Douglas Wilson v Michael Anderson and Ors [1999] NSWSC 8 (20 January 1999)

Last Updated: 1 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Douglas Wilson v Michael Anderson & Ors [1999] NSWSC 8

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 10918 of 1998

HEARING DATE{S): 9 June 1998 - 10 June 1998

JUDGDMENT DATE: 20/01/1999

PARTIES:

DOUGLAS WILSON

(Plaintiff)

v

MICHAEL ANDERSON (Registered Native Title Claimant on Behalf of the Euahlay-i Dixon Clan) & Ors

(First Defendant)

NEW SOUTH WALES ABORIGINAL LAND COUNCIL

(Second Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

A.Sullivan Q.C. (Plaintiff)

P. Larkin (First Defendant)

J. Basten Q.C. (Second Defendant)

SOLICITORS:

Blake Dawson Waldron (Plaintiff)

Craddock Murray Neumann (First Defendant)

Andrew Chalk Associates (Second Defendant)

CATCHWORDS:

Aboriginals

Native Title

Native Title Act 1993 & 1998 (Cth)

Supreme Court Act 1970

Western Lands Acts 1901 (NSW)

Summons for Declarations as to extinguishment or suspension of native title in respect of land under Western Lands Act Lease

Concurrent proceedings under Native Title Act

Notice of Motion by plaintiff for removal to Court of Appeal

Notice of Motion by defendants for stay of Supreme Court proceedings

Jurisdiction of Supreme Court

Jurisdiction of National Native Title Tribunal, Federal Court & High Court

ACTS CITED:

Supreme Court Act 1970

Western Lands Act 1901 (NSW)

Native Title Act 1993 & 1998

Jurisdiction of Courts (Cross-Vesting) Act 1987

Judiciary Act 1903

Administrative Decisions (Judicial Review) Act 1977 (Cth)

DECISION:

1. The plaintiff's Notice of Motion filed on 27 April 1998 is dismissed

2. In respect of the first defendant's Notice of Motion filed on 27 April 1998, in the exercise of my discretion, I make Order 1 that the proceedings constituted by the plaintiff's Amended Summons filed on 27 April 1998 be stayed

3. In respect of the Notice of Motion filed by the second defendant on 19 May 1998, in the exercise of my discretion, I make Order 1 that the proceedings constituted by the plaintiff's Amended Summons filed on 27 April 1998 be stayed

4. As between the plaintiff and the first defendant I order the plaintiff to pay that party's costs

5. As between the plaintiff and the second defendant, pursuant to the orders made by Bell AJ on 29 April 1998, I make no order as to costs.

JUDGMENT:

- 86 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

No. 10918 of 1998

JUSTICE DAVID LEVINE

WEDNESDAY 20 JANUARY 1999

DOUGLAS WILSON

(Plaintiff)

v

MICHAEL ANDERSON

(Registered Native Title Claimant on Behalf of the Euahlay-i Dixon Clan) & ORS

(First Defendant)

NEW SOUTH WALES ABORIGINAL LAND COUNCIL

(Second Defendant)

Reasons For Judgment

1 On 29 April 1998, Bell AJ made consent orders as to the joinder of the New South Wales Aboriginal Land Council (NSWALC) as second defendant on a costs neutral basis. The first defendant (Anderson) is the Registered Native Title Claimant on behalf of the Euahlay-i Dixon Clan.

2 By leave granted on 27 April 1998 the plaintiff filed an Amended Summons in Court seeking the following substantive relief:

"1. A declaration that native title, if any, that may have existed over land the subject of Western Lands Lease No. 7951 granted under Western Lands Act 1901 (NSW) ("the Act") was extinguished by virtue of one or more of:

(a) the provisions of the Act, or regulations or instruments made thereunder, at any time;

(b) the grant of Western Lands Lease No. 7951;

(c) the terms and conditions of Westerns Land Lease No. 7951 at any time;

(d) the entry by the current or any previous lessee under Western Lands Lease No. 7951 onto the subject land at any time.

2. In the alternative to 1, a declaration that native title, if any, that may have existed over land the subject of Western Lands Lease No. 7951 is suspended for the duration of Western Lands Lease No. 7951".

3 (Orders 4 and 5 are not sought: they relate to seeking to have withdrawn Proceedings NC 96/26 in the National Native Title Tribunal and to restraining the first defendant from lodging any further claim).

4 By Notice of Motion also filed on 27 April 1998 the plaintiff seeks to have the Amended Summons proceedings removed to the Court of Appeal (Supreme Court Act 1970, s 51(5); SCR Pt 12 r 2). The Motion sets out essentially as a series of questions for determination by that Court in the event of removal, the substance of the declarations sought, or their determination as separate questions of law (SCr Pot 31 r 2).

5 Each of the defendants has filed a Notice of Motion. That of the first (Anderson) seeks an order that the proceedings instituted by the plaintiff be stayed. The second defendant (NSWALC) seeks the following:

"1. That the proceedings be stayed or dismissed on the grounds that:

(1) the Court does not have jurisdiction in relation to the subject matter of the proceedings;

(2) the court does not have power to grant the relief sought;

(3) if the Court does have jurisdiction and power, it would in its discretion decline to grant the relief sought; and

(4) the commencement of the proceedings is an abuse of process of the Court".

6 The substantive issue in the plaintiff's proceedings is whether or not the relevant lease granted under the Western Lands Act, 1901 extinguishes or suspends native title.

7 The proceedings before me were concerned however with the parties' respective Notices of Motion.

The Evidence

8 The annexures to the affidavits sworn 28 April 1998 by the plaintiff's solicitor, Mr Emmerig are constituted by the relevant Western Land Lease number 7951: a title search disclosing the plaintiff as lessee; a Registrar-General's Memorandum as to Reservations, etc.; an extract of the Register of National Native Title Claims in respective of the first defendant; an Amended Land Area Description disclosing the claim to cover the land area of the lease and the first defendant's Native Title Act, 1993 (Cth) Application as a person claiming to hold native title.

9 In his second affidavit, sworn 4 June 1998 (and admitted over objection (T5.15)), Mr Emmerig deposes, on information and belief, as to certain statistical material with respect to; 8,494 Western Lands Division leases; 4,250 of which are Grazing Leases; 1,500 leaseholders; the amount of land covered by such leases being 42 per cent of this State (32.5 million hectares). Mr Emmerig also deposes to the role of the NSW Farmers Association played in aid of its Western Division members following the decision of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1 ("Wik").

10 Mr Emmerig was cross-examined by Mr Basten Q.C. for the second defendant. The bare statistical material was unchallenged. The deponent's opinion as to the relevant lease vis-a-vis other Crown leases, whilst based on the information given to him by a Mr Ibbotson, a Department of Land and Water Conservation officer, was not founded otherwise in personal knowledge. Mr Emmerig could not assist the Court as to the relevant lease in relation to timber-getting rights, withdrawal of land, disposal of leases, stock routes, camping and taking of water. In the end, the witness himself was unable to express a view as to whether the plaintiff's lease was typical of Western Division leases generally.

11 For the defendants the first affidavit read was that sworn on 24 April 1998 by Simon Blackshield, Senior Legal Officer of the Native Title Unit of NSWALC. He deposed to the NSWALC having been determined the representative Aboriginal/Torres Strait Islander body for the whole of this State pursuant to s 202 of the Native Title Act, 1993 (Cth). On 24 July 1996 NSWALC lodged a Native Title Determination Application which was accepted on 1 November 1996 by the National Native Title Tribunal (NNTT). On 12 November 1996 NSWALC gave notice pursuant to s 68 of the Native Title Act, of its intention to become a party, its status as a party being accepted by NNTT on 15 November 1996. Relevant documents are annexed to the affidavit. Also annexed are documents prepared by NNTT listing interested parties to the application. The substance of this documentary material will be referred to later. NSWALC intends to play an active role in the application, assisting indigenous parties and providing factual information for the purposes of the application and to file evidence thereon if an when the matter is referred to the Federal Court of Australia under the Native Title Act.

12 A second affidavit (sworn 28 April 1998) of Mr Blackshield deposes to NSWALC agreeing to representation for the Kennedy and McBride families as an indigenous party to the native title application. The balance of the affidavit material is comprised of affidavits of Sean Docker (sworn 8 June 1998) relating to the discontinued proceedings in matter 10917 of 1998); and Paul Toni (sworn 29 May 1998) relating to the request for and the supply of certain particulars.

13 The affidavit of Andrew Chalk, sworn 9 June 1998, annexes correspondence relating to written submissions and a proposed statement of agreed facts. As to this last mentioned, there is a dispute as to the extent of agreement reached. This is significant in the context particularly of the application for removal to the Court of Appeal.

Submissions & Issues on Stay Applications

14 The original Summons was filed in this matter on 9 April 1998. The hearing of argument took place before me on 9 and 10 June 1998 by which time written submissions had been delivered and filed by the parties. During the course of submissions reference was of course made to the Native Title Act, 1993 (Cth). There was passing reference in oral submissions and particular reference in the written submissions prepared by Mr Sullivan Q.C. for the plaintiff, to the fact of the Native Title Amendment Act, 1998. The Amendment Act came into effect on 30 September 1998 at which time my judgment on the three motions was still reserved.

15 On 13 August 1998 the solicitors for the plaintiff were good enough to inform me of the enactment of the amending legislation. On 4 September 1998 I arranged a memorandum to be delivered to counsel inviting further submissions by the parties, if so advised, as to the effect, if any of the Native Title Amendment Act, 1998, on the submissions and arguments heard by me on 9 and 10 June.

16 Supplementary submissions were filed for the second defendant (NSWALC) on 18 September 1998 which submissions were adopted by the first defendant (Anderson).

17 Supplementary submissions for the plaintiff were delivered on 24 September 1998.

18 On 14 October 1998 a communication from the solicitors for the plaintiff was received in my chambers enclosing a proposed affidavit of Mr Emmerig sworn on that day to which was annexed an extract from Hansard relating to the debate in the New South Wales Parliament on 23 September 1998 in relation to the Native Title (NSW) Amendment Bill. There has been no communication from the other parties consequent upon the delivery of the letter from the plaintiff's solicitors of 14 October 1998.

19 I propose to deal first with the submissions made orally and in writing on 9 and 10 June in the light of then Native Title Act 1993. Having done so I will then consider the submissions as to the effect of the amending legislation whereupon I will make my rulings on the motions for a stay.

20 The defendants perceive the institution of these proceedings as calling upon this Court to take steps which would deny them the opportunity to exercise statutory rights existing under Commonwealth legislation.

21 It is fundamental to the defendants' position that the Native Title Act provides an exclusive code in relation to the dealing with claims for native title made under the legislation.

22 Native title is a set or bundle of rights and interests in relation to land which derive, not from the common law of Australia, but from custom and tradition of those indigenous people who historically occupied this country before European settlement (Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 ("Mabo No.2").

23 It is submitted that where an application has been made to the Native Title Registrar pursuant to s 61 of the Native Title Act the Supreme Court of New South Wales has no jurisdiction to make orders and grant relief in relation to that application or more particularly the land and any native title claims the subject of that application.

24 The Native Title Act provides that native title is recognised and protected in accordance with that Act (s 10). Native title is not "able to be extinguished" contrary to that Act (s 11(1)).

25 Section 13 provides for applications to the Federal Court for approved determinations of native title under Part 3 of the Act. Section13(3) relevantly provides that an approved determination of native title is a determination made on application under Part 3 to the Federal Court of Australia and "an order/judgment or other decision of a recognised State/Territory body that involves a determination of Native Title in relation to an area within the jurisdictional limits of the State or Territory" (s (13(3)(b)).

26 It is conceded by the plaintiff that there is no recognised State body as is referred to in the sub-section. The defendants however, rely upon the existence of the provisions relating to recognised State/Territory bodies as reinforcing the "exclusive" nature of the scheme for determination of native title under the Commonwealth Act.

27 The definition in s 253 of "recognised State/Territory body" directs attention to s 251(2) which provides for the criteria to be satisfied before the Minister makes a determination as to such a body.

