applicants relied on authorities in the United States, Canada and New Zealand, on the analysis in the judgment of Toohey J in Mabo [No 2] at 199-205 and the discussion by Deane and Gaudron JJ (Mabo [No 2] at 112, 113) of the availability of equitable remedies, particularly the remedial constructive trust, to protect native title against the wrongful denial of it or wrongful interference with it. Recognising the obvious difficulty with a proposition that the Crown is obliged to exercise powers exclusively in the interests of Aboriginal people (Wik at 95-97 per Brennan CJ), the second applicants contended (relying on United States and particularly Canadian authorities) for the existence of a duty which required, in the exercise of a power to dispose of land so as to extinguish native title, at least consultation with the owners of native title, the taking of their interests into account and, perhaps, reasonableness according to an objective standard.
50 A particular difficulty with the fiduciary case is, indeed, the level of generality at which the facts are pleaded. Ordinarily, the question whether fiduciary duties arise is decided having regard to the particular circumstances of particular relationships, or particular dealings, between particular people. Similarly, a constructive trust is imposed, ordinarily, because the circumstances of dealings between particular people make it unconscionable that one should, to the exclusion of the other, be permitted to assert a full beneficial title to particular property: one circumstance in which that may arise, of course, is where property has been acquired in breach of a fiduciary duty. Here, the claims are based mainly upon a general obligation, said to have been assumed by the Crown (and largely treating as immaterial any distinction between the Crown in right of one polity and the Crown in right of another) at and following European settlement of Western Australia, to protect the indigenous people. It is that general obligation said to have been assumed, coupled with a power to injure the interests of indigenous people (for example, by granting land and thereby extinguishing native title) that is said to have given rise to a fiduciary duty which was breached where title to land was granted or assumed by the Crown without consultation with indigenous people who may have had rights in relation to it and without having particular regard to their interests. Those, in essence, were the propositions on which the argument concentrated. To the extent that facts relating to the particular land, or particular indigenous people said to have had rights in relation to it, are pleaded, again that has been done at a high level of abstraction and, as I have mentioned, there is undisputed evidence as to the extent to which any of the claim area was actually within lands which were, at any relevant times, reserved for particular purposes of Aboriginal people.
51 In Thorpe v The Commonwealth [No. 3] [1997] HCA 21; (1997) 71 ALJR 767 at 775, Kirby J summarised the effect of authorities in the United States and Canada as follows (omitting references to authority):
"In the United States of America it has been held that a fiduciary relationship exists in certain circumstances between the United States and the Indian tribes. It would appear that such relationship was found on the basis that the tribes, as domestic dependent nations, had sought and received the protection of the United States, a more powerful government. A fiduciary duty with respect to the lands of indigenous peoples has also received a measure of acceptance in Canada. In the context of land surrendered to the Crown by Aboriginal groups, it has been held that a trust-like relationship was established. Indeed, in Canada it has been suggested that the Crown has a broader responsibility to act in a fiduciary way towards indigenous peoples arising out of the Crown's historical powers over, and assumption of responsibility for, such peoples within its protection. The recognition of Aboriginal rights within the Canadian Constitution has also been invoked as a foundation for a fiduciary relationship."
52 In Fejo his Honour referred, at 148, 149, to the need to exercise care in the use of authorities from other jurisdictions "because of the peculiarities which exist in each of them arising out of historical and constitutional developments, the organisation of the indigenous peoples concerned and applicable geographical or social considerations". Nevertheless, counsel for the second applicants relied on authorities from other jurisdictions as indicating a basis for finding a fiduciary duty which transcended the particular local conditions and the particular legal frameworks of the various jurisdictions.
