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Secher, U; Amankwah H A --- "Native Title, Crown Property and Resources: Post-Mabo Judicial Interpretations of Statutory Declarations and Statutory Vesting Provisions" [2002] JCULawRw 6; (2002/2003) 9 James Cook University Law Review 109


NATIVE TITLE, CROWN PROPERTY AND RESOURCES: POST-MABO JUDICIAL INTERPRETATIONS OF STATUTORY DECLARATIONS AND STATUTORY VESTING PROVISIONS

U SECHER* AND H A AMANKWAH**

* LLB(Hons)(JCU); PhD(UNSW), Barrister of the Supreme Court of Queensland;

Lecturer in Law, JCU. The basis of this paper is a chapter intended for, but withdrawn from, my PhD thesis. Accordingly, I would like to thank Brendan Edgeworth (as one of my PhD co-supervisors) for valuable comments on earlier drafts of the chapter.

** LLM(Cornell); SJD(NYU); Associate Professor, School of Law, JCU.

INTRODUCTION

The High Court in Mabo and Others v State of Queensland (No.2)[1] held:[2]

Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished to parcels of waste lands of the Crown that have been validly appropriated for use (whether by dedication, setting aside, reservation or other valid means) and used for roads, railways, post offices and other permanent public works which preclude the continuing concurrent enjoyment of native title. Native title continues where the waste lands of the Crown have not been so appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of native title over the land (e.g., land set aside as a national park).

If native title to any parcel of the waste lands of the Crown is extinguished, the Crown becomes the absolute beneficial owner.

The Court did not, however, elaborate on the general process of how the Crown’s radical title metamorphoses into the beneficial interest or plenum dominium. In this context, the High Court decisions in Fejo v Northern Territory,[3] Yanner v Eaton,[4] Commonwealth v Yarmirr[5] and Western Australia v Ward,[6] the Full Federal Court decisions in Commonwealth of Australia v Yarmirr[7] and Western Australia v Ward,[8] and the Federal Court decisions in Wik Peoples v Queensland,[9] Yarmirr v Northern Territory of Australia,[10] Ward v Western Australia[11] and Hayes v Northern Territory[12] are examined. Although these cases illustrate the principle that the Crown has to exercise its sovereign powers, in accordance with statutory authority, in order to acquire beneficial title to land subject to pre-existing native title, their importance lies in their contribution to the fundamental issue: what amounts to an appropriate exercise of legislative power for the purpose of expanding the Crown’s radical title.

It is clear from the decision in Wik Peoples and Thayorre People v Queensland[13] that the grant of a pastoral lease does not create a full legal reversionary interest in the Crown and is, therefore, insufficient to expand the Crown’s underlying radical title. The cases discussed in this paper, however, focus on a very different exercise of sovereign power: whether legislative vesting of property in the Crown can, without more, confer beneficial title upon the Crown. Although there are various legislative regimes which generally purport to vest property in the Crown, this paper will focus on two specific examples of legislative vesting which relate directly to land. The first, considered in part I, deals with the various legislative regimes which contain express declarations of Crown ‘property’ in minerals. The second, examined in part II, deals with express legislative vesting of resumed land in the Crown.

The authorities which are considered in this paper deal specifically with the effect of legislative regimes on native title rights and interests and are not, therefore, conclusive in the context of the Crown’s title per se.

Nevertheless, they contribute to the juridical process of identifying and defining the parameters within which the Crown’s radical title will expand to a plenum dominium.

I DECLARATIONS OF CROWN PROPERTY IN MINERALS LEGISLATION

It is clear from both Mabo and Wik that the term ‘Crown land’, for the purpose of Crown lands legislation, does not equate with ‘Crown property’ per se; indeed, a contrary conclusion would have prevented any recognition of native title rights and interests in land in Australia.[14]

Similarly, a general scheme of land regulation such as that found in Queensland has not been treated in America or Canada as amounting to an expansion of radical title for the purpose of extinguishing native title.[15]

This conclusion is also supported by the British Columbia Court of Appeal’s interpretation in Delgamuukw v British Columbia,[16] and the Canadian Supreme Court’s interpretation in Calder v Attorney-General

(British Columbia),[17] of the legislation promulgated in order to assist British settlement in and authority over the Colony of British Columbia.[18]

Significantly, this legislation included the provision that ‘all the lands in British Columbia, and all mines and minerals thereunder belonged to the Crown in fee.’[19] In interpreting this provision, the Court focused on thirteen Colonial Instruments, enacted between 1858 and 1870,[20] dealing with land and the purchase, pre-emption and settlement of land.

The Court of Appeal of British Columbia unanimously held that the express declaration of land, mines and minerals belonging to the Crown ‘in fee’ merely declared the existing underlying title of the Crown, which could, therefore, coexist with native title. Indeed, MacFarlane JA concluded that the existing situation which the legislation declared was that ‘only the Crown was competent to convey land interests to third parties’ because ‘[t]he Crown held the underlying title to all lands in the province.’[21] Thus, the provisions relating to the Crown’s fee simple title had to be understood in the context of setting up an orderly system of purchase, pre-emption and settlement.[22] In Western Australia v Commonwealth,[23] the High Court’s analysis is consistent with this approach. In both jurisdictions, therefore, the Crown’s colonial policy was capable of being implemented without a general expansion of the Crown’s radical title.[24] Thus, Crown lands legislation which assumes, declares or affirms the Crown’s radical title and provides for the disposition of unalienated lands is not a sufficient exercise of sovereign power for the purpose of converting radical title into a plenary title.[25]

There are also, however, declarations of Crown property in the context of other legislative regimes. Although State and Territory legislation relating to minerals, water, fish and wildlife provide examples of legislative vesting of property in the Crown,[26] declarations of Crown property in minerals is particularly significant. This is because both the transfer, in Australia, of the management and control of the wastelands of the Crown and the successive Ordinances in British Columbia declaring all land to belong to the Crown in fee, included all mines and minerals therein.[27]

Furthermore, at common law it is presumed that the owner of land is entitled to all that lies above or below the surface: cujus est solum, ejus est usque ad coelum et usque ad inferos. Thus, minerals[28] are part of the land in which they are situated[29] and a grant in fee simple (a conveyance of freehold land) includes the minerals therein unless expressly excluded or previously reserved.[30]

The nature of the Crown’s title with respect to mines and minerals must, therefore, be the same as it is with respect to the surface of the land.[31]

Thus, in the absence of adequate steps to expand its underlying title, the Crown has only radical title to minerals. The question whether legislative regimes relating to minerals constitute a sufficient exercise of sovereign power to enhance the Crown’s title is, therefore, critical.

Legislation in all Australian States and the Northern Territory contains declarations of Crown property in minerals. A distinction must, however, be drawn between two forms of such declarations. On the one hand, legislation in New South Wales, Tasmania and Western Australia contain declarations of Crown property in minerals subject to alienation by grant prior to certain dates.[32] On the other hand, legislation in Queensland, Victoria, South Australia and the Northern Territory embody declarations of Crown property in minerals irrespective of prior grant.[33] Legislation in all States and the Northern Territory contains declarations of Crown property in gold and silver and in petroleum[34] irrespective of prior grant.

These declarations of Crown property in minerals are found within the context of State and Territory statutory regimes for the disposition of minerals. Although such legislative regimes assume the power of disposition of minerals, since Mabo, it is clear that the sovereign’s power to grant interests in land is not dependent on ownership of the relevant land.[35] Provision for the development of privately owned minerals is also commonly made in the statutory regimes for the disposition of minerals, and includes special measures for the protection of the private interests of, and the payment of royalties to, the owner. Furthermore, the existence of offences to ensure that the development of minerals is effected pursuant to legislative authority merely constitute statutory offences, which, of themselves, do not require the Crown to have a beneficial title in order to support them. Indeed, it is clear from Mabo,[36] Wik[37] and Ward,[38] that provisions in Crown lands legislation that deal with trespass on Crown lands[39] do not extinguish native title nor make Aboriginal people who occupy the land by right of their unextinguished title trespassers.

Although the legislative regimes for the disposition of minerals are closely analogous to the regimes for the disposition of the surface of the land pursuant to Crown lands legislation, the minerals legislation expressly declares minerals to be the property of the Crown, whereas the Crown lands legislation considered in Mabo and Wik simply declared Crown land to be:[40]

All land in Queensland, except land which is, for the time being -

(a) Lawfully granted or contracted to be granted in fee-simple by the Crown; or (b) Reserved for or dedicated to public purposes; or (c) Subject to any lease or licence lawfully granted by the Crown: Provided that land held under an occupation license shall be deemed to be Crown land.

Nevertheless, it has been seen that the High Court has approved the British Columbia Court of Appeal’s analysis, in Delgamuukw, which interpreted legislation stating that ‘all lands in British Columbia, and all mines and minerals therein, not otherwise lawfully appropriated, belong to the Crown in fee,’[41] as merely declaring the existing situation and referring to the Crown’s radical title.[42] It will also be seen that, in Yanner v Eaton, the High Court held that declarations of Crown property in fauna do not, of themselves, confer beneficial ownership.[43] Furthermore, the observation that ‘native animals belong to the people in just the same way as ... the minerals belong to the people’,[44] makes it clear that the majority of the High Court in Yanner was of the view that declarations of Crown property in both fauna and minerals do not confer beneficial title to the fauna or minerals on the Crown. Indeed, it will be seen that this conclusion is consistent with Lee and Olney JJ’s decisions, as trial judges, in Ward v WA[45] and Hayes,[46] respectively, and North J’s dissenting judgment in WA v Ward.[47]

There are, however, obiter dicta in the context of judicial interpretation of statutory declarations of Crown property in minerals at both the High Court level, in Ward, and the Federal Court level, in Yarmirr v NT and WA

v Ward, that suggest a different result. Furthermore, in Wik Peoples v

Queensland, the Federal Court held that statutory declarations of Crown property in minerals in Queensland had the effect, in and of themselves, of vesting title to the minerals in the Crown and thereby extinguishing any native title interest that might exist in relation to those resources. Nevertheless, it will be shown that both principle and the weight of authority support the proposition that statutory declarations of property in minerals in the Crown merely refer to the Crown’s radical title and do not confer a beneficial interest.

Furthermore, it will be seen that the authorities fail to draw a crucial distinction between, on the one hand, an expansion of the Crown’s radical title into beneficial ownership such that any native title is necessarily extinguished and, on the other hand, a law that has the effect of extinguishing native title per se without expanding the Crown’s radical title. It has generally been assumed that the Crown only had to take further steps to become owner of land in the case of land subject to native title on the basis that the Crown’s radical title automatically expands into absolute beneficial ownership where there is ‘no other proprietor’,[48] a rationale which encompasses the situation where native title has expired or been surrendered to the Crown.[49] In her doctoral thesis, however, Dr Secher has shown that this assumption fails to appreciate the significance of the High Court’s identification of radical title as both the postulate of the doctrine of tenure and a concomitant of sovereignty.[50] As the postulate of the doctrine of tenure, radical title is merely a bare legal title sufficient to support that doctrine. The effect of this limb of radical title is, therefore, to give the Crown a paramount lordship over all who hold a tenure granted by the Crown.[51] As a concomitant of sovereignty, radical title is merely the sovereign’s power of alienation over the whole of the national territory: the right to acquire and confer beneficial title. Thus, the concomitant of sovereignty limb of radical title has two incidents: in addition to conferring a right to acquire plenary property rights which, in the case of land subject to native title, takes the form of an exclusive right of pre-emption, it also confers a power to grant beneficial title by disposing of any land, including land subject to native title, over which the Crown has sovereignty.[52]

Accordingly, until the Crown exercises its sovereign power to create interests in land in itself or others, neither the Crown nor any person claiming a derivative title from the Crown has any beneficial interest in the land.

Thus, the requirement that the Crown must exercise its sovereign power before the underlying radical title of the Crown converts to full beneficial ownership of land is not limited to land in respect of which pre-existing native title exists. Investiture of radical title creates no beneficial entitlement to the land to which it relates; it is no more than political or governmental power that enables the sovereign to grant interests in land or to appropriate ownership of land to itself. As a legal concept, therefore, radical title connotes a bare legal title sufficient merely to support the doctrine of tenure and the Crown’s right to acquire and confer title, but not title itself. Indeed, the ‘no other proprietor’ rationale for attributing beneficial ownership to the Crown is a new, and unnecessary, legal fiction created by the High Court as the counterbalance to the Court’s rejection of the fictional explanation of the universality of the feudal doctrine of tenure.[53]

The Authorities

1 Yarmirr v NT[54]

Members of several Aboriginal communities[55] made an application for a determination of the existence of native title in respect of the sea and sea- bed surrounding their islands in the Northern Territory.[56] Although the Federal Court decision, delivered by Olney J, found that the common law recognised native title rights and interests in relation to the seas and sea- bed of the claimed area,[57] it was held that native title had not been established in relation to the subsoil or its resources.[58]

Olney J observed that in seeking recognition of the right of ownership of the waters and land of the claimed area and rights to use and to control the use by others of the resources of the claimed area, the applicants’ proposed determination encompassed a claim to all resources existing within the sea-bed and subsoil including minerals located on or below the sea-bed.[59]

Olney J found, however, that there was no evidence to suggest that any of the applicants’ traditional laws or customs related to the acquisition or use of, or the trading in, any minerals that may have existed or been found on or in the sea-bed or subsoil of the waters of the claimed area.[60] Although this was a sufficient basis for refusing to recognise native title in such minerals, Olney J went on to consider a submission by the Commonwealth in support of the proposition that: title to minerals in the sea-bed and subsoil within the limits of the Northern Territory and beneath the coastal waters of the Northern Territory has been vested in the Crown either in the right of the Commonwealth or in the right of the Northern Territory. [61]

According to the Commonwealth’s submission, title to the minerals was vested in the Crown as a result of the:

combined effect of the Atomic Energy (Control of Materials) Act 1946 (Cth), the Atomic Energy Act 1953 (Cth), the Minerals (Acquisition) Ordinance 1953, the Petroleum (Prospecting and Mining) Ordinance 1954, the Northern Territory (Self Government) Act 1978 (Cth) and the Coastal Waters (Northern Territory Title) Act 1980 (Cth). [62]

On the basis of his own consideration of the complex legislative history referred to in the Commonwealth’s submission, Olney J concluded that the Crown had ‘by exercise of its undoubted legislative powers appropriated to itself an interest in the minerals in question which amount[ed] to the full beneficial ownership thereof.’ [63] It necessarily followed that ‘no native title rights in the minerals could have survived the acquisition.’[64]

In amplification of these conclusions, Olney J noted that the reasons of Brennan J in Mabo[65] and the Queensland Court of Appeal in Eaton v Yanner; Ex parte Eaton[66] were ‘entirely consistent’ with this result.[67] With respect, however, the reasons of both Brennan J and the Queensland Court of Appeal do not unequivocally support such a conclusion in circumstances where there has been a legislative vesting of property in the Crown.

2 Mabo: Brennan J’s Judgment

Although the relevant part of Brennan J’s judgment refers to Aboriginal people having been dispossessed of their traditional lands by the Crown’s exercise of its sovereign powers to grant land to whom it chose and to appropriate to itself the beneficial ownership of parcels of land for the Crown’s purposes,[68] there is nothing to indicate that a mere legislative vesting of property is a sufficient exercise of the Crown’s sovereignty to confer a plenary title on the Crown. Indeed, Brennan J’s examination of what amounts to an adequate exercise of sovereign power, whether appropriation or grant, for the purposes of extinguishing native title, concludes that the decisive factor is not the actual intention of the Governor in Council, but the effect which the grant or appropriation has on the right to enjoy native title.[69] Accordingly:

Where the Crown grants land in trust or reserves or dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law.[70]

In this context, it is clear that legislation must go further than simply recognising the radical title of the Crown. And, since Brennan J concluded that the reservation of land for public purposes does not extinguish native title over the subject land unless the land is actually used in a manner inconsistent with the continued enjoyment of the native title,[71] it is suggested that analogous reasoning will apply in the context of any purported legislative vesting of property in the Crown. That is, a statutory appropriation per se will not be sufficient to convert the Crown’s underlying radical title to beneficial ownership unless the land is also actually used by the Crown for the purpose of the appropriation.[72]

In WA v Ward, the Full Federal Court has described such inconsistency as ‘operational inconsistency’.[73] That is, ‘operational inconsistency’ from actual use may bring about extinguishment in addition to that arising upon grant.[74] According to the majority in WA v Ward, however, under the ‘inconsistency of incidents test’, ‘conflict in actual use is only a material consideration where the grant itself does not extinguish native title, but the later exercise or performance of a power or condition contained in the grant does so.’[75] On appeal, the majority of the High Court in Ward held that, for the purposes of the Native Title Act 1993 (Cth),[76] the concept of ‘operational inconsistency’ was ‘useful, if at all, only by way of analogy’.[77]

That is, reference to ‘use’ of land is relevant only to the extent that it demonstrates that certain rights have been created or asserted.[78] In this way, the High Court in Ward rejected, ‘in principle’,[79] the concept of ‘operational inconsistency’: looking to the use that has actually been made of the land distracts attention from the central inquiry which is an inquiry about rights created in others or asserted by the executive, not the way in which they have been exercised at any time. [80]

Because the Ward High Court’s rejection of the concept of ‘operational inconsistency’ was made in the context of the doctrine of extinguishment for the purposes of the NTA, rather than the common law per se,[81] it is not clear whether the concept continues to be part of the common law doctrine of extinguishment. That is, whether the common law doctrine of extinguishment and the doctrine of extinguishment for the purposes of the NTA are mutually exclusive, or whether aspects of the High Court’s formulation of the doctrine of extinguishment for the purposes of the NTA apply equally at common law: that is, aspects of extinguishment may be consistent under both the common law and statutory position. Nevertheless, because it is now accepted that the NTA governs the recognition, protection and extinguishment of native title,[82] it appears that any possibility of a concept of operational inconsistency at common law is otiose: all future native title issues will be examined by reference to the NTA.

In any event, it is arguable that there is a crucial distinction between an appropriation of land by the Crown and a grant of land by the Crown in the context of the doctrine of operational inconsistency. That is, even on the basis of the Ward High Court’s formulation of the inconsistency of incidents test, in the context of an appropriation of land, the use of land is relevant to the extent that it demonstrates that certain rights have been asserted by the executive: until the rights are asserted they are not inconsistent with native title rights.

Considered in the context of exercises of sovereign power which are capable of extinguishing native title because they have the effect of expanding the Crown’s title from radical to beneficial title, therefore, Brennan J’s reasoning in Mabo is not consistent with Olney J’s conclusion in Yarmirr v NT: the Crown’s acquisition of a plenary title requires more than legislative vesting per se.

3 Eaton v Yanner; Ex parte Yanner[83]

Olney J’s reliance on Eaton v Yanner to support the proposition that mere legislative vesting of property in the Crown confers beneficial title thereto on the Crown is, with respect, similarly misplaced. Importantly, it ignores the characterisation of the form of the legislation pursuant to which Yanner argued, before the Queensland Court of Appeal, for the legal recognition of Aboriginal hunting rights. Yanner was charged under s 54(1)(a) of the Fauna Conservation Act 1974 (Qld)[84] with taking two estuarine crocodiles on separate occasions between 31 October and 1 December 1994 without being the holder of a licence, permit, certificate or other authority under the Act. [85] In his defence, Yanner argued that he had a native title right to hunt crocodiles on his traditional lands and waterways.[86] By majority,[87] the Court of Appeal ruled that the hunting right claimed by Yanner had been extinguished by amendments to the Fauna Conservation Act in 1974.[88]

These amendments removed a statutory exemption which, pursuant to earlier legislation on the subject,[89] had previously applied to Aborigines, from the prohibition on the killing and taking of native animals[90] and purported to vest ownership of all fauna covered by the Act in the Crown.[91]

Separate reasons for judgment were given by each member of the Court.

McPherson JA considered that Yanner’s claimed right to hunt could be characterised as a common law right to hunt ‘derived from occupation of land’.[92] Rather than being a distinctive Aboriginal right, this was a right which arose at common law by virtue of the claimant’s status as an owner or occupier of the land in question.[93] According to McPherson JA, therefore, if the appeal fell to be determined solely by reference to the common law of Australia, even if the radical title to the relevant land was in the Crown, Yanner was, at common law, entitled to go on that part of the land or water and to kill the two crocodiles so as to become the absolute owner of them.[94] Importantly, implicit in this analysis was the fact that since the common law right to hunt was an incident of property rights in land,[95] the nature of the Crown’s initial title with respect to ‘fauna’ was the same as with respect to the surface of the land.[96] His Honour doubted whether it would have been necessary for Yanner to found his right to hunt on the NTA.[97]

Nonetheless, it was submitted that, in 1994 when the crocodiles were killed, the common law had ceased to be the law. This was said to follow from the intervention of s 7 of the Fauna Conservation Act, pursuant to which the ownership of the two crocodiles was vested in the Crown in right of the State of Queensland. Not even a qualified property remained in the occupiers of the land that was capable of being enlarged into absolute ownership by killing and taking the crocodiles.[98]

Notwithstanding the form of this submission, McPherson JA considered that the first matter to be determined was whether, apart from the provisions of the NTA, the Fauna Conservation Act had the effect of extinguishing the common law right to hunt and take wild animals on land of which a person was the owner or occupier.[99] His Honour concluded that an ‘owner or occupier of land is no longer entitled to kill or take a wild animal that is “fauna” which he finds upon his land.’[100] This result was, however, based upon two independent considerations: first, because to do so constituted the taking of an animal as defined in s 5 of the Act, which was an offence under s 54(1)(a) of the Act. Secondly, and quite apart from s 54(1)(a), because by s 7 of the Act, ‘fauna’ was now the property of the Crown.[101]

It is, therefore, not entirely clear whether McPherson JA considered that the Fauna Conservation Act merely extinguished rights per se or whether the Act also had the effect of enhancing the Crown’s title; that is, whether the Crown’s statutory title conferred beneficial ownership.[102] McPherson JA’s reliance on two independent bases for his conclusion, namely s 54(1)(a) and s 7 of the Fauna Conservation Act, was reiterated when he distinguished the High Court decision in Thorpes Limited v Grant Pastoral Lease Company Pty Ltd.[103] In that case, s 1 of the Water Rights Act 1896

(NSW)[104] vested in the Crown the right to the use and flow, and to the control, of the water in all rivers or lakes which flowed through the land of two or more occupiers. The right so vested in the Crown was, however, subject to various restrictions, including the right of a riparian owner in certain circumstances to use water of a river or lake for domestic purposes, for stock, or for irrigation of a garden.

The High Court held that the Water Rights Act had not deprived a landowner of his right to complain that water, silt and debris had been thrown on his land by an obstruction made to the channel or natural flood channel of a stream without lawful justification or excuse. The leading judgment was delivered by Fullagar J,[105] who observed that:

the real object of the Water Rights Act 1896, as revealed by the latter part of s 1, was to enable the Crown ... to exercise full dominion over the water of rivers and lakes and to undertake generally the conservation and distribution of water. For the attainment of that object it was not necessary to destroy anybody’s rights, but it was necessary to give to the Crown ... overriding rights to which private rights must, if need arise, give way. [106]

Accordingly, the Act did not affect any private rights, which continued to exist ‘until those new and superior rights [of the Crown] were exercised.’[107]

In Eaton v Yanner, McPherson JA noted that, in contradistinction to the object of the Water Rights Act, the primary object of the Fauna Conservation Act was to preserve or conserve ‘fauna’ of all kinds and that this object was served by:

prohibiting any and all such fauna from being hunted except under licence, but, independently of that prohibition, also by vesting the property in them directly in the Crown even before they [were] reduced into possession. [108]

However, if the object of the Act was attained by merely prohibiting the taking of ‘fauna’, it would not be necessary to also require the Crown’s statutory property in fauna to confer absolute ownership on the Crown in advance of the ‘new and superior rights of the Crown being exercised.’ Furthermore, McPherson JA’s reasons appear to be consistent with the view that the principal effect of the Act was that any right or interest, qualified or otherwise, of anyone other than the Crown in ‘fauna’ was simply extinguished by the provisions of the Fauna Conservation Act, including s 7, rather than the extinguishing effect being a consequence of any purported vesting which enlarged the Crown’s title to such ‘fauna’.[109]

The other member of the majority in Eaton v Yanner, Moynihan J, similarly saw the appeal as turning on whether, apart from the provisions of the NTA, the Fauna Conservation Act extinguished Yanner’s right to take crocodiles.[110] Moynihan J’s judgment was, however, narrower than McPherson JA’s: Moynihan J restricting his findings to the context of native title rights to hunt,[111] rather than common law rights to hunt.

Nevertheless, Moynihan J concluded that the Fauna Conservation Act extinguished Yanner’s native title right to hunt.[112] For Moynihan J, it was difficult to see how the: unconditional vesting of property in the Crown, in conjunction with the vesting of control and the prohibition of unauthorised taking, left any scope for the operation of ... common law rights with respect to estuarine crocodiles.[113]

Accordingly, his Honour found that the legislation went beyond regulating the exercise of entitlements under native title.[114]

In contrast to McPherson JA’s finding that there were two mutually exclusive bases for concluding that the common law right to hunt had been extinguished, either the statutory prohibition against taking fauna or the statutory vesting of fauna in the Crown, Moynihan J’s analysis suggests that there is only one basis for such extinguishment. Nevertheless, since this one basis encompasses what his Honour considered to be the combined effect of the three consequences of the Fauna Conservation Act, namely, vesting the property in the Crown, vesting control in the Authority and prohibiting the unauthorised taking of fauna, the two limbs of McPherson JA’s reasoning are accommodated. It is difficult, however, to reconcile the need for the combined effect of what Moynihan J considered to be the three consequences of the Fauna Conservation Act in this context: if the Crown’s statutory title is sufficient to invest the Crown with beneficial ownership of the property, any native title rights and interests in respect of the subject property would, without more, necessarily be extinguished.

Like McPherson JA, Moynihan J also distinguished Thorpes Limited v Grant Pastoral Company Pty Ltd[115] as conditioning extinguishment on the exercise of the superior right of the Crown given by that Act to the necessity of the particular circumstances.[116] For Moynihan J, however, the difficulty of applying that approach to the instant case was that the combined effect of what he regarded as the three consequences of the Fauna Conservation Act was inconsistent with native title rights to hunt.[117]

Thus, the unequivocal nature of the effect of the provisions, rather than what was practically necessary to give effect to the purpose of Act, extinguished the native title rights.

McPherson JA’s reasoning, on the other hand, is consistent with the particular statute merely extinguishing native title rights which would otherwise have been protected rather than necessarily enlargening the Crown’s underlying radical title. Although an exercise of sovereign power which confers absolute beneficial ownership on the Crown is necessarily inconsistent with native title and therefore extinguishes it, (for example the grant of fee simple estate), it does not necessarily follow that because an exercise of sovereign power, particularly pursuant to statute, extinguishes native title it thereby enhances the Crown’s title.[118]

Moreover, the dissenting judge, Fitzgerald P, concluded that the 1974 amendments to the Fauna Conservation Act did not extinguish native title hunting rights as they merely regulated such rights. In rejecting the argument that the assertion of Crown ownership of the property in fauna by s 7 of the Fauna Conservation Act, in conjunction with its other provisions, notably s 54(1)(a), manifested a legislative intention by the Queensland Parliament to extinguish any pre-existing native title rights to hunt crocodiles, Fitzgerald P referred at length to the High Court decision in Walden v Hensler.[119]

In Walden v Hensler, a majority of the High Court[120] upheld the conviction of an Aborigine for an offence against s 54(1)(a) of the Fauna Conservation Act. The issue was whether s 22 of the Queensland Criminal Code provided a defence for the Aborigine, who was not the holder of a licence, permit, certificate or other authority under the Fauna Conservation Act, on the basis that, although he had not been legally entitled to take the fauna, he believed that he was entitled to do so in accordance with Aboriginal custom. According to Brennan J:

The gist of the offences created by s 54 is the physical destruction or control of fauna, irrespective of any rights over or in respect of fauna which might be vested in any person. The acts prohibited by s 54 are not defined as having the consequence of infringing another’s rights. It may be that, by reason of s 7, any act which is done in contravention of s 54 will infringe the rights of the Crown, but infringement is not an element of any offence created by s 54. It is immaterial for the purposes of s 54 whether or not fauna is the property of the Crown .... Standing alone, s 54 does not create an offence relating to property.

Does the existence of s 7 turn an offence created by s 54 into an offence relating to property? I think not. If an infringement of the Crown’s rights in protected fauna is not an element of the offences created by s 54, the vesting of such rights in the Crown does not add the qualifying element to the offence. Section 54 has the same meaning and effect whether or not regard is had to s 7: it is a provision calculated not to protect the Crown’s or any other person’s rights over or in respect of fauna but to protect fauna from destruction and control. [121]

According to Fitzgerald P, therefore, the statutory scheme of Crown ownership and control of ‘fauna’ was broadly consistent with the common law principle that wild animals are incapable of ownership until killed or caught[122] and this was not affected by the recognition of native title.[123] The object of the provision was the assertion of Crown property, or dominion, for the purposes of conservation, not the expansion of the Crown’s underlying radical title.[124] Consequently, the statutory assertion of Crown property in fauna was not an absolute obstacle to any continued exercise of the native title right to hunt fauna but was an incident of the regulation of that right.[125] Ultimately, Fitzgerald P saw the issue as being whether the Fauna Conservation Act, taken as a whole, was practically incompatible with the continued, albeit conditional, native title right to hunt crocodiles.[126] For this purpose, his Honour considered it legitimate to have regard to both the terms and the purpose of the Act.[127]

Fitzgerald P found that the Act did not prohibit, but merely regulated, the relevant activity: ‘It did not exclude the killing of fauna; while it limited that activity, it expressly authorised it in specified circumstances and subject to specified conditions.’[128] Accordingly, he concluded that the Crown’s proclaimed ownership of estuarine crocodiles neither increased nor decreased any native title right to kill crocodiles:

Irrespective of any question of ownership, the native title right to hunt crocodiles was not extinguished but rather was subjected by sub-s 54(1)(a) of the Fauna Conservation Act to a condition, namely that before exercising the native title right, a native title holder must possess a licence, permit, certificate or other lawful authority granted under the Act. [129]

On this view, therefore, there was no question of investiture of beneficial ownership in the Crown. Importantly, this analysis also accords with the High Court’s decision in Yanner v Eaton, which is discussed below,[130] in which Yanner’s appeal from the Court of Appeal’s decision was allowed.

The dissenting opinion of Fitzgerald P is also consistent with Olney J’s analysis of the history of the legislative and administrative control of fishing in relation to the claimed area in Yarmirr v NT. According to Olney J, the net result of the fishing legislation is that native title rights have been, and are now, regulated, but not extinguished, by prior legislative enactments or administrative action.[131] Accordingly, the Crown’s radical title retained its essential character. Furthermore, Olney J’s actual decision in Yarmirr v NT, that native title had not been established in relation to minerals, was based upon his finding that there was no evidence to suggest that any of the applicants’ traditional laws or customs related to the acquisition or use of, or the trading in, any minerals that may have existed in the sea-bed or subsoil of the relevant waters. Accordingly, his observation that the Crown had exercised its legislative powers to appropriate to itself full beneficial ownership of the minerals in question was mere obiter dictum.