28 Section 251(2) provides:

(2) In order to ensure that there is a nationally consistent approach to the recognition and protection of native title, the Commonwealth Minister must not make the determination unless the Commonwealth Minister is satisfied that:

(a) any procedures under the law of the State or Territory for:

(i) approved determinations of native title by the body; and

(ii) determinations of compensation for acts affecting native title; and

(iii) determinations whether acts affecting native title may be done; will be consistent with those set out in this Act; and

(b) any procedures that will apply under the law of the State or Territory for the registration and notification of any claims in respect of native title that may be made to the body will be efficient; and

(c) the body will have available to it, through its membership or otherwise, appropriate expertise (including expertise in matters relating to Aboriginal peoples and Torres Strait Islanders) for performing its functions in relation to native title; and

(d) the procedures of the body under the law of the State or Territory in performing its functions in relation to native title will be informal, accessible and expeditious; and

(e) the body will, under the law of the State or Territory, be able to mediate matters appropriate cases; and

(f) the body will have adequate resources to enable it to perform its functions in relation to native title..."

29 Thus, it is said, the Act reveals the statutory scheme which is inconsistent with the exercise by this Court of functions arising under the Native Title Act including that of determining whether or not native title exists in relation to particular land or waters. Further, I would take it that reliance is placed particularly in relation to any discretion considerations, to the reference to a nationally consistent approach referred to in the section.

30 As to Part 3 - Applications: s 62 sets out the formalities which must be complied with for a native title application under s 61. The relevant application is annexure B to Mr Blackshield's affidavit of 24 April 1998. Upon the application being lodged, the Registrar is obliged to put the details of the claim on the Register; this is provided for in Pt 7 of the Act, s 184 and following. Section 109, the keeping of the Register, requires, inter alia, the Registrar to include details of any claim "accepted" by the Registrar.

31 The Register of claims under Pt 7 is not to be confused with the National Native Title Register under Pt 8 which deals with the recording of native title determinations.

32 As has been referred to in the evidence, the claim has been "accepted" by the Registrar (see annexure C to Mr Blackshield's affidavit, supra). Notice is to be given to various persons (ss 63 and 66); this has taken place. The evidence before me (annexure F to Mr Blackshield's affidavit) discloses a total of 844 parties to the Native Title Application, including the claimant, 16 other indigenous parties with native title interests and 776 holding mining interests.

33 There is a scheme pursuant to which the Tribunal is required to seek a resolution of the application including by way of mediation. Failing a successful outcome therefrom the application is lodged (s 74) with the Federal Court.

34 Section 81 of the Act provides:

"The Federal Court has jurisdiction to hear and determine applications lodged with it under section 74 and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court".

35 This is the foundation for the "exclusive" jurisdiction. The determination of the Federal Court is an approved determination under s 13(3) and is binding in rem (Wik Peoples v Queensland [1994] FCA 967; (1994) 49 FCR 1).

36 Reference was also made in the course of submissions by Mr Basten Q.C. as to the outline of the legislation, to s 213 of the Act which provides that for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in the Act and subject to the Act, the Federal Court has jurisdiction in relation to matters arising under the Act. Section 220 of the Act, in combination with the Jurisdiction of Courts (Cross-Vesting) Act, 1987, s 4 proscribes the cross-vesting of matters from the Federal Court.

37 It is to be noted also that by the operation of s 61 a person who holds a "non-native" title interest in relation to the whole of the area in relation to which the determination is sought, may make an application with respect to the determination of native title.

38 Again, for completeness it was said, I was referred to what I shall describe as the "past acts" validation sections, ss 14 and 15 of the Act, and Div. 3 dealing with "future acts" (as defined in s 233), and in particular, s 24 which deals with what are described as "unopposed non-claimant applications".

39 This last mentioned section picks up s 67(4): "if a non-claimant application is not taken to have been dismissed (for example, on the making of a claimant application)" (s 67(2)) it is taken to be unopposed. The point of this complex reference, as I understood it, was that it was open to a person in the position of the present plaintiff to make a non-claimant application for whatever purpose he needed in relation to the land in which he has an interest (for example, to upgrade or develop), and absent then any native title interest to be taken into account, his position would be identified and made clear. The Act has a structure for such a purpose: if that mechanism is engaged it is stopped by native title claim. Thus, it is argued that in the present case, where, absent a non-claimant application by the plaintiff, but in the face of a claimant application, the plaintiff's claim in the proceedings in this Court run counter to the clearly envisaged scheme under the legislation.

40 The "future acts" regime to which I have referred as a component of the "scheme" relied upon by the defendants, was considered by the High Court in what is known as the Native Title Act Case (State of Western v The Commonwealth; v Wororra People & Ors v The State of Western Australia [1995] HCA 47; (1994-1995) 183 CLR 373). The case involved a detailed consideration of the Native Title Act and its validity in a context where Western Australia had passed legislation purporting to transform native title into a set of statutory rights. Shortly stated, it was held that that legislative attempt was invalid. Bearing in mind the purpose of the Court's extensive review of the legislation, the following passage (from p 453) is relied upon as an indication of the view being taken of the legislation as a code:

"The first of the enacted objects of the Native Title Act is `to provide for the recognition and protection of native title' (s 3(a)). This object is achieved by a statutory declaration (s 11(1)) that native title `is not able to be extinguished contrary to this Act.' The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilization of all acts which would otherwise defeat native title. By that prima facie sterilization, s.11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title".

41 To similar effect is a passage at 457-8 of the High Court's general survey dealing with particularly the rights to negotiate provisions in Div. 3 Pt 2 s 26 and following (in the context of the impairment of native title by compulsory acquisition and mining leases).

"Subdivision B of Div.3 of the Native Title Act contains provisions conferring a "right to negotiate" on the holders of native title when the Commonwealth, a State or a Territory proposes to create, vary or extend a right to mine or to acquire compulsorily native title rights and interests in order to confer rights or interests on some person other than the acquiring Government or to do some other act approved by the Commonwealth Minister administering the Act (s 26(2)). "Native title parties" are entitled to notice (s 29), to negotiate (ss 30, 31, 32, 33) and, in the event of disagreement (s 37), to have the question determined by an arbitral body (ss 27 35, 38, 39). In addition, notice must be given to the public, the arbitral body and to any person who seeks the doing of the particular future act (s 29(2)(d), (e), (3)). In these cases, the proposed future act is invalid unless (i) agreement is reached by the negotiating parties (s 28(1)(d)), (ii) the arbitral body determines the proposed act may be done, with or without conditions (s 28(1)(e)), or (iii) in the event of a determination that the act must not be done, a Commonwealth, State or Territory Minister overrules the determination, with or without conditions (ss 28(1)(f), 42). If the act is done and conditions apply, they have the force of a contract among the negotiating parties (ss 34, 41, 42(7)).

The effect of a permissible future act on native title depends on the nature of the act. If a Commonwealth, State or Territory law provides for the compulsory acquisition of native title and other interests in relation to land or waters and for compensation in money or a form other than money, acquisition under the law is valid and an act done "in giving effect to the purpose of the acquisition" may extinguish native title (s 23(3)). But the mere acquisition of native title or the doing of any other permissible future act does not extinguish native title; it merely suspends native title rights and interests so far and for so long as is necessary to allow the permissible future act to operate and have effect. Compensation is payable by the Commonwealth, State or Territory as the case may be or, if the relevant statute so provides, by the person who has requested that the permissible future act be done (s 23(5)). If a permissible future act relates to an area over which native title has not been claimed before a Native Title Tribunal and in respect of which it is claimed without objection that there is no native title (s 67), any future act is valid and may extinguish native title unless a competent court or tribunal has subsequently determined that native title exists (ss 24, 13(3), (4), (7), 253). If it turns out that native title rights and interests have thereby been extinguished or impaired, the holder is entitled to compensation.

Apart from extinguishment by past acts and future acts, native title can be extinguished by agreement between the holders of native title and the Commonwealth, State or Territory (as the case may be) in which the relevant land is situated. The agreement may either surrender the native title or authorize a future act that will affect the holders' native title. The consideration may consist in a grant of freehold or some other interest in the same or other land (s 21)".

42 This again recognises the nature of an exclusive code provided by the legislation and in relation to "future acts".

43 It is further submitted that in circumstances where an application has been accepted the submission of a claim to judicial determination (as per the Amended Summons to the Supreme Court of New South Wales in this case), amounts to "inverting" the statutory order of disposing of claims, a fortiori before the stage of negotiation is reached under the Act. The structure of the Native Title Act, it is submitted, points to two broad categories of applications: opposed applications which go to the Federal Court for judicial determination and unopposed applications for determination by the Tribunal. The process of migration of a claim from the latter to the former cannot be subverted or should not be subverted or "inverted" by seeking a judicial determination dehors the Act and its scheme: North Ganalanja Aboriginal Corporation & Anor v The State of Queensland & Ors (1995-1996) 185 CLR 595; see Gummow J at 625).

44 It is important to note at this juncture that it is not the defendants contention, for example, that s 81 of the Native Title Act by reason of its reference to the exclusive jurisdiction of the Federal Court thereby creates generally an exclusive jurisdiction. As I understood their submissions, the defendants conformably with the position taken by the plaintiff, assert that the Federal Court has exclusive jurisdiction upon the initiation of native title claims under the Native Title Act. In that regard there is no issue.

45 Further, it is not the submission of the defendants that in no circumstances can a native title question be considered, for example, by a State Court. In this regard reference is made to the decision of Mason v Tritton (1994) 34 NSWLR 572 where in the defence of a criminal prosecution relating to fishing for abalone without a licence the question of entitlement under native title rights arose. Indeed, the Register referred to in s 193 of the Native Title Act, that is, the Register of determinations to which I referred earlier, in s 193(1)(c) refers to other determinations in relation to native title in decisions of courts. It is acknowledged that at least by reason of that component of the statutory provision for the determination register, it is envisaged that determinations will arise in other circumstances. It is submitted, however, that even if such "other circumstances" exist that does not mean that the whole scheme of the Act can be subverted by an attempt to have a court such as the Supreme Court make a determination where the primary, and indeed only purpose, is to ascertain whether or not native title exists. As I understand it, the position of the defendants is that, save for the "other circumstances" to which I have referred and as exemplified by the case of Mason v Tritton, the overall scheme of the legislation points to the substantive and procedural propriety of the valid Commonwealth statute (its constitutionality not here being challenged) having a particular (and generally universal operation) to which State law must give way including s 23 of the Supreme Court Act.

46 Particular reliance is placed in this area generally upon the decision of the High Court in the North Ganalanja case (supra).

47 The case provides an analysis of the Native Title Act and in particular the operation of ss 61 and 63. An application was made to the NNTT for a determination in respect to land in North Queensland. The Registrar accepted material from mining companies contending that native title had been extinguished by pastoral leases. The Registrar did not accept the applicant's claim on the basis that prima facie it could not be made out. The President affirmed the Registrar's decision on the ground that Mabo No.2 (supra) had established a principle that the grant of a leasehold interest conferring rights of exclusive possession, unqualified by any right of access in favour of Aboriginal people generally, was inconsistent with the continuance of native title rights and that where native title had been extinguished it could be revived by the common law. The full Federal Court made findings of fact which differed from those of the President but formed conclusions consistent with the President's decision. The High Court held that on the basis of the material submitted by the applicants their claim was fairly arguable and the Registrar should have accepted the application. The High Court declined to consider the question of extinguishment in the particular case.

48 The defendants rely on several passages in the judgments of Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ and the separate judgment of McHugh J as pointing to, at least, an "exclusive scheme" under the Native Title Act and what is said to be the risk, if not the reality of such exclusive jurisdiction/scheme being subverted by proceedings such as the present in this Court. Such submissions are advanced in support of the "substantive" basis for the grant of a stay by this Court. I add that the extracts which follow, even if to some extent repetitive, usefully provide a general guide to and through the legislation.

49 As to the perceived benefits of the Act, their Honours state (at 614):

"Although a claim to native title as defined in Mabo [No 2] was justiciable, the issues of fact raised by such a claim were complex and, in the event of opposition, would be likely to take significant time and resources (including judicial resources) to determine. If native title were claimed, the preservation of the status quo while the claim was awaiting determination would pose a particular problem, not only for the claimants and the Crown but also for those who might be seeking access to the land for mining or other non-traditional purposes. The preamble to the Act indicates the legislative preference for resolving these problems by negotiation. It contains the following:

`In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character'".