53 Counsel placed particular reliance on a series of Canadian authorities, the first of which is Guerin v The Queen (1985) 13 DLR (4th) 321. Guerin itself involved a lease of Indian lands to a golf club. A statutory scheme regulating the disposal of Indian lands provided that those lands might be disposed of only by the Crown upon surrender by the Indian band concerned; the Crown, following surrender, negotiated for the disposal of the land on behalf of the band. In those circumstances, there is nothing surprising about the conclusion that the Crown, in negotiating a disposal in that capacity, undertook a fiduciary duty to act in the interests of members of the band. As Dickson J explained the matter, at 340:
"The purpose of this surrender requirement is clearly to interpose the Crown between the Indians and prospective purchasers or lessees of their land, so as to prevent the Indians from being exploited. This is made clear in the Royal Proclamation itself, which prefaces the provision making the Crown an intermediary with a declaration that `great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interest and to the great Dissatisfaction of the said Indians ...'. Through the confirmation in the Indian Act of the historic responsibility which the Crown has undertaken, to act on behalf of the Indians so as to protect their interests in transactions with third parties, Parliament has conferred upon the Crown a discretion to decide for itself where the Indians' best interests really lie. ...This discretion on the part of the Crown, far from ousting, as the Crown contends, the jurisdiction of the Courts to regulate the relationship between the Crown and the Indians, has the effect of transforming the Crown's obligation into a fiduciary one."
54 The language of the Proclamation quoted by his Lordship is reminiscent of language used in the Proclamation and some of the early legislation on which the second applicants rely. In the Canadian legislative scheme, however, the language was directed to abuses requiring the particular protection of laws which specifically interpose the Crown as intermediary for the purpose of protecting the interests of Aboriginal people in dealing with their land.
55 Two aspects of the later Canadian cases relied upon require caution in their use as authority directly applicable in Australia. One is the extent to which they depend upon a construction of particular statutes, most importantly s 35(1) of the Constitution Act 1982 (Can). That section provides that the existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are thereby recognised and affirmed. Lamer CJC pointed out in Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 249 that:
"On a plain reading of the provision, s 35(1) did not create Aboriginal rights; rather, it accorded constitutional status to those rights which were `existing' in 1982."
Nevertheless, it is evident that the "constitutionalisation" of Aboriginal rights has had a significant influence on judicial decisions. So, in R v Sparrow (1990) 70 DLR (4th) 385 at 409, Dickson CJC and La Forest J, delivering the judgment of the Supreme Court of Canada, said this:
"There is no explicit language in the provision that authorises this court or any court to assess the legitimacy of any government legislation that restricts Aboriginal rights. Yet, we find that the words `recognition and affirmation' incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power. Rights that are recognised and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s.35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Such scrutiny is in keeping with the liberal interpretive principle enunciated in [certain earlier authority], and the concept of holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada as suggested by [Guerin]."
56 So, in Delgamuukw Lamer CJC discussed at length the way in which the Courts would consider whether particular measures or governmental acts were justified for the purposes of s 35(1). The relevant passage in his Lordship's judgment commences at 260. In all cases (at 265) consultation is required and the consultation must be in good faith "and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue". Most cases will require something "significantly deeper than mere consultation". Some might require the "full consent of an aboriginal nation". The extent of the considerations which the Court would take into account appears in the following passage at 264:
"The exclusive nature of aboriginal title is relevant to the degree of scrutiny of the infringing measure or action. For example, if the Crown's fiduciary duty requires that aboriginal title be given priority, then it is the altered approach to priority that I laid down in Gladstone which should apply. What is required is that the government demonstrate ... `both that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interest' of the holders of aboriginal title in the land. By analogy with Gladstone, this might entail, for example, that governments accommodate the participation of aboriginal peoples in the development of the resources of British Columbia, that the conferral of the fee simples for agriculture, and of leases and licences for forestry and mining reflect the prior occupation of aboriginal title lands, that economic barriers to aboriginal uses of their land (e.g. licensing fees) be somewhat reduced. This list is illustrative and not exhaustive."