Although two appeals from Olney J’s decision were dismissed by the majority of the Full Federal Court in Cth v Yarmirr,[132] the appeals failed for essentially the reasons given by Olney J. In particular, the majority expressly agreed with Olney J’s finding that ‘there was no evidence to support any traditional claim’ to the use and control of the resources of the subsoil.[133] Consequently, the Full Federal Court did not find it necessary to refer to Olney J’s obiter remarks relating to legislative vesting of minerals in the Crown. An important aspect of the decision in Yarmirr v NT which was absent in both Mabo and Wik was the fact that the proceeding related to waters below the low-water mark. That is, it was in the factual context of the territorial sea rather than internal land or waters that Olney J had to consider what effect, if any, legislative vesting of minerals had upon any native title interests: his decision is, therefore, distinguishable on this basis.[134] Moreover, it will be seen that the High Court’s decision in Yarmirr, while not addressing the minerals legislation considered by Olney J,[135] suggested that the legislative vesting of title over the seas and sea-bed in the Northern Territory pursuant to the Coastal Waters (Northern Territory Title) Act 1980 (Cth) did not confer full beneficial ownership: the title vested in the Northern Territory was no more than a radical title.[136]

Thus, although Olney J’s decision in Yarmirr v NT implies that a mere legislative vesting is a sufficient manifestation of the exercise of the Crown’s sovereign power to expand its radical title to beneficial ownership, it is by no means so clear. In addition to this aspect of the judgment being mere obiter, the authorities cited in support of it are equivocal. The very nature of the sea also provides a basis for distinguishing future claims to legislative vesting of minerals in the context of land or internal waters.[137] Furthermore, in the subsequent Federal Court decision of Hayes v Northern Territory,[138] Olney J’s judgment expressly supports the opposite conclusion: namely, the proposition that legislative regimes which purport to vest certain property in the Crown have no significance for the Crown’s radical title.

4 Hayes v Northern Territory

The applicants[139] sought a determination of native title in respect of 166 separate parcels of land in and near Alice Springs. It was alleged that all land and waters claimed were either ‘vacant Crown land, Crown land subject to various reserves, Crown land subject to various leases [or] Crown land “set aside” for various purposes’,[140] and that none of the claimed area was held under freehold title or held under a current pastoral lease.[141] In concluding that native title existed in relation to either the whole or part of 113 of the 166 parcels of land, the Federal Court judgment, delivered by Olney J, rejected the Northern Territory’s argument that native title had been extinguished by reason of the establishment of various legislative regimes, including the regime for the disposition of minerals, which were said to be inconsistent either in whole or in part with the continuation of native title.[142] In this context, Olney J considered seven categories of legislative regimes, the subject matter of which were: minerals; water; flora and fauna; Aboriginal people; local government; soil conservation; and defence. For present purposes, discussion will be confined to the statutory regimes relating to minerals, water, and flora and fauna as these regimes all contained express declarations of Crown property in their respective subject matters.[143]

Minerals

In their submissions, the parties addressed various issues raised by Commonwealth and Territory legislation affecting the ownership and vesting of minerals. Although this provided Olney J with an opportunity to revisit the question of the legislative vesting of minerals, he concluded that this question and any effect on native title rights thereto, was not an issue in the proceedings. There were three reasons for this conclusion. First, although the application included a claim to ‘the absolute ownership of property in all natural resources, including rights of extraction of “all ochres, soils, mineral ores and associated substances”’,[144] the applicants’ principal concern in respect of the exploitation of minerals in the claim area related to questions of access to land.[145] Secondly, and despite Olney J’s observation that the applicants’ traditional use of ochre and other substances could be construed as the use of minerals for ceremonial purposes, there was no evidence that such substances were obtained from any of the claimed land.[146] And, thirdly, there was no evidence that the applicants’ ‘traditional laws and customs related to the extraction or use of minerals or other substances extracted from the ground.’[147]

Nevertheless, in the context of the legislative regimes which, in relation to the subject matters of water and flora and fauna, expressly purported to vest property in the Crown, Olney J found that the effect of such regimes was not to expand the Crown’s radical title. Consequently, any relevant native title rights and interests were not extinguished.

Water

In their application, the applicants included a claim to the ownership of property in water within the claimed land. It was argued that the creation of various rights and legal regimes under the Control of Waters Ordinance

1938 (NT),[148] and the regulations thereunder, were inconsistent with and thereby extinguished any native title rights of ownership of water.[149] As a result of Olney J’s finding that the evidence did not support the applicants’ claim to ownership of the water resources of the claimed land,[150] the real issue in relation to water was whether the undoubted native title right of use had been affected by legislative intervention;[151] that is, whether the legal regime had the effect of expanding the Crown’s radical title, which was burdened by native title, to full beneficial title such that the native title was extinguished.

Pursuant to the Control of Waters Ordinance:[152]

The property in, and the right to the use and flow and to the control of, the water at any time in any lake, spring or watercourse shall, until appropriated by other persons under this or some other Ordinance, vest in the Crown.

This vesting of the property in the water was, however, severely qualified as being subject to: any rights reserved or granted to any person by or under this Ordinance or any other Ordinance or law in force in the Territory; and ... any right therein, or to the use thereof, inconsistent with the right of the Crown, which may be established by any person under any Ordinance or law which is, or has been, in force in the Territory. [153]

Since native title rights and interests are recognised by the common law and protected by the NTA, Olney J concluded that such rights may be established by a person under a law in force in the Territory and thus the vesting effected by the Control of Waters Ordinance was subject to those rights.[154] A fortiori, the vesting effected by the Ordinance would be subject to any rights and interests in land recognised by the common law.

The Control of Waters Ordinance was, however, repealed by the Water Act 1992 (NT). Although the vesting of the ‘property in and the rights to the use, flow and control of all water’ pursuant to this Act[155] did not contain the qualifications which were found in the former Ordinance, it was expressed to apply ‘subject to this Act’. Accordingly, as the Act also provided, inter alia, that ‘a person may take water from a waterway for domestic purposes’, [156] Olney J concluded that the ‘native title right to use water within the claimed area for the purposes of sustenance was unaffected.’[157] A fortiori, any non-native title right to use water for domestic purposes was unaffected. Thus, the legislation merely regulated the conduct of all people, Aboriginal and non-Aboriginal, and did not thereby confer a proprietary title on the Crown.

Flora and Fauna

Although Olney J found that the traditional laws and customs of the applicants related to the use of the food resources in the claim area for sustenance, the Northern Territory argued that by the:

creation of inconsistent rights and legal regimes under the Territory Parks and Wildlife Conservation Act [(NT)] and its predecessors, native title rights in relation to flora and fauna had been extinguished, in whole or in part. [158]

In the alternative, it was submitted that the right to hunt and gather flora and fauna, within strict limitations, were the rights preserved by legislation dealing with these subjects. In particular, it was argued that the vesting of property in fauna in the Crown, pursuant to the Wildlife Conservation and Control Ordinance 1963 (NT),[159] in conjunction with statutory control and prohibition on unauthorised taking and use of fauna, went beyond regulation of the exercise of common law entitlements and had the effect of extinguishing native title rights in fauna.[160]

The Wildlife Conservation and Control Ordinance provided that ‘protected animals, partly protected animals and game are the property of the Commonwealth.’[161] Importantly, however, the Ordinance also provided that its provisions[162] had no application to an Aboriginal native of Australia.[163] When the Territory Parks and Wildlife Conservation Ordinance 1976 (NT) repealed the Wildlife Conservation and Control Ordinance, it ‘introduced a new regime in relation to the regulation of the hunting and sale of wildlife.’[164] This Ordinance provided that ‘[a]ll plants on Crown land or plants that are wildlife on land leased from the Territory are the property of the Territory.’[165] However, it was also provided that nothing in the Ordinance prevented Aboriginals who had traditionally used an area of land or water from continuing to use the area for hunting, food gathering[166] and ceremonial and religious purposes.[167]

Crucially, Olney J concluded that the Northern Territory legislation was: clearly distinguishable from that which was under consideration in Eaton v Yanner ... and does not go beyond the mere regulation of the exercise of the common law native title rights of the applicants to hunt and gather food resources for their own sustenance. [168]

Accordingly, this legislative regime only regulated common law rights and did not, therefore, have any consequences for the Crown’s title. At common law, except for the small range of wild animals belonging to the Crown by prerogative right,[169] no one, including the Crown, had any property in wild animals until they were killed or caught.[170] Thus, whether or not the Crown’s radical title to land extended to fauna,[171] the Crown did not acquire beneficial ownership of fauna by force of the statute.

In contradistinction to his conclusion in Yarmirr v NT, therefore, Olney J found that statutory declarations of Crown property in water and flora and fauna merely had the effect of regulating the conduct of all people, albeit in some cases exempting native title holders from such regulation; the Crown did not thereby acquire beneficial ownership of the property.[172]

Such legislative declarations of Crown ownership simply recognised the Crown’s radical title. Accordingly, although Olney J found it unnecessary to determine whether the relevant legislative regime declaring minerals to be the property of the Crown had the effect of expanding the Crown’s radical title to full beneficial ownership, his reasoning in respect of the statutory declarations of Crown property in water and flora and fauna suggests that it would not. Thus, by analogy not only with Olney J’s own reasoning in relation to statutory declarations of property in water and flora and fauna but also with the High Court’s interpretation of the legislative regime for alienating the surface of the land, a statutory declaration of Crown property in minerals in the context of a legislative regime for the disposition of minerals would merely regulate the Crown’s power of disposition of minerals.

Nonetheless, Olney J appears to have drawn a distinction between Acts of Parliament which evince an intention to regulate conduct in relation to particular property and therefore do not have any significance for the Crown’s radical title, on the one hand, and Acts of Parliament which evince an intention to appropriate ownership of property to the Crown and therefore enhance the Crown’s radical title, on the other. The legislative regimes relating to water and flora and fauna considered in Hayes coming within the former category and the Northern Territory minerals legislation considered in Yarmirr v NT coming within the latter category.

Since both the decisions in Hayes and Yarmirr v NT deal with the effect of the relevant legislative regimes on native title interests, the characterisation of the Northern Territory’s minerals legislation as a statute appropriating ownership of the minerals to the Crown meant that the Crown’s acquisition of a plenary title extinguished any native title rights and interests in the minerals. Indeed, it is clear that if the Crown acquires a full beneficial title any native title will necessarily be extinguished. It has been observed, however, that legislation can extinguish native title without also having the effect of conferring a beneficial title on the Crown.[173] In this context, Brennan CJ’s identification, in Wik, of three kinds of laws which can extinguish native title is crucial, namely:

(i) laws which simply extinguish native title; (ii) laws which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws by which the Crown acquires full beneficial ownership of land previously subject to native title. [174]

Legislation will only extinguish native title if it evinces a clear and plain intention to do so. [175] A clear and plain intention to extinguish native title is an objective test: it is not evidenced by the actual or subjective intention of the legislators in enacting a particular Act, but by that objectively manifested by the effect that the words of the relevant law has on the right to enjoy a native title.[176] Thus, a clear and plain intention to extinguish native title can be established by express provision of the statute or by necessary implication.[177] The distinction between explicit and implicit extinguishment is crucial in the context of the Crown’s title. While it is suggested that legislation may expressly extinguish native title without expanding the Crown’s radical title, the question is whether implicit extinguishment may be brought about by the sovereign power acting legislatively in an enactment which does not provide in its terms for extinguishment but which purports to confer beneficial ownership of certain land on the Crown.

Significantly, none of the three kinds of laws identified by Brennan CJ as being laws which may extinguish native title contemplate that native title can be extinguished by legislative vesting of land in the Crown. This is clear from Brennan CJ’s consideration of the appropriate test to apply in order to ascertain the effect of a particular kind of law. In respect of a law of the first kind, namely laws which simply extinguish native title, Brennan CJ observed that:

A law ... which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect ‘unless there is a clear and plain intention to do so’. Such an intention is not to be collected by inquiry into the state of mind of the legislators ... but from the words of the relevant law ... The test of intention to extinguish is objective. [178]

The second kind of law, namely a law which creates rights in third parties[179] inconsistent with a continued right to enjoy native title, ‘extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature ...’[180] The extinguishing of native title in such a case depends on ‘the effect which the grant has on the right to enjoy the native title.’[181]

The third category of laws, namely those by which the Crown acquires a full beneficial ownership of land previously subject to native title, extinguish native title in two situations. First, when native title is acquired by or under statute, ‘in which case the question is simply whether the power of acquisition has been validly exercised’.[182] Secondly, where the Crown, ‘without statutory authority’, acquires beneficial ownership simply by appropriating land in which no interest has been alienated by the Crown. Brennan CJ noted that such an acquisition would have occurred, if at all, before the Racial Discrimination Act 1975 (Cth) came into force. Furthermore, such an appropriation of land would only give rise to the Crown’s beneficial ownership when the land is actually used for some purpose inconsistent with native title.[183]

For legislative vesting of property in the Crown to confer a beneficial title on the Crown such that native title is extinguished, such vesting must create rights inconsistent with native title and, consequently, cannot be a law of the first kind identified by Brennan CJ. Because such vesting does not create rights in third parties, it is also not contemplated within the second category. And, finally, even if the Crown did acquire beneficial ownership pursuant to such vesting, such acquisition would not be due to statutory acquisition of native title nor the Crown’s appropriation, without statutory authority, of unalienated land. Statutory appropriation per se is simply not contemplated within the relevant laws by which the Crown may acquire beneficial ownership of land such that any native title in respect of the land is extinguished.[184]

Accordingly, the High Court’s conclusion in Mabo v Queensland (No 1)[185] that the statutory declaration in the Coast Island Declaration Act 1985

(Qld) that ‘the islands were vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever ...’ was effective to extinguish native title, is merely an example of the first category of laws which may extinguish native title.[186] By simply extinguishing any other title to the land, including native title, the law did not confer beneficial title on the Crown. The purported legislative vesting was, therefore, irrelevant.

If purported legislative vesting or statutory appropriation of land does not extinguish native title per se, it would logically follow that it does not effect an expansion of the Crown’s radical title. Furthermore, if statutory declarations that all land belong to the Crown ‘in fee’ are construed as only referring to the Crown’s radical title so as not to extinguish native title, what legal reason is there for interpreting declarations of Crown ‘property’ in minerals as referring to the Crown’s plenary title? Is a statutory appropriation of ownership, of itself, ever effective to enhance the Crown’s radical title? Drummond J offered answers to these questions in Wik Peoples v Queensland.

5 Wik Peoples v Queensland

In Wik Peoples v Queensland, one of the four preliminary questions referred to the Federal Court for determination was whether the passage, since 1909, by the Queensland Parliament of certain legislation concerning minerals and petroleum extinguished any native title rights which the Wik peoples, as applicants, may have had in minerals and petroleum.[187]

Drummond J analysed the history of the Queensland mining and petroleum legislation and concluded that:

the statutory declarations of Crown ownership of the minerals [contained in Queensland minerals legislation since 1909] ... are effective, in my opinion, to convert such interest as the Crown had under its radical title in those minerals into a full beneficial ownership by the Crown. ... [T]hese declarations of Crown ownership ... is (sic) sufficient to extinguish any native title rights which may once have conferred on the native title holders rights with respect to minerals. [188]

For Drummond J, therefore, the Crown could acquire a full beneficial title and thereby extinguish native title pursuant to a statutory appropriation.

Drummond J’s judgment focused on the declaration of Crown property in minerals contained in the Mining on Private Land Act 1909 (Qld).[189] In the form in which the 1909 Act was originally enacted, this declaration was found in s 6(1)(v). Section 6(1)(v) relevantly provided that ‘all ... minerals on or below the surface of all land which is not alienated in fee-simple from the Crown at the commencement of this Act are the property of the Crown’. [190]

An amendment to the declaration in the 1909 Act was, however, effected by the Mining Act Amendment Act 1925 (Qld), which inserted a new s 21A.[191] By s 21A(3) it was declared that:

gold and all minerals ... on or below the surface of all land in Queensland, whether alienated in fee simple or not so alienated from the Crown, and if so alienated, whensoever alienated, are and each of them is the property of the Crown.

Thus, the original and amended version of the declaration of Crown ownership contained in the 1909 Act represent the two forms of declarations of Crown property in minerals contained in all State and Northern Territory minerals legislation. Section 6(1)(v) of the original 1909 Act being an example of a declaration of Crown property in minerals subject to alienation by grant prior to the commencement of the Act,[192] and s 21A(3) of the amended 1909 Act representing a declaration of Crown property in minerals irrespective of prior grant.[193] Furthermore, s 6 of the original 1909 Act provides an illustration of the early declarations of Crown property in minerals contained in legislation enacted in all Australian jurisdictions in the late 19th century. Section 21 of the amended 1909 Act, on the other hand, represents later declarations of Crown property in minerals contained in legislation enacted in only four Australian jurisdictions in the 20th century.[194] Although there is a fundamental distinction between the form of the declaration of Crown ownership in the original and amended version of the 1909 Act, Drummond J was of the view that the declaration of Crown ownership of minerals in s 6(1)(v) of the 1909 Act was ‘repeated in s 21A of the [amended] 1909 Act.’[195]

Section 21A remained in force until the 1909 Act was repealed by amendments to the Mining Act 1968 (Qld) in 1971. The 1971 amendments inserted provisions regulating mining on private land in the Mining Act 1968.[196] The declaration of Crown ownership of minerals contained in the amended Mining Act 1968 repeated the declaration in s 21A of the 1909 Act but then excluded from this declaration all the minerals in land alienated under the Crown Lands Alienation Act 1860 (Qld), the Crown Lands Alienation Act 1868 (Qld) and the Mineral Lands Act 1872 (Qld).[197]

The Mining Act 1968 was repealed by the Mineral Resources Act 1989

(Qld), which is the current Queensland mining legislation. The 1971 exclusion of minerals from the general declaration of Crown ownership of minerals is repeated in the current legislation.[198] Thus although s 21A of the 1909 Act[199] had the effect of depriving grants made under the statutes of 1860, 1868 and 1872 of conveying title to minerals to the grantee, the 1971 amendments to the Mining Act 1968 (Qld) and the relevant provisions of the Mineral Resources Act 1989 (Qld) ‘operated to permit those grants once again to have full effect as grants of mineral rights.’[200]

Nevertheless, because it was not suggested that any of the subject lands were granted under the 1860, 1868 or 1872 Acts, Drummond J found it unnecessary to resolve the significance of the abandonment in 1971 of Crown ownership of minerals acquired by expropriation in 1925.[201] The important point is that both Drummond J’s decision in Wik Peoples v Queensland and Olney J’s obiter comments in Yarmirr v NT respecting the effect of a statutory declaration of Crown ownership in minerals were made in the context of legislative regimes containing the later declarations of Crown ownership; that is, irrespective of prior Crown grant. It will be seen, however, that none of the declarations of Crown property contained in any of the Queensland minerals legislation supports Drummond J’s conclusion respecting the Crown’s acquisition of a plenary title.

Drummond J observed that s 6 of the 1909 Act ‘did not attempt to disturb the title to minerals acquired under grants in fee simple made prior to the commencement of that Act.’[202] Rather, it was:

designed to ensure that future grants of Crown land would not carry with them title to any minerals at all and that the Crown would retain, in addition to mineral ownership, power to authorise the search for and the extraction of those minerals, notwithstanding the subsequent alienation in fee of the land in which they were contained. [203]

The 1925 amendment to the 1909 Act, however, effected an important change. It:

operated as a general expropriation to the Crown of all minerals then in private ownership and, in particular, of all privately owned minerals in land alienated in fee simple prior to the commencement of the 1909 Act, which had for the most part not been touched by that Act. [204]

Thus, Drummond J concluded that:

the clear intent of s 6(1)(v), read with s 6(2) of the Act of 1909, was to ensure by declaring Crown ownership of all minerals in all land in Queensland not then alienated in fee simple from the Crown, that no person acquiring thereafter any interest in land from the Crown would acquire any title to or rights with respect to any minerals in that land and that full beneficial ownership in those minerals and full power to control the exploitation of all those minerals would be vested in the Crown. ... The general expropriation of all ... minerals anywhere in Queensland effected by the 1925 amendment to the 1909 Act puts beyond doubt the Crown’s intention to acquire full beneficial ownership and public control of the entire mineral resources of the State, irrespective of who, if anyone, beneficially owned any interests in the land, apart from the minerals. [205]

For Drummond J:

The history of the relevant legislation shows that it has long been (and continues to be) the policy of the Queensland Parliament to ensure public ownership of all minerals in the State (save for certain limited exceptions) even though this meant expropriation by legislative action of minerals which were once vested, by a combination of legislative and executive action, in private ownership. Since 1909, the Queensland Parliament has acted to assert public ownership of all minerals in both unalienated and alienated Crown land in pursuance of a clearly discernible policy that the mineral resources of the State are an asset the exploitation of which should be under public rather than private control as an asset intended to be exploited for public rather than private benefit. [206]

It is clear that the Crown does not require beneficial title in minerals to be able to regulate their extraction and use; not only does the Crown’s radical title confer such rights but the Crown has extensive powers to regulate the use of property which it does not hold title to under the various State constitutions.[207] It will also be seen that the concept of ownership for the purpose of publicly controlling resources is an aspect of imperium, or sovereignty, not dominium, or property.[208]

Drummond J’s analysis is, however, crucial. It emphasises the common law context in which legislation containing declarations of Crown property in minerals was enacted. Since minerals are part of the land in which they are situated, [209] at common law, the Crown’s undoubted radical title to the land extended to the minerals therein.[210] In the absence of an appropriate exercise of sovereign power with respect to the minerals/land, therefore, the Crown does not have beneficial ownership of the minerals.[211] At common law, however, the base minerals passed with a grant in fee simple unless expressly excluded or previously reserved.[212] In terms of the doctrine of tenure post-Mabo, although the Crown has a mere radical title to land and minerals subject to pre-existing native title, once the Crown exercises its sovereign power to grant an interest in land/minerals the land/minerals are brought within the doctrine of tenure and the fiction of original Crown ownership applies to give the Crown its rights as paramount lord. The Crown’s fictional ownership of the land/minerals thus passes a title to the grantee.[213]

Thus, the early form of statutory declaration of Crown property in minerals, ‘subject to prior Crown grant’, enacted in all Australian jurisdictions in the late 19th century, was intended to reserve all minerals from any subsequent Crown grant, and thereby alter the common law position in this respect. This legislation, which is still effective in New South Wales, Tasmania and Western Australia and to a limited extent in Queensland, only effected a change to the common law in the context of subsequent Crown grants and incidental mineral rights. It prevented the fiction of original Crown ownership applying to the minerals upon grant and, consequently, title to the minerals could not pass to the grantee. In other words, the Crown’s title to the minerals remained radical. Thus, the early form of statutory declaration of Crown property in minerals merely declared or confirmed the Crown’s radical title to minerals.[214] Accordingly, like Crown lands legislation, such legislation does not constitute an exercise of sovereign power which is effective to convert the Crown’s radical title into beneficial ownership.

In the 20th century, however, four Australian jurisdictions enacted legislation declaring minerals to be the property of the Crown irrespective of Crown grant: the form of declaration considered in Yarmirr v NT and Wik Peoples v Queensland. Furthermore, legislation in all States and the Northern Territory contain declarations of Crown property in petroleum[215] and in gold and silver irrespective of prior grant.[216] Although the royal minerals, gold and silver, are and have always been declared, by statute, to be the property of the Crown irrespective of prior Crown grant, gold and silver did not, at common law, generally pass with such grants. At common law, the royal metals were excluded from being part of the land in which they were situated. Thus, rather than being included in a conveyance of freehold land, they could only pass by express grant or necessary implication.[217]

Indeed, ownership of the royal metals was attributed to the Crown by virtue of the royal prerogative.[218] In 1843, New South Wales land regulations made pursuant to the Imperial Waste Lands Act 1842 authorised grants passing ‘all that is above and all that is beneath the surface.’ The question arose whether a grant in these terms had the effect of vesting gold and silver in the grantee. The Privy Council decided that the royal prerogative regarding royal metals extended to Victoria as part of the common law. Although the legislature could curtail or abolish this prerogative right by statute: ‘the prerogative right of the Crown to gold and silver … will not pass under a grant of land from the Crown, unless by apt and precise words the intention of the Crown be expressed that it shall pass.’[219]

In Mabo, Brennan J considered the royal prerogative basis for absolute Crown ownership of land in Australia.[220] Brennan J rejected the suggestion that the passing of the management and control of the waste lands of the Crown to Colonial governments by Imperial legislation, including the Waste Lands Act 1842, effected a transfer of title and held that it merely effected a transfer of political power or governmental function.[221]

Significantly, he expressly declared that ‘ ... absolute beneficial ownership can be acquired, if at all, by an exercise of the appropriate sovereign power.’[222]

Although it is arguable that Brennan J’s analysis of the royal prerogative with respect to land would apply equally to the royal metals, because the royal metals can be distinguished from other minerals in that they are not part of the land in which they are situated, they may be in a unique position. Consequently, the Crown’s title to the royal metals may also be unique. While the Crown’s radical title to land subject to native title extends to the minerals therein, it may not extend to the royal metals. Accordingly, although an expansion of the Crown’s radical title with respect to land would extend to minerals, it would not affect royal metals.[223] In such a case, the Crown’s title to the royal metals may be outside the realm of land law per se. That is, if the Crown’s radical title does not extend to the royal metals, the Crown’s prerogative rights in relation to land (as described by Brennan J in Mabo), would similarly not apply to the royal metals. Thus, the royal prerogative may be a basis for attributing to the Crown absolute beneficial ownership in the context of royal metals. Statutory declarations to this effect would, therefore, be confirmation of such ownership.[224]

This does not, however, affect the legal position with respect to statutory declarations of Crown property in minerals, including petroleum, irrespective of Crown grant. Although only four Australian jurisdictions enacted legislation declaring minerals to be the property of the Crown irrespective of Crown grant, legislation in all States and the Northern Territory contain declarations of Crown property in petroleum irrespective of prior Crown grant. At common law, petroleum, like the other base minerals, was part of the land in which it was situated.[225] Accordingly, the Crown’s undoubted radical title to the land extended to the minerals, including petroleum, therein.[226] Since an exercise of the Crown’s sovereign power to grant an interest in land containing these resources brought the land/minerals within the doctrine of tenure, the fiction of original Crown ownership applied to the land and minerals and thus enabled title to the land and minerals to pass to the grantee.[227]

Legislation containing statutory declarations of Crown property in minerals, including petroleum, irrespective of Crown grant were enacted, therefore, to change the common law in the context of both future and past Crown grants and incidental mineral rights. That is, notwithstanding a grant of land containing these resources, the fiction of original Crown ownership would not apply, either prospectively or retrospectively, to the resources. Consequently, the Crown did not pass beneficial title to the grantee. The land containing the resources was, however, brought within the doctrine of tenure and the grantee acquired title to the land based on the Crown’s fictional ownership thereof.

Thus, like the early form of statutory declaration of Crown property in minerals, the later form of declaration of Crown property in minerals, including petroleum, merely declares or confirms the Crown’s radical title to the minerals. The only point of divergence between the two forms of declaration is that the early form of declaration, subject to prior grant, recognised the Crown’s radical title to minerals only in respect of future grants, whereas the later form of declaration, irrespective of grant, recognises the Crown’s radical title to minerals in respect of both past and future grants. Thus, such declarations do not constitute an exercise of sovereign power which is effective to convert the Crown’s radical title to minerals into a plenary title.

Moreover, because both forms of statutory declarations of Crown property in minerals, including petroleum, expressly refer to the legal position in the context of Crown grants, they only alter the common law in the context of ownership of minerals upon Crown grant.[228] Such declarations do not, therefore, affect the legal position with respect to any title to unalienated minerals which is not derived from Crown grant. This has important implications for native title. Native title has been held to include the commercial exploitation of minerals in the United States and Canada.[229] In Australia, however, although native title includes some aspects of mineral development, the question whether it includes commercial exploitation of minerals remains uncertain.[230]

Nevertheless, whether or not the content of native title includes the commercial exploitation of minerals, both Olney and Drummond JJ, in Yarmirr v NT and Wik Peoples v Queensland, respectively, have observed that the relevant petroleum legislation containing declarations of Crown property in petroleum irrespective of grant extinguished any native title rights which might have existed in relation to the petroleum.[231]

Significantly, Drummond J equated the native title rights with the rights that the grantees of land from the Crown had:

any native title rights the applicants might once have had in relation to petroleum ... were extinguished by the Petroleum Act 1915 (of Queensland), just as were any rights that the grantees of land from the Crown in fee may have had, prior to the enactment of that legislation, in petroleum in their land.[232]

With respect, this conclusion fails to appreciate the legislation’s sole concern with altering the common law position with respect to ownership of minerals upon Crown grant. Drummond J’s conclusion was, of course, based on the finding that the later form of statutory declaration of Crown ownership in minerals did constitute a sufficient exercise of sovereign power to convert the Crown’s radical title to the minerals into a plenary title.[233] It will be seen, however, that, in light of Lee J’s decision in Ward v WA and High Court obiter in Yanner v Eaton, this finding is incorrect in law. Furthermore, although Olney J’s observations in Yarmirr v NT on the effect of legislative vesting of property in minerals in the Crown are consistent with Drummond J’s findings, Olney J’s comments were merely obiter.

6(a) Ward v WA: Lee J

In the context of Western Australian mining and petroleum legislation, Lee J, in Ward v WA, held that the grant of mineral and petroleum tenements did not extinguish native title.[234] This decision is significant because Lee J considered legislation containing both forms of statutory declarations of Crown property in minerals. The Mining Act 1904 (WA) and the Mining Act 1978 (WA) both contain the earlier form of declaration of Crown ownership in minerals, that is the ‘subject to prior grant’ declaration,[235] whereas the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA) both contain the later form of declaration, that is the ‘irrespective of Crown grant’ declaration.

Although Lee J’s judgment concerned the grant of interests under the Mining and Petroleum Acts and their effect on native title rights generally, rather than specifically in respect of native title rights to minerals and petroleum, the importance of Lee J’s judgment lies in the combined effect of his decision that such grants did not extinguish native title and the terms of the order of the Court. Lee J determined that the content of native title included the right to ‘use and enjoy resources’, ‘to control the use and enjoyment of others of resources’, ‘to trade in resources’ and to ‘receive a portion of any resources taken by others’.[236] If the legislation purporting to vest property in minerals and petroleum in the Crown had the effect of converting the Crown’s radical title to those resources to full beneficial ownership, it is axiomatic that the question whether the grant of tenements pursuant to such vesting legislation extinguished native title would not have arisen. Consequently, Lee J’s judgment implicitly supports the proposition that legislation containing declarations of Crown property in minerals and petroleum, in any form, does not constitute an exercise of sovereign power which is effective to convert the Crown’s radical title to those resources into a plenary title.

As Lee J’s decision was the first judicial consideration of the relationship between mineral and petroleum interests and native title interests in Western Australia it was not surprising that it was also the subject of an appeal to the Full Federal Court and ultimately the High Court. On appeal to the Full Federal Court, the primary issue was whether the Western Australian mining and petroleum legislation had extinguished native title rights in minerals and petroleum. Although the majority of the Full Court allowed the appeal, North J, in dissent, agreed with Lee J’s conclusions. Significantly, North J expressly held that the relevant statutory declarations of Crown property in minerals did not effect an expansion of the Crown’s radical title to the minerals. Moreover, it will be seen that as a result of the majority of the Full Court’s treatment of the content of native title, their observations to the contrary in respect of statutory vesting of minerals in the Crown are mere obiter dicta. Although not in the context of minerals legislation, aspects of the majority judgment also support the proposition that legislative vesting of property in the Crown does not necessarily enhance the Crown’s radical title to the property.

6(b) WA v Ward: Full Federal Court

In WA v Ward, the applicants (now respondents)[237] had sought the determination of native title in respect of land and waters in the north of Western Australia and adjacent land in the Northern Territory, falling, generally, within the East Kimberley region.[238] The land over which native title was claimed included numerous different types of land tenure and use, including Crown land subject to tenements granted under the Mining Act

1978 (WA) or the Petroleum Act 1967 (WA). On a small part of the most significant tenement within the claimed area, diamond mining operations were carried out by the Argyle Diamond Mine Joint Venture.

In their pre-trial particulars of the customs, laws, practices and usages which were relied upon to provide a sufficient connection with the subject land, the applicants claimed: ‘(1) that they “dug for and used stones, ochres and minerals on and from the land”; and (2) that they “ shared, exchanged and/or traded resources derived on and from the land”.’[239] At the trial, the applicants led evidence that they dug for ochre at several special sites within the claim area and used the ochre for ceremonial purposes.[240]

The State of Western Australia appealed against Lee J’s decision that the grant of mining and petroleum interests did not extinguish native title rights or interests within the claim area. On the question whether Lee J erred in light of the legislation vesting property in minerals and petroleum in the Crown, the Full Federal Court was split: North J dissenting from the joint judgment of Beaumont and von Doussa JJ.