50 After referring to the "mischief's" (the remoteness of Aboriginal communities and attendant disadvantages in relation to the identification and assertion of rights) their Honours continued (at 615):

"The Act provided a set of solutions for these problems as the following brief conspectus shows. The Act is divided into 15 Parts. Part 2 of the Act (ss 10-60) is headed "Native Title", Pt 3 (ss 61-79) "Applications", and Pt 4 (ss 80-94) "Determinations of the Federal Court".

Once a claim for the determination of native title is accepted, a procedure is set in train whereby the Registrar notifies the relevant State or Territory government, persons holding proprietary interests and other bodies and persons listed in s 66(2)(a), and also notifies the public (s 66(2)(b)). Those to whom notice is given under s 66(2)(a) and other persons whose interests may be affected by the determination may become parties to the application (s 68). If an application which has been accepted under s 63 is unopposed, then the NNTT may make a determination pursuant to s 70(1).

If the parties to the application agree on the terms of a determination of the application consistent with the powers of the NNTT and the NNTT is satisfied that such a determination would be "appropriate in the circumstances", the NNTT must make a determination in accordance with those terms (s 71). Failing agreement, the matter goes to mediation and thence either to agreement by the parties and determination in accordance therewith (s 73) or to the Federal Court for judicial determination (s 74)".

51 The nature and importance of the "right to negotiate" is explained at 616-617. (This right to negotiate, as a sole right, is relied upon by Mr Sullivan in support of the plaintiff's position in opposition to the substantive basis for the stay).

"Sub-division B of Div 3 of Pt 2 of the Act denies the Governments of the Commonwealth, States and Territories power (s 28) to confer, inter alia, mining rights (s 26(2) in respect of land that is the subject of an accepted claim to native title unless notice of an intention to do so is first given to the registered native title claimant (s 29(2)(b) and a procedure is followed through which ordinarily ( ss 26(3), (4), 32) requires the Government to negotiate with the claimants and the miner. The negotiation is assisted, if desired, by mediation by the NNTT or other arbitral body (s 31). The procedure may terminate either in an agreement (s 37) or in a determination by the NNTT or other arbitral body that the Government may or may not confer the mining rights in question (or some other interest to which Sub-div B applies) or may do so subject to specified conditions (s 38). Time limits for applying for and for making of determinations of this kind are prescribed (ss 35, 36). Thus, once an application for determination is accepted, the Act maintains the status quo as between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision.

It is erroneous to regard the registered native title claimant's right to negotiate as a windfall accretion to the bundle of those rights for which the claimant seeks recognition by the application. If the claim is well founded, the claimant would be entitled to protection of the claimed native title against those powers and interests which are claimed or sought by persons with whom negotiations might take place under the Act. Equally, it is erroneous to regard the acceptance of an application for determination of native title as a stripping away of a power otherwise possessed by Government to confer mining rights and the other rights to which Sub-div B applies. If the claim of native title is well founded, the power was not available to be exercised to defeat without compensation the claimant's native title. The Act simply preserves the status quo pending determination of an accepted application claiming native title in land subject to the procedures referred to. The mere acceptance of an application for determination of native title does not otherwise affect rights, powers or interests.

A claim of native title requires an examination of facts that fall broadly into two categories: the continuity of the connection of the claimants and their ancestors with the land in which native title is claimed and the "tenure history" of that land so far as it appears from Crown grant, Crown licence or Crown use. In recognition of the fact that some applicants for the determination of native title may be unfamiliar with the requirements of the Act and may not have the resources to conduct searches of historical or other documents that may be required to support the application, s 78(1) confers on the Registrar the function of rendering "such assistance as the Registrar considers reasonable to help people prepare applications and accompanying material".

If it be practicable to resolve an application for determination of native title by negotiation and agreement rather than by the judicial determination of complex issues, the Court and the likely parties to the litigation are saved a great deal in time and resources. Perhaps more importantly, if the persons interested in the determination of those issues negotiate and reach an agreement, they are enabled thereby to establish an amicable relationship between future neighbouring occupiers. To submit a claim for determination of native title to judicial determination before the stage of negotiation is reached is to invert the statutory order of disposing of such claims".

52 In his separate judgment McHugh J, conformably with the approach of the majority, says at 631-2:

"Upon acceptance of a claim, a government of the Commonwealth, a State or a Territory can only grant or vary mining rights, or compulsorily acquire native title rights for the benefit of non-government parties, in respect of land covered by the accepted application if certain procedures are followed(ss 26, 28). Those procedures require the government to notify any registered native title claimant of such proposed action (s 29). The government is also required to negotiate in good faith with the native title claimant and the parties who are to be granted rights over the land, with such negotiations to be carried out "with a view to obtaining the agreement of native title parties" to the granting of the rights (s 31). Relevant matters that may be negotiated include payments to native title parties calculated by reference to profits made, income derived or things produced by the grantee party by using the land (s 33). If any of the negotiating parties request "the arbitral body" to do so, it "must mediate among the parties to assist in obtaining their agreement" (s 31(2)). The object of these procedures is to produce an agreement between the parties (s 37) or a determination by the arbitral body that the proposed right over, or in respect of, the land should or should not be granted (ss 35, 36, 38)".

53 He later affirms the identification of the significance of the structure of the Act and its Preamble (at 637):

Another important circumstance is that the structure of the legislation makes it clear that the primary role of the Tribunal is to screen claims and to assist the parties to reach settlements. If an application is accepted, ss 66-74 provide for procedures that will result in the application being treated as unopposed, settled by agreement or referred to the Federal Court for decision. If a claim is unopposed or agreement is reached, the Tribunal is given power to make determinations. If the claim is disputed, it must be resolved by the Federal Court if mediation or negotiation fail. The Tribunal has no role in deciding disputed claims of native title.

Another important circumstance is that the Preamble to the Act indicates that one of the purposes of the legislation is to establish a special procedure for determining claims of native title by conciliation and negotiation between interested parties. In furtherance of this purpose, the effect of the Act is that, irrespective of whether a claimant has native title as claimed, as long as the claimant has a prima facie claim of title, he or she obtains the right to negotiate with interested parties once the Registrar accepts the claim (ss 26-42, 72). Those rights of negotiation are valuable rights. They enable an applicant to protect his or her claim against "permissible future acts" (s 26(2). They may also result in the applicant obtaining a commercially beneficial settlement of a doubtful or even non-existent claim".

54 That these several observations constitute authoritative expositions on the Native Title Act, its structure, its purpose and importance cannot be disputed. Whether this decision of the High Court and others, in the end, erect an edifice of jurisdictional exclusivity for which the defendants contend, is another issue.

55 As to the jurisdiction of the Federal Court itself, reference was made to three first instance judgments of that Court.

56 In Djiagween & Ors v Douglas [1994] FCA 951; (1994) 48 FCR 535 the procedural steps taken in the Supreme Court of Western Australia and the Federal Court straddled the commencement of the Native Title Act on 1 January 1994. The applicants before Carr J had commenced proceedings in the Federal Court seeking declarations and injunctive relied against several parties; those proceedings were commenced in September 1993. They claimed traditional native title and possessory title to certain land in Western Australia. In October 1993 the Federal Court ordered the proceedings transferred to the Supreme Court of Western Australia pursuant to the Jurisdiction of Courts (Cross-Vesting) Act, 1987 (Cth). In January 1994 the Supreme Court dismissed the applicants' claim for interlocutory injunctions on the basis that the balance of convenience did not favour the grant of that relief. On 2 February 1994 the applicants applied to the NNTT under the Native Title Act for a determination in respect of the land. On the same day, the applicants applied to the Federal Court for interlocutory injunctive relief to restrain the respondent from interfering with the land the subject of the claim. The State of Western Australia intervened. The respondent and the intervener applied to the Federal Court for orders that the Federal Court application be dismissed or stayed pending the final determination of the Supreme Court of Western Australia proceedings, or that they be transferred to that Court. In the end his Honour held that the Federal Court had jurisdiction to preserve the subject matter of an application to the NNTT. Carr J declined to strike out the proceedings before him as an abuse of process and found the preferable course was to transfer the application back to the Supreme Court of Western Australia under the cross-vesting legislation. As was submitted by Mr Basten it can only be said of this judgment that its tenor was that the Federal Court had the relevant jurisdiction.

57 The Wik Peoples v The State of Queensland & Ors [1994] FCA 967; (1994) 49 FCR 1 involved proceedings which again straddled the commencement of the Native Title Act. Drummond J was confronted with an application for adjournment of proceedings instituted in the Federal Court claiming declarations as to existence of native title. The applicants (the Wik Peoples) applied to the Federal Court that the proceedings be adjourned to enable them to apply to the then new NNTT. One of the factors relevant to the adjournment application was whether a determination of native title by the Federal Court in the original proceedings (that is, proceedings not instituted under the Native Title Act) would operate in rem or in personam and whether the application were to be made to the NNTT and transferred to the Federal Court, a determination by the Federal Court in those proceedings would operate in rem. As I have indicated earlier in these reasons, this judgment is authority for the proposition that a determination of native title by the Federal Court under the Native Title Act is a judgment in rem. It was in the context of his analysis of the Native Title Act (see pp 9 and following) that his Honour came to that conclusion and held accordingly that to refuse the application for the adjournment of the (non-native title) proceedings in the Federal Court and to make a determination of native title in those proceedings would result only in a judgment in personam, while to allow the adjournment and the application to the NNTT and its transfer therefrom to the Federal Court would enable that Court to make a determination of native title which would operate in rem. Whilst in the end his Honour did not have to make a decision as to the jurisdiction of the Federal Court to the exclusion of all others, he did remark at page 12 having referred to Mabo No. 2 (supra):

"But subject to judgment in the action binding all represented persons, any judgment in this action involving a determination on the claim to native title can operate only as judgment in personam; as such, it could not bind any persons, other than those persons who have been joined as respondents in the action, who are interested in any of these lands the subject of this action, including Aboriginal people who may wish to make different claims to native title in respect of any of these lands".

58 His Honour's comments were relied upon specifically in the context of the 16 other indigenous parties with native title interests in the current application before the NNTT referred to above as evidenced in the affidavit of Mr Blackshield vis-a-vis the particular parties to the application presently before this Court.

59 The third judgment of the Federal Court was that Lockhart J in Yuin Council of Elders Aboriginal Corporation v New South Wales (1995) 60 FCR 501.

60 The headnote purports to inform that the Native Title Act deals with native title and compensation claims within Pt 3 (s 66); there is provision for "non-claimant" to the NNTT and provisions (s 67) for such applications to be treated as "unopposed". Apparently within the proceedings with which his Honour was concerned, a purchaser of lands comprising closed lands which had been sold in pursuance of the Crown Lands Act, 1989 (NSW) had made a "non-claimant" application which was taken to be unopposed within the operation of the Native Title Act. Section 213 of that Act required that determinations of native title be made in accordance with the procedures of that Act and conferred jurisdiction on the Federal Court in relation to matters arising under the Act. Section 24(2) provided that native title holders could recover compensation from the Crown in right of a State if the Act giving rise to compensation was attributable to the State. The Roads Act, 1993 (NSW) enabled the Minister to propose "claiming" (sic) (scil. "closing") a public road, specified procedures to be followed and required notice of closure to be gazetted. Thereafter such a road ceased to be a public road and previous rights of access and passage were extinguished. The relevant land, if previously vested in the Crown, remained vested in the Crown as Crown land. Section 226 of the Roads Act dealt with claims for compensation.

61 The applicant in the Federal Court claimed title to land which had formed roads in the relevant Shire but which had been closed pursuant to the Roads Act and sold to P. The applicant submitted that any extinguishment of native title on the creation of those roads was negatived by the road closure, so that native title revived and conferred on the applicant a right to compensation in pursuance of s 24(2) of the Native Title Act. His Honour held that s 213(2) of the Native Title Act was limited to matters arising under the Act itself and such jurisdiction did not extend to determining that native title existed at certain times. In this regard his Honour followed Carr J in Djaigween (supra). Further, s 213(1) of the Native Title Act confers no jurisdiction on the Federal Court, it merely governs the exercise by the Court of a jurisdiction it acquires elsewhere. Further, the "motion" (sic- his Honour uses the word "notion") of re-establishment of native title is unsupported by authority and inconsistent with the very concept of native title. To succeed in a claim under s 24(2) of the Native Title Act, the claimant would need to demonstrate, not re-establishment, but extinguishment of title. His Honour therefore dismissed the application as disclosing no reasonable cause of action.