57 Those passages indicate also the other aspect of them which requires caution in their use as authority here. The law as to fiduciary obligations has developed in Canada in ways which are not reflected in developments in Australian law: Breen v Williams [1995] HCA 63; (1996) 186 CLR 71 at 82, 83, 92, 93, 110-114 and 137. See also the statements about the circumstances in which fiduciary obligations arise, and their content, at 113 per Gaudron and McHugh JJ and at 132-138 per Gummow J.
58 Against that background, the United States authorities need not, I think, be discussed at length. Again several aspects of the Unites States legal context require caution in seeking directly to apply United States authority here. One is the limited sovereignty of Indian tribes recognised as "domestic dependent nations": Cherokee Nation v State of Georgia 8 L Ed 25 (1831) at 31, 32. In US v Wheeler 435 US 313 (1978) Stewart J, delivering the opinion of the Court, described the position as follows, at 323:
"The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status."
59 No such sovereignty is recognised in Australia: Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193 at 200. Secondly, the fiduciary or trust relationship recognised in relation to the Indian peoples of the United States appears to arise largely both from their position as domestic dependent nations and from particular statutory regimes: see, for example, US v Mitchell 463 US 206 (1983) at 225-227; see also US v Creek Nation 295 US 103 (1934) at 109, 110. Thirdly, it appears that the law as to fiduciary duty, influenced perhaps by particular statutory contexts, has developed in the United States in ways that have not yet been reflected here: that is illustrated by a case on which the second applicants placed a considerable reliance, Pyramid Lake Paiute Tribe of Indians v Morton 354 Supp 252 (1973), especially at 256-258.
60 In New Zealand, the Treaty of Waitangi has been described as "major support" for a fiduciary duty: Te Runanga o Wharekauri Rekohu Inc v A-G [1993] 2 NZLR 301 at 306; see also Te Runanganui o Te Ika Whenua Inc Society v A-G [1994] 2 NZLR 20 at 24. In the former of those cases Cooke P, delivering the judgment of the Court, referred at 306 to the emerging relevance of fiduciary obligation, in a number of common law jurisdictions, in the context of relations with indigenous peoples; but the circumstances giving rise to such obligations, in jurisdictions other than New Zealand, were not a matter which called for analysis.
61 Duties of the kind for which the second applicants contend have supported the judgment of Toohey J in Mabo [No 2] at 199 ff. After referring to Guerin, his Honour said at 203:
"if the Crown in right of Queensland has the power to alienate land the subject of the Meriam people's traditional rights and interests and the result of that alienation is the loss of traditional title, and if the Meriam people's power to deal with their title is restricted in so far as it is inalienable, except to the Crown, then this power and corresponding vulnerability give rise to a fiduciary obligation on the part of the Crown. The power to destroy or impair a people's interests in this way is extraordinary and is sufficient to attract regulation by Equity to ensure that the position is not abused. The fiduciary relationship arises, therefore, out of the power of the Crown to extinguish traditional title by alienating the land or otherwise; it does not depend on an exercise of that power."
62 His Honour found further support for the existence of fiduciary obligation in the course of dealings by the Queensland Government with the Murray Islanders, the exercise of control or regulation by welfare legislation and the institution by legislation of a form of local government. His Honour summarised his discussion of the content of the fiduciary obligation at 205, as follows:
"A fiduciary has an obligation not to put himself or herself in a position of conflict of interests. But there are numerous examples of the Crown exercising different powers in different capacities. A fiduciary obligation on the Crown does not limit the legislative power of the Queensland Parliament, but legislation will be a breach of that obligation if its effect is adverse to the interests of the title holders, or if the process it establishes does not take account of those interests."