6(c) Majority Judgment: Beaumont and von Doussa JJ

The majority expressly accepted Western Australia’s contention that by virtue of s 117 of the Mining Act 1904 (WA) and by s 9 of the Petroleum Act 1936 (WA) the Crown appropriated to itself an interest in minerals, including petroleum, which amounted to full beneficial ownership and that, accordingly, any native title that may have existed in relation to minerals or petroleum had been extinguished.[241] In doing so, the majority agreed with the reasoning of Drummond J in Wik Peoples v Queensland and Olney J in Yarmirr v NT.[242] It has already been shown that Olney J’s observations in this regard are merely obiter and it has been suggested that Drummond J’s analysis is wrong in law.[243]

Furthermore, the majority considered that Drummond J’s and Olney J’s reasoning was applicable because the Western Australian mining and petroleum legislation was the counterpart to the Queensland and Northern Territory mining and petroleum legislation considered in Wik Peoples v Queensland and Yarmirr v NT respectively.[244] Although the petroleum legislation in all Australian jurisdictions adopts the same form of statutory declaration of Crown ownership of petroleum, the Queensland and Northern territory mining legislation is representative of the later form of statutory declaration of Crown property in minerals, whereas the Western Australian mining legislation is an example of the earlier form of declaration.

A more important basis for distinguishing the decisions of Drummond J and Olney J, however, is the majority’s decision, before considering the statutory concept of minerals, that, apart from ochre, the content of native title does not include minerals and petroleum. Referring to Lee J’s determination that the content of native title included rights to ‘resources’, the majority noted that no particular meaning of the term ‘resources’ was specified.[245] Observing that resources may be of different kinds, they concluded that in the context of a claim based upon custom and tradition, it would seem that Lee J was referring to ‘resources of a customary or traditional kind.’ [246] Although the majority considered that ochre would be picked up by this reference, they were of the view that minerals that are mined by modern methods would not.[247]

Subsequently, when examining the statutory definitions of ‘minerals’ in the Mining Act 1904 (WA),[248] the Mining Act 1978 (WA)[249] and the Petroleum Act 1967 (WA),[250] the majority concluded that none of these definitions comprehended ochre used for traditional ceremonial purposes.[251] Nevertheless, the majority confirmed their view that: essentially for the reasons given by Drummond J in Wik and Olney J in Yarmirr, by virtue of the vesting provisions of s 3 of the Western Australian Constitution Act and by virtue of the proprietary provisions of s 117 of the [Mining Act] 1904 ... , any native title rights to the minerals therein specified within the State were wholly extinguished. In our opinion, those provisions were intended to reserve to the legislature and the Crown the full beneficial ownership of all the minerals specified. [252]

The crucial point is that if native title does not include minerals other than ochre, and the statutory definitions of minerals do not include ochre, there would be no native title rights to minerals, as defined by the minerals legislation, to extinguish. The legislative vesting of property in minerals would, therefore, not be an issue as it would have no effect on this aspect of native title rights. Consequently, any observations on such purported legislative vesting are obiter. Nevertheless, and despite finding that there was no evidence of any traditional Aboriginal law, custom or use relating to petroleum either in the State of Western Australia or in the Northern Territory, the majority also considered that: if any native title right or interest existed in relation to petroleum within the State [of Western Australia] in the determination area that right or interest was wholly extinguished by virtue of s 3 of the Western Australian Constitution Act and s 9 of the Petroleum Act 1936.[253]

Although no submissions were made by the parties regarding minerals in the Northern Territory, the majority observed that:

In the absence of a submission from the Territory that ochre falls within the definition of the minerals now vested in the Territory under the [Minerals

(Acquisition) Ordinance (NT)], we draw no distinction regarding the use and enjoyment of ochre between the part of the claim area in the State [of Western Australia], and that part in the Territory. However, in so far as there may once have been a native title right to use and enjoy any of the minerals that are now vested in the Territory, that right was extinguished by the Minerals

(Acquisition) Ordinance. [254]

Once again, as a result of the majority’s conclusion that the content of native title does not include minerals, their observations regarding the effect, on native title, of such legislative vesting of minerals and petroleum in the Crown is merely obiter. Nevertheless, the majority were clearly of the view that statutory declarations of property in minerals, including petroleum, in the Crown converts the Crown’s radical title to minerals into a full beneficial title with the result that any native title rights or interests in the minerals are extinguished. Significantly, however, other aspects of the majority’s judgment suggest that statutory vesting does not generally convey an estate which manifests a clear and plain intention to extinguish native title. In particular, the majority found that statutory vesting did not confer a beneficial title in the vestee in the following situations: statutory vesting of reserved Crown lands in a person for the reserved purpose under the Land Act 1933 (WA);[255] statutory vesting of land in the Conservation Land Corporation pursuant to the Territory Parks and Wildlife Conservation Act 1981 (NT);[256] statutory vesting of the Ord River and its tributaries under part III of the Rights in Water and Irrigation Act 1914

(WA);[257] statutory vesting of fauna in the Crown under the Conservation of

Wildlife Act 1950 (WA); [258] and the statutory vesting of both land resumed under s 109 of the Land Act 1933 (WA)[259] and irrigation works, in the Minister, under the Rights in Water and Irrigation Act 1914 (WA).[260]

Indeed, apart from the legislative vesting of minerals in the Crown, the majority found that only one of the other forms of statutory vesting considered by the Court conferred a beneficial title on the vestee such that any native title rights or interest were extinguished. This was the statutory vesting of resumed land in the Crown for an estate in fee simple under the Public Works Act 1902 (WA). This finding is, however, in contradistinction to the majority’s conclusion in respect of land resumed under s 109 of the Land Act 1944 and vested in the Minister pursuant to s 3(2) of the Rights in Water and Irrigation Act 1914 (WA). It will be seen, in part II, that although the majority agreed with Lee J that resumptions of land do not of themselves confer beneficial title to the land so as to reveal a clear and plain intention to extinguish native title, they distinguished resumptions vested under the Public Works Act 1902 (WA) from resumptions made under s 109 of the Land Act 1933 (WA) and vested under the Rights in Water and Irrigation Act 1914 (WA). It will be suggested, however, that the vesting of resumed land under the two statutes is indistinguishable.

Furthermore, in the context of the other statutory vestings which the majority found did not confer beneficial ownership, a common theme emerges. When discussing the statutory vesting of reserved Crown lands in a person for the reserved purpose, under the Land Act 1933 (WA), [261] and the statutory vesting of land in the Conservation Land Corporation pursuant to the Territory Parks and Wildlife Conservation Act 1976 (NT), the majority referred to the meaning of the term ‘vest’ as articulated by the Privy Council in Attorney-General (Quebec) v Attorney-General

(Canada).[262] In that case, Mr Justice Duff, delivering the judgment of the Board, said:

It is not unimportant, however, to notice that the term “vest” is of elastic import; and that a declaration that lands are ‘vested’ in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively: Tunbridge Wells Corporation v Baird [1896]

AC 434, an interest which may become devested when these functions are transferred to another body. [263]

Section 33 of the Land Act 1933 (WA) merely provided that the:

Governor may direct that [reserved] land shall vest in and be held by any person for the [reserved] purpose … and ... may ... confer upon that person, power to lease for the purpose the whole or any part of the land. [264]

The declaration of land as a park pursuant to s 12(1) of the Territory Parks and Wildlife Conservation Act 1976 (NT) was, however, expressly stated to have the effect that:

all right, title and interest both legal and beneficial held by the Territory in respect of the land (including any subsoil) within the park or reserve, but not in respect of any minerals, becomes, by force of [subsection 12(7)], vested in the Corporation. [265]

Accordingly, the Northern Territory submitted that the language of s 12(7) of the Territory Parks and Wildlife Conservation Act 1976 (NT), which was in wider terms than s 33 of the Land Act 1933 (WA), effected a statutory vesting in fee simple of the land in the Corporation. Notwithstanding the language of s 12(7), however, the majority held that the ‘vesting’ was of the kind described by the Privy Council in Attorney- General (Quebec) v Attorney-General (Canada).[266] Consequently, such vesting did not confer a plenary title to the land but merely passed powers of control and management of the land.

In the context of the statutory vesting, in the Crown, of the Ord River and its tributaries under part III of the Rights in Water and Irrigation Act 1914

(WA), s 4(1) provided that:

The right to the use and flow and to the control of the water at any time in any water-course, and in any lake, lagoon, swamp or marsh, and in any spring, and subterranean source of supply shall, subject only to the restrictions hereinafter provided, and until appropriated under the sanction of this Act, or of some existing or future Act of Parliament, vest in the Crown.

Although the terms of s 4(1) of the Rights in Water and Irrigation Act

1914 (WA) are narrower than the terms of s 12(7) of the Territory Parks and Wildlife Conservation Act 1976 (NT), the majority held that, like s 12(7):

[Section] 4(1) ... is a clear example of a statutory provision where all that is vested in the Crown is only such powers of control and management as are necessary to enable the Crown to discharge the powers and functions arising under the Act. We do not consider that the mere vesting effected under s 4(1) evidenced an intention to extinguish native title rights. [267]

Irrespective of the words employed to describe the vesting, therefore, it appears that the majority did not distinguish between vesting provisions that expressly purport to confer a beneficial interest and those that merely specify that certain rights, less than a full beneficial interest, are conferred. Furthermore, in the context of the statutory vesting of irrigation works in the Minister under the Rights in Water and Irrigation Act 1914 (WA),[268] the vesting provision was unqualified: merely declaring that the irrigation works are ‘vested’ in the Crown. Nevertheless, the majority held that such legislative vesting also only passed powers of control and management and thus did not confer full beneficial ownership nor evince a clear and plain intention to extinguish native title.[269]

Thus, the majority judgment contains considerable support for the view that, irrespective of form, legislative vesting does not generally convey a full beneficial interest. For the majority, however, provisions in minerals legislation declaring that ‘[a]ll ... minerals ... are the property of the Crown’,[270] are an exception. The terms of the vesting provision contained in the Conservation of Wildlife Act 1950 (WA)[271] are analogous to those contained in the minerals legislation, providing that ‘[t]he property in fauna, until lawfully taken, is, by virtue of this Act, vested in the Crown.’[272] Nevertheless, the majority held that the vesting of property in fauna in the Crown under the Wildlife Conservation Act 1950 (WA) was ‘for the purpose only of passing such powers of control and management and such proprietary interest as was necessary for the administration of the Act.’[273]

Significantly, in the context of the statutory declaration of property in fauna in the Crown, the majority of the Full Court in Ward applied the High Court decision in Yanner v Eaton to conclude that the ‘property’ conferred on the Crown by the Wildlife Conservation Act 1950 (WA) is not accurately to be described as full beneficial ownership. Thus, the vesting provision contained in the Wildlife Conservation Act 1950 (WA) came within the Privy Council’s conception of ‘vest’ in Attorney-General

(Quebec) v Attorney-General (Canada). In Ward v WA, the State of Western Australia sought to distinguish Yanner v Eaton on a number of grounds, including textual differences between the Act considered by the High Court in that case and the Wildlife Conservation Act 1950 (WA). Although the majority of the Full Court in Ward accepted that there were a number of differences between the two Acts, they also observed that there were a number of similarities. In particular, the majority identified three reasons to conclude that the High Court’s decision in Yanner v Eaton applied to the Wildlife Conservation Act 1950 (WA). Importantly, the third reason cited was that:

the provisions in the Western Australian legislation regarding the vesting of property in the Crown were introduced to support provisions in the legislation imposing a royalty on the skins of animals. [274]

This third reason is crucial. This is because, in the context of legislative vesting of property in minerals in the Crown, the majority distinguished Yanner v Eaton as a case where there was a ‘notional or artificial vesting’ of property for the purpose of creating a situation which resembles one where, traditionally, a royalty is payable.[275] Thus, the majority held that, in the case of minerals ‘where a royalty is, in truth, payable’, an ‘actual vesting’ occurs. [276] Irrespective of the legal position, at common law, with respect to ‘traditional royalties recognised in Australia and imposed by a proprietor for taking minerals or timber from land’,[277] the modern imposition of royalties for both minerals and fauna is effected by statute. These two situations in which a royalty is payable are, therefore, indistinguishable. Furthermore, a clear and plain intention to extinguish native title is an objective test.[278] Accordingly, if statutory vesting of ‘property’ in fauna in the Crown does not have the effect of conferring beneficial ownership of fauna on the Crown such that any native title rights are extinguished, why would a statutory vesting of ‘property’ in minerals in the Crown have this effect?

6(d) Summary

For the majority in WA v Ward, all of the statutory vesting provisions which they considered, apart from those relating to minerals and the resumption of land under the Public Works Act 1902 (WA), did not confer beneficial ownership on the Crown and, consequently, such legislative vesting did not extinguish any relevant native title rights or interests. What made the statutory vesting of property in minerals in the Crown and the statutory vesting of resumed land in the Crown under the Public Works Act

1902 (WA) different? Why did legislative vesting in these contexts confer full beneficial title on the Crown so as to extinguish any existing native title rights?

With respect to the legislative vesting provisions which were found not to confer a plenary title on the vestee, the majority appeared to treat the provisions on an equal footing notwithstanding textual differences between the provisions. That is, the majority did not draw a distinction between the various degrees of vesting provisions, namely: a limited form of vesting specifying that certain rights, less than a full beneficial interest, were to be conferred;[279] a form of vesting expressly purporting to confer a beneficial interest;[280] and a mere, unqualified form of vesting.[281]

Nevertheless, and although any definitive conclusion requires a comprehensive examination of the relevant legislation in its entirety,[282] it will be seen, in part II, that the majority distinguished between statutory vesting under s 3(2) of the Rights in Water and Irrigation Act 1914 (WA), of land resumed under s 109 of the Land Act 1933 (WA), and statutory vesting of resumed land under the Public Works Act 1902 (WA) primarily on the basis of the terminology employed in the respective vesting provisions. Although finding that the statutory vesting of land resumed under s 109 of the Land Act 1933 (WA) did not, without more, confer a beneficial title to the land,[283] they held that the resumptions under the Public Works Act 1902 (WA) were distinguishable because such land was expressed to be vested in the Crown ‘for an estate in fee simple in possession.’[284] This finding is in stark contrast to the majority’s conclusion with respect to statutory vesting pursuant to s 12(7) of the Territory Parks and Wildlife Conservation Act 1976 (NT). Although s 12(7) expressly purported to confer a beneficial title to the land, the majority held that it only conferred powers of control and management over the land.

The majority’s conclusion that statutory vesting of minerals in the Crown conferred beneficial ownership of the minerals is also inconsistent with other aspects of their judgment. In the context of the minerals legislation, the majority referred to the vesting provisions of s 3 of the Constitution Act

(WA) and s 117 of the Mining Act 1904 (WA). Section 3 of the Constitution Act relevantly provides that ‘[t]he entire management and control of the waste lands of the Crown ... including all ... mines and minerals, shall be vested in the legislature ..’ This provision is, therefore, an example of a limited form of vesting conferring only powers of control and management over the land.[285] Section 117 of the Mining Act 1904

(WA) relevantly provides that ‘[a]ll ... minerals ... are the property of the Crown.’ This provision is, therefore, analogous to both the vesting provision contained in the Wildlife Conservation Act 1950 (WA) and the vesting provision considered in Yanner v Eaton.

In the context of the Wildlife Conservation Act 1950 (WA), the majority of the Full Court in Ward applied Yanner v Eaton and held that the vesting of property in fauna did not confer a beneficial interest. In the context of the mining legislation, however, the majority distinguished Yanner v Eaton on the ground that in Yanner v Eaton there was an artificial vesting of property for the purpose of creating a situation which resembled one where, traditionally, a royalty was payable. Because the imposition of royalties in the context of both fauna and minerals is currently effected by statute, it is suggested that these two situations are indistinguishable. Moreover, in the context of native title, the actual effect of a statutory vesting of property, whether in fauna or in minerals, in the Crown must be the same: either it confers beneficial ownership on the Crown such that any native title rights are extinguished, or it does not.

Despite the inconsistencies and contradictions inherent in the majority’s reasoning, their conclusion that the content of native title does not include minerals means that their observations regarding the effect, on native title, of the legislative vesting of minerals in the Crown is not binding. In his dissenting judgment, however, North J found that native title includes minerals. Accordingly, his observations on the effect of legislative vesting of minerals on native title rights and interests have greater precedential value than the majority’s.

6(e) Dissenting Judgment: North J

Before addressing the question whether legislation vesting property in minerals and petroleum in the Crown extinguished native title to such minerals and petroleum, North J considered it necessary to decide whether the determination made by Lee J recognised native title rights in respect of minerals and petroleum. For North J, Lee J’s determination referred to ‘resources’ in the ‘widest sense’ and meant ‘any materials existing in or on the land or produced from the land.’[286] Thus, the determination’s reference to resources included minerals based ‘upon the uses made of the land … but also upon the concept in traditional law that the land including all its resources were part of one meaningful interrelated system.’[287] Following from this interpretation, North J held that the evidence supported the finding that the Aboriginal people had ‘rights to exploit resources of the land under traditional law.’[288] Crucially, North J observed that ‘[i]t [was] not to the point that the modern means of exploitation of the resources [might] be different from traditional methods.’[289]

Having established that the content of native title includes minerals and petroleum, North J examined the question whether the legislative declaration of property in minerals and petroleum in the Crown extinguished such native title. Referring to the vesting provisions contained in the Mining Act 1904 (WA) and the Petroleum Act 1936 (WA) which declared that all minerals and all petroleum, respectively, are the property of the Crown, North J observed that these provisions bore ‘a direct similarity’ to the vesting provision of the Fauna Conservation Act

1954 (Qld) considered in Yanner v Eaton.[290] In Yanner v Eaton, the majority of the High Court held that the property which the Fauna

Conservation Act 1954 (Qld) conferred on the Crown ‘was no more than the various rights to control exploitation of fauna as a public resource for the public benefit.’[291] The legislative declaration of property in the Crown did not, therefore, extinguish native title.

North J noted that the majority of the Yanner High Court:

regarded the same reasoning as applicable to powers to control the exploitation of minerals. They referred to the second reading speech of the Minister which equated control over the exploitation of native animals with control over the exploitation of minerals. [292]

Following his own examination of the powers conferred on the Crown under the Mining Act 1978 (WA), North J held that this Act also embraced a limited meaning of the concept of property. [293] Thus, the Act conferred on the Crown ‘a limited power to administer a system for the orderly exploitation of a community asset.’[294] Following the approach of the majority of the High Court in Yanner v Eaton, therefore, the legislative vesting of property in minerals and petroleum did not extinguish native title: it merely conferred rights to control exploitation.

In light of the decision in Yanner v Eaton, North J declared that Drummond J’s conclusion in Wik Peoples v Queensland that the mining legislation in Queensland conferred full beneficial ownership on the Crown sufficient to extinguish native title could no longer be regarded as correct.[295] A fortiori, Olney J’s obiter comment in this context, in Hayes, cannot be regarded as a correct statement of the law. Thus, although Lee J’s judgment, at first instance in Ward, implicitly supports the proposition that legislation containing declarations of Crown property in minerals and petroleum does not constitute an exercise of sovereign power which is effective to convert the Crown’s radical title to those resources into a plenary title, North J’s judgment expressly supports this proposition. Furthermore, although the majority of the Full Court’s obiter observations to the contrary were accepted by the High Court in Ward, this acceptance was itself by way of obiter.

6(f) Ward: High Court

The majority of the High Court in Ward agreed with the majority of the Full Court that if native title includes minerals, then those rights would have been extinguished by s 117 of the Mining Act 1904 (WA) and s 9 of the Petroleum Act 1936 (WA).[296] By those legislative provisions, in the words of the Full Court: ‘the Crown appropriated to itself an interest in the minerals and petroleum which amounted to full beneficial ownership’.[297]

Crucially, however, the High Court also agreed with the majority of the Full Court that ‘[n]o native title right or interest in minerals or petroleum was established [by the evidence].’[298] Furthermore, the High Court was concerned with the grant of interests under the Mining and Petroleum Acts and their effect on native title rights generally, rather than the purported legislative vesting of property in minerals and petroleum. Thus, the majority’s conclusion that legislation purporting to vest property in minerals and petroleum in the Crown has the effect of converting the Crown’s radical title to those resources to full beneficial ownership, is mere obiter dictum.[299]

This is critical in terms of the precedential value of North J’s approach in WA v Ward: not only was North J’s conclusion, that legislative declarations of property in minerals and petroleum in the Crown do not effect an expansion of the Crown’s radical title to the minerals, essential to his decision, his approach also accords with the majority of the High Court’s treatment, in Yanner v Eaton, of statutory declarations of property in fauna and of the word ‘property’ generally, and with the majority of the High Court’s observations, in Yarmirr, relating to legislative vesting of title in and over the territorial sea.

7 Yanner v Eaton[300]

The primary question considered by the High Court was the effect that the vesting of ‘property’ in fauna in the Crown, pursuant to the provisions of the Fauna Conservation Act 1954 (Qld), had on the native title rights and interests asserted by Yanner.[301] Accordingly, the High Court considered the concept of property in the context of the statutory scheme: what interest in fauna was vested in the Crown when the Fauna Conservation Act provided that fauna was ‘the property of the Crown’? Did it, as the respondent[302] suggested, confer on the Crown the ‘full beneficial, or absolute, ownership’ of fauna so that the Crown’s rights were inconsistent with the appellant’s[303] native title rights and interests?[304]

In a joint judgment, Gleeson CJ, Gaudron, Kirby and Hayne JJ concluded that the word ‘property’ does not necessarily equate to exclusive or beneficial ownership. [305] Although noting that the word ‘property’ is often used to refer to something that belongs to another, the Justices observed that:

in the Fauna Act, as elsewhere in the law, ‘property’ does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing.

[306]

For their Honours:

Much of our false thinking about property stems from the residual perception that ‘property’ is itself a thing or resource rather than a legally endorsed concentration of power over things and resources. [307]

They further explained that ‘“[p]roperty” is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not a “monolithic notion of standard content and invariable intensity”.’[308]

Accordingly, ‘property’ comprehends a wide variety of different forms of interests and its use in an Act does not, without more, signify what form of interest is created.[309]

Thus, the meaning of ‘property’ in the context of the Fauna Conservation Act could only be identified by construing it in the light of the whole Fauna Conservation Act.[310] In this context, the High Court Justices identified four reasons to conclude that the ‘property’ conferred on the Crown was not accurately described as ‘full beneficial, or absolute, ownership.’ First, there was the difficulty of identifying what fauna was owned by the Crown. For example, did the Act purport to give the Crown ownership of migratory birds only when they were located within the territorial boundaries of Queensland, or did it purport to give ownership to the Crown of every bird that has ever crossed the Queensland border?[311]

Secondly, and assuming that the subject matter of the asserted ownership could be identified, ‘what exactly [was] meant by saying that the Crown ha[d] full beneficial, or absolute, ownership of a wild bird or animal?’[312]

The joint judgment observed that ‘“[o]wnership” connotes a legal right to have and to dispose of possession and enjoyment of the subject matter.’[313]

The statutory scheme relating to fauna, however, did not contemplate that the Crown had possession of fauna.[314] This aspect of the High Court’s reasoning is significant for the interpretation of all legislative regimes that do not contemplate possession of the subject matter by the Crown; in particular, regimes dealing with unalienated land in circumstances where, post-Mabo, the Crown is no longer assumed to have been in possession as universal occupant.[315]

Thirdly, there were several aspects of the Fauna Conservation Act which suggested that the property in fauna conferred on the Crown could not easily be equated with the property an individual had in a domestic animal.

In particular, the Justices questioned the relevance of provisions referring to forfeiture of fauna to the Crown in certain circumstances[316] if the Crown already owned the fauna.[317] Such provisions tended to suggest that the ‘property of the Crown’ was an unusual kind of property which was less than full beneficial, or absolute, ownership.[318] This aspect of the High Court’s reasoning also has direct implications for other statutory regimes vesting property in the Crown. That is, any legislative regime which, although vesting property in the Crown, contains provisions that are inconsistent with or contrary to ‘full beneficial title’ suggest that it is an unusual kind of property which is less than absolute ownership.

Fourthly, the joint judgment emphasised that it was necessary to consider the purpose/object of the legislative scheme: why was property in fauna vested in the Crown?[319] Because provisions vesting property in fauna in the Crown were introduced into Queensland legislation at the same time as provisions imposing a royalty on the skins of animals or birds taken or killed in Queensland,[320] the statutory vesting of property in fauna in the Crown may have been seen as ‘desirable (if not positively essential) to provide for the vesting of some property in fauna in the Crown as a necessary step in creating a royalty system.’[321] This fourth aspect of the High Court’s reasoning is also important in the context of other statutory regimes vesting property in the Crown. In the context of regimes dealing with unalienated land, any purported vesting of land in the Crown would be limited to the purpose of enabling the Crown to become paramount lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown’s purposes.[322]

In light of all these considerations, the joint judgment concluded that the statutory vesting of ‘property’ in the Crown by the successive Queensland Fauna Acts could be seen to be ‘nothing more than “a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource”.’[323] In this context, the majority of the High Court referred to Roscoe Pound’s explanation of why things not the subject of private ownership, like wild animals, are spoken of as being publicly owned:

We are also tending to limit the idea of discovery and occupation by making res nullius (for example, wild game) into res publicae and to justify a more stringent regulation of individual use of res communes (for example, of the use of running water for irrigation or for power) by declaring that they are the property of the state or are ‘owned by the state in trust for the people’. It should be said, however, that while our courts and legislatures seem thus to have reduced everything but the air and the high seas to ownership, in fact the so-called state ownership of res communes and res nullius is only a sort of guardianship for social purposes. It is imperium, not dominium. The state as a corporation does not own a river as it owns the furniture in the state house. It does not own wild game as it owns the cash in the vaults of the treasury. What is meant is that the conservation of important social resources requires regulation of the use of res communes to eliminate friction and prevent waste, and requires limitation of the times when, places where, and persons by whom res nullius may be acquired in order to prevent their extermination.

Our modern way of putting it is only an incident of the nineteenth-century dogma that everything must be owned.[324]

According to the High Court, therefore, declarations of Crown property in things which are not, in fact, the subject of private ownership, whether because they are res nullius or res communes , do not equate to beneficial ownership. Crucially, the Court noted that ‘native animals belong to the people in just the same way as ... the minerals belong to the people.’[325]

Thus, the majority of the High Court in Yanner is clearly of the view that declarations of Crown property in both fauna and minerals do not confer beneficial title to the fauna or minerals on the Crown.

The ‘property’ which the Fauna Conservation Act vested in the Crown was, therefore, no more than ‘the aggregate of the various rights of control by the Executive that the legislation created.’[326] It followed from the joint judgment’s analysis that the contention that the Fauna Conservation Act created a legal regime that was inconsistent with native title rights and interests on the ground that the creation of property rights in the Crown were inconsistent with the continued existence of the native title rights and interests was not sustainable. The Justices observed that ‘regulating the way in which rights and interests may be exercised is not inconsistent with the continued existence of native title rights.’[327] Indeed, they stated that ‘regulating the way in which a right may be exercised presupposes that the right exists.’[328] Accordingly, the Fauna Conservation Act did not extinguish the rights and interests upon which the appellant relied.[329]

Although the other member of the majority, Gummow J, delivered a separate judgment, he also considered that the operation of s 7(1) of the Fauna Conservation Act turned on the construction of the word ‘property’ and on the manner in which the ‘property’ is vested in the Crown.[330]

Gummow J referred to Finkelstein J’s recent observation that ‘property comprised legal relations not things, and those sets of legal relations need not be absolute or fixed.’[331] Frinkelstein J’s comments were based upon Hohfeld’s analysis of property. According to Hohfeld, ‘property’ is used in three senses:

Sometimes it is employed to indicate the physical object to which various legal rights, privileges, etc., relate; then again — with far greater discrimination and accuracy — the word is used to denote the legal interest (or aggregate of legal relations) appertaining to such physical object. Frequently there is a rapid and fallacious shift from the one meaning to the other. At times, also, the term is used in such a ‘blended’ sense as to convey no definite meaning whatever. [332]

Like the joint judgment, Justice Gummow concluded that ‘property’ was used in the second sense in s 7(1) of the Fauna Conservation Act: that is, as an aggregate of legal relations between the ‘Crown’ and ‘fauna’.[333]

Gummow J’s approach to determining the content of these legal relations, however, departed from that of the joint judgment. Gummow J identified four factors that required consideration. Although the manner in which ‘property’ is vested in the Crown was one of the factors that were necessary to consider in order to determine the content of these legal relations,[334] Gummow J also identified three other factors to consider in this context: the Crown’s immunity under s 7(2) of the Fauna Conservation Act from such liability as would otherwise have arisen from the vesting of property; the qualification contained in s 7(1) of the Fauna Conservation Act; and the meaning of the term ‘Crown’.[335]

In respect of the vesting of property in the Crown, under s 7(1), and the Crown’s immunity against any claims which could otherwise have arisen as a result of such vesting, under s 7(2), Gummow J concluded that the Crown’s statutory immunity applied only if the ‘property’ in the fauna which the Crown acquired as a result of the statutory vesting was at least equivalent to the common law legal obligations of a person who had taken tamed ferae naturae.[336] He identified the liability at law arising from the enactment of s 7(1) of the Fauna Conservation Act on the basis of the definition of ‘fauna’ in s 5, which was limited to birds and mammals which were ‘wild by nature’ and other animals wild by nature declared by Order in Council to be fauna.[337] The condition ‘wild by nature’ limited the definition of ‘fauna’ to ferae naturae. Accordingly, the qualification contained in s 7(1) required consideration.

Significantly, not all fauna was the ‘property of the Crown’ within the meaning of s 7(1): fauna which was taken or kept during an open season[338] with respect to that fauna was not the property of the Crown. However, if fauna was otherwise taken or kept,[339] property was vested in the Crown and the immunity provided for in s 7(2) had a relevant operation. Accordingly, the acts of ‘taking’ or ‘keeping’ performed a ‘threshold distributive function in determining whether “property” was vested in the Crown.’[340] Gummow J observed that these provisions supported a construction of s 7(1) that the legal relations described as the ‘vesting’ of property arise only if a person ‘takes’ or ‘keeps’ ‘fauna’.[341] In such cases, therefore, the vesting of property in fauna is ‘conditioned upon the actions of third parties.’[342]

In order to identify the scope of the legal relations, known as ‘property’, between fauna and the Crown, Gummow J examined the meaning of ‘vesting’ in s 7(2).[343] Importantly, he referred to the Privy Council decision in Attorney-General for Quebec v Attorney-General for Canada.[344] In construing a Canadian provincial statute that provided that ‘all lands and property in Lower Canada which are or shall be set apart or appropriated to or for the use of any tribe ..., shall be and are hereby vested, in trust for such tribe ...’,[345] the Privy Council observed that:

It is not unimportant, however, to notice that the term ‘vest’ is of elastic import; and a declaration that lands are ‘vested’ in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively. [346]

Although s 7(1) of the Fauna Conservation Act did not expressly provide that it was for particular public or statutory purposes that fauna is ‘the property of the Crown’, Gummow J considered whether, as a matter of construction, s 7(1) should be so limited. In this context, Gummow J observed that it was necessary to determine the meaning of the word ‘Crown’ in s 7(1).[347] Although noting that s 7(1) identified the Crown in two senses, [348] Gummow J identified the principal reference, in the Fauna Conservation Act, to the ‘Crown’ as the State of Queensland as being in the context of the royalty system which part XI of the Act established.[349]

Accordingly, the collection of royalty sums, as opposed to the physical possession of fauna, was the relevant legal interest of the Crown manifested in the Act. Thus, although expressed in the guise of determining the meaning of the word ‘Crown,’ Gummow J’s approach accords with that of the joint judgment. For all the majority judges, therefore, the purpose of the Fauna protection legislation in Queensland was to give the State the ‘power to preserve and regulate the exploitation of an important resource.’[350] Accordingly, the legal relations between the Crown and fauna, created by the vesting of ‘property’ in the Crown, ‘were limited to those which may have arisen, from time to time, first by way of royalty and, secondly, by penalty exacted from a person who contravened the statutory proscriptions supporting the royalty regime.’[351]

As a result of Gummow J’s findings, the issue, when considering the effect of the NTA on the appellant’s common law native title right, was whether the creation of certain statutory rights abrogated the exercise of the native title right.[352] Observing that the ‘exercise of the native title right to hunt was a matter within the control of the appellant’s indigenous community’,[353] Gummow J stated that the ‘legislative regulation of that control, by requiring an indigenous person to obtain a permit under the Fauna Act in order to exercise the privilege to hunt, did not abrogate the native title right.’[354] Rather, the regulation was consistent with the continued existence of that right.