62 From p 505 onwards his Honour analyses the Native Title Act and the relevant procedures thereunder.

63 At p 508 having outlined the procedure for a claim for compensation being made to the Registrar, his Honour deals with the situation where no determination is made by the Tribunal and the Registrar lodges an application with the Federal Court. It is then that s 81 comes into play: it confers jurisdiction on the Federal Court to hear and determine applications lodged with it under s 74 and that is an exclusive jurisdiction. His Honour goes on to say:

"The argument of counsel for the applicant was as follows. Section 5(2) of the Federal Court of Australia Act 1976 (Cth) provides that the Court is a superior court of record, and a court of law, and of equity. Section 19 of that Act confers upon the Court such jurisdiction as Parliament grants to it. The Federal Court has jurisdiction under s 213(2) of the Native Title Act, so the argument goes, which is a jurisdiction of both law and equity.

The essential point made by counsel for the applicant was that because the power of this Court to make declarations is a very wide one (s 21), the Court must have jurisdiction to simply declare that someone has established a native title claim over a given piece of land. Counsel argued that, although native title is enshrined in the Native Title Act, it is fundamentally a common law concept.

The argument is fallacious, because this Court had jurisdiction conferred upon it under s 213(2) only in relation to matters arising under the Native Title Act itself. This Court does not have jurisdiction in a case such as the present one to hold that native title existed at certain times. Carr J said in Djaigween v Douglas [1994] FCA 951; (1994) 48 FCR 535 at 541 and 542, that there is no provision in the Native Title Act for an applicant to initiate proceedings in the Federal Court by way of an application for determination of native title, as that is a function of the Registrar. I agree with Carr J's observations".

64 It is submitted that his Honour's remarks in that context reflect this present case in reverse, thus further reinforcing, so it is submitted, the proposition that substantively by operation of the Native Title Act or by implication from the overall scheme of that legislation, this Court has no jurisdiction to entertain the application for relief by this plaintiff against the two defendants as set out in the Amended Summons.

65 As to the grant of a stay on a discretionary basis, the defendants rely on the "substantive" bases (overall exclusive scheme), to the extent that they cannot, in a substantive way, found the relief by way of stay.

66 By the Amended Summons the plaintiff seeks declaratory relief only and relating to the extinguishment or suspension of native title rights. This necessarily would involve the determination of those native title rights in respect of which the declaratory relief is sought. The Native Title Act deals with what is involved in such a determination (for the purposes of that Act): s225. Section 225(b)(iv) provides that upon the determination that native title exists, there can be determined "in any case the nature and extent of any other interest in relation to the land or waters that may affect the native title and interests". As I understand the submission made in this context, it is that the issue of extinguishment or suspension or the continuance of "something in between" would be determined upon its necessarily and inevitable arising in the Federal Court.

67 Particularly with respect to extinguishment (in the area of the grant of pastoral leases) the difficulties attending relevant determinations were referred to in Wik at p 132-3 by Toohey J in the post-script as follows (at p133), his Honour said:

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

68 In the litigation in this Court there is no agreement as to what native title rights and interests there could be in relation to the subject land. The evidence from Mr Emmerig I find to be of no weight either as to the typicality of the plaintiff's lease or the ambit of the native title rights and interests that may affect it.

69 Given the triggering of the Native Title Act scheme by the claims made to the Tribunal, the litigation in this Court, it is submitted, will be futile unless the plaintiff is successful in establishing first, exclusive possession and second, that exclusive possession extinguishes all native title rights and interests (s 223 of the Native Title Act refers to the "sources" of native title).

70 Given what the plaintiff would have to here establish to gain, as Mr Basten put it, any solace from the Western Land Lease, without regard to possible native title, there is no evidence or other basis that points even to the possibility of that which the plaintiff here seeks positively being established for his benefit or, authoritatively, for the benefit of other leaseholders, the more so, it is argued, when the parties to the NNTT are not parties here and thus would not be bound by any decision of this Court.

71 Further, as to discretion, can be taken into account, it is said, the failure of the plaintiff to institute a non-claimant application and his permitting the expiration of about one year after notification of the NNTT acceptance before commencing proceedings in the Supreme Court. Also, there is no evidence that the plaintiff has, is or is likely to suffer, prejudice as a result of the native title issue being unresolved.

72 The relevant claim having been accepted, the registered claimant has a right to have the matter proceed to mediation under s 72 of the Native Title Act and, if the matter cannot be resolved, to have the application referred to the Federal Court for decision under s 74. The Federal Court would have power to enforce those rights were they otherwise to be denied (s 213). This Court would not have that jurisdiction.

73 Other matters, not subject to oral submissions in chief by Mr Basten but set out in written submissions are as follows. The present relief, it is said, is an attempt to review the decision of the Registrar of the Tribunal to accept the application and include details of the claims on the Register. Until those decisions are set aside the statutory entitlements of the claimants remain. However, no proceedings have been instituted under the Administrative Decisions (Judicial Review) Act, 1977 (Cth) or s39B of the Judiciary Act, 1903 to seek to review those decisions. It is said that the plaintiff appears to have carefully eschewed such a course. It is argued that if that course had been taken a different issue would have arisen, namely whether this Court could exercise jurisdiction under the Administrative Decisions (Judicial Review) Act, 1977 (Cth) or the Judiciary Act pursuant to the Jurisdiction of Courts (Cross-Vesting) Act, 1987. Such a course would require very careful consideration and would, in all probability, simply not be available, it is argued. That jurisdiction is constituted as a "special federal matter" pursuant to s 3(1) of the cross-vesting legislation. The procedure for dealing with such special federal matters is to be found in s 6. There is a "high threshold of satisfaction to be met before a State court determines not to transfer a proceeding to the Federal Court": NEC Information Systems v Iveson (1992) 36 FCR 258. Accordingly, no relief which seeks to have an effect inconsistent with the operation of the Native Title Act, or which seeks to set aside decisions made by Commonwealth officers under that Act, should be made in the present case. It is argued that the commencement of the proceedings in the Supreme Court of New South Wales is an abuse of process and thus should be stayed or dismissed.

74 Under the heading "Other Considerations" in the written submissions the second defendant refers to the Notice given under s 78B of the Judiciary Act, 1903 (Cth). That Notice was constituted by a letter to the Federal Attorney-General dated 8 May 1998 from Messrs Blake Dawson Waldron which is annexed to the affidavit of Andrew John Chalk sworn 8 June 1998. The plaintiff asserts that there are two matters which raise doubts about the jurisdiction of the Federal Court to decided an application to determine a native title claim and to make orders "directed to the Registrar" in relation to the purported acceptance of the native title application under s 63 of the Act. These doubts are said to arise, at least in part, from a decision of the full Federal Court in Fourmile v Selpam Pty Limited (1998) 152 ALR 294.

75 That there may be doubts about the jurisdiction of the Federal Court (which is not conceded by the defendants), it is argued, cannot give this Court a jurisdiction which is does not otherwise have. In any event, all that was substantively held in Fourmile was that sub-division E of Div. 5 of Pt 6 of the Native Title Act is invalid. That sub-division covers ss 166 to 168. It deals with determinations made under s 160 which in turn refers to determinations made by the Tribunal in relation to applications made under s 61. The relevant provisions, as acknowledged in the s78B Notice, are ss 70, 71 and 73. Section 70 is concerned with unopposed applications and ss 71 and 73 are concerned with determinations made pursuant to an agreement. That fact such determinations cannot be made legally binding by registration in the Federal Court is said to follow from the decision of the High Court in Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.

76 It is submitted that accepting for present purposes that a single judge of the Supreme Court of New South Wales would follow that decision of the full Federal Court, it does not follow that any doubt is thereby cast on the validity of ss 63, 74 and 81. The referral of an application to the Federal Court involves no application of judicial power: indeed, it is said, the practice of the Tribunal, given the doubts surrounding its power to make determinations which themselves are to be registered in the Federal Court, is simply to refer all applications to the Federal Court which can itself, in appropriate circumstances, make a determination by consent.

77 The approach set out in the s 78B Notice, it is submitted, is inconsistent with the careful and limited declaration made by the High Court in Brandy and with the limited finding of the full Federal Court in Fourmile. In particular, it is said, it is far from clear as to how one could argue from proposition that the Tribunal cannot exercise judicial power of the Commonwealth to the proposition that a section purporting to vest exclusive jurisdiction in the Federal Court (s 81) is invalid, an argument that must also extend to assert the invalidity of s 213(2).

78 The reference in the s 78B to the possible invalidity of the Jurisdiction of Courts (Cross-Vesting) Act, 1987 (NSW) is, it is submitted, beside the point. The Federal Court has jurisdiction under the Native Title Act in relation to applications for determination of native title and putting the previous argument to one side, there is simply no need to go to the New South Wales cross-vesting legislation.

79 Finally, it is argued that if the Court is not being asked to rule on those questions, it is difficult to understand what relevance they have to the present proceedings. The arguments, if pursued, may perhaps indicate a concession that, even if it were satisfied that it had jurisdiction, this Court would not be likely to exercise the jurisdiction which the plaintiff seeks to have it exercise in the present case, unless it were doubtful that any other Court had such jurisdiction.

80 Mr Larkin of Counsel for the first defendant adopted Mr Basten's submissions for the second defendant.

81 Mr Larkin referred to the structure of the Native Title Act, in particular ss 68 and 66 which provide that once a claim has been accepted, among others, "any person who holds a propriety interest in any area covered by the application" is entitled to become a party to the proceedings in the Tribunal. The present plaintiff is a party to the proceedings before the Tribunal pursuant to those provisions.

82 The first defendant in these proceedings is entitled to exercise the statutory rights under the Native Title Act which flow from the acceptance of the native title claims.

83 It was submitted by Mr Larkin that the objective of proceedings in this Court was to mount a collateral attack upon those statutory rights, a course which this Court should not permit.

84 Reference was made to the observations of the High Court as to the two methods for the resolution of claims in the North Ganalanja case (supra) at 625 (that is, opposed and unopposed), it being argued that the legislation accordingly provides a manner for the plaintiff, should he wish to do so, to have any question of extinguishment determined in a binding manner by the Federal Court; those proceedings are presently on foot in the sense that the claims have been initiated in the NNTT.

85 It was argued that to commence the current proceedings in the Supreme Court constitutes an abuse of process where there are other proceedings in which the issues raised by the plaintiff could, and should, be raised for determination. Reliance was placed upon the observation of Drummond J in Wik Peoples v Queensland (supra) at 13 where his Honour said:

"As a prima facie rule, it is vexatious for a person to institute two separate proceedings in which the same issue is raised for determination. The principle is applicable whether the proceedings are both by way of court action or where one only is by way of action, the other being by way of administrative process: see Slough Estates Limited v Slough Borough Council [1968] Ch 299. Although the relief with respect to the applicant's claim to native title obtainable in proceedings under the Act differs from that obtainable in that regard in this action, the only difference is that while both lots of relief will determine exactly the same question, any relief claimed in the first-mentioned proceeding will bind a wider range of persons than that obtainable in the second-mentioned proceeding. I therefore think it would be impermissible for the applicants to have on foot the two proceedings here in question and that if that were to occur, one of the proceedings would be stayed".

86 It is argued that in the present proceedings it is appropriate for the proceedings to be stayed so that a judgment in rem regarding the existence of native title, or otherwise, over the subject lands can be obtained. Further, the proceedings should also be stayed because they are futile. No declaration that this Court might make in these proceedings can operate to bind the parties to these proceedings in the conduct of the proceedings in the Tribunal or the Federal Court. Section 86 of the Native Title Act provides for the Federal Court, in its discretion, dealing with evidence and findings in other proceedings, including the adoption of any finding, decision or judgment of any Court (s 86(c)).

87 Insofar as there was a submission in writing by the second defendant to the effect that to assert that the Supreme Court of New South Wales has power to make a determination of the kind encompassed by the provisions of the Native Title Act, is to assert an inconsistency with a law of the Commonwealth, the State law must be invalid and inoperative to the extent of such an inconsistency pursuant to s 109 of the Constitution.