63 A number of matters should be noted before proceeding further. One is that Toohey J made clear, at 195, his acceptance of the proposition that, if legislation reveals a clear and plain intention to extinguish traditional native title, it is effective to do so. Secondly, the plaintiffs in Mabo [No 2], though they claimed a declaration that there was a trust or fiduciary obligation, did not claim any specific relief for breach of fiduciary duty (see at 199, 200). Thirdly, none of the other judgments in Mabo [No 2] supports the existence of a fiduciary obligation of the kind discussed by Toohey J. Dawson J (who dissented) took the view that no such obligation could exist consistently with his view that "upon annexation the lands comprising the Murray Islands became Crown lands and the Crown asserted the right to deal with those lands unimpeded by any recognition of, or acquiescence in, native title" (at 167). Deane and Gaudron JJ did not refer to the possible existence of a fiduciary obligation. On the other hand, their Honours held that a wrongful extinguishment of native title might give rise to a claim for compensatory damages and (in the passage to which I have already referred) that equitable relief might also be available in appropriate cases, including (at 113) "the imposition of a remedial constructive trust framed to reflect the incidents and limitations of the rights under the common law native title". It seems, however, that their Honours contemplated that remedy being imposed in circumstances where there was an actual threatened interference with the enjoyment of rights derived from native title, where that title continued to exist: that is, had not been extinguished. Their Honours held (at 111) that the Crown had power (for example by legislation in clear and unambiguous terms) wrongfully to extinguish native title by inconsistent grant. Such an extinguishment, being wrongful though effective, might give rise to an obligation to pay compensatory damages.
64 Mason CJ, Brennan and McHugh JJ, however, did not agree, subject to the operation of the Racial Discrimination Act, that extinguishment of native title by inconsistent grant was wrongful or gave rise to a claim for compensatory damages. And in Wik Brennan CJ held, in relation to the exercise of powers of alienation under the Land Act 1910 (Qld) (and in language equally apposite to the Western Australian legislation), at 83:
"... indeed, the proposition that the Crown is under a fiduciary duty to the holders of native title to advance, protect or safeguard their interests while alienating their land is self-contradictory. The sovereign power of alienation was antipathetic to the safeguarding of the holders of native title. In conferring the power of alienation, Parliament imposed no guidelines to be observed in its exercise. The power was to be exercised as the Governor in Council saw fit. At the time when the 1910 Act conferred the power of alienation on the Governor in Council, native title was not recognised by the Courts. The power was not conditioned on the safeguarding or even the considering of the interests of those who would now be recognised as the holders of native title."
And, at 97, his Honour held that the absence of fiduciary duty precluded the acceptance of a submission that a constructive trust should be imposed.
65 In Thorpe, Kirby J considered the authorities and concluded, at 776:
"The result is that whether a fiduciary duty is owed by the Crown to the indigenous peoples of Australia remains an open question. This Court has simply not determined it. Certainly, it has not determined it adversely to the proposition. On the other hand, there is no holding endorsing such a fiduciary duty, still less for the generality of the claim asserted in the first declaration in Mr Thorpe's writ."
66 In my view, the foregoing discussion leads to two conclusions. One is that the authorities from other jurisdictions do not provide a firm basis for the assertion of a fiduciary duty of the kind for which the second applicants contend. The other is that the tendency of authority in the High Court - including, significantly, Breen - is against the existence of such a duty. That, of course, does not mean that circumstances will not arise in which the Crown has fiduciary duties, owed to particular indigenous people, in relation to the alienation of land over which they hold native title. Nor does it mean that where, in particular circumstances, a duty of that kind is breached (or a breach is threatened) a constructive trust might not appropriately be imposed. But the second applicants' pleading does not, in my view, allege facts which would establish a fiduciary duty, on the part either of the State or of the Commonwealth, requiring either the State or the Commonwealth not to participate as they did (or in the manner in which they did) in the transactions as a result of which the Commonwealth obtained title to the land incorporating the claim area.