Summary

By construing the concept of ‘property’ as a ‘legally endorsed concentration of power over things and resources which may be of variable content,[355] the majority of the High Court in Yanner have continued to develop the Court’s approach to the classification of property interests as articulated in Wik in the context of pastoral leases. The court’s approach in both Wik and Yanner v Eaton has been to analyse the precise nature and ambit of statutory interests for the purpose of ascertaining the aggregate of the various rights of control by the Executive that particular legislation has created.[356] That is, whether or not there has been a conferral of rights amounting to full beneficial ownership or something less than full beneficial ownership, an expansion of radical title to full beneficial ownership depends on the construction of the relevant statute. Significantly, this is the very antithesis of the test adopted for determining whether a law evinces a clear and plain intention to extinguish native title.[357]

A paradox thus emerges. In the context of laws which, although not creating rights inconsistent with native title, purport to simply extinguish native title[358] and laws which create rights in third parties inconsistent with a continued right to enjoy native title,[359] such laws will only have the effect of extinguishing native title if they evince a clear and plain intention to do so. Such an intention is not to be gathered from the actual intention of the legislature but from the words of the relevant law.[360] Importantly, a clear and plain intention is not dependent upon whether or not the legislature adverted to the existence of native title.[361] However, in order to determine whether laws which purport to confer property rights on the Crown actually create rights which are inconsistent with a continued right to enjoy native title, the High Court has adopted the purposive approach to statutory interpretation. Thus, the state of mind of the legislators, rather than the words of the relevant law, is decisive.

In Wik, for example, all the members of the majority of the High Court analysed the development and role of the pastoral lease in Australian land law to conclude that despite the use of the term ‘lease’, neither the authorising legislation nor the instruments of lease conferred exclusive possession. Thus, in interpreting the applicable statutory provisions, the majority justices attached importance to the unique historical circumstances in which pastoral leases were granted in Australia. Knowledge of the ‘then understanding of the common law’ was considered essential to discern the state of affairs for the remedy or establishment of which the statute was designed.[362] In particular, the historical documentation, including Imperial despatches, suggested that it ‘was unlikely that the intention of the legislature … was to confer exclusive possession on the lessees to the exclusion of Aboriginal people.’[363]

The minority in Wik,[364] on the other hand, did not consider the history and context of the legislation creating the pastoral lease interest. Rather, they argued that by adopting the ‘language of lease’, the incidents of the statutory interests corresponded with the incidents of true leaseholds.[365]

Thus, the minority’s literal approach to construing the applicable statutory provisions disregarded any particular state of mind of the legislators and whether or not they had adverted to the existence of native title. Their approach was, therefore, similar to that required under the ‘clear and plain intention’ test.

Nevertheless, as a result of the majority of the High Court’s approach in Yanner v Eaton , the paradox of statutory construction may be summed up: although the actual intention of the legislature and, in particular, whether or not the legislature adverted to the existence of native title, are relevant for the purpose of determining whether a particular law has created rights in the Crown which are inconsistent with native title (that is, whether a law confers beneficial ownership on the Crown involves a subjective test); once it is established that a law has created third party rights which are inconsistent with native title, native title is extinguished to the extent of the inconsistency, irrespective of the actual intention of the legislature and whether or not the legislature adverted to the existence of native title (that is, an objective test).

Minority: McHugh and Callinan JJ

McHugh J

Like the majority justices in Yanner v Eaton, McHugh J identified the critical question as being whether, by force of the Fauna Conservation Act, property in all fauna in Queensland became vested in the Crown.[366] Also in conformity with the majority, he observed that whether the property vested in the Crown turned upon the construction of s 7 of the Fauna

Conservation Act.[367] In contradistinction to the majority, however, McHugh J concluded that ‘[i]n its natural and ordinary meaning, s 7 vests in the Crown, and takes away from everyone else, the right to deal with fauna as defined by the Act.’[368] Upon this analysis, s 7 reversed the common law rules and vested all rights of hunting, killing and appropriating fauna in Queensland in the Crown.[369] Accordingly, s 7 did no more than give the Crown the exclusive right to kill, take or appropriate fauna and to take away from others any pre-existing right to do those things.[370] Although McHugh J attributed this result to the ‘ordinary meaning of property’, he did accept that the term can have a more limited meaning depending upon the terms of the instrument which creates it.[371]

However, reminiscent of the majority’s reasoning, McHugh J observed that:

Whatever else property may mean in a particular context, it describes a relationship between owner and object by reference to the power of the owner to deal with the object to the exclusion of all others, except a joint owner. [372]

McHugh J could not, however, find any indication in the Act that ‘property’ in s 7 had a more limited meaning. Rather he concluded that ‘[t]he content of s 7 is the starting point for, not the result of, determining the Crown’s power over fauna in Queensland’.[373] He did, however, consider some of the consequences of upholding the more limited meaning of property. It was suggested that the Crown would only acquire property in fauna when fauna was killed, taken or otherwise appropriated by a third party and that the Crown would presumably lose its property as soon as the third party gave up possession of it. Furthermore, it was suggested that a more limited meaning of property would mean that ‘the control of the Fauna Authority’[374] would only commence when a third party had killed, taken or appropriated fauna. If this were the correct approach, officers of the Authority, so the argument went, seeing an unlicensed person about to kill or otherwise deal with fauna, would have no statutory authority to act until the unlicensed person took action. Accordingly, until death, taking or appropriation had occurred, the officers would have no legal authority to act to protect the fauna.[375] Importantly, however, this argument fails to recognise that by actually dealing with the fauna, the Crown would acquire a beneficial title and thus avoid these consequences.

As a result of McHugh J’s findings, after the commencement of the Fauna

Conservation Act: no one, land owner, Aboriginal or holder of a grant from the Crown, had any right to kill, take or appropriate fauna as defined. Accordingly, the appellant had no right which the NTA protected when it subsequently came into force.

[376]

Callinan J

The other dissenting judge, Callinan J, was also of the view that the appeal could be resolved by the application of s 7 in the context of the Fauna Conservation Act, as a whole, to the facts as found by the Magistrate.[377] In conformity with all the other judgments in Yanner v Eaton, this necessitated the interpretation of the word ‘property’. In this context, there were two factors that contributed to Callinan J’s decision. He recognised, first, that the word ‘property’ is a word of the widest import,[378] and, secondly, that the Act used the word ‘property’ without qualification.[379]

For Callinan J, these factors dictated the conclusion that if something less than absolute ownership were intended, an appropriate qualification in that regard could be expected to have been expressed.’[380]

Notwithstanding this conclusion, Callinan J considered the two reasons advanced to support the argument that ‘property’ should not be given its ordinary meaning in s 7 of the Fauna Conservation Act. First, it was suggested that it was unlikely that the Queensland legislature would have intended this result in relation to wild creatures ‘when regard is had to their natural and generally inaccessible state until reduced to captivity, circumstances which the common law recognised and gave effect to by elaborate rules with respect to them.’[381]

Secondly, it was suggested that the real intention of the legislature, evidenced by a reading of the Act as a whole, was to merely protect and control fauna and regulate any access to or exploitation of fauna.[382]

In respect of the former rationale, Callinan J referred to Lord Westbury LC’s observations in Blades v Higgs,[383] which were cited with approval by Brennan J in Walden v Hensler,[384] that: when it is said by writers of the Common Law of England that there is a qualified or special right of property in game, that is in animals ferae naturae which are fit for the food of man, whilst they continue in their wild state, I apprehend that the word ‘property’ can mean no more than the exclusive right to catch, kill and appropriate such animals which is sometimes called by law a reduction of them into possession. [385]

Although Callinan J observed that the law which Lord Westbury LC summarised no doubt owed its origins ‘to many 19th century and earlier, now outdated, historical, indeed feudal conditions of questionable relevance to Australia at any time’,[386] he considered that the most effective way to ensure the protection of wild creatures was for the State to comprehensively legislate to obtain absolute dominium over them. Accordingly, Callinan J concluded that the ‘Queensland Parliament meant exactly what it said when it used the word “property”’ in the Fauna Conservation Act.’[387]

In respect of the latter reason for denying the ordinary and natural meaning of the word ‘property’, Callinan J, like the joint judgment, referred to a number of provisions in the Fauna Conservation Act that were said to be incompatible with pre-existing ownership by the Crown.[388] In addition to rejecting the significance of such provisions in detracting form the ordinary and natural meaning of ‘property’ in s 7, Callinan J observed that other parts of the Act reinforced the position that the legislature intended that the State have absolute property in all fauna; that is, reinforced the natural meaning of ‘property’.[389]

For Callinan J, therefore, the question became whether the property in, or ownership by, the Crown of fauna was inconsistent with any native title to it so as to extinguish it.[390] Callinan J found that the uncontested evidence pointed inexorably to a direct collision between the right claimed, that of taking and eating crocodiles, and the ownership of them by the State of Queensland.[391] Indeed, he considered that the instant case could be compared with Fejo where the High Court held that a grant of land in fee simple was an act of sovereignty and that the bundle of rights constituting a fee simple necessarily conflicted with and excluded native title.[392]

Significantly, however, and notwithstanding his earlier criticism of law which owes its origins to ‘feudal conditions of questionable relevance to Australia at any time’,[393] Callinan J concluded that ‘[t]he word “property” as used in s 7 of the Act ha[d] at least as exhaustive an operation and meaning as [the feudal concept of] fee simple.’[394]

Summary

The dissenting judges in Yanner v Eaton considered that the ‘natural and ordinary meaning’ of the phrase ‘the property of the Crown’ in the Fauna Conservation Act vests in the Crown and takes away from everyone else the right to kill, take, or appropriate fauna as defined in the legislation. The majority, on the other hand, considered that the word ‘property’ is a description of a legal relationship with a thing, like fauna, rather than a reference to the thing. As a ‘legally endorsed concentration of power over things and resources’, rather than the thing or resource itself, Crown property in fauna was a ‘fiction’ to support the Crown’s power to regulate the exploitation of fauna. In this context, the majority made a critical observation: declarations of Crown property in things which are not, in fact, the subject of private ownership, whether because they are res nullius or res communes, do not equate to beneficial ownership.[395] In particular, the statement that ‘native animals belong to the people in just the same way as ... the minerals belong to the people’,[396] makes it clear that the majority of the High Court is of the view that declarations of Crown property in both fauna and minerals do not confer beneficial title to the fauna or minerals on the Crown.

Furthermore, in Commonwealth of Australia v WMC Resources Ltd,[397]

Brennan CJ found it unnecessary to decide ‘what the effect might be of a law of the Commonwealth (if the Commonwealth were ever to enact such a law) that purported to declare its property in the continental shelf.’[398]

This issue was left open because the Act under consideration, the Petroleum (Submerged Lands) Act 1967 (Cth), did not purport to do so. Although Brennan CJ held that the Commonwealth had the power to legislate in respect of the exploration of and the exploitation of the resources of the continental shelf, he found that the Commonwealth had no property in the continental shelf at common law.[399] In light of the majority of the High Court’s reasoning in Yanner v Eaton, however, a declaration of Crown property in the continental shelf, being res nullius at common law, would not confer, or equate to, full beneficial ownership.

By distinguishing between sovereignty and property, the majority’s approach in Yanner v Eaton also accords with general observations made by the Privy Council in the ‘first fisheries case’: Attorney-General for the Dominion of Canada v Attorney-General for the Provinces of Ontario, Quebec and Nova Scotia.[400]

8 Attorney-General for the Dominion of Canada v Attorney-General for the Provinces of Ontario, Quebec and Nova Scotia

In this case the Privy Council made some general observations on the ‘broad distinction between proprietary rights and legislative jurisdiction.’[401] Lord Herschell, delivering the judgment of their Lordships, noted that:

The fact that [legislative] jurisdiction in respect of a particular subject-matter is conferred on the Dominion Legislature, ... affords no evidence that any proprietary rights with respect to it were transferred to the Dominion. There is no presumption that because legislative jurisdiction was vested in the Dominion Parliament proprietary rights were transferred to it. [402]

The Privy Council adverted to this general consideration before approaching the particular questions submitted to them. By Order in Council, the Governor-General of Canada referred to the Supreme Court of Canada for hearing and consideration 17 questions relating to the property, rights, and legislative jurisdiction of the Dominion of Canada and the provinces respectively in relation to rivers, lakes, harbours, fisheries and other cognate subjects. As the Supreme Court answered some of the questions adversely to the Dominion and some adversely to the provinces, both parties appealed.

In the context of the questions relating to fisheries and fishing rights, the Privy Council held that s 91 of the British North America Act, which, by subsection 12, gave the right to legislate in relation to the subject of fisheries, did not convey to the Dominion of Canada any proprietary rights in relation to fisheries.[403] Their Lordships observed that the heading ‘Sea- Coast and Inland Fisheries’ in s 91 only conferred legislative jurisdiction.

Accordingly, any proprietary rights in relation to fisheries which were previously vested in private individuals or in the provinces remained untouched by that enactment.[404] Lord Herschell noted, however, that:

it must be remembered that the power to legislate in relation to fisheries does necessarily to a certain extent enable the Legislature so empowered to affect proprietary rights. An enactment, for example, prescribing the times of the year during which fishing is to be allowed, or the instruments which may be employed for the purpose ... might very seriously touch the exercise of proprietary rights, and the extent, character, and scope of such legislation is left entirely to the Dominion Legislature. The suggestion that the power might be abused so as to amount to a practical confiscation of property does not warrant the imposition by the Courts of any limit upon the absolute power of legislation conferred. The supreme legislative power in relation to any subject-matter is always capable of abuse, but it is not to be assumed that it will be improperly used; if it is, the only remedy is an appeal to those by whom the Legislature is elected. [405]

Thus, it was rights of imperium, not dominion, that the British North America Act conferred in relation to fisheries and fishing. Like the property which the majority of the Yanner High Court held that the Fauna Conservation Act vested in the Crown, these rights were less than rights of full beneficial, or absolute, ownership.[406] Indeed, the majority of the High Court in Yarmirr indicated that a similar conclusion is apposite in the context of the legislative vesting of title over the seas and sea-bed in the Northern Territory.

9 Yarmirr: Legislative Vesting of Title to The

Territorial Sea-bed

The joint majority of the High Court in Yarmirr drew a distinction between the Crown’s title to land and the Crown’s title to the territorial sea; in the former case the Crown has a radical title, while in the latter case the Crown’s title amounts to ‘common law sovereign rights’. Although the majority unequivocally stated that the concept of radical title was not relevant for the purpose of analysing the Crown’s rights which arose from the assertion of sovereignty over the territorial sea in 1824, they also referred to the changes in the legal regime that has applied to the area of the territorial sea claimed by Australia since Great Britain first acquired the territorial sea in 1824. The majority observed that ‘[a]t federation, the territorial sea off the coast of Australia, recognised by international law, extended three nautical miles from low-water mark.’[407] Furthermore, although for much of the 20th century it was thought that the States had some sovereign or proprietary rights in respect of the territorial sea, the Seas and Submerged Lands Case[408] made it clear that the boundaries of the former colonies ended at low-water mark.[409] Consequently, the Commonwealth and the States arrived at the offshore constitutional settlement that was reflected in, among other Acts, the Coastal Waters

(Northern Territory Powers) Act 1980 (Cth)[410] and the Coastal Waters

(Northern Territory Title) Act 1980 (Cth).[411]

For present purposes, s 4 of the NT Title Act is the critical section. It provided:

(1) By force of this Act, but subject to this Act, there are vested in the Territory, upon the date of commencement of this Act, the same right and title to the property in the sea-bed beneath the coastal waters of the Territory, as extending on that date, and the same rights in respect of the space (including space occupied by water) above that sea-bed as would belong to the Territory if the sea-bed were the sea-bed beneath waters of the sea within the limits of the Territory.

(2) The rights and title vested in the Territory under sub-section (1) are vested subject to-

(a) any right or title to the property in the sea-bed beneath the coastal waters of the Territory of any other person (including the Commonwealth) subsisting immediately before the date of commencement of this Act, other than any such right or title of the Commonwealth that may have subsisted by reason only of the sovereignty referred to in the Seas and Submerged Lands Act

1973. [412]

Similar legislation was passed with respect to the States and was ‘designed largely to return to the States [and, for present purposes, the Territory] the jurisdiction and proprietary rights and title which they had previously believed themselves to have over and in the territorial sea and underlying sea-bed.’’[413]

Although the majority of the High Court stated that it was unnecessary to decide what was the right and title that was vested in the Territory as a result of s 4(1) of the NT Title Act, they observed that:

If it is appropriate to speak of that right and title in the language of the real property lawyer, the right and title thus vested in the Territory was no more than a radical title; it was not full ownership of the sea-bed or space above it.

[414]

The majority emphasised that they did not, nor did they need to, decide whether it was appropriate to adopt such terms as radical title in this context.[415] Nevertheless, they were clearly of the view that, whatever label was attached to it, the vested title did not confer full beneficial ownership. Indeed, two of the three reasons offered by the majority to support this conclusion indicate that they considered that the concept of radical title did not, without more, confer full ownership.[416] First, they observed that:

the right and title was vested by an Act of Parliament which was itself an exercise of the sovereignty which had been asserted by the Seas and Submerged Lands Act and earlier Acts of the Imperial and later the federal executive. It would be inconsistent with the public rights to fish and to navigate that were recognized as qualifying those sovereign rights, for purposes of municipal law, to treat the right and title vested as absolute and unqualified ownership. Further, it would be inconsistent with the international obligations which Australia had undertaken in the Convention on the Territorial Sea and the Contiguous Zone to afford innocent passage to ships of all States through the territorial sea to vest absolute and unqualified ownership in the area in the Territory. [417]

Thus, although the statutory provision conferred title to the sea-bed of the territorial sea as if that sea-bed were the sea-bed beneath waters of the sea within the limits of the Territory, the majority indicated that such title was not capable of conferring full beneficial ownership in any circumstances, not even if legislation expressly purported to confer a plenary title. Prima facie, this approach appears to be in line with Brennan CJ’s comments in WMC. There is, however, a crucial difference between WMC and Yarmirr.

In WMC, Brennan CJ spoke of the situation where a law purported to declare the Crown’s property in the continental shelf per se. The legislation under consideration in Yarmirr, however, referred to the situation where the title to the territorial sea-bed was effectively converted into the title to the sea-bed beneath waters within the limits of the Northern Territory. Historically, of course, this latter title did amount to full beneficial ownership as a result of the feudal doctrine of tenure.[418] Thus, even if title to the sea-bed of the territorial sea or continental shelf can never amount to beneficial ownership,[419] why is this also the case in respect of the sea-bed beneath the waters within the limits of the Northern Territory? The explanation given by the majority of the High Court in Yarmirr is that such title is no more than a radical title, something different from full ownership.

Radical title is, of course, the common law device adopted to reconcile the feudal theory of tenure and native title when the Crown acquired sovereignty of Australia: a settled, yet inhabited, colony. Radical title is, therefore, the postulate of Australian doctrine of tenure. As a result of the Australian doctrine of tenure, the fiction of original Crown ownership only applies to every Crown grant of an interest in land.[420] Thus, in contradistinction to the position under the English feudal doctrine of tenure, under the Australian doctrine of tenure, although the sea-bed beneath inland waters is capable of full beneficial ownership, until there is an appropriate exercise of sovereign power in relation to the land, the fiction of original Crown ownership does not automatically apply, and the land is res nullius. Thus, like Crown lands legislation, which was also founded on the assumption of initial Crown ownership, legislation vesting title in the sea-bed of the territorial sea as if it were title to the sea-bed beneath inland waters does not constitute an exercise of sovereign power which is effective to convert the Crown’s radical title into beneficial ownership.

The second reason advanced by the majority of the Yarmirr High Court to deny that the right and title vested by s 4 of the NT Title Act amounted to full beneficial ownership is, perhaps, the most important in terms of contributing to the judicial definition of the concept of radical title. Noting that the NT Title Act identified the right and title which was vested in the Territory as ‘the same right and title the Territory had over the sea-bed beneath waters of the sea within the limits of the Territory’,[421] the majority observed that ‘[i]t was not submitted that the right to areas of the latter kind was any greater than radical title to land.’[422] The majority considered that it was unnecessary to consider whether such right was less than a radical title, and concluded that ‘[i]f the title thus vested is not larger than a radical title, that title is not inconsistent with the continued existence of native title rights and interests.’[423]

Two critical points emerge from the majority’s reasoning: first, since the legislation containing the relevant vesting provision related to the entire territorial sea, rather than simply the area encompassing the territorial sea claimed by the native title claimants, the majority’s failure to distinguish between the Crown’s title to the area generally and the Crown’s title to such of the area as was subject to native title indicates that they considered that the title did not, irrespective of the presence of native title, equate with full beneficial ownership. Secondly, by suggesting that the title to the sea- bed beneath inland waters may be ‘greater than radical title to land’,[424] the majority indicate the possible direction that the future development of radical title will take. That is, by drawing a distinction between title to land within the limits of Australia and title to land beneath inland waters, the majority of the High Court suggest that although the Crown does not acquire a full beneficial title to land by operation of law, it may do so in respect of the sea-bed beneath inland waters.

The third reason cited by the majority to deny that the title vested by s 4 of the NT Title Act amounted to full beneficial ownership related to s 4(2) of the Act, which expressly reserved native title rights and interests in relation to the sea-bed that existed at the commencement of the Act. This reason is, of course, equally consistent with the vested title being a mere radical title or a full beneficial title. In either case, the statutory provision simply ensures that any native title is preserved.

Although Kirby J was also a member of the majority, he delivered a separate judgment which did not address s 4 of the NT Title Act . Section 4 was, however, considered by the two dissenting judges, McHugh and Callinan JJ. Significantly, McHugh and Callinan JJ also constituted the two dissenting judges in Yanner v Eaton . Reminiscent of their approach in Yanner v Eaton, they held that s 4(2) did not preserve native title rights. According to McHugh J, s 4(2)(a)[425] preserved only those rights or titles that subsisted immediately before the date on which the NT Title Act commenced.[426] And, ‘[i]mmediately before the commencement of the Northern Territory Title Act, the common law did not recognize any rights under traditional laws over the territorial sea.’[427] Having dealt with the vesting provision in this way, McHugh J did not have to address the issue of the nature and content of the title that was vested in the Northern Territory.

Callinan J referred to the body of legislation, including the NT Title Act, effecting the offshore constitutional settlement and observed that this legislation was

designed largely to return to the States [and, for present purposes, the Territory] the jurisdiction and proprietary rights and title which they had previously believed themselves to have over and in the territorial sea and underlying sea-bed. [428]

Nevertheless, Callinan J considered that the relevant issue was

not whether native title depends upon the existence of underlying prior radical title, but simply whether until sovereign assertion and the exercise of sovereign power to define and confer rights and interests including titles, there can be any title or proprietary or personal rights or interests of any kind in the territorial sea. [429]

In this context, Callinan J concluded that

unless and until, by an exercise of sovereignty, dominion is actually asserted, and rights, titles and interests are expressly conferred by the sovereign authority, the common law does not recognize any other rights, titles or interests claimed in or in respect of territorial waters and what lies above or below them.[430]

Thus, Callinan J did not address the question of whether an exercise of sovereign power in respect of the territorial sea was accompanied by the vesting of radical title in the Crown.[431] All that is clear is that it is not until the Crown exercises its sovereign power to confer some right, title or interest in respect of the territorial sea that the common law can recognise any other rights, titles or interests claimed in respect of the territorial sea. Indeed, although Callinan J’s analysis meant that there was no native title right or title to the property of the sea-bed for s 4(2) of the NT Title Act to preserve, his analysis is not inconsistent with the proposition that once the Crown exercises its sovereign power to confer a right, title or interest in respect of a particular area of the territorial sea, the Crown acquires a common law radical title in respect of that area which can, thereafter, be burdened by native title.

Conclusion

Principle and authority suggest that statutory vesting (whether in the form of a declaration of Crown property, or a provision purporting to vest a beneficial interest or certain specified rights less than full beneficial ownership, or a mere, unqualified, vesting provision) does not, of itself, confer a plenary title to the subject matter of the vesting. The authorities also suggest that the term ‘property’ or meaning of a particular vesting provision must be construed in the context of the legislation as a whole and the scheme that it establishes in order to determine whether the Crown has acquired a plenary title. However, the High Court has made it clear that, in the context of property that is, in fact, res nullius at common law, a declaration of Crown property or a provision which vests property in the Crown is nothing more than a ‘fiction’ for the purpose of enabling the Crown to regulate the exploitation of that property/res nullius. In this context, therefore, declarations of property and vesting provisions do not confer beneficial ownership.

Crown acquisition of beneficial ownership, whether by legislative or executive act, necessarily extinguishes any native title. Legislation can, however, extinguish native title without conferring any beneficial interest or creating any rights which are inconsistent with native title. In this context, the High Court has held that a clear and plain intention to extinguish native title is not dependent upon the subjective intention of the legislators but upon the words of the relevant law. Accordingly, if one declaration of Crown property does not extinguish native title, why would another?

Because Yanner v Eaton and Yarmirr dealt specifically with the effect, on native title rights and interests, of the legislative regime relating to fauna and the territorial sea, they are not conclusive in the context of the Crown’s title per se or the Crown’s title to minerals. Although the Privy Council’s decision in Attorney-General for the Dominion of Canada v Attorney-General for the Provinces of Ontario, Quebec and Nova Scotia[432] contained general observations relating to the Crown’s title, it did not refer to the minerals question. There is, however, considerable support for the proposition that declarations of Crown property and vesting provisions, contained in minerals legislation, do not confer beneficial ownership on the Crown. Not only does Lee J’s decision at first instance in Ward v WA implicitly support this view, North J’s dissenting judgment in the Full Federal Court decision in WA v Ward expressly supports it. Furthermore, although there is Full Federal Court and High Court obiter in Ward suggesting that vesting provisions contained in minerals legislation do confer beneficial ownership on the Crown, the majority of the High Court’s obiter comments in Yanner v Eaton support the contrary conclusion.

Thus, statutory declarations of property in minerals in the Crown do not, of themselves, convert the Crown’s radical title to the minerals into full beneficial ownership. Pre-Yanner v Eaton, the Federal Court, in Ward v WA, had reached a similar conclusion in the context of the effect of legislative vesting of resumed land in the Crown: that is, such vesting does not confer beneficial ownership. Although the High Court had raised the question of the potential problems presented by the vesting of land in the Crown pursuant to legislative enactment in Fejo, before Ward v WA was decided, there was no binding decision, in the context of the Crown’s radical title, on the effect of the resumption of land and the statutory vesting thereof from the High Court until Ward.

II: RESUMPTION OF LAND AND LEGISLATIVE VESTING OF

RESUMED LAND433

While the legal effect, upon the Crown’s radical title, of the statutory vesting of land in the Crown pursuant to a resumption Act was considered in Fejo, the only member of the High Court who expressly dealt with this matter did so by way of obiter.[434] Although the principal majority judgment left open the question of the nature of the title acquired by the Crown as a result of a statutory vesting of land, their reason for not dealing with this matter (which was also a ratio decidendi) is equally consistent with such statutory vesting conferring a radical title to the land rather than full beneficial ownership.

The Authorities

1 Fejo v Northern Territory[435]

The Larrakia people claimed native title to certain land.[436] In 1996, and prior to the plaintiffs’ application for determination of native title being lodged with the Native Title Registrar,[437] the land was subdivided by the Northern Territory into 15 parcels. Before lodgment of the plaintiff’s application, Crown leases were also granted in respect of eight of the 15 parcels; each lease containing a condition that permitted the lessee, on completion of development in accordance with the terms of the lease, and payment of the sum owing to the Northern Territory, to surrender the lease in exchange for a freehold title at no further cost. Two of these leases were issued to Oilnet (NT) Pty Ltd.[438] Subsequent to lodgment of the application,[439] Crown leases, in similar terms, were issued with respect to five of the remaining seven parcels of land.

The land subdivided in 1996 formed part of a tract of land which had been granted to John James Benham in 1882[440] pursuant to the Northern Territory Land Act 1872 (SA).[441] The grant was expressed to be of the land ‘together with all Timber Minerals and Appurtenances to hold unto the said John James Benham, His Heirs and Assigns forever.’ On 22 December 1927, the Commonwealth acquired the land granted to Benham for the purpose of a quarantine station by notification in the Gazette to that effect and in 1935, by proclamation under the Quarantine Act 1908 (Cth), land, including the land granted to Benham, was appointed as a quarantine station. In 1956, the land proclaimed as a quarantine station was appointed, together with even further land, pursuant to the Leprosy Ordinance 1954

(NT), as a leprosarium.[442] The appointments of the land as a quarantine station and leprosarium were both revoked in April 1980.

The plaintiffs’ application was accepted by the Registrar in April 1997[443] and in December 1997 the plaintiffs[444] commenced proceedings in the Federal Court of Australia.[445] The application in the Federal Court sought various forms of relief, including declarations and injunctions. The declarations included one that ‘native title exists’ in relation to the area the subject of Crown leases to Oilnet, that the ‘Larrakia people are the holders of that native title’ and that, before it could grant a valid lease to Oilnet, the Northern Territory was obliged by the NTA either to negotiate with the Larrakia people or to compulsorily acquire their native title. Both interlocutory and permanent injunctions were sought:

restraining Oilnet from undertaking or continuing to ‘undertake any development of, or the erection of improvements on or affecting’, the land the subject of those leases, and restraining the Northern Territory from accepting a surrender of the Crown leases that it had granted to Oilnet or exchanging those leases for a freehold title. [446]

The Northern Territory applied, by notice of motion, for orders dismissing the proceeding on the grounds that no reasonable cause of action was disclosed and that the proceeding was frivolous, vexatious or an abuse of process.[447] O’Loughlin J refused the plaintiffs’ subsequent application for interlocutory injunctions [448] and dismissed the proceeding.[449] The plaintiffs appealed to the Full Court of the Federal Court. Although there were several grounds of appeal, only so much of the appeal as constituted the first of the grounds,[450] essentially that the 1882 grant did not extinguish native title, was removed into the High Court to be argued before a Full Bench.[451] The High Court, in two judgments, unanimously held that native title was extinguished by the relevant fee simple grant.[452] A joint judgment by Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ constituted the principal judgment;[453] Kirby J delivered a separate judgment. The principal judgment noted that the grant of land to Benham and its later acquisition by the Commonwealth were the only steps that were relevant to the ground of appeal to the High Court.[454]

In respect of the initial grant of land to Benham, the principal judgment observed that the power to deal with waste lands in the Northern Territory, which included the land granted to Benham, was to be found wholly within the Northern Territory Land Act 1872 (SA).[455] This Act relevantly provided that:

From and after the coming into operation of this Act, all waste lands in the Northern Territory shall be sold, demised, or otherwise disposed of and dealt with in the manner and subject to the provisions of this Act, and not otherwise. [456]

This statutory command prescribed the only way in which the Crown could deal with land, and, therefore, excluded the operation of the prerogative with respect to grants of unalienated land.[457] Although the Act permitted the making of an unqualified grant of an estate in fee simple, it prescribed the parameters within which the Crown may deal with land.[458]

Reference was made to a number of decisions in other common law jurisdictions about the effect of later grants of title to land on pre-existing native title rights. The Court, however, distinguished these sources on the basis that, unlike other jurisdictions which have been affected by the existence of a treaty or other like obligations, in Australia the answer depends only upon the effect of the particular statutory grant (in the instant case, the grant of unqualified freehold title).[459] Thus, in the instant case, since ‘[w]ords of limitation in the form “to A his heirs and assigns forever” have long been recognised as conveying an estate in fee simple,’[460] it was a grant of an unqualified freehold title to the land.[461] Such a grant of unqualified freehold title had the effect of extinguishing native title rights.