88 The first defendant argues specifically that if the Supreme Court, apart from the Native Title Act, had the jurisdiction to make the declarations claimed by the plaintiff, that jurisdiction has been ousted by the Native Title Act. One statement of principle relied upon in support of this proposition was that set out in paragraph 59 Volume 1(1) Halsbury's Laws of England 4th ed.: "...the original jurisdiction of superior courts may be indirectly ousted where a statute creates a new legal right or obligation and prescribes a specific method for its enforcement, whether this method is by way of proceedings before an inferior court or tribunal or by way of complaint or appeal to an administrative authority. If recourse to the prescribed procedure is held to be mandatory, a superior court will not permit a party to raise the relevant issue before it in declaratory or other proceedings instead of before the designated body".

89 Reliance was also placed upon Taylor v The Minister (1973) 1 NSWLR 352 in which it was held that the special statutory proceedings for the determination of compensation consequent upon acquisition of land by the Land & Valuation Court impliedly excluded the jurisdiction of the Supreme Court to grant declaratory relief.

90 On the question of ouster, particular reliance was placed upon the decision of Talbot J in Andrew Donnelly & Anor v Tenterfield Shire Council & Ors (Land & Environment Court of NSW, unreported, 2 June 1998). His Honour after considering the scheme of the Native Title Act, the decision of the High Court in North Ganalanja (supra), the decision of Carr J in Djaigween (supra) and that of Lockhart J in Yuin (supra) said at pp 31-32:

"I agree with Mr Hughston (for the Crown) that the NT Act expressly, or by necessary implication, ousts the jurisdiction which any State or Territory Court might otherwise have had to hear and determine matters arising under that Act. Under section 251, the Commonwealth Minister may, in the circumstances described in that section, determine that a State or Territory Court or Tribunal (referred to as a "recognised State/Territory body") can exercise jurisdiction to hear and determine matters arising under the Act. The Commonwealth Minister has not made any determination under section 251 in respect of the Land and Environment Court, nor indeed, in respect of any other State or Territory Court or Tribunal.

In these proceedings the applicants seek recognition of their status as "native title holders" under the statutory scheme laid down under the NT Act. Furthermore, they allege invalidity of certain actions by the Minister on the basis that their procedural rights, "as native title holders", under the NT Act have not been complied with. Those procedural rights only accrue if, ultimately, it is determined that the applicants do in fact hold "native title" as that term is defined in the Commonwealth Act, and that their title has been affected by the Minister's actions.

Mr Larkin relies upon the absence of unambiguous and clear words in ss 81 and 213 of the NT Act to oust the jurisdiction of this Court. In Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, particularly at p 559, the High Court appears to have preferred, as the relevant test for a choice between competing jurisdictions, whether the selected forum is a clearly inappropriate forum to exercise jurisdiction.

This Court is clearly ill-equipped to deal with the evidentiary requirements for the establishment of native title under the provisions of the NT Act. It is not at present constituted in a way which facilitates holding the type of inquiries foreshadowed in the NT Act. The procedures stipulated for the NNTT recognise the peculiar nature of the evidence which may be relied upon to establish the existence of native title.

Accordingly, it would be inconvenient from the point of view of the parties, and the Court's own administration, for a native title claim to be heard in this Court. Moreover, all of the relevant parties and interests are not necessarily represented or entitled to be heard in this Court.

The procedural rights conferred on the holders of native title under the NT Act are statutory, not common law, rights. The applicants' claim is that they are the holders of a form of native title recognised and protected by the NT Act, and are thereby entitled to assert statutory procedural rights conferred by the Act. The claim should be pursued in the manner prescribed by the NT Act. This Court should not circumvent the procedures laid down by the NT Act and avoid the very forum which the Commonwealth legislature has said is to have jurisdiction to make determinations of native title" (emphasis added).

91 I shall return to his Honour's decision in due course.

92 Mr Sullivan Q.C. for the plaintiff established the context of his client's proceedings as follows. The principle relief sought by the plaintiff is declaratory as to whether native title, if any, that may have existed over the land the subject of the lease, is extinguished by one or more of: the provisions of the Western Lands Act, 1901 or regulations or instruments made thereunder at any time; the grant of Western Lands Lease number 7951; the terms and conditions of that lease at any time and the entry by the current or any previous lessee onto the subject land at any time; or suspend for the duration of the lease.

93 The plaintiff and the first defendant are New South Wales residents; the second defendant is an entity established pursuant to the Aboriginal Land Rights Act, 1983 (NSW). The land in issue is entirely in New South Wales.

94 It is said that there are no substantive factual matters that could reasonably be in dispute in these proceedings which are essentially concerned with legal issues only.

95 The law relating to native title is of recent original and many of the issues arising have yet to be determined by the courts. In particular, which propriety interests are inconsistent with native title rights has to date been the subject of relevantly few court decisions.

96 The plaintiff has sought to bring proceedings in this Court because he wants an authoritative ruling by this Court on the legal issues raised in the proceedings; there is no doubt about the jurisdiction of the Court to grant the relief sought; the NNTT cannot grant the relief sought and in any event, there is considerable doubt, it is said, about the Federal Court's jurisdiction to grant the relief sought at all or in a timely manner.

97 It is said that the legal issues are matters of general principle of great public importance to other New South residents because of the statistical material to which I have referred earlier in these reasons. On one issue advanced by Mr Sullivan namely the typicality of the lease the subject of the relief sought, I have already indicated my view that the evidence does not support a finding that it is typical.

98 It is argued that there has been considerable uncertainty generated by Wik. It is said that there is no clear ratio in Wik and the majority judgments do not speak with a single voice on the principles and factors to be taken into account in determining whether native title has been extinguished by the grant of pastoral leases. Examples of areas of uncertainty arising from the decision on important issues are said to include: the capacity of lessees to use their land, for example, by installing fences, building dams or drilling bores and drains; the capacity of lessees to change the types of farming practices currently undertaken on the property; the diminution in the value of leasehold properties because of the uncertainty arising from Wik and the decline in market demand for the properties and the costs associated with dealing with native title claims, including the costs of legal representative and the absence from (and hence inability to work) the properties.

99 Pausing here, I am not persuaded that there is any necessity for me to decide what Wik decided or as to whether or not there is any uncertainty arising from their Honours judgments in that case. Mr Larkin has submitted in reply (see below) that there is no legal uncertainty generated by the decision; it has to be conceded, and one cannot ignore this as a matter of general knowledge or common sense that it has given rise to some "political" or "social" uncertainty. Although there are four separate majority judgments in Wik the differences in reasoning in the majority judgments are minor. Each of the majority considered that the pastoral leases in issue in that case were creations of statute, conferring rights to be determined by reference to the statute (see Toohey J at 112.7; Gaudron J at 149.5, 150.6, 152.8; Gummow J at 176.9-177.1, 187.9, 190.2, 198.2 and Kirby J at 242.9); that it is necessary for the statute to use clear, plain and direct words before native title will be held to have been necessarily extinguished (see Toohey J at 123.7, 125.5, 126.4, 127.2, 129.2, 130; Gaudron J at 154.9-155.4, 161.7; Gummow J at 168.7, 171.3, 185.5, 193.8, 203.1 and Kirby J at 247.5-250) and that in the facts of Wik, there were no such clear, plain and direct words in the Queensland legislation. I am grateful to Mr Larkin for his analysis of the decision of Wik for the purposes of identifying the matters in issue between the parties on the status and significance of the High Court's judgment in that case.

100 It is contended for the plaintiff that this Court has jurisdiction under s 23 of the Supreme Court Act, 1970 unless it is excluded by Commonwealth legislation. There is no legislation and in particular, jurisdiction is not excluded by the Native Title Act.

101 By reason of the New South Wales State connection matters to which Mr Sullivan referred and which I have set out above, it is argued that his client has regularly invoked the jurisdiction of this Court. Having done so he has a prima facie right to insist upon its exercise and to have his claim heard and determined; Oceanic Sun Line Special Shipping Co. Inc v Fay [1988] HCA 32; (1987-1988) 165 CLR 197 at 241.5 per Deane J.

102 The proceedings instituted in this Court are discrete and not to be compared with or confused with an authorised determination of the NNTT or the Federal Court and their prosecution in this Court does not affect any rights which the defendants may have in the NNTT to the extent to that a decision of this Court, given the importance of this Court and its standing and reputation, would be treated with great respect and authority by another court.

103 It is argued that the decision of this Court will not be futile first, because in the mediation process which is thrust upon a party under the route for which the defendants contend under the Native Title Act and contend to be an "exclusive route", would be an attempt to compromise rights - the mediator might be assisted with a determination of this Court in persuading the parties where their rights lay; secondly, if the mediation was to fail and the matter was referred, if it could be referred to the Federal Court under s 74 of the Native Title Act, one might expect within the comity of Courts in Australia, that a judge of the Federal Court would pay the greatest respect to a decision of this Court; thirdly, a decision of this Court has ramifications well beyond the ambit of the Native Title Act. A decision of this Court would resolve uncertainties in respect of private dealings in land by a person in the position of the plaintiff, for example, his ability to borrow money in a way which could give proper security for the borrowing over the land vis-a-vis the defendants who could still maintain any rights asserted in the mechanism under the Native Title Act.

104 The Court's jurisdiction to make a declaration is a very wide one and it is a well accepted principle of statutory construction that the jurisdiction of a superior court can only be excluded by the clearest expression of legislative intent: Forster v Jododex Australia Pty Limited & Anor [1972] HCA 61; (1972) 127 CLR 421 at 435; Webster & Ors v The Bread Carters Union of NSW & Ors (1930) 30 SR (NSW) 267 at 275 per Long Innes J; Re Totalisator Administration Board of Queensland (1988) 80 ALR 73 at 78-79 per McPherson J; Dahlia Mining Co. Limited & Anor v Collector of Customs (1989) 90 ALR 193 at 198 per Giles J.

105 Given and accepting that the plaintiff has the right to have this Court exercise its jurisdiction, the imperative of the application of the principle of statutory construction as to abrogation of that right (or ouster of jurisdiction) is reinforced, it is submitted, by what the High Court said in Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron & McHugh JJ:

"The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights".

106 It is submitted that this Court's jurisdiction under s 23 of its Act has not been excluded by express statutory provisions or any necessary implication for present purposes. The only Commonwealth legislation is the Native Title Act and the only express provision in that legislation excluding state jurisdiction of courts other than the Federal Court and High Court is s 81.

107 Section 81 confers exclusion jurisdiction on the Federal Court only to hear and determine applications lodged with it under s 74. This is the nub of the matter. (In the instant case there is no evidence that an application has been lodged with the Federal Court under that section in relation to the land the subject of the lease). Section 213 of the Native Title Act provides that, if for the purpose of any matter or proceeding before the Federal Court it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in the Act and subject to the Act the Federal Court has jurisdiction in relation to matters arising under the Act.

108 The plaintiff relies, in effect, on the silence within s 213 to contain a "mirror" provision with the effect that for the purpose of any matter or proceeding before any State or Territory court it is necessary to make a determination of native title, that determination must be in accordance with the provisions of the Act, indicating a lack of intention that there be an exclusive code under the Native Title Act and positively pointing to there being, in fact, no such exclusive code.

109 Insofar as reliance was placed on the decisions of Carr J in Djaigween (supra) and Lockhart J in Yuin (supra) by the defendants, in support of the exclusive "code" or "scheme", I am not persuaded upon reading those judgments that they provide such a foundation at all merely by reason of the emphasis, particularly in the latter, given to the existence and operation of s 213.

110 The defendants' position as perceived by the plaintiff in the proceedings before me is that s 81 confers an exclusive jurisdiction to hear and determine applications lodged with it under s 74. Notwithstanding that the section is silent as to providing that the only way a determination of native title can be obtained is by the mechanism under the Native Title Act, in any case where there is a determination as to native title the statutory regime must be pursued.

111 At this point I can indicate my presently held view that nothing in the Native Title Act justifies expressly or by implication such a construction.