67 In any event, however, the argument about fiduciary duty and constructive trust, and for that matter a good deal of the foregoing discussion, is in my view largely beside the point. The separate questions ask, principally, whether any native title to the various parts of the claim area has been extinguished by one, or by combinations, of the various transactions of which Mr Guthrie gave evidence. The proceeding itself is one in which a determination of native title is sought in relation to the claim area: such an application may result (Native Title Act, s 225) in a determination that native title does not exist in relation to an area, because any native title that may have existed has been extinguished. Neither the separate questions nor the application in the proceeding invite, if the conclusion is reached that any native title has been extinguished, an inquiry into whether the extinguishment was wrongful or, if so, what remedies might be available and appropriate. None of the Australian authorities suggests that if the Crown, in accordance with plain and unambiguous legislation, grants or assumes an interest in land which confers rights inconsistent with the continued existence of native title, native title, in some form, persists. To the contrary, it is extinguished, and the act of extinguishment is effective even if it is wrongful. It may well be that the balance of authority does not favour the proposition that an act which extinguishes native title, carried out in accordance with legislation which in plain terms authorises it, is ever to be regarded as wrongful. But that, again, is beside the point: if wrongful, it is nevertheless effective. And, in my view, even if an act giving rise to extinguishment was wrongful, a proposition that the substance of native title nevertheless persisted, or might be revived, by medium of a constructive trust is irreconcilable with the clear statements of principle in Fejo. Equally, I do not see how a constructive trust having that effect could subsist, or properly be imposed, in the face of provisions such as s 16 and s 17 of the 1906 Acquisition Act and s 10 and s 11 of the 1955 Acquisition Act.
CONCLUSION
68 For those reasons, in my view, it is established that any native title has been extinguished in relation to the entirety of the claim area. Nothing is to be gained, in the circumstances, from a consideration of the effect of the acquisition of title by the FAC. A consideration of the effect of the transactions giving effect to it would be relevant only if I were wrong in concluding that the various acquisitions by Guildford Municipality and the Commonwealth extinguished native title: in that case the acquisition by FAC might be relevant if FAC did not itself represent the Crown. As to that, I think the only course I could properly take, having regard to the careful discussion of substantially the same issue by Ryan J in Ventana Pty Ltd v Federal Airports Corporation & Fairways Group Pty Ltd (1997) 147 ALR 200 at 209-218, would be to hold that FAC does represent the Crown. It was suggested that Ventana might need to be reconsidered in the light of Re Residential Tenancies Tribunal (NSW); ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410; but it is not obvious to me why, in relation to the present question at least, that should be so.
69 I answer the questions, set out in par 2, as follows:
1. Yes.
2. Yes.
3. To the extent that native title had not previously been extinguished, yes.
4. Native title had previously been extinguished: see the answer to question 1.
5. (a) No.
(b) Does not arise.
(c) Yes.
6. Unnecessary to answer.
7. Unnecessary to answer.
8. Unnecessary to answer.
70 Those are the answers contended for by the Commonwealth and the State, with the support of Westralia. No party asked me to specify the precise point at which, in the transactions referred to in questions 1, 2, 3, 4 and 5(c), any native title was extinguished. Probably it does not greatly matter. As will be evident from my reasons, however, my view is that in each case where the State made a grant of an estate in fee simple, extinguishment occurred upon grant: that is, before registration of the grant under the Transfer of Land Act. Where the Commonwealth acquired land by compulsory process, extinguishment took place on the occurrence of the event which vested title in the Commonwealth: that is, the publication of the notice in the Gazette.
71 The matter will be set down on a date to be fixed to deal with any consequential matters.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane. |
Associate:
Dated: 13 November 2000
Counsel for the First Applicant: |
The first applicant appeared in person |
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Counsel for the Second Applicants: |
G McIntyre |
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Solicitor for the Second Applicants: |
Dwyer Durack |
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Counsel for the First Respondent: |
G Donaldson |
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Solicitor for the First Respondent: |
Hotchkin Hanly |
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Counsel for the Second Respondent: |
D M J Bennett QC Dr M Perry A Beech |
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Solicitor for the Second Respondent: |
Australian Government Solicitor |
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Counsel for the Third Respondent: |
K Pettit J Wright |
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Solicitor for the Third Respondent: |
Crown Solicitor for the State of Western Australia |
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Date of Hearing: |
24 and 25 July 2000 |
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Date of Judgment: |
13 November 2000 |
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