Kirby J also noted that the ‘actual alienation of land in South Australia was, from the start, effected pursuant to express statutory provision, not the royal prerogative.[462] Furthermore, and consistent with the High Court’s decision in Wik, he observed that:

With the wisdom of hindsight and the modern understanding of the effect of the acquisition of sovereignty over Australia by the Crown, its establishment of a settlement (such as the Province of South Australia) did not of itself adversely affect native title. Any such effect arose from later conduct. [463]

In the present case, such later conduct took the form of the land grant of 1882 in favour of Benham. The formula used in this grant was that used by conveyancers to signify the grant of a fee simple interest. Accordingly, Kirby J held that:

the grant of a fee simple interest, being the largest known to the law, necessarily and as a matter of legal effect, expelled any remaining native title which, before such grant, may have subsisted in the land. [464]

Having found that the 1882 grant extinguished native title to land,[465] the Court considered the argument that native title to the land could be revived when the land was acquired by the Crown. The principal judgment observed that their conclusion:

That the grant of a freehold title extinguishes rather than suspends native title rights follows from the way in which the sovereign power to create rights and interests in land was exercised. The legislation that provided for the making of grants in fee simple of waste lands provided for the creation of rights in respect of the land that were inconsistent with any continued right to native title. The rights created by the exercise of sovereign power being inconsistent with native title, the rights and interests that together make up that native title were necessarily at an end. There can be no question, then, of those rights springing forth again when the land came to be held again by the Crown. Their recognition has been overtaken by the exercise of ‘the power to create and to extinguish private rights and interests in land within the Sovereign’s territory’. The 1882 grant extinguished native title to the land. [466]

Importantly, the Justices comprising the principal judgment considered that the argument that native title was revived when the land came to be held once more by the Crown, would also have to deal with the problems presented by the vesting of the land and the legal estate in the Commonwealth pursuant to legislative enactment. Thus, the new element considered in Fejo was the effect of the purported legislative vesting of resumed land in the Crown. Having been acquired by compulsory process, the land was vested in the Commonwealth by force of the Lands Acquisition Act 1906 (Cth). Pursuant to s 16 of that Act, upon publication of the notification of acquisition in the Gazette, the land was: freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth. [467]

What problems the legislative vesting of land in the Crown posed were not, however, articulated by the justices comprising the principal judgment as they found it unnecessary to deal with this matter. This was because of their conclusion that native title rights had been extinguished by the grant of freehold title, rather than merely suspended.[468] The crucial point is that, although any argument that native title revived necessarily failed,[469] this was because the native title had been permanently extinguished, not because the Crown acquired beneficial ownership of the land when the land came to be again held by the Crown pursuant to the Commonwealth Lands Acquisition Act. Accordingly, although their Honours left open the question of the nature of the title acquired by the Crown as a result of a statutory vesting of land, their reason for not dealing with this matter is equally consistent with such statutory vesting conferring a radical title to the land rather than full beneficial ownership.

Kirby J also considered that the suggestion that native title might revive in certain circumstances was incompatible with the explanations of the incidents of fee simple under Australian law[470] and that the legislation pursuant to which the 1882 grant had been made[471] did not envisage, expressly, or by implication, the coexistence of fee simple and native title rights. Unlike the other members of the Court, however, Kirby J observed, in obiter, that any such suggestion was expressly excluded by the operation of s 16(1) of the Lands Acquisition Act 1906 (Cth), under which the subject land later became vested in the Commonwealth.[472] Importantly, however, this obiter is equivocal because on the particular facts of the case, there was more than a mere legislative vesting: the land had also been actually appointed as a quarantine station.

Although there was no binding decision on the effect of the legislative vesting of resumed land in Fejo, the High Court has now provided definitive statements on the resumption of land and the statutory vesting thereof, in Ward.

2 Western Australia v Ward [473]

The Court had to consider three instances of resumption of land from pastoral leases:[474] first, under s 109 of the Land Act 1933 (WA);[475] secondly, under s 10 of the Public Works Act 1902 (WA)[476] and s 62 of the Rights in Water Irrigation Act 1914 (WA);[477] and, thirdly, pursuant to a bargain-and-sale transaction.[478] Most of the land under consideration was resumed under s 109 of the Land Act. Pursuant to this section, the Governor was empowered to resume, enter upon, and dispose of the whole or any part of the Crown land in a pastoral lease,[479] for agricultural or horticultural settlement, mining or for any other purpose thought fit in the public interest.[480] Two acquisitions were expressed to be pursuant to the Public Works Act and the Rights in Water Act. Pursuant to s 62 of the Rights in Water Act, upon publication of notices of land being acquired by compulsory process for the purpose of that Act, the land, by force of the publication, was vested in the Crown.[481] Pursuant to s 18 of the Public Works Act, upon publication of notice that land had been set apart, taken or resumed under that Act, the land, by force of that Act and as the Governor may direct, was ‘vested in the Crown for an estate in fee simple in possession or such lesser estate for the public work expressed in such notice.’ In both cases, the legislation provided that the vesting of the land freed and discharged the land from the interests of third parties.

The High Court dealt with the effect of the relevant resumptions at two levels: one general, one specific. Considering the general effect, upon native title, of the assertion or exercise, by the Crown, of rights or powers, the majority observed:

What exactly is the right or power which is said to be asserted or exercised? That is a question which can be answered only by examining the relevant statutory basis for the assertion or exercise of a right or power in relation to the land. Just as a change in sovereignty at settlement worked no extinguishment of native title, the bare fact that there is statutory authority for the executive to deal with the land in a way which would, on the occurrence of that dealing, create rights inconsistent with the continued existence of native title will not suffice to extinguish native title. … Yet there may be cases where the executive, pursuant to statutory authority, takes full title or plenum dominium to land and it is clear that this would extinguish native title.

[482]

The majority then dealt with the specific effect, on native title, of the relevant legislative bases for the resumption and vesting of land. That is, did the statutory resumption of land, or the statutory vesting of resumed land, confer beneficial title upon the Crown? In this context, it will be seen that although the trial judge, Full Federal Court and High Court in Ward expressed different views on the effect of legislative vesting of resumed land, they all agreed on the effect of the resumption of land.

Before both the trial judge and the Full Federal Court it was contended that upon resumption of land pursuant to s 109 of the Land Act, the Crown acquired all right and title to the land. Lee J, as trial judge, found that there was ‘nothing on the face of an act of resumption of Crown land to set it aside for a public purpose that evidences a clear and plain intention to extinguish native title.’[483] Since the act of resumption in itself cannot be said to signify an intention greater than that which would apply to the declaration of the purpose for which the land may be used, the act of resuming land for a declared public purpose does not, at that point, signify inconsistency with the continued enjoyment of native title. [484]

For Lee J, therefore, extinguishment of native title will only occur when land is resumed, appropriated by the Crown for a public purpose and used for a purpose that is inconsistent with the continued enjoyment of native title.[485] Where the Crown has merely appropriated land without using it, the Crown’s title to such land remains radical.[486] Consequently:

Statutory provisions which merely ‘vest’ in the Crown such resumed land for an estate in fee simple for the carrying out of a public work will not, in itself, [sic] be an act which elevates the interest of the Crown to a full beneficial interest with the intention of extinguishing native title, for there is no grant or alienation by the Crown of an estate in fee simple in the land creating rights in third parties and no act undertaken by the Crown inconsistent with the continued enjoyment of native title. [487]

Thus, for Lee J there is an analogy between acts that will expand the Crown’s underlying radical title to land per se and acts of the Crown that extinguish native title. The act of resumption of land with the intention of making the land available for use for a public purpose is not sufficient to show Crown intention to extinguish native title; application of the land to the declared purposes of permanent and incompatible character being required before the resumption could be said to extinguish native title.[488]

Similarly, the act of recovering land by compulsory process does not enhance the interest of the Crown in the land resumed; until used for the purpose for which it was acquired, the land stands as vacant Crown land qualified by the purpose of the vesting.

In the context of resumed land, therefore, Lee J appears to have attributed to the Crown’s title a content which lies somewhere between mere radical title and beneficial ownership. Although the land remains Crown land subject to native title and is, therefore, land in respect of which the Crown has a radical title, this radical title is qualified by the purpose of the vesting.

On appeal to the Full Federal Court, the State of Western Australia argued that Lee J had erred in rejecting its contention that s 109 of the Land Act should be construed as having the effect that, upon resumption, full title to the land was acquired by the Crown.[489] The State contended that although a resumption was undertaken to terminate the interests of the pastoral lessee, it had a further purpose evidenced by the Governor’s power ‘to resume, enter upon and dispose of the land, and not just interests in the land.’[490] It was also argued that s 109 should be construed in light of the fact that upon resumption the statutory right of Aboriginal access under s 106(2) of the Land Act ceased to operate. The majority of the Full Court did not, however, accept these arguments. The majority interpreted s 106(2) to operate as a reservation in respect of otherwise existing rights.

Accordingly, reserved native title rights would be unaffected by the resumption.[491] The majority also found that ‘the permissive language of s 109 [did] not require the conclusion that the Governor [was] required, upon a resumption, to dispose of the land.’[492] Rather, the Crown could continue to hold the resumed land as Crown land for the purpose for which it was resumed.[493]

Thus, like Lee J, the majority concluded that although ‘the resumption of land under s 109, even though for a stated purpose, did not, standing alone, reveal a clear and plain intention to extinguish native title, the carrying into effect of that purpose could do so.’[494] In contradistinction to Lee J, however, the majority found that the purposes for which the resumptions were made under s 109 had been carried into effect.[495]

Although the contention that the Crown acquired full title to land resumed pursuant to s 109 of the Land Act was not pursued before the High Court,[496] the majority nevertheless made the following critical observation: resumption of the land [did not] mean that the Crown acquired all right and title to the land. Resumption brought the relevant pastoral lease to an end. If there was no dedication of the land, and only a resumption, both before and after that resumption the land was Crown land. [497]

Thus, it followed that ‘[r]esumption did not give the Crown any larger title to the land than the radical title acquired at sovereignty.’[498]

With respect to the two resumptions expressed to be pursuant to the Public

Works Act and the Rights in Water Act, Lee J observed that:

Although the published notices were drawn in terms appropriate for the exercise of the power of resumption under the Public Works Act 1902 (WA), by directing that the land set apart, taken or resumed vest in the Crown ‘for an estate in fee simple in possession for the public work’, the public work expressed in the notice of resumption, ‘Ord River Irrigation Project – Packsaddle Plains area – Extension’, indicated that the provisions of s 3 of the Rights in Water and Irrigation Act 1914 would apply to simply ‘vest’ the land in the minister on behalf of the Crown. [499]

Lee J found that the character and purpose of such a resumption of land from a pastoral lease was ‘indistinguishable from a resumption under s 109 of the Land Act.’[500] In both cases the land was recovered by the Crown to be used for a public purpose. It followed that the vesting of the land in the Crown, even including a vesting in fee simple for a public work, was effected by statute to assist carrying out the declared public purpose and was, therefore, a vesting qualified by that purpose:[501] such vesting was not, in itself, an act which elevated the interest of the Crown to a full beneficial interest.[502]

Although the Public Works Act and the Rights in Water Act contained separate powers for compulsory acquisition of land, the majority of the Full Court assumed that the power of acquisition contained in the Public Works Act was utilised. [503] They disagreed with Lee J, therefore, that s 3 of the Rights in Water Act applied.[504] The forms of notice published in respect of the relevant acquisitions directed that the lands: shall vest in Her Majesty for an estate in fee simple in possession for the public work herein expressed, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights-of-way or other easements whatsoever. [505]

This was decisive for the majority:

In our opinion the vesting in the Crown for an estate in fee simple in possession brought about by the notices of resumption ... had the effect that the Crown became the absolute beneficial owner of the land, and clearly and plainly evidenced an intention that any remaining native title be wholly extinguished. [506]

Thus, because the land vested in the Minister under the Public Works Act for an estate in fee simple in possession, the majority distinguished such resumptions from the resumptions under s 109 of the Land Act;[507] the very antithesis of Lee J’s conclusion.

The majority of the High Court agreed with the Full Court that ‘vesting an estate in fee simple in the Crown would … extinguish any native title to the land’.[508] Indeed, they noted that:

What otherwise may be thought to be the oddity of an estate in fee simple being vested in the Crown must be put to one side when the Public Works Act

(s 18) provides that this is to be the effect of publication of a notice in the form employed in these cases. [509]

The majority also found that:

No contrary conclusion is required by the Rights in Water and Irrigation Act. The primary judge held that because the pubic work was described by reference to the ‘Ord River Irrigation Project’, the land vested in the Minister under s 3 of that Act, for some interest less than fee simple. The majority in the Full Court rightly held that the notice of resumption made clear that the interest that was to be created by the resumption was an estate in fee simple.

[510]

This conclusion is significant. Although the High Court approved of the Full Court’s, rather than Lee J’s, approach, the Full Court had made it clear that they were dealing with the Public Works Act, not the Rights in Water Act. Thus, where the Rights in Water Act applies, the High Court has implicitly indicated that Lee J’s construction is apposite. That is, the vesting of land under s 3 confers less than a full beneficial interest.[511]

Indeed, both Lee J and the majority of the Full Court’s treatment of the acquisition, by bargain and sale transaction, of the Argle Downs pastoral lease is consistent with this interpretation of s 3.[512] Although there was no declaration of the purpose of the acquisition under any Act, Lee J noted that it was accepted that the land was acquired for the purposes of the Rights in Water Act. Accordingly, when acquired, the land vested in the Minister pursuant to s 3 of that Act. Thus, for similar reasons to those expressed in relation to land resumed pursuant to the Land Act, the Public Works Act and the Rights in Water Act, Lee J concluded that nothing in the act of the Crown in acquiring the whole of the land of the Argyle Downs pastoral lease showed that the Crown had acquired a beneficial title to the land such that native title was extinguished.[513]

The majority of Full Court reasoned that:[514]

Prior to the acquisition, the pastoral leases were Crown land, and they retained that character after the transaction. In our opinion, the effect of the transaction was merely to terminate the pastoral lease so that the land was no longer subject to the interests granted to the pastoral lessee. The radical title of the Crown remained burdened by whatever native title rights and interests survived the former grant of the pastoral lease.[515]

Thus, upon acquisition of the pastoral lease and the vesting of the resumed land in the Minister under s 3 of the Rights in Water Act, the Crown’s title to the land remained radical.[516]

Although the bargain and sale transaction was not an issue before the High Court, the majority emphasised ‘the protean qualities of the word “vest” and the proposition that what is “vested” will often be no more than is necessary for the pubic body to discharge its function.’[517]

Summary

The majority of the High Court, the Full Court, and Lee J all agreed that resumptions of land do not, of themselves, expand the Crown’s radical title to the land into full beneficial ownership. Furthermore, in the context of s 3 of the Rights in Water Act, the majority of the Full Court agreed with Lee J that the statutory vesting of resumed land did not, of itself, confer a beneficial interest. Indeed, the High Court’s analysis is consistent with this construction.[518]

In the context of land expressed to be resumed pursuant to the Public Works Act and the Rights in Water Act, Lee J found that the character and purpose of such a resumption was ‘indistinguishable from a resumption under s 109 of the Land Act .’[519] For Lee J, therefore, statutory provisions which merely vest in the Crown resumed land, even for an estate in fee simple, for the carrying out of a public work will not, in themselves, be acts which elevate the interest of the Crown to a full beneficial interest.[520]

For the majority of both the High Court and Full Court, however, because the land vested in the Minister under the Public Works Act for an estate in fee simple in possession, such resumptions were distinguishable from the resumptions under s 109 of the Land Act.[521] The vesting of resumed land under the Public Works Act, of itself, conferred beneficial ownership and thus clearly and plainly evidenced an intention to extinguish any native title.[522]

Notwithstanding the conclusion, shared by the High Court and Full Court, that the effect of a statutory vesting of resumed land under the Public Works Act extinguishes native title, it is arguable that this result is due to the fact that s 18 of the Public Works Act provided that the vesting of the land ‘freed and discharged’ the land from the interests of third parties, rather than because the statutory vesting of resumed land for an estate in fee simple conferred beneficial ownership. The statutory vesting provisions in both Fejo and Mabo v Queensland (No 1)[523] employed similar ‘freed and discharged’ terminology. Accordingly, it is suggested that the Public Works Act, like the Coast Island Declaration Act 1985

(Qld)[524] and the Lands Acquisition Act 1906 (Cth)[525] in Mabo (No 1)[526] and Fejo respectively,[527] is effective to extinguish native title merely because it is an example of the first category of laws, identified by Brennan CJ in Wik, which may extinguish native title:[528] namely, laws which simply extinguish native title. By simply extinguishing any other title to the land, including native title, the law does not confer beneficial title on the Crown. The purported legislative vesting would therefore appear to be irrelevant.[529] That is, in conformity with Lee J’s analysis, statutory vesting of resumed land for an estate in fee simple does not convert the Crown’s radical title into a full beneficial interest.

In any event, it is clear from Ward that at least some statutory vesting of resumed land does not confer beneficial ownership on the Crown.[530]

Furthermore, although it was decided before Mabo and, therefore, on the assumption that the Crown acquired beneficial ownership of all land in Australia upon settlement, the High Court’s decision in Commonwealth v New South Wales[531] not only supports this analysis but also supports the general proposition that legislative vesting of resumed land does not, of itself, confer beneficial title.

3 Commonwealth v New South Wales[532]

This was a special case stated for the opinion of the Full Court of the High Court. The Commonwealth had acquired certain parcels of land in New South Wales. The acquired land fell within three classes: (1) land which had became vested in the Commonwealth by virtue of s 85 of the Constitution; (2) lands acquired by compulsory process under the Land Acquisition Act 1906 (Cth)[533] which at the date of the acquisition had not been alienated by the Crown; and (3) lands acquired by compulsory process under the Land Acquisition Act which before the date of the acquisition had been alienated by the Crown. The relevant question for the opinion of the Full Court was whether these lands, at the time of the transfer of the relevant State Department under s 85 of the Constitution, or the publication of the notifications of acquisition pursuant to the Land Acquisition Act, vested in the Commonwealth for an absolute and unconditional estate in fee simple and freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of New South Wales.[534] The majority of the High Court held in Commonwealth v New South Wales that:

All the lands in the said question referred to including royal and other metals therein vested in the Commonwealth freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of New South Wales. [535]

The order of the Court did not, however, refer to the effect of such vesting: did it confer beneficial ownership or something less than beneficial ownership? Indeed, the pre-Mabo assumption that the Crown acquired beneficial ownership of all land in Australia upon settlement was questioned by Higgins J who observed that ‘[t]he argument on both sides assumes — probably rightly — that the unalienated land in a State is “land the property of a State.”’[536] In their joint judgment, Know CJ and Starke J also observed that although:

It has always been recognised that the waste lands of Australia are vested in the King’, ‘the management and control of waste lands and royal metals have, … by various Imperial Acts been conferred upon the legislative organs of the several States of Australia. [537]

Isaacs J’s judgment, however, expressly observed that the ‘meaning of the expression “Crown land” is, of course, “land belonging to the Crown.”’[538]

Importantly, aspects of Knox CJ and Starke J’s joint judgment, which did not refer to the effect of the vesting of the land in the Commonwealth, support the proposition that a mere legislative vesting does not confer beneficial ownership. In respect of the first class of land considered by the Court, s 85 of the Constitution provided that ‘all property of the State, of any kind, used exclusively in connection with’ a transferred Department, ‘shall become vested in the Commonwealth’. Knox CJ and Starke J explained that not only did s 85 require actual use of the land by a State, but it was also a provision distributing property and powers between different organs of Government.[539] Thus, although Knox CJ and Starke J did not say whether a vesting under s 85 conferred beneficial title, even if it did, such a conclusion could be attributed to the special type of provision under consideration; that is, s 85 was more than a mere vesting provision.

Isaacs J, on the other hand, found that s 85 of the Constitution transferred to the Commonwealth the physical substance of the land for an estate in fee simple rather than some abstract right of ownership.[540] Accordingly, he rejected an attempt to assimilate the position of the Commonwealth to a Health Board or a municipality in which a street vests for its statutory purposes.[541] Indeed, he said that:

Nothing short of complete control of the physical substance would give the necessary power to the Commonwealth, and so, … it is the proper construction that the full contents of the parcel of land pass. [542]

In the context of s 85 of the Constitution, Higgins J drew a distinction between title to land and title to royal metals,[543] and concluded that the royal metals in the subject land did not vest in the Commonwealth.[544]

In respect of the second class of land considered by the Court, unalienated land in New South Wales, s 51(xxxi) of the Constitution conferred on the Commonwealth power to make laws with respect to ‘the acquisition of property … from any State.’ Knox CJ and Starke J observed that the Constitution placed no limitation on the property in respect of which the Commonwealth could legislate. Accordingly:

How far the Commonwealth has exercised this power depends on the true construction of the Lands Acquisition Act 1906. By that Act ‘land’ includes any estate or interest in land (legal or equitable), and any easement, right, power or privilege over or in connection with land and also Crown Land. [545]

Thus, the definition of land encompassed a spectrum of interests, ranging from beneficial ownership to a mere power over land. Since the judges were silent on the effect of the vesting of the land, it does not necessarily follow that the Commonwealth acquired full beneficial ownership. For Isaacs J, however, since the Lands Acquisition Act was passed under s 51 (xxxi) of the Constitution, the same result had to follow in the case of land taken compulsorily under the statute as in the case of the Constitution.[546]

It was in the context of unalienated land that Higgins J observed that ‘[t]he argument on both sides assumes – probably rightly – that the unalienated land in a State is “land the property of a State.”’[547] Higgins J continued that:

The exact legal position of the State of New South Wales … seems to be not that of owner but rather that of administrator (with power to appropriate the proceeds). For, under the New South Wales Constitution Act … , the State Legislature got “the entire management and control of the waste land belonging to the Crown in the said Colony and also the appropriation of the gross proceeds of the sales of any such lands”. [548]

For Higgins J, therefore, the expressions used by Lord Watson in British Columbia v Attorney-General of Canada[549] were applicable to New South Wales, namely:

that “the title to the public lands … has all along been, and still is, vested in the Crown; but the right to administer and to dispose of these lands to settlers, together with all royal and territorial revenues arising therefrom, had been transferred to the Province …”[550]

In respect of the third class of land considered by the Court, alienated land in New South Wales, s 16 of the Lands Acquisition Act provided that upon publication of the notification of acquisition, pursuant to s 15, in the Gazette, the land was:

freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth. [551]

Knox CJ and Starke J simply concluded that the effect of the Lands

Acquisition Act was that:

if a notification under s 15 contains a description of a piece of land, without more, then that piece of land … whether in the ownership of the Crown or a subject, vest (sic) in the Commonwealth. [552]

Again, the joint judgment did not refer to the effect of such vesting of land: did it necessarily confer beneficial ownership? Although Isaacs J was of the view that it did,[553] Higgins J suggested that the operation of the Lands Acquisition Act was to destroy other interests, rather than necessarily confer a beneficial title.

Higgins J focused on the phrase ‘freed and discharged’ in s 16 of the Lands Acquisition Act. He observed that pursuant to s 16, the Commonwealth takes the land notified ‘free from all interests held by the Crown (in right of New South Wales) or by others, in the land or over it or in connection with it.’[554] Accordingly, in respect of this land, the Commonwealth is ‘free from any outside control or restriction.’[555] Higgins J also referred to s 17 of the Lands Acquisition Act, which provided that upon publication of the notification in the Gazette ‘the estate and interest of every person entitled to the land specified in the notification … shall be taken to have been converted into a claim for compensation.’ He regarded s 17 as converting into a claim for compensation not only the interest of the owner of the land in the ordinary sense, but the interest of everyone who has an interest, right or privilege in or over the land specified. [556]

Although noting that it was unnecessary to decide the matter, he observed that the Lands Acquisition Act ‘does, lamely but effectually, provide for compensation for those interests destroyed by the operation of the Act.’[557]

As has been suggested in the context of the conclusion of the majority of both the Full Federal Court and High Court in Ward, the Court’s conclusion in Commonwealth v NSW is consistent with the proposition that the effect of a statutory vesting under the Lands Acquisition Act is merely to extinguish other interests in the subject land, rather than to confer a beneficial title. Nevertheless, because of the requirements of s 85 of the Constitution, the legal effect of a vesting pursuant to this provision may be different.

This is, of course, the common law position with respect to the legislative vesting of resumed land. Irrespective of the effect of a resumption of land pursuant to the Public Works Act, it is clear that, at common law, a resumption of land under s 109 of the Land Act does not, of itself, confer a beneficial title to the land nor extinguish any native title to the land. Indeed, the High Court, Full Court and trial judge in Ward all concur in this proposition. Although the NTA does not address the legal nature of the Crown’s title to resumed land, it does address the effect of compulsory acquisitions on native title. Thus, it is to the implications of the NTA that we now turn.

Native Title Legislation: NTA

Under the original NTA, the acquisition of land pursuant to a compulsory acquisition Act did not of itself extinguish native title; instead, the non- extinguishment principle applied to the acquisition.[558] Only an act done to give effect to the purpose of a compulsory acquisition had the potential to extinguish native title.[559] In a significant departure from the original NTA, however, under the NTA as amended by the Native Title Amendment Act

1998 (Cth)[560] such a compulsory acquisition, of itself, extinguishes native title[561] provided that three conditions are met. First, the law under which the acquisition of native title rights takes place permits both the acquisition of native title rights and non-native title rights in relation to particular land or waters. [562] Secondly, the whole or equivalent part of all non-native title rights in relation to which the native title rights are compulsorily acquired, are also acquired.[563] And, thirdly, the practices and procedures adopted in acquiring the native title rights do not cause native title holders any greater disadvantage than is caused to the holders of non-native title rights when their rights are acquired.[564]

The amended NTA also makes it clear that a pre-Wik ‘vesting’ of an estate in freehold has the effect of extinguishing native title. This result is achieved via the two measures the Act employs to deal with the effect of certain actions in the past on native title. First, it provides for the validation of certain acts done and grants made, on the basis of the pre-Wik presumption that pastoral leases extinguished native title, in the intermediate period between the commencement of the NTA and the Wik decision. Secondly, it provides for the confirmation of the relationship between native title and other rights existing on or before the date of the Wik decision.

1 Validation of Intermediate Period Acts [565]

Prior to Wik, it was assumed that the grant of a lease, including a pastoral lease, extinguished native title.[566] The pre-Wik presumption that pastoral leases extinguished native title had the consequence that during the period between the commencement of the original NTA (1 January 1994) and the date of the High Court’s decision in Wik (23 December 1996), governments did acts and made grants in relation to leasehold land without observing the future act regime and procedures set out in the original NTA. The post-Wik possibility of the co-existence of native title rights and interests with those under a pastoral lease meant, however, that titles granted or acts done by governments over existing or former pastoral lease land since 1 January 1994 on the assumption that native title had been extinguished by those leases were potentially invalid if native title was proven to exist. Because the Commonwealth Government did not believe that ‘invalidity was the appropriate consequence for acts done and grants made on the basis of a legitimate assumption subsequently proved wrong’,[567] the Wik decision necessitated a major reassessment of the effect of the original NTA’s future act regime. Accordingly, new division 2A of part 2 of the NTA was introduced by the NTAA to provide for the validation of ‘intermediate period acts.’[568]

The amended NTA responds to the invalidity of titles granted or acts done over coexisting native title on pastoral lease land in contravention of the original NTA ‘future acts’ regime by validating those grants and acts if they come within the definition of ‘intermediate period acts’.[569] To qualify as an ‘intermediate period act’,[570] the act must have taken place between 1 January 1994 and 23 December 1996 when native title existed in relation to particular land or waters;[571] must not be a past act;[572] must be invalid because of native title;[573] and must be over land covered by a freehold estate, a lease (other than a mining lease) or a public work.[574] Only limited forms of legislation qualify as ‘intermediate period acts’.[575] Accordingly, acts done over vacant Crown land or land covered by mining leases during the relevant period are expressly excluded from the definition of ‘intermediate period act’ and, therefore, such acts are not validated as a result of the new division 2A of part 2 of the NTA.[576]

Unlike the original division 2 of part 2 of the NTA, new division 2A does not address acts done after the intermediate act period in pursuance of options or reservations created in the intermediate period. The validity of such acts is dealt with in accordance with the future act provisions contained in new subdivisions I and J of division 3 of part 2 of the NTA.[577]

Conformably with the approach adopted in the original NTA for the validation of past acts, the scheme of the amended NTA is to validate intermediate period acts attributable to the Commonwealth[578] and to authorise the validation of intermediate period acts attributable to a State or Territory. [579] The effect of a validated intermediate period act on native title rights and interests depends upon the kind of interest created by the particular act.[580] For this purpose, intermediate period acts are divided into four categories, A, B, C and D. The validation regime for intermediate period acts thus mirrors the four-fold classification of validated past acts.[581]

Category A intermediate period acts are defined[582] to consist of the grant or vesting of, inter alia, a freehold estate;[583] Category A intermediate period acts do not, however, include the grant or vesting of any interest by or under legislation that makes provision for the granting or vesting of such interests to or in, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.[584]

Except for category A intermediate period acts consisting of the construction or establishment of public works, category A intermediate period acts extinguish all native title rights and interests in the land or waters concerned.[585] The extinguishment is taken to have occurred when the act was done, rather than when the relevant amended NTA section came into effect.

2 Confirmation of Extinguishment

The original NTA was silent on the effect of previous valid government acts on native title and, therefore, the common law was the source of authority for the effect of such acts. Although it was apparent from both the decisions in Mabo and Wik that a grant of land or waters by the Crown conferring a right of exclusive possession on the grantee over the area of land or waters is wholly inconsistent with the continued existence of native title to that area, and, therefore, extinguishes all native title that may have existed at the time of the conferral,[586] this position was not reflected in the NTA. Apart from the validation of past acts regime, the original NTA did not address whether or where native title had been extinguished in Australia. In order to restore certainty to Australia’s land tenure system, points two[587] and four[588] of the ‘10 Point Plan’ sought to confirm the Government’s understanding of the post- Wik common law effect of certain Commonwealth acts on native title and to enable States and Territories to similarly confirm the effect of acts done by them on native title.[589]

The effect of the amendments implementing the aspects of points two and four of the 10-point plan dealing with confirmation of extinguishment of native title is to confirm that native title is extinguished by the grant of valid ‘exclusive’ tenures and extinguished to the extent of any inconsistency by the grant of valid ‘non-exclusive’ agricultural and pastoral leases. As part of the confirmation process, therefore, the amended NTA distinguishes between ‘exclusive possession’ and ‘non-exclusive possession’ acts to determine the consequences of the confirmation of the effect of government acts on native title. The categories are determined according to whether the rights conferred by an act or the nature of the use of the land as a result of an act is such that the exclusion of others, including native title holders, must have been presumed when the tenure was granted.