112 The defendants, notwithstanding the position perceived (and, in my view, correctly) by the plaintiff to have been taken, nonetheless seek to accommodate by way of exception cases such as Mason v Tritton & Anor (1994) 34 NSWLR 572. In that case a member of the Aboriginal community had been charged under the Fisheries & Oyster Farms (General) Regulation 1989 with having more than the permitted quantity of abalone in his possession. He argued unsuccessfully in his defence in the Local Court that he had a "traditional right to fish" in the relevant waters and that this right constituted a native title recognised at common law under the principles of Mabo No. 2. In the end the Court of Appeal constituted by Gleeson CJ, Kirby P and Priestley JA held that the appellant had failed to establish that he was exercising a traditional fishing right on evidentiary bases. It is in the judgment of Priestley JA (commencing at 595) that consideration is given to the enactment of the then recent Native Title Act. His Honour deals with the legislation page 595G and Mr Sullivan Q.C. quite rightly drew my attention to the following passage from his Honour's reasons (600C-F):

"A further reason for mentioning the Native Title Act 1993 (Cth) and complementary State Acts is that it seems quite clear they have simplified the process by which assertions that native title is still on foot in a particular place can be either validated or found not to have been proved. The enactment into statute of the substance of the Mabo v State of Queensland [No 2] decision, the provision of statutory definitions for terms previously only defined (for Australian purposes) in the High Court decision, the provision of tribunals and courts for the decision of the questions, and the dispensation from technicalities, legal forms or rules of evidence of courts determining applications for determination of native title (s82) all make it seem very likely that the best way for common law native title claims to be pursued will be through the provisions and procedures of the Native Title Act 1993 (Cth). For example, s223(2) puts beyond doubt the inclusion of hunting, gathering or fishing rights and interests within the meaning of native title. So far as I am aware there is no Australian decision directly deciding that this is the case at common law. It may be that in the absence of statute, judicial decision would in due course have reached this position. The Native Title Act 1993 (Cth) puts an end to possible argument about the matter, at least in cases brought under the Act. (These comments are confined to common law claims. Many of the Mabo v State of Queensland [No 2] requirements need not be proved in the statutory claims for which the New South Wales Aboriginal Land Rights Act 1983 provides: see Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 156-158, 159-160)" (emphasis added).

113 The discussion by Priestley JA, it is said, does not amount to an indication that there is any exclusive jurisdiction conferred upon the Federal Court or the NNTT with respect to the offence with which the Court of Appeal was dealing. I agree but I also agree, as I have to say, with the statements by his Honour as to the "best way" for native title claims to be pursued. I add, given the obiter nature of his Honour's remarks, that I am not persuaded by anything in the course of submissions in the matter presently before me, that any Australian decisions have directly brought about that desirable objective.

114 Mason, on the one hand, constitutes in my respectful view a discomforting exception to the basic exclusive scheme stance of the defendants. It also, on the other, constitutes a pointer to a desirable mechanism and structure for the determination of native title: the question of course in the proceedings before me is whether or not it can now be said that that position as advanced for the defendants has in fact been reached as a matter of construction or in a substantive way or whether the position has been reached where by the proper exercise of discretion a stay should be granted to reflect and effect that objective.

115 As to the decision of Talbot J in Andrew Donnelly (supra), it is submitted that his Honour was wrong in distinguishing Mason. His Honour having come to the conclusion (at page 36) that the detailed provisions of the Native Title Act impliedly oust any jurisdiction of his court to determine native title issues, particularly in circumstances where undetermined claims have been lodged by the applicants, held that Mason v Tritton was distinguishable on that ground. His Honour said "the implied ouster results from the scheme of the Native Title Act". There is nothing in the judgments in Mason (supra) which in my very respectful view which either warrants a conclusion that there was decided the ouster of jurisdiction or which provides some basis for distinguishing the judgment of the Court of Appeal in the manner adopted by his Honour. If his Honour is to be understood as saying that Mason was wrongly decided by reason of the implied ouster there is no foundation, in my respectful view, for any such conclusion. The only point of distinction was that in Mason, of course, there had been no "undetermined claim" to the NNTT by the person charged with the criminal offence. In my respectful view, that does not constitute a basis for distinguishing Mason or coming to a view to the effect that Mason cannot constitute, at the very least, the exception for which the defendants contend.

116 The regime under the Native Title Act, upon analysis, provides no basis, it is said, for express exclusion or exclusion by implication of the jurisdiction of this Court. This is demonstrated by the distinction between "approved determinations" and "determinations".

117 As to the former, it is said, the whole purpose of the Native Title Act and the Tribunal proceedings is to enable a person to have an approved determination of title the granting of which continues (and, it is said, only continues) the right to negotiate in respect of the subject land.

118 Section 13(1)(a) of the Native Title Act provides for an application being made to the Registrar for a determination of native title in relation to an area for which there is no approved determination of native title. An "approved determination" is one made on application under s 13(1)(a). (As referred to above, it is agreed that there is no "recognised State/Territory body" for the purposes of s 13(3)(b).) Thereafter the reference to an "approved determination" is in s 24(1)(c) relating to a "future act" before the making of an "approved determination" giving rise to a right to compensation if the act extinguishes title: s 24(1)(d). One next goes to s 55(a) where reference is made to the NNTT and Federal Court proposing to make an "approved determination" and procedural consequences which are to follow. There, it is said, ceases the references to "approved determinations" except, significantly, for s 193(1)(a): Contents of Register - Determinations to be Included. The determinations to be included are the "approved determinations of the NNTT, the Federal Court and the High Court". It is s 193(1)(c) which is of critical importance because it provides for "other determinations of, or in relation to, native title in decisions of courts ..." to be included in that register; a recognition of jurisdiction in another court to make a determination, albeit not an "approved determination".

119 Thus far there is, it is submitted, a clear pointer to two routes, the "approved determination" route via the NNTT and Federal Court or the "determination route" via another court. One then goes to s 86 which gives the Federal Court a discretion to adopt any decisions or judgments of any court (s 86(c)). Thus, it is argued, "parallel streams" are recognised constituting indicia to the contrary of any express or implied exclusive jurisdiction which, in clear language, ousts this Court's jurisdiction under s 23 of the Supreme Court Act. Thus, there is no "substantive" basis for the grant of the stay each defendant seeks.

120 As to whether or not a stay should be granted on discretionary grounds it is contended for the plaintiff, in the light of communications passing between the parties to which I have earlier referred as to an agreed statement of facts, that the only fact apparently in dispute is whether or not the plaintiff has been in occupation of the subject land since 1984. It is said that that is a matter which could be proved by affidavit of some brevity. That position I am prepared to accept.

121 It is next suggested however that it does not matter "one jot" what the native title is the defendants might have; whatever it is, it is argued, that title is extinguished by the grant of the Western Lands Act Lease. This is said to be a "very short and simple point", obviously within this Court's competence for its determination. In this regard I say two things: first, in the light of the enunciation and judicial consideration of the "common law" of native title rights from Mabo No 2 to date and including Mason v Tritton (supra) I am not persuaded that it is otherwise than facile to assert that the nature of the native title which the plaintiff says is extinguished matters not "one jot". It may well turn out that in the adversarial disputation of the issue as to native title arising from the very relief sought that it will warrant little attention in evidence; it might turn out that it will warrant a great deal of evidentiary attention. The second matter however, is that notwithstanding my rejection of the simple proposition put by Mr Sullivan as to the importance of the "native title" component in the relief he seeks, the possibility that it may be agitated and subject to evidentiary and indeed, legal considerations in terms of the "common law" of native title, does not persuade me, by itself, that on a discretionary basis the stay should be granted.

122 In oral submissions on the question of discretion reference was made to delays involved in the "maelstrom" of the meditation process under the Native Title Act procedure. It is said that the mediation procedures under s 72 of the Native Title Act would take considerable time given that there are 844 parties to the application including 16 Aboriginal parties, 46 leaseholders and 776 holders of mining interests. Those parties will have disparate interests in the outcome of the mediation process. The plaintiff disputes the existence of native title, and thus it can be assumed that mediation of the application will fail as against the plaintiff. However, many if not most, of the other parties may wish to participate fully in the mediation process.

123 It is said that it is extremely unlikely that the issues raised by the plaintiff in these proceedings would be referred to the Federal Court for determination before the completion of the mediation process involving the other parties to the application, irrespective of the participation or non-participation of the plaintiff in the mediation.

124 The mediation process relating to the application will take considerable time as the Tribunal must attempt to resolve with clarity whether native title exists in respect of the land the subject of the application and if so, precisely what, if any, native title rights and interests are preserved with respect to each of the interests in land held by the respective lessees and mining interest holders.

125 The plaintiff submits that he will be unfairly disadvantaged if he must wait until the conclusion of such a lengthy mediation process before his legal rights can be determined by a superior court.

126 Accepting, for the moment, these propositions as to the "maelstrom" and the "Byzantine" process under the Native Title Act, and even taking into account the possibility of factual issues being in dispute in this Court, obviously there could be advantages in the maintenance of the proceedings in this Court assuming it to have the jurisdiction which the plaintiff asserts.

127 It is at this point, in my view, that the essential considerations as to whether or not a stay should be granted can be determined. The parties however, in written submissions have dealt with other matters which I should rehearse though the view I have formed is that they are not determinative of the outcome of the proceedings before me.

128 The plaintiff contends that there are serious constitutional doubts about the jurisdiction of the Federal Court. These uncertainties, it is said, will not be resolved unless and until the Native Title Act is amended in relevant respects by the Native Title Amendment Bill 1998 and which bill, if enacted, itself will likely to be subject to constitutional challenge. I shall below deal with the enactment of the amending legislation.

129 Moreover, it is argued, if the plaintiff were forced into following the Native Title Act procedures the matter could go as far as the High Court only to encounter a decision that the Native Title Act provisions concerning the jurisdiction of the Tribunal and Federal Court were constitutionally invalid, and that the substantive legal issues could therefore not be decided by the High Court in those proceedings (cf: North Ganalanja (supra).

130 It is submitted that the plaintiff should not be forced to await the outcomes of the Commonwealth legislative processes and constitutional challenges and that the substantial injustice to the plaintiff from the delays and uncertainty should be avoided by allowing these proceedings to continue in this Court. The doubts about the jurisdiction of the Federal Court are as follows: jurisdiction under s 81 in respect of an application does not arise unless and until the application has been lodged by the Registrar with the Federal Court under s 74. Thus, preconditions to the lodging of an application with the Federal Court (a) that the Tribunal has not made a determination under ss 70, 71 or 73 in relation to an application; and (b) that the application was made under s 63.

131 Section 74 assumes that the Tribunal has power to make determinations under ss 70, 71 and 73. It is strongly arguable that, if those sections are invalid, the Registrar has no power to lodge an application with the Federal Court under s 74; that it cannot have been parliament's intention that applications could be lodged if the procedures under ss 70 - 73 were not available. It is strongly arguable, so it is said, that ss 70-73 are invalid on the ground that they are inseverable from the provisions (sub-division D of Div. 5 of Pt 6) for registration and enforcement of Tribunal determinations in the Federal Court which were held invalid by the full Federal Court in Fourmile (supra) applying the High Court decision in Brandy (supra). The argument is that parliament could not have intended the Tribunal to have power to make determinations under those sections if they would be unenforceable and so legally futile.

132 In Fourmile the Federal Court did not consider whether s 70 was inseverable from the invalid registration provisions, and therefore itself invalid, and was not considered since s 70 was not challenged by Mr Fourmile: see 152 ALR at 318 per Drummond J. Brandy is not relevant on the consequences under the Native Title Act of the invalidity of the registration and enforcement provisions. Unlike the Native Title Act, the original act in question in Brandy did not provide for the relevant Tribunal determinations to be registered in the Federal Court; the provisions held invalid in Brandy had been purportedly inserted by an "amending" Act. The validity of the principal act providing for the making of determinations by the Tribunal was not in issue.

133 It is strongly arguable that if ss 70-74, and 81 are invalid, so too is s 63 on the ground that Parliament could not have intended s 63 to operate in the absence of valid provisions for determinations by the Tribunal and the Federal Court. In particular, it is strongly arguable that Parliament could not have intended to make futile provision for applications to be made and accepted without valid provision for legally effective determinations; or, that the "right to negotiate" provisions in ss 26-44 by holders whose applications have been accepted by the Registrar (ss 29(2)(b) and 253) should continue indefinitely (for example, for mining or "upgrades" to freehold).

134 The only other jurisdiction of the Federal Court in proceedings seeking a declaration would be jurisdiction under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) based on the jurisdiction that is vested (according to the plaintiff's submissions above) in the Supreme Court under s 23 of the Supreme Court Act. It is noted however that the second defendant in its written submissions contends that there is no such jurisdiction in the Supreme Court. In any event, it is submitted, the validity of the cross-vesting of State jurisdiction to the Federal Court (like its jurisdiction under the Native Title Act) is open to substantial doubt. The provisions are indistinguishable from the provisions in the State Corporations legislation which purport to cross-vest State jurisdiction in the Federal Court and which have been upheld only by an evenly divided High Court: Brown v Gould (1998) 72 ALJR 375.

135 The written submissions for the plaintiff proceed to deal with various points raised in writing by the defendants and orally.

136 As to the second defendant's submissions in relation to an application to the Native Title Registrar pursuant to s 61 of the Native Title Act renders this Court without jurisdiction, the plaintiff submits that that submission would have anomalous results and would be readily evaded. It would mean, for example, that a lessee wishing to undertake activities that would obstruct the exercise of native title rights if there were any, could not obtain a declaration from the Supreme Court that native title had been extinguished by the lease, but could only make a non-claimant application under the Native Title Act and await the lengthy and constitutionally uncertain outcome of those proceedings. This could easily be avoided by the lessee undertaking a proposed activity for which he could be sued in the Supreme Court or other court of competent jurisdiction. On the second defendant's submission the Supreme Court or another court would then have jurisdiction since the proceedings would be for assault, trespass or the like and not simply for a declaration as to whether native title existed. The plaintiff submits that the Commonwealth parliament is not likely to have envisaged such a distinction between proceedings for the purpose of obtaining a declaration and other proceedings where the existence of native title is relevant. The plaintiff submits that the correct answer is not that the Supreme Court lacks jurisdiction but that it has a discretion in appropriate cases (and the present matter is not one), to stay the proceedings so as to allow only the Native Title Act procedures to be followed.

137 As to the point taken in relation to s 109 of the Constitution that the State laws otherwise giving jurisdiction to the Supreme Court in these matters are inconsistent with the Native Title Act and so invalid and inoperative, (Belmont v General Motors Holden (1985) 55 ALR 142) the plaintiff has, served notices under s 78B of the Judiciary Act.

138 The second defendant submitted that a registered claimant has a right to have the matter proceed to mediation under s 72. The plaintiff in response points to the paradox involved in the second defendant later submitting that the practice of the Tribunal, given the doubts surrounding its power to make determinations which are to be registered in the Federal Court, is simply to refer all applications to the Federal Court. Thus, it is said the second defendant concedes that there are "doubts" about the Tribunal's powers to make determinations under ss 70-73 as the plaintiff has contended (supra). It is submitted that a Tribunal practice as described by the second defendant would overlook the real and substantial doubts about the jurisdiction of the Federal Court under s 81 (see above). It must therefore be doubted whether such a practice has any proper legal foundation.

139 The Native Title Act itself recognises that "determinations of, or in relation to," native title can be made by the Supreme Court: s 193(1)(b) and the Register is to contain the relevant information. There is no basis for impliedly restricting this provision to proceedings that do not have the primary purpose of obtaining a declaration that native title exists, or does not exist, in relation to particular land.

140 There is no inconsistency between the statutory rights of a registered claimant to negotiate (ss 26-44), remaining until the claim is removed from the Register pursuant to a decision by the Federal Court or the High Court (s 109(2)(b)) and the jurisdiction of the Supreme Court to make a declaration that native title has been extinguished.

141 There is no reason why proceedings in the Supreme Court involving questions of law that do not involve the interpretation of Commonwealth legislation to be stayed. The Supreme Court proceedings would not prevent the proceedings under the Native Title Act continuing (assuming the validity of ss 70-74 and 81). If the Supreme Court made a declaration in the meantime, this would provide useful guidance in the mediation process (if any) and in the Federal Court. If the matter reached the High Court, the High Court decision would be followed by the Tribunal and the Federal Court in the Native Title Act proceedings. If the matter did not reach the High Court, the Federal Court in the Native Title Act proceedings could follow the Supreme Court decision. If it did not do so, the matter could then be taken to the High Court.

142 Insofar as the second defendant suggests that the plaintiff relies on doubts about the Federal Court's jurisdiction in order to support the submission that the Supreme Court has jurisdiction under s 23 of the Supreme Court Act, that is misconceived, it is submitted. The "doubts" are relied upon to support the submission that the Supreme Court should not exercise its discretion to grant a stay of the proceedings.

143 As to the "doubts" raised in the s 78B Notice about the jurisdiction of the Federal Court in these matters under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) were raised only in the event of the defendants submitting that the Federal Court would have such jurisdiction. Since the second defendant does not make any such submission that aspect of the s78B Notice can be disregarded.

144 Issue is joined between the parties on the effect of the decision in Fourmile and I do not propose to further agitate it.

145 In response to the submissions for the first defendant both in writing and orally the plaintiff rejects the suggestion that the current proceedings amount to a collateral attack on any statutory rights of the first defendant under the Native Title Act. The plaintiff repeats that he merely seeks a declaration of his rights as lessee and submits that the provisions of the Native Title Act will continue to apply, but that they do not (expressly or by implication) preclude the plaintiff from seeking the relief in the Amended Summons.

146 Further, in all the circumstances, the institution of these proceedings by the plaintiff cannot on any view amount to an abuse of process. The extract from the judgment of Drummond J in Wik v Queensland (supra) was dealing with the question of two sets of proceedings brought by the same plaintiff. The same principles do not apply were the second proceedings are brought by a defendant in the first proceeding and there are good reasons, in the particular circumstances, for seeking a declaration from the other court. Those good reasons I have already referred to in dealing with the plaintiff's submissions generally.

147 As to the suggestion of futility in the first defendant's submissions, it is submitted that if this Court made a declaration and the matter reached the High Court the decision of that court would be followed by the Tribunal and the Federal Court in the Native Title Act proceedings. If the matter did not reach the High Court, it is said, it would be fanciful to suggest that a decision of this Court would be treated with less than the highest respect of the Tribunal and the Federal Court. The decision of this Court could materially contribute to successful mediations in this and other native title claims and considerably influence decisions of the Federal Court.

148 The first defendant in submissions in reply to all the submissions made by the plaintiff expresses concern as to what it sees as an invitation to this Court to make a finding that there is "doubt" about the constitutional validity of the relevant provisions of the Native Title Act as a matter relevant to discretion on the stay application. It is said that this Court is being invited, in effect, to make observations about the constitutional validity of the relevant provisions, based on a "doubt" that is, something less than a certainty. It is argued that if the Court does so, it will cast "doubt" on perhaps all of the proceedings in the Tribunal and the Federal Court arising under the Native Title Act.

149 It is suggested that for so long as the plaintiff declines to challenge the constitutional validity of the relevant provisions, the Court should accept the constitutional validity of those provisions.

150 As I have already indicated the resolution of the issue of a stay will be determined at a point well in advance of the issues of constitutional "doubt" or "certainty" raised by the parties.

151 I must deal however in conclusion with certain oral submissions made by both Mr Basten Q.C. and Mr Larkin in reply to all that had been advanced by Mr Sullivan Q.C.

152 Mr Basten reaffirmed his client's position that where a matter arose otherwise than by way of application for a determination of native title, then there may well be circumstances in which a State court would have jurisdiction and he accepted that Mason v Tritton was one and did not seek to resile from that position. What he then submitted was that one had to look at the whole of the Native Title Act to ascertain what the purpose and intention of establishing the structure of it is, not merely by reference to s 81 and s 82 and s 213 in relation to the Federal Court, but also taking into account the recognised State and Territory bodies scheme to demonstrate that there was a procedure by which a determination of native title in the sense used in the Act, could be done by another process, albeit a process which does not exist in the present case. The High Court decisions to which Mr Basten referred demonstrated how that Court had addressed the structure of the Act and permitted the inference to be drawn that contrary to what the plaintiff is submitting, the structure of the Act is inconsistent with the suggestion that this Court has jurisdiction. The proposition which is put is simply a constitutional one, it is said: if a valid Commonwealth statute (and the validity of this Act is not challenged), has a particular operation and effect which are inconsistent with a State law, then the State law must to that extent give way and the effect in the present case would be technically upon the operation of s 23 of the Supreme Court Act.

153 It was submitted by Mr Basten that the question I have to ask is one which seeks to ascertain the intention of the Commonwealth legislature, it being the legislature which has the dominant power in an area of shared power and the question is really not one of seeking to take away anybody's rights. One is asking whether the Commonwealth Parliament has spoken in a way which is inconsistent with what the plaintiff seeks to do in this case. The plaintiff now wishes to avoid the delay in going through the procedures under the Native Title Act described as the "maelstrom of mediation". It is suggested that the problem with that submission is that Commonwealth Parliament appears to have laid that "maelstrom of mediation" down as the appropriate procedure, for its own reasons, and imposed it upon parties who wish to intervene.

154 It is put that it is open to the plaintiff not to intervene; the plaintiff can accept that there is native title or allow the other parties to debate the issues themselves but, it is submitted, if the plaintiff wishes to take a position in opposition, which it is quite entitled to do, then the Commonwealth Parliament has laid down the procedure.

155 Insofar as the plaintiff had submitted that it was not open to the second defendant to seek declaratory relief from the Federal Court as to the existence of native title, that was not in issue. The point sought to be made was that the Parliament of the Commonwealth had laid down a procedure and once that procedure is unavailable because there is a registered native title claim, then it is simply subversive of the Commonwealth Parliament's intention to say that the plaintiff can nevertheless can come to another court and seek precisely the same result: that points to the inconsistency between the Commonwealth Act and suggested jurisdiction of this Court without, Mr Basten hastened to add, in any way demeaning the status or jurisdiction of this Court or the right of New South Wales residents to have access to it.

156 Mr Basten rightly pointed to the eschewing by Mr Sullivan of reference to the decision of the High Court in the North Ganalanja case, particularly the passages cited above.

157 What is submitted by Mr Basten is that there is a logic to that which says that the structure of the Act, once there is a registered claim, is that the procedures of the Act be followed. If the High Court in a judgment of its seven members (Kirby J only dissenting on this point), says that it is not appropriate to consider the legal issue underlying the substantive question namely, whether extinguishment by a pastoral lease had occurred, then it follows, so it is submitted, then that is not a question which the Supreme Court of New South Wales would consider appropriately to be entered into in the exercise of some jurisdiction relied upon by the plaintiff.

158 With respect to what was asserted by Mr Sullivan as to a very limited area of fact with which this Court would have to deal, Mr Basten argued that it is only limited if one assumes that one knows what all the particular bundles of rights are that constitute the native title. Until one has determined whether there are rights which could co-exist consistently with a pastoral lease, no decision of this Court would result in any effective order which would bind the parties. With so much of Mr Basten of submission as relates to knowledge of the bundle of rights concerned, I agree. The other component of the submission will not be irrelevant to discretionary considerations.

159 Mr Larkin in his oral submissions in reply dealt with various matters including the plaintiff's submissions in relation to s 213. It was submitted that the reason why the section is silent insofar as it does not contain the posited components suggested by Mr Sullivan is that the jurisdiction of the State courts has been excluded. That is, the jurisdiction to make an approved determination by a State court.

160 As to Mason v Tritton, whilst adopting Mr Basten's submissions, Mr Larkin added that the first question to be asked is whether there is jurisdiction in the NNTT and the Federal Court to determine an issue. There was no jurisdiction in the NNTT or the Federal Court to determine the issue of the breach of criminal law alleged against the defendant in Mason v Tritton. There can be no exclusion of the jurisdiction of a State court where there is no jurisdiction in the Federal Court to determine the issue that is litigated. That is not the situation here. There can be determinations in other courts in relation to native title, for example, Mason v Tritton; the determination in relation to native title, if it arises in relation to matters in respect of which the Federal Court or the NNTT has no jurisdiction, explains the function and purpose and operation of ss 193 and 86: that is "the work" that those sections do.

161 In relation to there being said to be no advantage to an "approved determined" as against any other determination, Mr Larkin referred again to the decision of Drummond J in Wik v Queensland (supra) and his holding that the approved determinations are binding in rem as against the world. That is an advantage which is far greater an advantage than, important though it might be, advantage in the proceedings to the plaintiff instituted in this Court especially vis-a-vis the procedure under the Native Title Act. Mr Larkin exemplified this: in the present proceedings a declaration by this Court would be binding on Mr Larkin's client but not in the Tribunal. If a declaration was made in the Supreme Court that native title was extinguished and then later the Federal Court and the Tribunal determined that native title existed, what would be the position of the first defendant? It would enjoy the benefit of a finding in rem as against the world (enjoying native title perhaps to hunt fish or conduct ceremonies). The plaintiff would then contend that he is entitled in reliance upon the declaratory relief granted in this Court to restrain the conduct constituting the enjoyment of the native title contrary to the binding in rem decision in the Federal Court. This, as I understand the submission, would constitute a legal and juridical paradox that the due administration of justice simply could not tolerate. This submission is not without some immediate attraction.