3 Previous Exclusive Possession Acts

Under division 2B of the NTA, a ‘previous exclusive possession act’ attributable to the Commonwealth or a State or Territory[590] is confirmed as extinguishing native title totally.[591] In determining what grants constitute a previous exclusive possession act, the legislature adopted a twofold approach. First, the amended NTA provides that certain general types of grants have extinguished native title.[592] Secondly, a schedule to the NTA contains certain specific types of grants which the relevant governments considered, on the basis of the common law, had conferred exclusive possession and had therefore extinguished native title. [593] It is in the context of the former approach that the NTA lists, as previous exclusive possession acts, the grant or vesting of, inter alia, a freehold estate.[594]

4 Amendments Relating to Post-Wik Acts Affecting

Native Title: Future Acts

As well as validating or confirming the effect of actions in the past on native title, the other main purpose of the amended NTA was to implement a new future act regime which recognised the coexistence of native title rights and interests with other rights and interests in land, in particular pastoral leases. The original division 3 of part 2 of the NTA, which contained provisions dealing with the validity of future acts and their effect on native title, was repealed by the NTAA. The NTAA substituted a new division 3 which established a more comprehensive regime to deal with these matters. [595] New division 3 is divided into subdivisions A to Q; each subdivision deals with a particular aspect of the system regulating future acts.[596]

Like the original future act regime, division 3 of part 2 of the NTA applies only in relation to ‘future acts’. Although the original definition of ‘future act’ is largely retained,[597] the aspect of the original definition which excluded legislation to the extent that it validated a past act was amended to make the definition consistent with the provisions of the amended NTA relating to the validation of intermediate period acts[598] and the confirmation of extinguishment of native title.[599] Accordingly, the definition provides that an act consisting of the making, amendment or repeal of legislation is not a future act to the extent that it purports to validate any past act or intermediate period act or to confirm the extinguishment of native title in accordance with division 2, 2A or 2B of part 2 of the NTA.[600]

Types of Future Acts

The future act regime provides for future acts which fall into one of the following twelve categories: future acts pursuant to a registered agreement with a native title party;[601] future acts where procedures indicate an absence of native title;[602] future acts permitting primary production activity on non-exclusive agricultural and non-exclusive pastoral leases;[603] future acts permitting off-farm activities directly connected to primary production activities;[604] future acts granting rights to third parties on non-exclusive agricultural and non-exclusive pastoral leases;[605] future acts in relation to water and living aquatic resources;[606] future acts which are pursuant to a pre-existing right or renewals of existing interests;[607] future acts pursuant to existing reservations or leases;[608] future acts which provide facilities for services to the public; [609] future acts which have a low impact;[610] future acts which pass the freehold test;[611] or future acts affecting offshore places.[612]

Compulsory acquisitions are included within future acts that pass the freehold test.

Freehold Test

Under the original NTA, the freehold test was one of the fundamental safeguards for native title in onshore areas.[613] Nevertheless, the original NTA also allowed for compulsory acquisition of native title rights provided that the native title holders received just terms compensation.[614]

Importantly, however, it has been seen that under the original NTA, the acquisition of land pursuant to a compulsory acquisition Act did not of itself extinguish native title; the non-extinguishment principle applied to the acquisition.[615] Only an act done to give effect to the purpose of a compulsory acquisition had the potential to extinguish native title.[616]

The amended NTA continues in part to preserve the original Act’s ‘freehold standard’ for the treatment of native title,[617] but even this standard has been relaxed in a number of respects. Although there has been an expansion in the types of government acts which are exempt from the freehold test, [618] acts which affect native title but which do not pass any of the specific tests in subdivisions B, C, D, F, H, I, J, K or L must pass the general ‘freehold test’ in subdivision M of division 3 of part 2 of the NTA to be valid under the amended NTA’s future acts regime.

Subdivision M implements part of point 4 of the 10-point plan by ensuring the validity of future acts which pass the ‘freehold test’. A future act which passes the freehold test is only valid, however, to the extent that it relates to an onshore place.[619] Furthermore, the validity of the act is subject to the right to negotiate provisions[620] which may require certain additional procedures to be followed before the act will be valid.[621] Subdivision M covers two classes of future acts: legislative acts and non-legislative acts.

The making, amendment or repeal of legislation is valid only if it either applies to native title holders in the same way as it would apply to them if they instead held ordinary title to the land affected by the act,[622] or if it does not put native title holders in a more disadvantageous position than they would have been in if they had instead held ordinary title to the land affected by the act.[623] This raises the threshold question of whether any future statutory vesting of property in the Crown per se will be valid. That is, whether a statutory vesting must be preceded by a compulsory acquisition of any rights existing in relation to the land affected by the statutory vesting (including native title).

Subdivision M essentially covers two kinds of non-legislative acts. First, a non-legislative act, such as the grant of rights to third parties, is valid if it could be done on the assumption that the native title holders instead held ordinary title to the ‘land’[624] or onshore ‘waters’[625] affected by the act.[626]

Secondly, a future administrative act that is not covered by the first kind of non-legislative act is valid if it is the creation or variation of a right to mine opals and gems.[627] By treating the latter kind of act as an act which passes the freehold test, the amended NTA has relaxed the freehold standard by allowing some activities which typically occur only on Crown land.[628]

Future acts which may pass the freehold test under the former category of non-legislative act include the compulsory acquisition of native title rights where the rights of ordinary title holders can also be compulsorily acquired. Although such a compulsory acquisition, of itself, extinguishes native title provided that three conditions are met,[629] all other future acts which pass the freehold test are subject to the non-extinguishment principle.[630] This is crucial because it means that a ‘future’ statutory vesting of a freehold estate, if in fact valid, does not extinguish native title and the native title holders are entitled to compensation if compensation is payable to ordinary title holders.[631] In the case of extinguishment of native title rights by compulsory acquisition, however, the amended NTA ensures that native title holders are entitled to compensation on just terms.[632]

Although the NTA resolves the question of whether or not native title is extinguished as a result of a compulsory acquisition of land, it appears to distinguish between pre-Wik and post-Wik statutory vesting of freehold estates: the former extinguishing native title, the latter merely suspending it for the duration of the vesting. Furthermore, the NTA does not address the question of the legal nature of the Crown’s title to land following the resumption or vesting of land. Since the statute simply provides for the extinguishment of native title it does not necessarily follow that the Crown has beneficial title to the land. The common law position in this context is, therefore, incorporated within the NTA.

CONCLUSION

Both at common law and pursuant to statute, a ‘legal metamorphisis’ takes place the instant the Crown’s radical title is changed to a dealing in the land.[633] However, whether or not a particular dealing in land is effective to confer absolute beneficial ownership on the Crown and, therefore, amount to extinguishment of any native title rights and interests in relation to the land, must be determined not by reference to feudal concepts of property but by reference to the particular statutory regime purporting to create beneficial rights in the Crown. Although the Australian authorities are only beginning to define the perimeters within which the Crown’s radical title will expand to beneficial ownership, three fundamental principles have emerged.

First, there is considerable support for the proposition that declarations of Crown property and vesting provisions contained in minerals legislation do not confer beneficial ownership on the Crown. Although the majority of both the Full Federal Court and the High Court, in Ward, agreed with Drummond J in Wik Peoples v Queensland and Olney J in Hayes, that statutory declarations of Crown property in minerals, including petroleum, convert the Crown’s radical title to minerals into a full beneficial title, the High Court’s, the Full Court’s and Olney J’s observations are merely obiter dicta. Furthermore, in light of the High Court’s decision in Yanner v Eaton, in WA v Ward North J declared that Drummond J’s decision in Wik Peoples v Queensland could no longer be regarded as correct.[634]

Although North J delivered the dissenting judgment of the Full Federal Court in WA v Ward, he expressly held that the relevant statutory declarations of Crown property in minerals did not effect an expansion of the Crown’s radical title to the minerals. Indeed, the precedential value of his judgment is significant: not only was North J’s conclusion on legislative declarations of property in minerals and petroleum in the Crown essential to his decision, his approach accords with the majority of the High Court’s treatment, in Yanner v Eaton, of statutory declarations of property in fauna and of the word ‘property’ generally,[635] and with the observations of the majority of the High Court, in Yarmirr, relating to legislative vesting of title in and over the territorial sea.[636] Furthermore, Lee J’s judgment at first instance in Ward v WA implicitly supports the proposition that legislation containing declarations of Crown property in minerals and petroleum does not constitute an exercise of sovereign power which is effective to convert the Crown’s radical title to those resources to a plenary title.[637]

The second principle to emerge from the Australian authorities in the context of legislative vesting of property is that the statutory vesting of land resumed under s 109 of the Land Act 1933 (WA) does not, without more, confer a beneficial interest. In this context, the majority of both the High Court and the Full Federal Court in Ward agreed with the trial judge, Lee J.[638] Furthermore, in the context of Rights in Water Irrigation Act 1914

(WA), the majority of the Full Court in Ward agreed with Lee J that the statutory vesting of resumed land did not, of itself, confer a beneficial interest. Indeed, the Ward High Court’s analysis is consistent with this construction.[639]

The position with respect to the statutory vesting of land resumed under the Public Works Act 1914 (WA) is, however, not so clear. In Ward, although Lee J found that this instance of statutory vesting was indistinguishable from s 109 of the Land Act 1933 (WA), the majority of both the Full Federal Court and the High Court distinguished this form of vesting provision on the basis of textual differences. Thus, there is authority for the proposition that statutory provisions which vest resumed land in the Crown for an ‘estate in fee simple’ do convert the Crown’s radical title into beneficial ownership. Nevertheless, it has been suggested that this result is due to the fact that the relevant vesting Act also provided that the vesting ‘freed and discharged’ the land from the interests of third parties. That is, the statutory vesting of resumed land for an estate in fee simple did not, of itself, confer beneficial ownership. In any event, it is clear that at least some statutory provisions which vest resumed land in the Crown do not elevate the Crown’s interest to full beneficial ownership. Accordingly, there are circumstances where the Crown acquires mere radical title to resumed land.

The third principle to emerge from the authorities to date is perhaps the most important. The High Court, in Yanner v Eaton, has made it clear that, in the context of property that is, in fact, res nullius at common law, a declaration of Crown property or a provision which vests property in the Crown is nothing more than a ‘fiction’ for the purpose of enabling the Crown to regulate the exploitation of that property/res nullius. In the context of res nullius, therefore, declarations of property and vesting provisions do not confer beneficial ownership.[640] This is because the term ‘property’ or meaning of a particular vesting provision must be construed in the context of the legislation as a whole and the scheme that it establishes in order to determine whether the Crown has acquired a plenary title. In this context, although Crown lands legislation was founded on the assumption of the initial absolute Crown ownership of all land and resources, the High Court has held that such legislation does not confer a beneficial title but simply recognises the underlying radical title of the Crown and, thus, does not, of itself, extinguish native title. Crown lands statutes were also passed by the colonial governments to deal with unalienated and unoccupied land. It is now clear, however, that unalienated land may be either unoccupied or occupied. Only where unalienated land is unoccupied is it res nullius.

Accordingly, if legislative regimes dealing with unalienated land, whether unoccupied or occupied, passed in the belief that the absolute ownership of all land in Australia was vested in the Crown until it was alienated by Crown grant, do not confer beneficial title, it is difficult to conceive of any legislative regime that would necessarily require the conferral of beneficial ownership to achieve its object. Indeed, sound principle and authority suggest that statutory vesting provisions and declarations of Crown property do not, of themselves, confer a plenary title to the subject matter of the vesting or declaration.


[1] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).

[2] Ibid 69–70 (Brennan J, Mason CJ and McHugh J concurring), (principles 5 and 9 of the Nine Point Summary of Native Title).

[3] [1998] HCA 58; (1998) 72 ALJR 1442 (‘Fejo’).

[4] [1999] HCA 53; (1999) 166 ALR 258 (‘Yanner v Eaton’).

[5] [2001] HCA 56 (‘Yarmirr’).

[6] [2002] HCA 28 (‘Ward’).

[7] [1999] FCA 1668; (1999) 168 ALR 426 (‘Cth v Yarmirr’).

[8] [2000] FCAFC 191; (2000) 170 ALR 159 (‘WA v Ward’).

[9] (1996) 134 ALR 637 (‘Wik Peoples v Queensland’).

[10] [1998] FCA 771; (1998) 156 ALR 370 (‘Yarmirr v NT’).

[11] [1998] FCA 1478; (1999) 159 ALR 483 (‘Ward v WA’).

[12] [1999] FCA 1248 (‘Hayes’).

[13] (1996) 187 CLR 1 (‘Wik’).

[14] See Deane and Gaudron JJ’s observation in Mabo [1992] HCA 23; (1992) 175 CLR 1, 114, in the context of an early incarnation of the current Queensland Land Act (Land Act 1994 (Qld)), that the provisions of the Crown Lands Alienation Act 1876 (Qld) did not, of themselves, either extinguish existing common law native title in relation to the lands to which it applied or make [the native title holders] trespassers upon those lands; Toohey J’s comments: ‘if the plaintiffs make good their claim to traditional native title ... “there is nothing in the legislative history of Queensland ... which is destructive of traditional title”’: at 198. Brennan J similarly observed (at 65–7) that although Crown lands legislation was founded on the assumption of the initial absolute Crown ownership of all land and resources, by simply recognising the underlying radical title of the Crown, such legislation does not extinguish native title. Rather than being dispossessed by such legislation, Brennan J concluded that the Aboriginal people of Australia ‘were dispossessed by the Crown’s exercise of its sovereign power to grant land to whom it chose and to appropriate to itself the beneficial ownership of parcels of land for the Crown’s purposes’: at 68. Cf Brennan J at 66. All members of the High Court in Mabo, except Dawson J, agreed with this conclusion: at 110–111 (Deane and Gaudron JJ), 196 (Toohey J). The High Court also endorsed this view in Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 433–4: since the establishment of the Colony [of Western Australia] native title in respect of particular parcels of land has been extinguished only parcel by parcel. It has been extinguished by the valid exercise of power to grant interests in some of those parcels and to appropriate others of them for the use of the Crown inconsistently with the continuing right of Aborigines to enjoy native title.

See also Richard H. Bartlett’s comments in Native Title in Australia (2000), 234. Sections 20(1) and 21 of the Property Law Act 1974 (Qld) are also consistent with this analysis. Section 21 merely maintains the position that land which is ‘held of the Crown in fee simple may be assured in fee simple without licence and without fine and the person taking under the assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect.’ Section 20(1) merely confirms that ‘[a]ll tenures created by the Crown upon any grant in fee simple ... shall be taken to be in free and common socage without any incident of tenure for the benefit of the Crown.’

[15] Gila River v United States (1974) 494 F. 2d 1386; Reg v Sparrow (1990) 4 WWR 410.

[16] (1993) 104 DLR (4th) 470 (‘Delgamuukw’).

[17] (1973) 34 DLR (3d) 145.

[18] Delgamuukw (1993) 104 DLR (4th) 470, 526.

[19] Ibid 525 and see 525–31 (MacFarlane JA) (emphasis added). The full text of the provision is extracted in Calder v Attorney-General (British Columbia) (1970) 8 DLR 59, 75–81 (SC (BC)).

[20] A convenient summary of these instruments is set out in Calder v Attorney- General (British Columbia) (1970) 8 DLR 59, 75-81 (Judson J) and reproduced in Delgamuukw (1993) 104 DLR (4th) 470, 525–6 (Macfarlane JA).

[21] Delgamuukw (1993) 104 DLR (4th) 470, 530–1.

[22] Ibid 675 (Lambert JA).

[23] [1995] HCA 47; (1995) 183 CLR 373, 433. See also Wik (1996) 187 CLR 1, 125–6 (Toohey J), 248 (Kirby J).

[24] [1995] HCA 47; (1995) 183 CLR 373, 433 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[25] See also Bartlett’s similar reasoning in respect of the effect of public lands legislation on native title rights and interests, Native Title in Australia, above n 14, 238–9.

[26] See ibid 235–59 for a comprehensive examination of State and Territory legislation containing declarations of Crown property and the effect of such legislation on native title rights and interests.

[27] See, for example, Western Australian Constitution Act 1890 (Imp), s 3. The Constitutional provisions which grant the legislatures of the various States power over Crown land refer specifically to mines and minerals.

[28] Other than the royal metals: Case of Mines of 1568 (1568) 1 Plow 310; 75 ER 472. See also Elwes v Brigg Gas Co (1886) 33 Ch D 568, 568 (Chitty J): ‘Being ... in lawful possession, he was in possession of the ground, not merely the surface, but of everything that lay beneath the surface down to the centre of the earth ...’; and Rowbotham v Wilson [1860] EngR 892; (1860) 8 HLC 348, 360; [1860] EngR 892; 11 ER 463, 468 (Lord Wensleydale): ‘There is no doubt that prima facie the owner of the surface is entitled to the surface itself and all below it ex jure naturae...’; Wilkinson v Proud (1843) 11 M & W 33; 152 ER 704; Williamson v Wooten [1855] EngR 334; (1885) 3 Drew 210, 213; [1855] EngR 334; 61 ER 883, 884-5; Wade v New South Wales Rutile [1969] HCA 28; (1969) 121 CLR 177, 185.

[29] Wilkinson v Proud (1843) 11 M & W 33; 152 ER 704.

[30] Williamson v Wootton [1855] EngR 334; (1885) 3 Drew 210, 213; [1855] EngR 334; 61 ER 883.

[31] See Wik Peoples v Queensland (1996) 63 FCR 450, 501 (Drummond J), where he spoke of ‘convert[ing] such interest as the Crown had under its radical title in ... minerals into a full beneficial ownership by the Crown.’ See also G D Meyers, C M Piper and H E Rumley, ‘Asking the Minerals Question: Rights in Minerals as an Incident of Native Title’ (1997) 2 Australian Indigenous Law Reporter 203, 242.

[32] NSW: 1884 (Crown Land Act 1884 (NSW)); Tas: 1893 (Crown Land Act 1905 (Tas); Mining Act Amendment Act 1911 (Tas)); WA: 1899 (Land Act 1898 (WA), s 15; Mining Act 1904 (WA), s 117).

[33] Qld: Mining Act Amendment Act 1925 (Qld) (cf: Crown Land Act 1884 (Qld);

Mining on Private Land Act 1909 (Qld), s 6); Vic: Mines (Amendment) Act 1983 (Vic) (cf: (Mines Act 1891 (Vic), s 3; Land Act 1891 (Vic), s 12); SA: Mining Act 1971 (SA); NT: Minerals (Acquisition) Ordinance 1953 (NT).

[34] NSW: Petroleum (Onshore) Act 1991 (NSW), s 6; Vic: Petroleum Act 1958 (Vic), s 5; Qld: Petroleum Act 1923 (Qld), s 9; WA: Petroleum Act 1936 (WA), s 5; SA: Petroleum Act 1940 (SA), s 4; NT: Petroleum Act 1984 (NT), s 6; Tas:

Mining Act 1929 (Tas), s 2(B).

[35] That is, the Crown’s radical title confers power to grant any land in Australia, including land subject to pre-existing native title.

[36] [1992] HCA 23; (1992) 175 CLR 1, 66 (Brennan J, Mason CJ and McHugh J concurring), 114 (Deane and Gaudron JJ).

[37] (1996) 187 CLR 1, 120–1 (Toohey J), 146–7 (Gaudron J), 191–4 (Gummow J).

[38] [2002] HCA 28, [176]–[182]. See especially [182]. Unlike the legislation considered in Mabo and Wik, the relevant trespass provision considered in Ward (s 164 of the Land Act 1933 (WA)) made no provision for the holder of a pastoral lease to bring an action for removal of persons in ‘unlawful occupation’ of the land the subject of the pastoral lease: [181].

[39] And declare it to be an offence for any unauthorised person to enter upon Crown land.

[40] Land Act 1910 (Qld), s 4. Section 4 of the 1910 Land Act followed the terms of earlier legislation (including the Pastoral Leases Act 1869 (Qld), s 3; the Crown Lands Act 1884 (Qld), s 4; and the Land Act 1897 (Qld), s 4) and the definition of ‘Crown Land’ in s 5 of the Land Act 1962 (Qld) was in similar terms to s 4 of the 1910 Act. Although this pattern is continued in the current Queensland Land Act (Land Act 1994 (Qld)), the current Act has replaced the term ‘Crown land’ with ‘Unallocated State Land’: Land Act 1994, Schedule 6, Dictionary: Unallocated State Land is defined to mean all land that is not: ‘(a) freehold land, or land contracted to be granted in fee simple by the State; or (b) a road or reserve, including a national park, conservation park, State forest or timber reserve; or (c) subject to a lease, licence or permit issued by the State.’

[41] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 433; Delgamuukw (1993) 104 DLR (4th) 470, 526.

[42] Delgamuukw (1993) 104 DLR (4th) 470, 530; see text accompanying above n 23.

[43] See text accompanying n 310 below.

[44] [1999] HCA 53; (1999) 166 ALR 258, 267; see also text accompanying n 326 below.

[45] See text accompanying n 244ff below.

[46] See text accompanying n 143ff below.

[47] See text accompanying n 296ff below.

[48] Mabo [1992] HCA 23; (1992) 175 CLR 1, 48 (Brennan J).

[49] Ibid 60.

[50] See U Secher, A Conceptual Analysis of the Origins, Application and Implications of the Doctrine of Radical Title of the Crown in Australia: An Inhabited Settled Colony (PhD Thesis, UNSW, 2003), especially chs 3, 4, 5, 6.

[51] Ibid ch 3, 122, 136; ch 4, 202.

[52] Ibid ch 3, 122, 136; ch 4, 202–3. See also ch 2, text accompanying n 265.

[53] Which in turn allowed the High Court in Mabo to reject the common law ‘desert and uncultivated’ doctrine for the purpose of the common law doctrine of reception: see Secher, above n 50, ch 3.

[54] [1998] FCA 771; (1998) 156 ALR 370.

[55] The yuwurrumu members of the Mandilarri-Ildugij, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans.

[56] This area included the seas which adjoin Croker Island, Oxley Island, New Year Island, Lawson Island, McCluer Island, Grant Island and other related islands and a portion of the mainland extending between De Courcy Head and the commencement of Cobourg Marine Park near Guialung Point. The claim covered waters from the shore to the 3 nautical mile mark in the jurisdiction of the Northern Territory and to the territorial waters 12 nautical mile mark in the Commonwealth jurisdiction and extended to beyond the Exclusive Economic Zone, where the Commonwealth controls up to the 200 mile mark.

[57] Yarmirr v NT [1998] FCA 771; (1998) 156 ALR 370, 439; see also 423 (rights to use and control resources); 426 (right to protect places of importance); 427 (right to safeguard cultural knowledge). The applicants had a non-exclusive native title right to have free access to the sea and sea-bed of the claimed area for all or any of the following purposes:

(a) to travel through or within the claimed area; (b) to fish and hunt for the purpose of satisfying their personal, domestic or non-commercial communal needs including the purpose of observing traditional, cultural, ritual and spiritual laws and customs; (c) to visit and protect places which are of cultural and spiritual importance; (d) to safeguard their cultural and spiritual knowledge (439).

Importantly, however, these native title rights do not confer exclusive possession, occupation, use and enjoyment of the sea and sea-bed within the claimed area. Furthermore, the native title rights must yield to all inconsistent rights in relation to the area which exist pursuant to valid Commonwealth or Northern Territory laws (439–40).

[58] Yarmirr v NT [1998] FCA 771; (1998) 156 ALR 370, 439. See also Meyers, Piper and Rumley, above n 31, 437–8.

[59] Yarmirr v NT [1998] FCA 771; (1998) 156 ALR 370, 437. See also 376–7 (the application).

[60] Ibid 437.

[61] Ibid 437–8.

[62] Ibid 438.

[63] Ibid. The Northern Territory legislation declared minerals to be the property of the Crown irrespective of Crown grant.

[64] Yarmirr v NT [1998] FCA 771; (1998) 156 ALR 370, 438.

[65] [1992] HCA 23; (1992) 175 CLR 1, 68.

[66] Unreported 27 February 1998.

[67] Yarmirr v NT [1998] FCA 771; (1998) 156 ALR 370, 438.

[68] Mabo [1992] HCA 23; (1992) 175 CLR 1, 68.

[69] Ibid. See also Reg v Sparrow (1990) 4 WWR 410. In Sparrow, however, the Court noted an exception to this principle; namely, unless there is an absolutely inescapable — that is necessary, clear and plain — inference of purpose from the effect. See also nn 175, 176, 177 and accompanying text below.

[70] Mabo [1992] HCA 23; (1992) 175 CLR 1, 68, see also 69–70.

[71] See also text accompanying n 485 below. Reservation of land for public purposes does not, therefore, extinguish native title over the subject land (and, implicitly, does not expand the Crown’s title for this would then extinguish it) unless the land is actually used in a manner inconsistent with the continued enjoyment of the native title.

[72] See also Lee J’s approach in Ward v WA [1998] FCA 1478; (1999) 159 ALR 483 (text accompanying n 484ff below), and the majority of the Full Federal Court’s approach in WA v Ward [2002] HCA 28 (text accompanying n 494 below).

[73] [2002] HCA 28, [95], see also [86].

[74] The majority held that the trial judge, Lee J, had departed from the inconsistency of incidents test approved by the High Court in Wik and Fejo by requiring operational inconsistency in all cases irrespective of extinguishment by grant: WA v Ward [2002] HCA 28, [78], [79], [86].

[75] Ibid [86].

[76] Hereafter referred to as ‘NTA’.

[77] Ward [2002] HCA 28, [149]–[151], [215]–[216], [234], [306], [394], [468]

(Gleeson CJ, Gaudron, Gummow and Hayne JJ, summary point 5, with whom Kirby J substantially agreed).

[78] Ibid [149]. See also [78] where the clear majority of the High Court observed that: ‘Reference to activities on land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used.’

[79] Ibid [394].

[80] Ibid [234].

[81] Ibid [394].

[82] Ibid [13], [25]; Wilson v Anderson [2002] HCA 29, [46], [47] (Gaudron, Gummow and Hayne JJ), [137] (Kirby J); NTA, ss 10(1), 11.

[83] [1998] CA (Qld) BC9800571 (Unreported, Fitzgerald P, McPherson JA and Moynihan J, 27 February 1998, ‘Eaton v Yanner’).

[84] Hereafter referred to as the ‘Fauna Conservation Act’. Since repealed by the Nature Conservation Act 1992 (Qld) which came into force on 19 December 1994.

[85] A member of the Gunnamulla clan of the Gungaletta people, being Aboriginals who inhabit a northern coastal strip of Queensland extending for approximately 100 km from the Northern Territory border: Eaton v Yanner 20 (McPherson JA).

[86] As an alternative to native title recognition, the Court of Appeal considered that Yanner’s claimed right to hunt could be characterised as a common law right to hunt. Rather than being a distinctive Aboriginal right, however, this is a right which arises at common law by virtue of the claimant’s status as an owner or occupier of the land in question.

[87] McPherson JA and Moynihan J.

[88] Yanner was charged under s 54(1)(a) of the Fauna Conservation Act 1974 (Qld) with having taken fauna without being the holder of a licence, permit, or certificate or authority under the Act. In relation to fauna, the word ‘take’ is defined, in s 5 of the Act, to include hunting, killing, spearing and catching. The term ‘fauna’ is defined, also in s 5, to mean primarily a mammal or bird. Nevertheless, the definition of ‘fauna’ also includes ‘any other animal or group of animals wild by nature declared by Order in Council to be fauna’. By an Order in Council made pursuant to the Act on 31 August 1974, estuarine crocodiles were declared to be fauna.

[89] Native Animals Protection Act 1906 (Qld), s 9(c); Animals and Birds Act 1921 (Qld), ss 8A and 17(b); Fauna Protection Act 1937 (Qld), ss 15 and 25; and Fauna Conservation Act 1952 (Qld), ss 6(2) and 78. The Fauna Conservation Act 1952 was repealed by the Fauna Conservation Act 1974 (Qld).

[90] See now s 54(1)(a) of the Fauna Conservation Act.

[91] Section 7(1) of the Act provided that ‘[a]ll fauna, save fauna taken and kept during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority.’ See also s 84.

[92] Eaton v Yanner 23.

[93] Ibid: referring to Blades v Higgs [1865] EngR 593; (1865) 11 HLC 621; 11 ER 1474, McPherson JA observed:

Statute apart, the rule of the common law is that animals ferae naturae or wild animals, so long as they continue in their wild state, are not the absolute property of anyone. The owner or occupier of land is, however, considered as having a qualified property in such animals, such that, on exercising the right to kill and take such animals on his land, they become his property absolutely. ... [This] common law rule extends to vest property in the owner or occupier even if the animal is killed and taken on land not by the owner or occupier himself but by a trespasser who comes on the land.

[94] Eaton v Yanner 24.

[95] Blades v Higgs [1865] EngR 593; (1865) 11 HLC 621, 11 ER 1474.

[96] Cf Wik Peoples v Queensland (1996) 134 ALR 637, 686 (Drummond J).

[97] Eaton v Yanner 24.

[98] Ibid.

[99] Ibid.

[100] Ibid 25.

[101] Ibid: McPherson JA observed that this view of the law was supported by Brennan J’s comments in Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, 566–7 where, speaking of the Fauna Conservation Act 1974 (Qld), Brennan J said:

It follows that, apart from the provisions of the Act of which the appellant was ignorant, he was entitled by law to keep the birds which he had taken. But the Act changed the law. It vested the property of all fauna in the Crown (s 7) and prohibited the taking or keeping of fauna without a licence, etc. The Act eliminated any right which Aborigines or others might have acquired lawfully to take and keep ‘’fauna’ as defined in the Act, and any entitlement which Aborigines might have enjoyed at common law to take and keep fauna (assuming that such an entitlement had survived alienation by the Crown of land over which Aborigines had traditionally hunted.

[102] See text accompanying nn 48–53 above.

[103] [1955] HCA 10; (1954) 92 CLR 317, 318.

[104] Hereafter referred to as the ‘Water Rights Act’.

[105] With whom Dixon CJ, Webb and Kitto JJ and perhaps, McTiernan J agreed.

[106] Thorpes Limited v Grant Pastoral Lease Company Pty Ltd [1955] HCA 10; (1954) 92 CLR 317, 331.

[107] Ibid and see Eaton v Yanner 25 (McPherson JA).

[108] Eaton v Yanner 25.

[109] Ibid 26, 27 and 28.

[110] Ibid 30.

[111] Although Moynihan J referred to these rights as ‘common law native title rights’ (at 30), it is clear that native title is neither a ‘common law tenure’ nor an institution of the common law. Indeed, in Mabo, Brennan J expressly stated that native title is not a ‘common law tenure’: [1992] HCA 23; (1992) 175 CLR 1, 61. See also Fejo 1452 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) citing Brennan J: ‘Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law.’

[112] Eaton v Yanner 31, 35.

[113] Ibid 31.

[114] Ibid.

[115] [1955] HCA 10; (1954) 92 CLR 317.

[116] Eaton v Yanner 31.

[117] Ibid. Moynihan J noted that ‘[t]he position would perhaps be arguably different if s 54 arose for consideration in isolation or if s 7 dealt simply with the vesting of control and s 54 prohibited unauthorised taking’: at 31–2.

[118] See text accompanying nn 48–53 above.

[119] [1987] HCA 54; (1987) 163 CLR 561.

[120] Brennan, Deane, Dawson JJ: Toohey and Gaudron JJ dissenting.

[121] Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, 575. See also 582–3 (Deane J), 593–4 (Dawson J), 600 (Toohey J), 606 (Gaudron J).

[122] See, for example, ibid 566 (Brennan J), 605 (Gaudron J); Wik Peoples v Queensland (1996) 134 ALR 637, 501 (Drummond J).

[123] Eaton v Yanner 12–14.

[124] It will be seen that this analysis accords with the High Court’s conclusion, on appeal, in Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, [28]–[30]: see text accompanying n 300ff below, especially text accompanying n 324.

[125] Eaton v Yanner 15.

[126] Ibid 17.

[127] Ibid.

[128] Ibid. Fitzgerald P noted that he had derived some assistance from the obiter statements of Kirby P in Mason v Tritton (1994) 34 NSWLR 572, 590-–3. ‘No doubt stringent regulation may reach the point where the ordinary rights and privileges associated with property are so curtailed that proprietary rights can no longer be enjoyed. Whether that is the case is ultimately a question of fact’:

Mason v Tritton (1994) 34 NSWLR 572, 593 (Kirby P).

[129] Eaton v Yanner 19. Although this continued to be the legal position under the Fauna Conservation Act, the operation of that Act was suspended by s 211(2) of the NTA, which removes the requirement for such a licence.

[130] See text accompanying n 300ff below.

[131] Yarmirr v NT (1998)156 ALR 370, 437. See also 431–6.

[132] [1999] FCA 1668; (1999) 168 ALR 426 (Beaumont and Von Doussa JJ, Merkel J dissenting).

[133] Ibid 478. See also Yarmirr [2001] HCA 56, [330].

[134] Olney J’s suggestion that his conclusion in Yarmirr v NT is similar to the reasoning in cases which relate to internal land and waters implies that the Crown’s title is, in both factual contexts, the same: mere radical title: Yarmirr v NT (1998)156 ALR 370, [376, 388–9, 405].

[135] Yarmirr [2001] HCA 56, [338].

[136] See text accompanying nn 412–17 below.

[137] In this context Olney J also noted that there is a clear distinction between possession and occupation on the one hand and use and enjoyment on the other’: Yarmirr v NT [1998] FCA 771; (1998) 156 ALR 370, 418.

[138] See n 12 above.

[139] Who were family representatives of the Central Arrernte and other Arrernte people. For the purposes of the application, these families were collectively termed the ‘Mbantuarinya Arrernte’: Hayes [1999] FCA 1248, [5] (Olney J).

[140] Ibid [6].

[141] Ibid. The appendix to the reasons for judgment sets out, inter alia, particulars of each separate parcel of land and waters and identifies each parcel by reference to an area number.

[142] Hayes [1999] FCA 1248, [120].

[143] Olney J’s treatment of the other legislative regimes is, however, consistent with the recognition of the Crown’s radical, as opposed to beneficial, title: Aboriginal People: The Northern Territory also argued that the Northern Territory Aboriginals Act 1910 (SA) and subsequent legislation, in particular the Aboriginals Ordinance 1918 (NT), which provided for the declaration of prohibited areas from which Aboriginal people were excluded except by virtue of a permit or exclusion, wholly extinguished native title in respect of such prohibited areas. In rejecting this argument, Olney J referred to the High Court decision in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, in which the constitutional validity of the 1918 Ordinance, which had been repealed by the Welfare Ordinance 1953, was considered and upheld. The High Court in Kruger found that the 1918 Ordinance was intended for the protection and advancement of Aboriginal people notwithstanding that current perceptions of protection and advancement differed from those held at the time of the Ordinance. Olney J concluded, therefore, that it would be ‘contrary to the beneficial intention of the Ordinance for it to be construed as evidencing a clear and plain intention that the declaration of a prohibited area should adversely affect native title rights and interests’: Hayes [1999] FCA 1248, [120]. Olney J also observed that the exclusion of Aboriginal people from prohibited areas was not absolute as declarations did not apply to those Aboriginals who were entitled to be or remain within the area with the permission of the Protector of Aborigines [120]. Accordingly, the Crown’s mere radical title continued to be burdened by native title; the purported statutory vesting of property did not confer beneficial title on the Crown. Local Government: A further category of legislative regime said to be inconsistent with native title rights and interests were the by-laws created pursuant to the Local Government Act (NT) which applied to all public places within the municipal area of the Alice Springs Town Council and which prohibited the lighting of fires, the taking of birds and animals, interfering with flora, and camping. Olney J observed that ‘[a]part from this bare assertion, the [Northern Territory] advanc[ed] no argument to supply its submission’: [120]. Olney J also noted that although the Alice Springs Town Council was a party to the proceeding from the outset, it chose not to take any part in it. He concluded, therefore, that the Council ‘cannot be said to support’ this argument. Olney J observed that the definition of ‘public place’ as used in the relevant by-laws meant ‘any place within the municipality which is open to or used by the public’: [120]. Judicial notice was also taken of the fact that not only were the areas under consideration (namely, ‘the beds of the Todd and Charles Rivers’) places within the municipality which were open to the public but they were extensively used by members of the public, particularly Aboriginal people, as a place to camp. Although the evidence did not indicate whether or not such people obtained a permit to camp pursuant to the by-laws, Olney J considered that it would be ‘stretching credibility’ to suggest that all those who camped in the area did so strictly in accordance with the by-laws. Nevertheless, he concluded that the subject by-laws did ‘no more than regulate the conduct of all people, Aboriginal and non-Aboriginal, and [did] not evidence a clear and plain intention to thereby extinguish native title.’ Accordingly, this legislative regime also failed to enhance the Crown’s underlying radical title. Soil Conservation: It was also argued that the declaration of an area as a ‘restricted use area’ pursuant to the provisions of the Soil Conservation and Land Utilization Act (NT) (s 20B) extinguished native title rights to do any of the things which the Act specified that a person within a restricted use area could not do (s 20C(1)). The Act made ‘provision for the prevention of soil erosion and for the conservation and reclamation of land’, and provided that a restricted use area declaration could only be made if ‘an area of land is subject to soil erosion through use or continued use of it by the public’ (s 20B(2)). Accordingly, Olney J found that the purpose of the legislation was ‘quite specifically directed to the conservation of eroded land’:[120]. He also observed that the declaration of an area as a restricted use area did not prohibit access to the land, nor did it confer a right to possession of the land on any person. Rather than revealing a clear and plain intention to extinguish native title, therefore, the Act merely regulated the enjoyment of land by those who were otherwise entitled to its use ‘by creating a regime of control that [was] consistent with the continued enjoyment of native title’: [120]. Consequently, the Crown’s title in respect of the land did not lose its essential character: it remained radical. Defence: The Northern Territory also argued that native title in respect of those areas which had been declared ‘prohibited places’ during World War II under the National Security (General) Regulations (Cth) was wholly extinguished as access to them by native title holders was completely prohibited (reg 4). Olney J, however, accepted the applicants’ response to this argument, namely, that the National Security Regulations ‘constituted a temporary intrusion on the rights of individuals for the general purpose of national security. In short, they were a short-term measure which was protective of native title (as of the property rights of other members of the Australian community) and cannot be said to have had an extinguishing effect’: [120].

He added that the National Security Act 1939 (Cth), under which the Regulations were made, confirmed this conclusion (especially s 5). Importantly, the Act provided that ‘the Governor-General may make regulations for securing the public safety and the defence of the Commonwealth and the Territories of the Commonwealth, and in particular ... for authorising ... the acquisition, on behalf of the Commonwealth, of any property other than land in Australia’: at [120] (emphasis added). Accordingly, any land affected by a declaration pursuant to regulations made under the National Security Act, being protective of property rights of all Australians, did not alter the nature of the Crown’s title.

[144] Hayes [1999] FCA 1248, [120].

[145] Ibid.

[146] Ibid.

[147] Ibid.

[148] Hereafter referred to as the ‘Control of Waters Ordinance’ (now repealed by the Water Act 1992 (NT)).

[149] Hayes [1999] FCA 1248, [120].

[150] Ibid [45]–[50], especially [47].

[151] Ibid [120].

[152] Section 3(1).

[153] Section 3(1)(a) and (b).

[154] Hayes [1999] FCA 1248, [120].

[155] Section 9(2).

[156] Section 10.

[157] Hayes [1999] FCA 1248, [120].

[158] Ibid.

[159] Section 29. The Wildlife Conservation and Control Ordinance 1963 (NT) is hereafter referred to as the ‘Wildlife Conservation and Control Ordinance’.

[160] Hayes [1999] FCA 1248, [120].

[161] Section 29(1). The definitions and other provisions relating to protected and partly protected animals and game effectively extend to all species other than fish.

[162] Except ss 36, 43 and 49.

[163] Section 54(1), as amended in 1964. The three sections referred to in s 54(1) prohibited sale or barter of protected animals without a permit, the importation of exotics, the keeping of pets and the releasing of pests. Section 54(2) further provided that the ‘provisions of sections 17 and 18 of this Ordinance apply in relation to an Aboriginal only in respect of the sanctuary firstly described in the Third Schedule but have no application where that sanctuary is the tribal land of the Aboriginal.’ Sections 17 and 18 of the Ordinance involved prohibitions on entering or being in sanctuaries without lawful excuse and taking firearms or traps into sanctuaries. The Northern Territory’s submission made no reference to s 54.

[164] Hayes [1999] FCA 1248, [120].

[165] Section 46.

[166] Otherwise than for the purposes of sale.

[167] Section 112(1).

[168] Hayes [1999] FCA 1248, [120].

[169] Halsbury’s Laws of England, Lord Hailsham of St Marylebone (ed), (4th ed, 1975), [1518]–[1520].

[170] See also Wik Peoples v Queensland (1996) 134 ALR 637, 686 (Drummond J).

[171] In Wik Peoples v Queensland, Drummond J, at 686, thought it did not extend to fauna. Cf the High Court’s views in Yanner v Eaton: see text accompanying n 300ff below.

[172] Although the final four legislative regimes which Olney J examined (those relating to the subject matters of Aboriginal people, local government, soil conservation and defence) did not expressly vest property in the Crown, it has been seen that his treatment of these regimes is consistent with the proposition that legislative regimes which merely regulate conduct do not enhance the Crown’s radical title in relation to the subject property: see n 143 above.

[173] See text accompanying nn 48–53 above.

[174] Wik (1996) 187 CLR 1, 84-85. See also WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 180 [67].

[175] Mabo [1992] HCA 23; (1992) 175 CLR 1, 64 (Brennan J); 195–6 (Toohey J); 111 (Deane and Gaudron JJ); 138 (Dawson J); Wik (1996) 187 CLR 1, 125–6 (Toohey J); 185 (Gummow J); 247, 249 (Kirby J); 155, 166 (Gaudron J); Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 423 (n 134). Note, however, that extinguishment can be effected by an act of the legislature or an act of the executive. In the case of extinguishment by executive act, a clear and plain legislative intention to extinguish is not required provided that the act of the executive reveals a clear and plain intention to extinguish: Mabo at 68 (Brennan J)

(an inconsistent grant extinguishes native title irrespective of a clear and plain legislative intention); Wik at 185–6 (Gummow J); 85 (Brennan CJ); Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 439, 459 affirming opinion of Brennan J in Mabo at 68; Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 613 (Gummow J) reasserting the view that in the case of an inconsistent grant, there is no need for a clear and plain legislative intention (but see McHugh J at 576 suggesting the contrary); Fejo [1998] HCA 58; (1998) 72 ALJR 1442, 1452–4, [44]

(Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) and see Kirby J at 1463–6, [105] citing Gummow J’s dicta in Newcrest; Ward [2002] HCA 28, [78]; [79] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Thus, the effect of the authorities is that a clear and plain intention to extinguish is required, but it need not be that of the legislature. The exercise of the power must, however, be in terms that clearly and plainly create rights that are inconsistent with the continued exercise of native title rights and interests: WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 180–1 [69]. Cf Ward [2002] HCA 28 at [619], [625] (Callinan J) and Wilson v Anderson [2002] HCA 29, [194] (Callinan J).

[176] Mabo [1992] HCA 23; (1992) 175 CLR 1, 68 (Brennan J); Fejo [1998] HCA 58; (1998) 72 ALJR 1442, [47]

(Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

[177] See, for example, Wik (1996) 187 CLR 1, 126 (Toohey J), 247 (Kirby J); Mabo [1992] HCA 23; (1992) 175 CLR 1, 64, 110–111; Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 423.

[178] Wik (1996) 187 CLR 1, 85 (emphasis added).

[179] Cf Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609; (2000) 180 ALR 91; where Lehane J interpreted Brennan CJ’s passage as drawing a distinction between ‘statutory acquisition of [native] title and non-statutory appropriation, the former giving rise to the immediate extinguishment pf native title, the latter extinguishing native title only when the land was actually used for a purpose for which it had been appropriated’: at [23]. He added that ‘[I]mportantly, that is the way in which the observations were read by Beaumont and von Doussa JJ , both in Commonwealth v Yarmirr … and in Western Australia v Ward …’: [23]. Lehane J immediately went on to say that Lee J held in the first instance in Ward v Western Australia … that a grant (following compulsory acquisition) to the Commonwealth in fee simple extinguished native title; in the judgment of the appeal, Beaumont and von Doussa JJ recorded … that there was no cross-appeal in respect of that finding. And a resumption by the State under the Public Works Act 1902 (WA), resulting in the vesting in the Crown of an estate in fee simple, was held in Ward, on appeal …, to have: “… had the effect that the Crown became the absolute beneficial owner of the land, and clearly and plainly evidenced an intention that any remaining native title be wholly extinguished” [23].

Thus, Lehane J concluded that in that state of the authorities, I am bound to conclude that … a grant of a fee simple estate to the Crown (or the acquisition by the Crown of such an estate) extinguishes native title to the same extent, and for the same reasons, as a similar grant to a private person does [23].

Thus, Lehane J appears to be confusing statutory acquisition of native title and compulsory acquisition of title (which it will be seen does not extinguish native title immediately).

[180] Wik (1996) 187 CLR 1, 85 (emphasis added).

[181] Mabo [1992] HCA 23; (1992) 175 CLR 1, 68 (Brennan J), cited in Wik (1996) 187 CLR 1, 85.

[182] Wik (1996) 187 CLR 1, 85–6 (emphasis added).

[183] Ibid 86.

[184] Indeed, statutory appropriation/ vesting of land in the Crown would, arguably, be most analogous to the second category of law identified by Brennan CJ in Wik. Although not creating rights in third parties, such a law purports to create rights in the Crown which are inconsistent with the continued enjoyment of native title.

[185] (1988) 166 CLR 186.

[186] Ibid at 214.

[187] This was an application pursuant to O 29, r 2(a) of the Federal Court Rules for the separate determination of several issues arising in an action commenced by the Wik Peoples seeking a declaration that they had native title rights in an area of land in North Queensland. Because the Thayorre People cross-claimed in the action seeking a declaration of native title rights in an area of land which, in part, overlapped with that claimed by the Wik Peoples, they were joined as a respondent to the action.

[188] Wik Peoples v Queensland (1996) 134 ALR 637, 686 (Drummond J). Drummond J relied on what he referred to as ‘Brennan J’s obiter dicta in Walden v Hensler.’ Cf the approach of the majority of the High Court in Yanner v Eaton, which distinguished Walden v Hensler in context of native title at [41]: see text accompanying n 300ff below.

[189] Hereafter referred to as the ‘1909 Act’. This was the first Queensland legislation applicable to all private land which enabled third parties to obtain rights to mine private land. Section 1 of the 1909 Act required that it be read as one with the Mining Act 1898 (Qld).

[190] Section 6(2) provided that:

All Crown grants and leases under any Act relating to Crown land issued after the commencement of this Act shall contain a reservation of all gold and minerals on and below the surface of the land comprised therein, and also a reservation of the right of access for the purpose of searching for or working any mines of gold or minerals in any part of the land.

[191] Drummond J concluded that the 1925 Act effected a ‘general expropriation’ of all minerals anywhere in Queensland: Wik Peoples v Queensland (1996) 134 ALR 637, 685, 687.

[192] See above n 32. See also: NSW: 1884 (Crown Land Act 1884 (NSW)); Tas: 1893 (Crown Land Act 1905 (Tas); Mining Act Amendment Act 1911 (Tas)); WA: 1899 (Land Act 1898 (WA), s 15; Mining Act 1904 (WA), s 117).

[193] See n 33 above. See also: Qld: Mining Act Amendment Act 1925 (Qld) (cf Crown Land Act 1884 (Qld); Mining on Private Land Act 1909 (Qld), s 6); Vic: Mines (Amendment) Act 1983 (Vic) (cf: (Mines Act 1891 (Vic), s 3; Land Act 1891 (Vic), s 12); SA: Mining Act 1971 (SA); Minerals (Acquisition) Ordinance 1953 (NT).

[194] Queensland, Victoria, South Australia, and the Northern Territory.

[195] Wik Peoples v Queensland (1996) 134 ALR 637, 685.

[196] New pt XII.

[197] Section 110 of pt XII 22 of the Crown Lands Alienation Act 1860 (Qld), s 32 of the Crown Lands Alienation Act 1986 (Qld) and s 21 of the Mineral Lands Act 1872 (Qld).

[198] Section 8(3).

[199] Wik Peoples v Queensland (1996) 134 ALR 637, 681.

[200] Ibid 683.

[201] Ibid 683, 684.

[202] Ibid 679.

[203] Ibid 681.

[204] Ibid 681–2.

[205] Ibid 685.

[206] Ibid 687.

[207] All States and Territories have general powers to legislate for the peace order and good government of their jurisdiction: see Meyers, Piper and Rumley, above n 31, 241.

[208] See Yanner v Eaton, text accompanying n 300ff below, especially n 324.

[209] Wilkinson v Proud (1843) 11 M & W 33; 152 ER 704.

[210] Wik Peoples v Queensland (1996) 134 ALR 637, 686 (Drummond J). In the absence of special statutory provisions, the law relating to the creation and transfer of mineral rights is the same law which applies to real property interests generally:

J R S Forbes and A G Lang, Australian Mining and Petroleum Laws (2nd ed, 1987), 11.

[211] See Wik Peoples v Queensland (1996) 134 ALR 637, 684–5 (Drummond J).

[212] The Case of Mines 1568 (1568) 1 Plow at 336; 75 ER at 511; see also Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1; Worsley Timber v Western Australia [1974] WAR 115.

[213] For a discussion of the doctrine of tenure after Mabo see: Secher, above n 50, ch 3; see also ch 4.

[214] Thus, the power to confirm ‘any existing ownership of natural resources by the Crown’ contained in s 212 of the NTA merely recognises the Crown’s radical title to minerals.

[215] See above n 34.

[216] See Bartlett, Native Title in Australia, above n 14, 241.

[217] Case of Mines 1568 (1568) 1 Plow 310; 75 ER 472; Woolley v Attorney- General for Victoria [1877] 2 AC 163.

[218] See n 219 and see Brennan J’s rejection of the royal prerogative basis for Crown ownership of land in Mabo [1992] HCA 23; (1992) 175 CLR 1, 53–4.

[219] Woolley v Attorney-General of Victoria (1877) 2 App Cas 163, 167–8.

[220] Mabo [1992] HCA 23; (1992) 175 CLR 1, 53–4.

[221] Ibid 53, citing Williams v Attorney-General (NSW) [1913] HCA 33; (1913) 16 CLR 404, 453, 456.

[222] Mabo [1992] HCA 23; (1992) 175 CLR 1, 54.

[223] Because the royal metals are not part of land in which they are located, they would not be affected when the land is brought within the doctrine of tenure as a result of a Crown grant.

[224] Whatever the position at common law, the majority of the Full Court of the High Court has held that, in relation to certain land acquired pursuant to s 85 of the Constitution and pursuant to the Land Acquisition Act 1906 (Cth), royal metals did ‘vest in the Commonwealth freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of New South Wales’: Commonwealth v New South Wales [1923] HCA 34; [1920-1923] 33 CLR 1, 71–2 (order of the Court). This case is also discussed below, see text accompanying n 532ff. Although this case was decided before Mabo and, therefore, on the assumption that the Crown acquired beneficial ownership of all land in Australia upon settlement, the order of the Court did not speak of the effect of such vesting. Indeed, the pre- Mabo assumption was questioned by Higgins J who observed that ‘[t]he argument on both sides assumes — probably rightly — that the unalienated land in a State is “land the property of a State”: at 62.

[225] Wilkinson v Proud (1843) 11 M & W 33; 152 ER 704.

[226] See n 210 above.

[227] Unless minerals are expressly excluded or previously reserved: see n 212 above.

[228] See the syntactical presumption: ‘expressio unius est exclusio alterius’.

[229] United States v Shoshone Tribe of Indians [1938] USSC 107; 304 US 111 (1938); United States v Klamath and Moadoc Tribes [1938] USSC 105; 304 US 119 (1938); Delgamuukw (1993) 104 DLR

(4th) 470, [118]–[122].

[230] See discussion relating to Yarmirr v NT above and discussion relating to trial and appellate decisions in Ward below. In Ward v WA, Lee J held that the content of native title included the right to use and enjoy, to trade in and to receive a portion of any resources (order of the court). In WA v Ward, North J, in dissent, also held that the evidence supported the finding that native title included ‘rights to exploit resources of the land under traditional law’: [2000] FCAFC 191; (2000) 170 ALR 159, 365 [829]. Cf Yarmirr v NT [1998] FCA 771; (1998) 156 ALR 370 [107], [115], [117] (Olney J), who concluded (at [117]) that there was ‘no evidence to support any traditional claim to the use and control of any of the resources of the subsoil of the claimed area.’ Cf also Cth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426, 478, where the Full Federal Court upheld Olney J’s decision in Yarrmirr v NT; see also Yarmirr [2001] HCA 56, [330]; WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 288–293, where the majority of the Full Federal Court held that the content of native title does not include minerals; and Ward [2002] HCA 28, [383], [387], where the majority of the High Court left open the question of whether native title includes minerals. See also Bartlett, Native Title in Australia, above n 14, 169–70; R H Bartlett, ‘The Wik Decision and Implications for Resource Development’ (1997) 16 Australian Mining and Petroleum Law Journal 27; R H Bartlett, ‘Resource Development and the Extinguishment of Aboriginal Title in Canada and Australia’ (1990) 2 Western Australian Law Review 453; Meyers, Piper and Rumley, above n 31.

[231] Yarmirr v NT (1998)156 ALR 370, [158]; Wik Peoples v Queensland (1996) 134 ALR 637, 688.

[232] Wik Peoples v Queensland (1996) 134 ALR 637, 688.

[233] Ibid 686.

[234] Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 577–81. In summary, Lee J held that the following interests did not extinguish native title: interests created under an agreement made between the State and the Argyle Diamond Mine Joint Venturers; interests created under the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA); interests under a mining lease under the Mining Act 1978 (WA); interests under an exploration licence under the Mining Act 1978 (WA); interests under a general purpose lease under the Mining Act 1978 (WA); mining tenements under the Mining Act 1904 (WA); tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA) for the use of land or water for the purpose of exploring for or recovering petroleum.

[235] The declarations in both the 1904 and the 1978 Mining Acts are subject to grant prior to 1899.

[236] Order of the Court, paras (3)(e),(f),(g) and (h). This statement of the nature and extent of native title rights is required by s 225(b) of the NTA.

[237] There were three separate applicants: following the lodgment with the Federal Court of the first applicant’s application to the National Native Title Tribunal (‘NNTT’), the second and third applicants, who sought determination of native title in respect of parts of the area for which the first applicant claimed native title, were joined as applicants.

[238] In Western Australia, the claim area specifically included Crown land in or about the town of Kununurra, the Ord River Irrigation area, Lake Argyle, and several freehold lots, Crown land in the Glenn Hill pastoral lease south-west of Lake Argyle; land and waters in the inter-tidal zones and mud flats on the eastern side of the Gulf and on the north coast of Western Australia between the Gulf and the Western State/Northern Territory border; three islands near the mouth of the Gulf (Lacrosse, Rocky and Pelican); and an area loosely described as ‘Goose Hill’, east of Wyndham and south of the Ord River. The only part of the claim area that included land in which a freehold interest had been granted prior to 31 December 1993 was an area near Lake Argyle on which a telephone exchange was operated by Telstra Corporation Ltd, and the area of the former Argyle Downs homestead. Other freehold land included in the claim area was land that had been alienated by the Crown after 31 December 1993, but not in compliance with the ‘future act’ provisions of the [Native Title Act 1993 (Cth)] and thus not affecting native title. Land in the vicinity of Kununurra, Lake Argyle and the Ord River irrigation area was vacant and reserved land formerly used for pastoral purposes. Some of the reserved land had been leased to Aboriginal corporations and a small portion of the vacant land near Kununurra was subject to a special lease for cultivation and grazing purposes: Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 491–2 (Lee J).

In the Northern Territory area, the land included part of the Keep River National Park, the land adjacent to the park which had been leased to the Conservation Land Corporation, and freehold land contiguous with or formerly within the park: at 493 (Lee J).

[239] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 288 [514].

[240] Ibid 288 [515].

[241] Ibid 290, [525]–[526].

[242] Ibid 289, [520]; 290 [527].

[243] See text accompanying n 131 and 201, respectively, above. That is, Drummond J’s analysis fails to appreciate that the relevant legislation was intended to alter the common law position respecting Crown grants and the grantee’s acquisition of mineral rights.

[244] WA v Ward (2000)170 ALR 159, 290 [527]; see also 289 [521].

[245] Ibid 288, [517].

[246] Ibid.

[247] Ibid.

[248] Sections 3, 115.

[249] Section 8(1).

[250] Section 5.

[251] WA v Ward (2000)170 ALR 159, 292 [536], [538], [540].

[252] Ibid 292, [541].

[253] Ibid 292–3, [451].

[254] Ibid 293, [544].

[255] Ibid [390]ff.

[256] Ibid [353]ff.

[257] Ibid [396]ff.

[258] Formally the Fauna Protection Act 1950 (WA) and the Fauna Conservation Act 1950 (WA). See WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, [493]ff.

[259] Ibid [414]ff, especially [415]–[419].

[260] Ibid [420]ff.

[261] And its predecessors: Land Regulations 1882 (WA), the Land Act 1898 (WA).

[262] [1920] UKPC 96; [1921] 1 AC 401, 409.

[263] Ibid. See also Yanner v Eaton, [1999] HCA 53; (1996) 166 ALR 258, 285 (Gummow J).

[264] The power in s 33 was considered by the High Court in City of Perth v Crystal Park Ltd [1940] HCA 35; (1940) 64 CLR 153.

[265] Section 12(7) (emphasis added).

[266] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 248 [354]–[355].

[267] Ibid 260, [400].

[268] Section 3 relevantly provides:

(1) The general administration of this Act shall be under the control of the Minister.

(2) ... all irrigation works constructed, or in the course of construction under this Act, and all irrigation works constructed by the Government before the commencement of this Act which the Governor may, by Order in Council, declare to be subject to this Act, shall vest in the Minister on behalf of Her Majesty....

[269] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 284 [499] and 267–8 [420]–[422].

[270] Section 117(2). See also s 117(1).

[271] Formally the Fauna Protection Act 1950 (WA) and the Fauna Conservation Act 1950 (WA).

[272] Section 22(1) (emphasis added). Subsection 2 provides that ‘The provisions of the last preceding subsection do not entitle any person to compensation.’

[273] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 284 [499].

[274] Ibid. See s 18 and see Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 266–7.

[275] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 291 [530].

[276] Ibid.

[277] Yanner v Eaton, 266–7, (Gleeson CJ, Gaudron, Kirby and Hayne JJ); cited in WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 290 [528].

[278] See authorities cited in n 176 above.

[279] Such as that contained in s 33 of the Land Act 1933 (WA) (vesting reserved land for the reserved purpose) and s 4(1) of the Rights in Water and Irrigation Act 1914 (WA) (vesting the right to the use and flow and to the control of water in the Crown).

[280] Such as that contained in s 12(7) of the Territory Parks and Wildlife Conservation Act 1976 (NT).

[281] Such as that contained in s 3(2) of the Rights in Water and Irrigation Act 1914 (WA).

[282] Wik Peoples v Queensland (1996) 134 ALR 637, 687 and WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 258.

[283] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 266–7; see text accompanying n 494 below.

[284] Ibid at 271, [433]; see text accompanying n 506 below.

[285] Like s 33 of the Land Act 1933 (WA) (vesting reserved land for the reserved purpose) and s 4(1) of the Rights in Water and Irrigation Act 1914 (WA)

[286] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 363 [826].

[287] Ibid 364, [828].

[288] Ibid 365, [829].

[289] Ibid, relying on Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J); Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 277 (Gummow), 294 (Callinan J).

[290] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 365 [833]–[835].

[291] Ibid 367, [840].

[292] Ibid; see also Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 266–7.

[293] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 367, [841].

[294] Ibid.

[295] Ibid 367, [843].

[296] Ibid [383], [377].

[297] Ward [2002] HCA 28, [525]–[526]; see also WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, [377].

[298] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, [385]; see also [381]–[382].

[299] Indeed, the majority of the High Court in Ward concluded that ‘the grant of a mining lease is [not] necessarily inconsistent with all native title’: [2002]HCA 28, [308].

[300] See n 4 above.

[301] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 261–2, [9] (joint judgment); 282, [84]

(Gummow J).

[302] The respondent and the interveners: Attorneys-General for the Commonwealth, South Australia, Western Australia and the Northern Territory.

[303] Murrandoo Bulanyimungabayi Yanner.

[304] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 264, [17]; 265, [22].

[305] Ibid 264–5, [17]–[22]. See also R Levy, ‘Casenote: High Court Upholds Hunting Rights in Yanner Appeal’ (1999–[2000] IndigLawB 5; 2000) 4(26) Indigenous Law Bulletin 17, 17.

[306] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 264 [17].

[307] Ibid 264, [18].

[308] Ibid 264–5, [19].

[309] Ibid 265, [21].

[310] Ibid 262, [10]. The justices also noted that the Act did not make all fauna the property of the Crown. Fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna was excepted: s 7(1).

[311] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 265 [22].

[312] Ibid 265, [23].

[313] Ibid 266, [25].

[314] The limited exceptions contained in the Fauna Conservation Act supported this interpretation: Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 266 [25].

[315] See Secher, above n 50, chapter 6.

[316] Sections 71(2) and 83(3).

[317] Yanner v Eaton at 266, [26]. The Joint judgment questioned these provisions notwithstanding that s 84 provided that the subject sections shall not prejudice or affect the rights of the Crown conferred by s 7.

[318] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 266 [26].

[319] Ibid 266–7, [27].

[320] Animals and Birds Act 1921 (Qld), s 8(B) (inserted by the Animals and Birds Act Amendment Act 1924 (Qld), s 2(4): see Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 263 [14].

[321] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 266–7 [27].

[322] See Secher, above n 50, ch 6 and ch 3.

[323] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 267 [28], citing Toomer v Witsell [1948] USSC 105; (1948) 334 US 385, 402 (Vinson CJ).

[324] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 267 [29] (emphasis added).

[325] Ibid 267, [28].

[326] Ibid 267–8, [30].

[327] Ibid 269, [37]. Their Honours expressly stated that it was unnecessary to decide whether the creation of property rights of the kind that the respondent contended had been created by the Fauna Act would be inconsistent with the continued existence of native title rights: at 269, [37].

[328] Ibid. Their Honours added that regulation may, of course, shade into prohibition and the line between the two may be difficult to discern: at 269, [37]. See also Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174, 188–90 (Isaacs J), 211–212 (Higgins J); Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142, 148–9 (Starke J), 155–6 (Dixon J); Brunswick Corporation v Stewart [1941] HCA 7; (1941) 65 CLR 88, 93–4 (Rich ACJ), 95 (Starke J); Municipal Corporation of City of Toronto v Virgo [1895] UKLawRpAC 46; [1896] AC 88, 93–4.

[329] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 270 [40]. By operation of s 211(2) of the NTA and s 109 of the Constitution, the Fauna Conservation Act did not prohibit or restrict the appellant, as a native title holder, from hunting or fishing for the crocodiles he took for the purpose of satisfying personal, domestic or non- commercial communal needs: at 270, [40]. The appellant’s submission that s 54(1) of the Fauna Conservation Act was inconsistent with s 211(2) of the NTA and that, therefore, s 109 of the Constitution rendered s 54(1) invalid to the extent of any inconsistency meant that the appellant’s liability under s 54(1) never in fact arose.

[330] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 282 [84].

[331] Ibid 283, [86], citing Wily v St George Partnership Banking Ltd [1999] FCA 33; (1999) 84 FCR 423 431.

[332] Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16, 21–2, cited by Gummow J in Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 283 [86]. See also K Gray and S F Gray, ‘The Idea of Property in Land’, in Bright and Dewar (eds), Land Law: Themes and Perspectives (1998) 15, 27–30.

[333] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 283 [86].

[334] Ibid.

[335] Ibid.

[336] Ibid 284, [90].

[337] Ibid.

[338] ‘Open Season’ was defined to mean, in relation to any fauna, ‘the period declared by Order in Council under this Act during which that fauna may be taken’: s 5.

[339] Within the meaning of s 5.

[340] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 284–5, [91].

[341] Ibid 285, [93].

[342] Ibid 285, [92].

[343] Ibid at 285, [94].

[344] [1920] UKPC 96; [1921] 1 AC 401.

[345] 13 & 14 Vict. c. 42 entitled ‘An Act for the better protection of lands and property of the Indians in Lower Canada’, s 1: see Attorney-General for Quebec v Attorney-General for Canada [1920] UKPC 96; [1921] 1 AC 401, 407.

[346] Attorney-General for Quebec v Attorney-General for Canada [1920] UKPC 96; [1921] 1 AC 401, 407.

[347] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 285–6 [96].

[348] First, Gummow J stated that the reference to the Crown in the context of fauna is the property of the Crown was a reference to the State of Queensland. Secondly, by placing the control of fauna under the ‘Fauna Authority’, Gummow J concluded that the ‘control of fauna was in a persona designata of the Crown, that is a Minister of the Crown in right of Queensland’: Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, [96]. Fauna Authority was defined to mean the ‘Minister and subject to the Minister the under Secretary and the Conservator’: s 5. ‘Minister’ was itself defined to mean ‘the Minister for Primary Industries or other Minister of the Crown who at the material time is charged with the administration of this Act’: s 5.