The 1998 Amending Legislation

162 As indicated early in these reasons I have dealt with the submissions of the parties based upon the Native Title Act 1993. Before ruling on the motions for a stay I now turn to the question of the effect, if any, of the Native Title Amendment Act 1998.

163 The principal submission for the defendants was, shortly stated, that the scheme of the 1993 Act was to vest exclusive jurisdiction with respect to determination of native title in the Federal Court: s 81. That conclusion followed from a detailed consideration of the scheme of that Act as the Federal Court did not obtain its exclusive jurisdiction under that Act until the claim had been lodged with it under s 74. Lodgment with the Court under s 74 did not occur until the Native Title Registrar takes the appropriate step, after completion of the procedures within the NNTT (including mediation) provided for in Div. 1 of Pt 3 of the 1993 Act.

164 The amending legislation came into effect on 30 September 1998. Schedule 5 provides comprehensive transitional provisions in relation to applications made under s 61 of the 1993 Act. Where the application has not been referred to the Federal Court (as is the case here) but is still with the Tribunal, the application is "taken to have been made to the Federal Court" (Schedule 5 Pt 3 items 6 and 7). The expression "taken to have been made to the Federal Court" is a defined expression provided for in Schedule 5 Pt 9 item 36 in the following terms: "if an application is taken to have been made to the Federal Court: (a) the application is to be treated as if it were made to the Federal Court under the relevant provisions of the new Act..." The new Act refers to the 1998 Act which requires that applications now be made to the Federal Court (s 61(1)) and the applications must be in a prescribed form and filed in the Court (s 61(5)).

165 It fairly can be said therefore that at the commencement of the 1998 Act (30 September) every application pending before the Tribunal will be treated as having been made to the Federal Court in accordance with s 61 and accordingly, as having been filed in the Federal Court.

166 Section 81 has been amended to now read: "The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court".

167 In this context the defendants submit that from 30 September 1998 the Federal Court will have "exclusive jurisdiction" in relation to this "claim". The reference to "this claim" is ambiguous. Insofar it is sought to refer to the claim constituted by the application for relief made in the Amended Summons, I am not persuaded that the amendments to the Native Title Act have that effect at all. "The claim" in respect of which the Federal Court will have exclusive jurisdiction is, in my view, still the claim now deemed to have been made to the Federal Court but originally made to the NNTT.

168 "The application, saving or transitional provisions" particularly in Pt 3 relating amendments relating to s 61 applications, on my reading, constitute no enactment that in clear and unambiguous language operates retrospectively either to deprive the plaintiff of any right to approach this Court or to preclude this Court giving consideration to the matters otherwise argued on the Notices of Motion.

169 I am not persuaded by the arguments of the first defendant that the "careful provision" in the 1998 Act with respect to the transitional effects of the amendments make it impossible to rely upon the Acts Interpretation Act 1901 (Cth), (cf. Mahboob v The Minister for Immigration & Ethnic Affairs (1996) 64 FCR 398 at 403 and Mahboob (No. 2) (1996) 65 FCR 48). Indeed, I do not see that the exercise of this Court's jurisdiction is dependent on s 8 of the Acts Interpretation 1901.

170 In the written submissions delivered on 24 September 1998, the plaintiff states that in the event of this Court forming the view that it does have jurisdiction to hear the plaintiff's application but that it ought not exercise that jurisdiction, the plaintiff then seeks to have these proceedings transferred to the Federal Court of Australia under s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). This generated no response from the defendants . In the light of the relief sought and the whole approach taken to this case by the plaintiff I find this application extraordinary. It has not been argued before me and I do not propose to grant leave to the plaintiff, in effect, to amend his Notice of Motion to seek that relief.

171 As to the affidavit of 14 October 1998 sworn by Mr Emmerig and the attached Hansard from the New South Wales Parliament, this has generated no response either. I have perused the material, I do not take it into account in the light of the view I have already indicated in the course of these reasons, as to the role of any issue as to "doubt" will play in the determination of whether or not a stay should be granted.

Rulings - Stay Applications

172 As to what I have hitherto described as the "substantive basis" for the grant of a stay (the exclusive jurisdiction, the exclusive scheme or ouster basis) I am not persuaded that a case therefor has been made.

173 The Native Title Act 1993 and the amending legislation of 1998 still provides for exclusive jurisdiction in the Federal Court (s 81) but only in respect of claims made under that Act. Neither expressly nor by implication can it be said that that legislation operates to oust the jurisdiction of the Supreme Court of this State. In this respect I accept the submissions of the plaintiff. The provisions of ss 86 and 193 (even as amended) are critical in this regard. The "work" such sections perform as Mr Larkin put it, is not limited, I find, despite the initial attraction of the submission, to matters in which the Federal Court has no jurisdiction (cf: Mason v Tritton (supra)).

174 As I have said the Federal Court has exclusive jurisdiction as provided by s 81 of the Native Title Act such jurisdiction being exclusive to that Court in matters the subject of claims made under the Native Title Act. I am not persuaded that any case thus far decided, including North Ganalanja (supra), has authoritatively and clearly held otherwise: that is, any claim made "anywhere" for the determination of native title rights (but not made under the Native Title Act) must by reason of the nature of the claim be determined by the Federal Court of Australia and under the Native Title Act; and any claim made "anywhere" but at the same time the subject of a Native Title Act claim must be determined by the Federal Court because it has exclusive jurisdiction. As to this latter situation the principles of abuse of process may apply to stay the proceedings "elsewhere". I do not however, find any such abuse here, not least by reason of the nature of the relief sought nor by reason of the specific parties to the proceedings. Otherwise the propositions I have just set out, in my view, do not represent the law.

175 I accept that the plaintiff has the right to approach this Court for the relief of this kind to which s 23 of the Supreme Court Act is directed and that it can be sought concurrently with the Native Title Act proceedings, but the jurisdiction of the Federal Court under the Native Title Act does not exclude them or oust the jurisdiction of this Court. I do not see the need (nor otherwise consider it appropriate at this stage) to consider and determine any issue said to arise under s 109 of the Constitution.

176 I turn now to the discretionary basis for the grant of the stay. As stated earlier in these reasons the defendants of course rely upon the bases for the substantive ground for a stay as applying to the exercise of discretion in the event that they fail on the first basis.

177 I am persuaded by the proposition that upon the enunciation of the "common law" of native title rights in Mabo No. 2 (supra) and the enactment of the Native Title Act 1993 there has been created in a general sense a corpus common law and statute with the view to the new legal and factual issues being resolved uniformly at least, if not uniformly on a national basis.

178 It is in this area that the observations of the High Court in North Ganalanja and with respect, those of Priestley JA in Mason v Tritton (and, indeed, the observations as to practicalities of Talbot J in Andrew Donnelly) are very pertinent.

179 A powerful consideration on this matter is the involvement in the concurrent process under the Native Title Act in respect of the subject land of all parties whose respective interests can there be determined.

180 The paradoxical situation to which Mr Larkin referred and to which I have made reference above in the context of his submissions in reply is, in my view, one that simply cannot as a matter of practical reality, be ignored. Whilst I do not hold that the prosecution of the proceedings in this Court would be "futile" I do seriously question their overall utility, especially in the light of the submissions made in respect to the resolution of the competing claims between relevant parties in the proceedings under the Native Title Act.

181 As I have already indicated, I do not accept the submissions for the plaintiff that the proceedings initiated in this Court involve the resolution of a short, sharp and fundamentally simple question of law. Whilst it might be the case that as far as the plaintiff is concerned the disputed question of fact relating to occupation to which I have referred is one that simply can be resolved, the disregard for all that is involved in the parcel of native title rights sought to be extinguished or suspended by the grant of relief, cannot be overlooked. I am not persuaded that in this area the Court would not be called upon to consider and decide matters in relation to any such parcel of rights to the ends referred to, and to so decide them on what would no doubt be a body of evidence the extent of which, for present purpose, remains unknown.

182 It does not derogate from the authority or standing of this Court or from the existence of the right of the plaintiff to institute the current proceedings to express the view that whilst the Federal Court might not have exclusive jurisdiction it has appropriate and activated jurisdiction, the exercise of which to my mind will bring about practical and sensible resolution of all claims in relation to the plaintiff's lease.

183 I am not persuaded that the plaintiff is prejudiced or otherwise disadvantaged by the prosecution of the proceedings under the Native Title Act. It is interesting to note in this regard the Ministerial Media Release which the solicitors for the plaintiff forwarded to me on 13 August, a document which proclaims, amongst other things, that the amendments to the Act include "new streamlined procedures for processing of native title claims through the NNTT and the Federal Court". I merely remark upon this. I am not in a position to make any observation as to the efficiency or despatch with which the claim before the NNTT/Federal Court will be dealt with. On the other hand, it cannot be said, as I have already remarked in the context of the defendants submissions, that the plaintiff acted with promptitude, upon the initiation of native title proceedings by forthwith initiating the proceedings, in this Court. A year after "acceptance" was allowed to elapse.

184 Whether what I have acknowledged to be "political" or "social" concerns arising from the decisions of the High Court and indeed, the enactment of the 1993 Act, will have been ameliorated by the amendments, I am not position to say. No doubt arguments for and against will be rehearsed.

185 Thus, in the exercise of my discretion I will order a stay for the following reasons in summary: (a) the legal "pointers" to which I have referred arising from the cases to which reference has been made; (b) the appropriateness of the present proceedings under the Native Title Act for the resolution of all rights of all parties and all their claims; (c) the real question of the utility of the present proceedings in this Court; and, (d) the absence of evidence of prejudice or disadvantage to the plaintiff.

Ruling - Removal Application

186 The remaining matter is the plaintiff's motion to have the proceedings transferred to the Court of Appeal. In the course of submissions, towards their conclusion, my then predisposition was to make no such order. That view has not changed.

187 In my view the observations I have made on the question of discretion in relation to the stay, as to the lack of simplicity particularly in the area of facts and evidence of the proceedings as presently instituted, I do not consider it appropriate to remove the proceedings under s 51(5) and SCR Pt 12 r 2. All relevant aspects were argued before me in relation to the stay applications upon which I have now ruled. Whether or not the plaintiff will appeal or seek leave to appeal that ruling, I do not know. In the event, however, of appellate proceedings being instituted, the Court of Appeal will have the availability of these rulings and the reasons therefor as a discrete matter for its consideration. As I have indicated, the statement that the "central" issue in contention between the parties is whether native title, if any, that existed is extinguished or suspended, whilst it can be made with simplicity, does not reflect, in my view, the reality. I am not persuaded that the issue is as starkly stated, even assuming that its resolution may affect all Western Land Leases (though the typicality of the present lease is certainly in issue) or is one amenable to decision under SCR Pt 31 r 2 by itself or by reference therefrom to the Court of Appeal.

Orders

188 In relation to the plaintiff's Notice of Motion filed on 27 April 1998, order 1 has been made (granting leave to file and serve the Amended Summons); orders 2, 3 and 6 are irrelevant given the discontinuance of matter number 10917/98; accordingly orders 4 and 5 seeking removal to the Court of Appeal are the only relevant orders and the result therefore would be that the plaintiff's Notice of Motion is dismissed.

189 The formal orders are:

1. The plaintiff's Notice of Motion filed on 27 April 1998 is dismissed.

2. In respect of the first defendant's Notice of Motion filed on 27 April 1998, in the exercise of my discretion, I make Order 1 that the proceedings constituted by the plaintiff's Amended Summons filed on 27 April 1998 be stayed.

3. In respect of the Notice of Motion filed by the second defendant on 19 May 1998, in the exercise of my discretion, I make Order 1 that the proceedings constituted by the plaintiff's Amended Summons filed on 27 April 1998 be stayed.

4. As between the plaintiff and the first defendant I order the plaintiff to pay that party's costs.

5. As between the plaintiff and the second defendant, pursuant to the orders made by Bell AJ on 29 April 1998, I make no order as to costs.

LAST UPDATED: 20/01/1999