[349] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 286 [98].

[350] Ibid 267, [28]; 286–7, [98]–[101].

[351] Ibid 287, [101].

[352] Ibid 289, [112].

[353] Ibid 290, [115].

[354] Ibid.

[355] Ibid 264, [18].

[356] Ibid 267–8, [30]. The aggregate of legal relations appertaining to a particular physical object: 283, [86].

[357] At least in the context of the first and second category of law that extinguishes native title identified by Brennan CJ in Wik.

[358] Wik (1996) 187 CLR 1, 84–85.

[359] Ibid.

[360] See text accompanying n 176 above.

[361] Mabo [1992] HCA 23; (1992) 175 CLR 1, 68 (Brennan J); Wik (1996) 187 CLR 1, 168 (Gummow J); Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 422.

[362] Wik (1996) 187 CLR 1, 171 (Gummow J).

[363] Ibid 120 (Toohey J), see also 119 and 111; 147, 154 (Gaudron J); 171, 175 (Gummow J); 245–6, 227, 229–30, 247 (Kirby J).

[364] Brennan CJ , Dawson and McHugh JJ concurring.

[365] Wik (1996) 187 CLR 1, 77–81.

[366] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 270–1 [43].

[367] Ibid 271, [44].

[368] Ibid 271, [46].

[369] Ibid 271, [47].

[370] Ibid 272, [49].

[371] Ibid 272, [49].

[372] Ibid 272, [49]. It was suggested that s 7 had a more limited meaning than that identified by McHugh J. There were two versions of this suggestion: first, that the property in fauna vests in the Crown only upon other persons taking or dealing with fauna; secondly, that the Act effectively created a new, negative form of property: namely, ‘that property in s 7 is no more than a label which describes what the Crown notionally has after the Act has identified the circumstances in which others may take, possess and pay royalties to the Crown in respect of fauna’: Yanner v Eaton [1999] HCA 53; (1996) 166 ALR 258, 272 [50].

[373] Ibid.

[374] Section 7(1).

[375] Yanner v Eaton [1999] HCA 53; (1996) 166 ALR 258, 273 [54].

[376] Ibid 274, [57]. McHugh J stated that the reasons for this ‘are fully explained in the judgment of Callinan J’: at 274, [57].

[377] Ibid 295, [135].

[378] Ibid 295, [137].

[379] Ibid.

[380] Ibid.

[381] Ibid 295, [138].

[382] Ibid.

[383] [1865] EngR 593; (1865) 11 HL Cas 621 at 631; [1865] EngR 593; 11 ER 1474, 1478–9.

[384] [1987] HCA 54; (1987) 163 CLR 561, 566.

[385] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 296 [140].

[386] Ibid 296, [142] (emphasis added).

[387] Ibid 296–7, [143].

[388] Ibid 297, [144]. For example: s 71(2) provides that fauna seized for non- payment of a royalty shall be ‘forfeited to Her Majesty’; s 6 divides ‘fauna’ into three classes (‘permanently protected fauna’, ‘non-protected fauna’ and ‘prohibited fauna’); ss 26, 27 and 53 relate to the circumstances under which permits for taking fauna in different classes were required and might be obtained.

[389] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 297, [145]. In particular, s 67 of the Fauna Conservation Act.

[390] Ibid 298, [150].

[391] Ibid 299–300, [151–156].

[392] Ibid 300, [157].

[393] Ibid 296, [142].

[394] Ibid 300, [157] (emphasis added).

[395] The implications of this conclusion for unalienated and unoccupied land are discussed by Secher, above n 50, ch 7.

[396] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258, 267 [28].

[397] [1998] HCA 8; (1998) 194 CLR 1 (‘WMC’).

[398] Ibid 20.

[399] Ibid.

[400] [1898] AC 701— this case was referred to by the Supreme Court of Canada in R v Sparrow [1990] 1 SCR 1075, 1099.

[401] [1898] AC 701, 709.

[402] Ibid.

[403] Ibid 712.

[404] Ibid. Cf the Privy Council’s treatment of the situation where the Legislature purports to confer upon others proprietary rights where it possesses none itself (713) with the High Court’s acknowledgment that the power to grant land is divorced from any requirement of ownership, whether at common law or pursuant to statute.

[405] [1898] AC 701, 712–13.

[406] Cf the Privy Council’s treatment of s 108 of the British North America Act, which provided that the public works and property of each province enumerated in the schedule shall be the property of Canada. The schedule, which was headed ‘Provincial Public Works and Property to be the Property of Canada’, contained an enumeration of various subjects, numbered 1 to 10. The fifth of these was ‘rivers and lake improvements’. The Privy Council held that the improvements only, and not the rivers, were transferred to the Dominion: [1898] AC 701, 710.

[407] Yarmirr [2001]HCA 56, [63].

[408] New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337.

[409] Yarmirr [2001]HCA 56, [63].

[410] Hereafter referred to as the ‘NT Powers Act’.

[411] See s 63. Hereafter referred to as the ‘NT Title Act’.

[412] Sections 4(2) (b) and (c) declared that the Territory’s title over the sea-bed and the space above the sea-bed were subject to the rights of the Commonwealth in respect of uses such as navigation, communications, defence, quarantine and pipelines.

[413] Yarmirr [2001] HCA 56, [347] (Callinan J, citing Port MacDonnell Professional Fishermen’s Association Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340, 358.) See also Yarmirr [64] (joint judgment).

[414] Yarmirr [2001] HCA 56, [70].

[415] Ibid.

[416] The third reason cited by the majority referred to s 4(2) of the NT Title Act which expressly reserved native title rights and interests in relation to the sea-bed that existed at the commencement of the Act. This reason is, of course, equally consistent with the vested title being a mere radical title (that is, a bare legal title) or a full beneficial title. In either case, the statutory provision simply ensures that any native title is preserved.

[417] Yarmirr [2001] HCA 56, [70].

[418] Non-tidal water which either percolates through land or flows through land in a defined channel is a species of land. Although an action cannot be brought to recover possession of a pool or other piece of water by the name of the water only, an action can be brought for the land which lies at the bottom of the water. That is, although water is a moveable conferring only a temporary, transient, usufructuary property therein, the land which that water covers is permanent, fixed and immoveable and confers certain and substantial property: W Blackstone, 2 Commentaries on the Laws of England: Of the Rights of Things (Facsimile of 1st ed, 1979) 18.

[419] When the Crown was believed to have title to the foreshore and the beds of tidal rivers and coastal waters, the common law acted on the presumption that the Crown had a full beneficial title to this land by virtue of the prerogative: Yarmirr [2001] HCA 56, [213] (McHugh J). While the fiction of original Crown ownership applied to such land, the fiction of Crown grants did not apply: see Secher, above n 50, ch 5.

[420] See Mabo [1992] HCA 23; (1992) 175 CLR 1, 48–9 (Brennan J): ‘The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant.’

[421] Yarmirr [2001] HCA 56, [71].

[422] Ibid.

[423] Ibid.

[424] See text accompanying n 422 above.

[425] Section 4(2)(a) provided that:

(2) The rights and title vested in the Territory under sub-section (1) are vested subject to – (a) any right or title to the property in the sea-bed beneath the coastal waters of the Territory of any person (including the Commonwealth) subsisting immediately before the date of the commencement of this Act, other than any such right or title of the Commonwealth that may have subsisted by reason only of the sovereignty referred to in the Seas and Submerged Lands Act 1973.

[426] 14 February 1983: Yarmirr [2001]HCA 56, [229].

[427] Ibid [230].

[428] Ibid [348].

[429] Ibid [350].

[430] Ibid [364] (emphasis added).

[431] Ibid [350].

[432] [1898] AC 701.

[433] This part is adapted from Secher’s doctoral thesis, above n 50, ch 8.

[434] A joint judgment by Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ constituted the principal judgment; Kirby J delivered a separate judgment. The principal judgment noted that the grant of land to Benham and its later acquisition by the Commonwealth were the only steps that were relevant to the ground of appeal to the High Court. Importantly, the Justices comprising the principal judgment considered that the argument, that native title was revived when the land came to be held once more by the Crown, would have to deal with the problems presented by the vesting of the land and the legal estate in the Commonwealth pursuant to legislative enactment. Having been acquired by compulsory process, the land was vested in the Commonwealth by force of the Lands Acquisition Act 1906 (Cth). Pursuant to section 16 of that Act, upon publication of the notification of acquisition in the Gazette, the land was ‘freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth’ (emphasis added). What problems the legislative vesting of land in the Crown posed were not, however, articulated by the justices comprising the principal judgment as they found it unnecessary to deal with this matter. This was because of their conclusion that native title rights had been extinguished by the grant of freehold title, rather than merely suspended. The crucial point is that, although any argument that native title revived necessarily failed, this was because the native title had been permanently extinguished not because the Crown acquired beneficial ownership of the land when the land came to be again held by the Crown pursuant to the Commonwealth Lands Acquisition Act. Accordingly, although the principal judgment left open the question of the nature of the title acquired by the Crown as a result of a statutory vesting of land, their reason for not dealing with this matter is equally consistent with such statutory vesting conferring a radical title to the land rather than full beneficial ownership.

Kirby J also considered whether the legislation pursuant to which the 1882 grant had been made did not envisage, expressly, or by implication, the coexistence of fee simple and native title rights. Unlike the other members of the Court, however, Kirby J observed, in obiter, that any such suggestion was expressly excluded by the operation of s 16(1) of the Lands Acquisition Act 1906 (Cth), under which the subject land later became vested in the Commonwealth: Fejo [1998] HCA 58; (1998) 72 ALJR 1442, 1469. Significantly, on the particular facts of the case, there was more than a mere legislative vesting: the land had also been actually appointed as a quarantine station.

[435] Applied in Deniss v Minister for Land & Water Conservation [1999] FCA 1169, 25 August 1999 (Federal Court of Australia, Wilcox J) — grant of freehold forever destroyed native title, and s 23B(9C) of the NTA did not constitute legislative reversal of the common law rule in Fejo. Section 23B was merely a definition section giving meaning to s 23(A)(2).

[436] The land the subject of the application included extensive portions of land in the area of Darwin, Palmerston and Litchfield.

[437] That is, 6 December 1996.

[438] Hereafter referred to as ‘Oilnet’.

[439] Between March and November 1997.

[440] 20 April.

[441] Section 6, which provided that after the coming into operation of that Act ‘all waste lands in the Northern Territory shall be sold, demised, or otherwise disposed of and dealt with in the manner and subject to the provisions of [the] Act, and not otherwise.’

[442] ‘[F]or the treatment, detention and segregation of leprosy patients.’

[443] On 1 April, pursuant to s 63 of the NTA.

[444] On their own behalf and on behalf of the Larrakia people.

[445] The appellants commenced two proceedings: one in which the respondents were the Northern Territory and Oilnet, the other in which only the Northern Territory was the respondent. Although the primary judge directed that the two proceedings be heard together, the matter before the High Court arose in the first proceeding, to which the Northern Territory and Oilnet were respondents.

[446] Fejo [1998] HCA 58; (1998) 72 ALJR 1442, 1445.

[447] On 18 December 1997.

[448] 13 February 1998.

[449] 27 February 1998: Fejo v Northern Territory (1998) 152 ALR 477.

[450] The first ground was:

The learned trial judge erred in holding that a grant of land made on behalf of Her Majesty by the Governor of South Australia, pursuant to the power vested in the Governor by the Letters Patent establishing the Province of South Australia and under Act No 28 of 1872 entitled ‘An Act to Regulate the Sale and Other Disposal of the Waste Lands of the Crown in that portion of the Province of South Australia commonly styled the Northern Territory’, was effective to extinguish all native title rights and interests in the land the subject of the grant so that, upon the land being re- acquired by the Crown, no native title rights and interests could then be recognised by the common law.

[451] By order made pursuant to s 18 of the Judiciary Act 1903 (Cth).

[452] Fejo [1998] HCA 58; (1998) 72 ALJR 1442, [43] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), [106] (Kirby J).

[453] The principal judgment held that native title was extinguished by the relevant fee simple grant ‘because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title’: [43]. Kirby J held that although the bundle of interests which the law calls ‘native title’ could continue within the world of Aboriginal custom, ‘the conferral of a legal interest in land classified as a fee simple had the effect, in law, of extinguishing the native title rights’: [106]. Note, however, that both judgments contemplated exceptions to extinguishment by freehold grant: [43], [112].

[454] Fejo [1998] HCA 58; (1998) 72 ALJR 1442, 1445; see also 1446 where the Justices refer to the two central questions in the case: first, what was the effect of the 1882 grant and the later acquisition of the land by the Commonwealth and second, what was the effect of the statutory regime for determination of native title on the disposition of the motions before the primary judge?

[455] Ibid 1453.

[456] Section 6 (emphasis added).

[457] The earlier New South Wales Legislation had, by similar terms, achieved this result: s 3 of the Crown Lands Alienation Act 1861 (NSW).

[458] Fejo (1998) 72 ALR 1442, 1453.

[459] Ibid 1454.

[460] Ibid 1446.

[461] Ibid 1454.

[462] Ibid 1463.

[463] Ibid.

[464] Ibid 1464.

[465] Ibid 1455.

[466] Ibid 1454 (emphasis added).

[467] Ibid 1446 (emphasis added). See also 1453 and text accompanying nn 523–9 below.

[468] Ibid 1451–5 (second emphasis added).

[469] Ibid 1454.

[470] Ibid 1468.

[471] The Northern Territory Land Act 1872 (SA).

[472] Fejo [1998] HCA 58; (1998) 72 ALJR 1442, 1469.

[473] At trial and appellate levels: Ward v WA (Lee J); WA v Ward (Full Federal Court); Ward (High Court).

[474] These were all different means of acquiring land for the Ord River Irrigation Project and other purposes: see Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 584ff.

[475] Hereafter referred to as the ‘Land Act.’

[476] Hereafter referred to as the ‘Public Works Act.’

[477] Hereafter referred to as the ‘Rights in Water Act.’

[478] The Argyle Downs pastoral lease and freehold land were acquired by the State of Western Australia in a bargain-and-sale transaction rather than pursuant to the powers of resumption contained in the Land Act 1933 (WA), the Public Works Act 1902 (WA) or the Rights in Water and Irrigation Act 1914 (WA): see Ward v WA

[1998] FCA 1478; (1999) 159 ALR 483, 586.

[479] Pastoral lease land remained Crown land for the purposes of the Land Act 1933 (WA), s3; the Land Regulations 1887 (WA), reg 2, and the Land Act 1898 (WA), s 3: Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 556 (Lee J); Ward [2002] HCA 28, [174].

[480] Land resumed from a pastoral lease would be Crown land available to be used for the purpose specified as the purpose for resumption or reserved under the Land Act 1933 (WA) or otherwise held as vacant Crown land. Pursuant to s 3 of the Rights in Water and Irrigation Act 1914 (WA) all lands acquired for, or dedicated to, the purposes of that Act were vested in the Minister until such lands, irrigation works and constructions were vested in a board: Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 585.

[481] Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 587.

[482] Ward [2002]HCA 28, [151].

[483] Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 586.

[484] Ibid.

[485] Ibid: adopting Brennan CJ’s words from Wik (1996) 187 CLR 1, 86, Lee J said that ‘[u]ntil such a use takes place, nothing has occurred that might affect the legal status quo. A mere reservation of the land for the intended purpose ... does not alter the legal interests in the land ... ’. Cf the effect of a resumption of land under the Native Title Act 1993 (Cth): see text accompanying nn 558–64 below.

[486] See also Mabo [1992] HCA 23; (1992) 175 CLR 1, 70 (Brennan J).

[487] Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 588. See also Pareroultja and Others v Tickner [1993] FCA 465; (1993) 117 ALR 206, 218 (Lockhart J).

[488] Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 569. This analysis is consistent with Brennan J’s analysis in Mabo [1992] HCA 23; (1992) 175 CLR 1, 68, see also 69–70: see text accompanying n 70ff above.

[489] To the exclusion of any outstanding native title or other rights: WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 266 [415].

[490] Ibid.

[491] Ibid 236 [306]; 266 [416].

[492] Ibid 266 [415].

[493] Ibid. Drawing an analogy between the effect of a reservation for a purpose, described by Brennan J in Mabo, and the resumption of land held under a pastoral lease for a purpose, the majority observed that: if a resumption is made for a public purpose other than for the benefit of the indigenous inhabitants, a right of continued enjoyment of native title may be consistent with the specified purpose, at least for a time, and native title will not be extinguished. But if the land is used and occupied for the public purpose, and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. (267 [419])

[494] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 267 [419].

[495] For the majority, the management and control of the land which was vested in the Minister under s 3(2) had been extensively exercised to implement the Ord Project: WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 267 [419]. In this context, the majority found that Lee J had taken a narrow view of the requirement of appropriation and use, requiring ‘actual use of virtually every part of every parcel of land in a permanent manner such as to establish “adverse dominion”’: at 267, [418]. Thus, the majority were of the view that Lee J erred in the test which he applied to determine if the various uses by the Crown created rights that were inconsistent with native title rights and in not considering the Ord Project as a whole when evaluating the effect of its implementation upon native title rights and interests: at 266–7 [418].

[496] Instead, ‘[i]t was submitted that what had been done after resumption amounted to a reserve and dedication of the land to public purposes, not a mere reservation from sale, or that, in some cases, there had been a vesting of the land which worked extinguishment of native title’: Ward [2002] HCA 28, [207].

[497] Ibid [208].

[498] Ibid.

[499] Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 587–8.

[500] Ibid 588.

[501] Ibid. Accordingly, the act of the Crown in recovering Crown land from a pastoral lease does not, in itself, enhance the interest of the Crown in the land granted as a pastoral lease, and upon resumption the land stands as vacant Crown land until otherwise dedicated, reserved, or used for the purpose for which it was taken.

[502] Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 588. See also Pareroultja and Others v Tickner [1993] FCA 465; (1993) 117 ALR 206, 218 (Lockhart J).

[503] The majority’s assumption was based on the fact that at the date of the first acquisition expressed to be pursuant to these two Acts, the land which was acquired was not within the declared Ord Irrigation District: WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 270 [429].

[504] Ibid 271 [433].

[505] See Ward [2002]HCA 28, [203].

[506] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 271 [432]. In Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609; (2000) 180 ALR 91, although Lehane J followed this aspect of the majority’s decision (at [23]), he did not mention s 109 of the Land Act , in the context of which the majority agreed with Lee J that the compulsory acquisition of itself did not extinguish native title. Furthermore, none of the three compulsory acquisitions considered in Bodney v Westralia Airports Corporation Pty Ltd were effected under the provisions of the Public Works Act. Rather, two of the acquisitions were effected by compulsory process under the Lands Acquisition Act 1906 (Cth) and one under the Lands Acquisition Act 1955 (Cth). Nevertheless, these Compulsory Acquisition Acts did purport to vest the land in the Commonwealth ‘free and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates and easements’: s 16(1) of the 1906 Acquisition Act and s 10(4) of the 1955 Acquisition Act. See discussion in text accompanying nn 523–8 below.

[507] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 271 [433].

[508] Ward [2002] HCA 28, [204].

[509] Ibid.

[510] Ibid [205].

[511] See also the Full Court’s analysis with respect to the application of the Rights in Water Act: WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 267 [419], [420].

[512] The bargain and sale transaction was not an issue before the High Court: Ward [2002] HCA 28, [202].

[513] Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 586–7. Only use of the land for the purpose for which it was acquired could affect native title: at 587.

[514] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 272 [438].

[515] Note that although the Crown loses its radical title to land, at common law, when a tenure is created by Crown grant, land subject to a pastoral lease is in a special position because of statute. Pastoral leases have always been deemed Crown land for the purposes of land and resource management: see Land Act 1898 (WA), s 3; the Land Act 1933 (WA), s 3; the Mining Act 1904 (WA), s 3; the Mining Act 1978 (WA), s 8; the Petroleum Act 1936 (WA), s 4; the Petroleum Act 1967 (WA), s 5; the Land Drainage Act 1925 (WA), s 6; the Wildlife Conservation Act 1950 (WA), s 6; and the Conservation and Land Management Act 1984 (WA), s 11.

[516] Full beneficial ownership of the land could only be acquired in the event of use and occupation of the land for the public purpose.

[517] Ward [2002] HCA 28, [227].

[518] See text accompanying nn 497–517 above. The point of divergence between the majority of the Full Court and Lee J was that Lee J took a narrow view of the test to determine if the land had, after resumption, been used in a manner which was inconsistent with the continued enjoyment of native title whereas the majority took a much broader view of this test. In light of the Ward High Court’s rejection of the concept of operational inconsistency, however, both Lee J and the Full Court’s approach needs to be reassessed.

[519] Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 588. See also text accompanying n 500 above.

[520] Ibid 588, 586, 569. In the context of resumed land, therefore, Lee J appears to have attributed to the Crown’s title a content which lies somewhere between mere radical title and beneficial ownership. Although the land remains Crown land and is, therefore, land in respect of which the Crown has a radical title, this radical title is qualified by the purpose of the vesting. Accordingly, the Crown’s power of alienation in respect of such land is limited to a particular purpose. Where land has ceased to be Crown land within the definition of mere radical title, it ceases to be available for classification and disposal by way of purchase or lease tenure, until it again becomes Crown land by revesting the land in the Crown as Crown land per se by rescission of the dedication. Interestingly, Lee J’s analysis is also consistent with older, pre- Mabo, authorities, notwithstanding the pre-Mabo understanding of the meaning of Crown land: see, for example, Ex parte Collins [1914] NSWStRp 7; (1914) 14 NSWSR 31. Furthermore, in the Full Court, North J (dissenting) was of the view that Lee J formulated the correct test applicable to the determination of the questions of extinguishment and agreed with Lee J’s detailed application of this test in relation to the various interests considered by him: WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 374 [861].

[521] See text accompanying n 507 above.

[522] See also Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609; (2000) 180 ALR 91, [23], where Lehane J followed this aspect of the decision in WA v Ward , albeit in obiter as the compulsory acquisitions in that case were not effected under the Public Works Act: see n 506 above. The majority of the Full Court’s reliance on the language used in the Public Works Act, purporting to effect a statutory vesting in fee simple of the land, as evincing an intention to confer a beneficial interest is however inconsistent with their treatment of other vesting provisions which expressly purported to confer a beneficial interest. If the declaration of land as a park, pursuant to s 12(1) of the Territory Parks and Wildlife Conservation Act 1976 (NT), purporting to effect a statutory vesting of ‘all right, title and interest both legal and beneficial’ in the land (s 12(7), emphasis added ), did not confer a plenary title to the land but merely passed powers of control and management of the land ( WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 248 [354]–[355]), why does a vesting for ‘an estate in fee simple’ have the effect of conferring beneficial ownership? Although the High Court reached the same conclusion as the Full Court, the High Court explained that the declaration was made pursuant to s 12(1) of the Territory Parks and Wildlife Conservation Act 1976 (NT) which only operated if no private right, title or interest (existing at the date of the declaration) would be destroyed by the creation of the park. Thus, the exercise of the power under s 12(1) miscarried if there existed subsisting native title rights or interests: Ward [2002] HCA 28, [457]–[460]. Nonetheless, it is clear that, for the majority of both the Full Court and the High Court, the use of the words ‘estate in fee simple’ to describe the vesting, while decisive in the context of the Public Works Act, is not necessarily decisive in the context of all statutory provisions purporting to confer a beneficial interest; the declaration of ‘property’ in minerals by s 117 of the Mining Act 1904 (WA) and s 9 of the Petroleum Act 1936 (WA), also having the effect of conferring beneficial ownership: WA v Ward [541]; Ward [383], [377]. Cf Ward v WA [1998] FCA 1478; (1999) 159 ALR 483, 577–81.

[523] (1988) 166 CLR 186.

[524] Section 3 of this Act provided that upon annexation: ‘for the purpose of removing any doubt that may exist as to the application to the Islands of certain legislation … (a) the islands were vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever and became waste lands of the Crown in Queensland …’.

[525] Section 16 of this Act provided that upon publication of the notification of acquisition in the Gazette, the land was freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth (emphasis added).

[526] Although all the members of the High Court in Mabo (No 1), except Deane J, agreed that the effect of the Queensland Coast Islands Declaratory Act 1985 (Qld) was to extinguish native title, the majority of the Court held that such extinguishment was inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) (Brennan, Toohey, Gaudron and Deane JJ). Accordingly, the Queensland Coast Islands Declaratory Act was invalid as a result of the operation of s 109 of the Constitution.

[527] The High Court in Fejo did not find it necessary to deal with the purported vesting of the resumed land: see text accompanying n 468 above.

[528] See text accompanying n 178ff above. See also Bodney v Westralia Airports Corporation [2000] FCA 1609; (2000) 180 ALR 91, [45] (Lehane J).

[529] Although it was decided before Mabo and, therefore, on the assumption that the Crown acquired beneficial ownership of all land in Australia upon settlement, it will be seen that the High Court’s decision in The Commonwealth v New South Wales [1923] HCA 34; [1923-1924] 33 CLR 1 not only supports this analysis but also supports the general proposition that legislative vesting of resumed land does not, of itself, confer beneficial title: see discussion in text accompanying n 532ff below.

[530] This raises the question of the effect of the Crown becoming registered as proprietor of such resumed land. Although some Torrens statutes allow for this, the issue is beyond the scope of this article. It is, however, examined by Secher, above n 50, ch 8.

[531] [1923–[1923] HCA 34; 1924] 33 CLR 1.

[532] [1923] HCA 34; [1923-1924] 33 CLR 1 (‘Commonwealth v NSW’).

[533] Hereafter referred to as the ‘Land Acquisition Act’.

[534] Commonwealth v NSW [1923–[1923] HCA 34; 1924] 33 CLR 1, 9.

[535] Ibid 71–2 (order of the Court).

[536] Ibid 62.

[537] Ibid 19.

[538] Ibid 48.

[539] Ibid 19.

[540] Ibid 44–53.

[541] Ibid 45.

[542] Ibid. He also referred to Lord Haldane’s dicta in Amodu Tijani v Secretary, Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399, that ‘the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached’.

[543] Commonwealth v NSW [1923] HCA 34; [1923-1924] 33 CLR 1, 56, 67.

[544] Ibid 68.

[545] Ibid 21 (emphasis added).

[546] Ibid 47.

[547] Ibid 62.

[548] Ibid.

[549] (1888– 1889) 14 App Cas, 301.

[550] Commonwealth v NSW [1923–[1923] HCA 34; 1924] 33 CLR 1, 62.

[551] Ibid 21 (emphasis added).

[552] Ibid 23.

[553] Ibid 47.

[554] Ibid 64.

[555] Ibid.

[556] Ibid.

[557] Ibid 65.

[558] Original s 23(3)(a) of the NTA.

[559] Original s 23(3)(b) of the NTA.

[560] Hereafter referred to as the ‘NTAA’.

[561] NTA, s 24MD(2)(c).

[562] NTA, s 24MD(2)(a).

[563] NTA, s 24MD(2)(b).

[564] NTA, s 24MD(2)(a)and (b).

[565] This scheme achieves point 1 of the 10-point plan: ‘Legislative action will be taken to ensure that the validity of any acts or grants made in relation to non- vacant Crown land in the period between the passage of the Native Title Act and the Wik decision is put beyond doubt.’

[566] An assumption reflected in the Preamble to the NTA and NTA provisions such as s 47.

[567] Attorney-General’s Department, Native Title: Legislation with Commentary by the Attorney-General’s Legal Practice (1994) 20.

[568] A new s 21 was inserted to provide an overview of div 2A. Section 3 of the NTA, the objects section, was also amended to make it clear that an object of the Act is to provide for, or permit, the validation of intermediate period acts invalidated because of the existence of native title: s 3(d) of the NTA. See also consequential amendments in s 4 (repealing original s 4 and replacing it with a new overview that reflects the changes made by the NTAA, and, in particular, adding that the Act provides for the consequences of intermediate period acts; 11(2) (confirming that the extinguishment of native title by legislation on or after 1 July 1993 includes the validation of intermediate period acts which extinguish native title); 137(2) (allowing special inquires held by the NNTT, at the direction of the Commonwealth Minister, to cover the effect on Aboriginal peoples and Torres Strait Islanders of the validation of particular intermediate period acts); and s 7(2) (ensuring that the exception in original s 7(2) that the general principle contained in s 7(1), that the NTA does not affect the operation of the Racial Discrimination Act 1975 (Cth), does not affect the validation of past acts under the NTA, does not affect the validation of intermediate past acts).

[569] NTA, s 232A. Note that s 226 of the NTA defines the word ‘act’ and that s 227 of the NTA defines the term ‘act affecting native title.’

[570] Note, however, that regulations can specifically declare an act not to be an intermediate period act notwithstanding it is otherwise defined to be one: NTA, s 232A(3).

[571] NTA, s 232A(2)(a).

[572] NTA, s 232A(2)(d).

[573] NTA, s 232A(2)(c).

[574] NTA, s 232A(2)(e),(f).

[575] NTA, s 232A(2)(b).

[576] Acts done partly over vacant Crown land or mining leases during the intermediate period will, however, be validated if at least part of the land affected is, or has been, freehold or leasehold or occupied by public works: Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) 27.

[577] For a discussion of the future acts regime, see text accompanying n 595ff below.

[578] NTA, s 22A. The term ‘act attributable to the Commonwealth’ is defined in s 239 of the NTA.

[579] Provided the State or Terrirtory makes provision in accordance with s 22F.

Although the Commonwealth cannot unilaterally validate the acts of States (University of Wollongong v Metwally (1985) 158 CLR 447; Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373), the Commonwealth can prospectively allow the States to validate their acts. The term ‘act attributable to a State or Territory’ is defined in s 239 of the NTA. If a State or Territory does not validate an otherwise invalid intermediate period act attributable to it, the regime applying under the NTA prior to the commencement of the NTAA, which rendered impermissible future acts invalid, will continue to apply.

[580] NTA, s 22B. Section 22B will not, however, apply to acts covered by the provisions dealing with confirmation of extinguishment of native title. Accordingly, where an act is both an intermediate period act and covered by div 2B (confirmation of past extinguishment of native title by certain valid or validated acts), the effect of the act on native title is to be determined by reference to the relevant provisions in div 2B, not div 2A.

[581] For the effect of the validation of past acts on native title: see NTA, s 15. Section 14 of the NTA authorises Commonwealth validation of past acts. Section 19 of the NTA authorises State and Territory validation of past acts. The amended Act, however, also includes modified and additional definitions of various interests in land. Although these definitions are primarily applicable to the provisions dealing with the validation of intermediate period acts and the confirmation of extinguishment of native title, some are applicable elsewhere.

[582] NTA, s 232B. Regulations may, however, provide that an act is not a category A intermediate period act: s 232B(9).

[583] NTA, s 232B(2).

[584] NTA, s 232B(8). The validation of such a grant or vesting does not, therefore, extinguish native title.

[585] NTA, s 22B(a).

[586] See for example, Mabo [1992] HCA 23; (1992) 175 CLR 1, 69 (Brennan J); 110 (Deane, Gaudron JJ); Wik (1996) 187 CLR 1, 135, 155 (Gaudron J).

[587] Point 2: Confirmation of Extinguishment of Native Title on ‘Exclusive’ Tenures. States and Territories would be able to confirm that ‘exclusive’ tenures such as freehold, residential, commercial and public works in existence on or before 1 January 1994 extinguish native title. Agricultural leases would also be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended. Any current or former pastoral lease conferring exclusive possession would also be included.

Confirmation of past extinguishment of native title on ‘exclusive’ tenures is dealt with in new div 2B of part 2 of the NTA.

[588] Point Four: Native Title and Pastoral Leases. As provided in the Wik decision, native title rights over current or former pastoral leases and any agricultural leases not covered under 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralist.

All activities pursuant to, or incidental to, ‘primary production’ would be allowed on pastoral leases (ie the right to negotiate in relation to such activities would be completely removed), including farmstay tourism, even if native title exists, provided the dominant purpose of the use of the land is primary production. However, future government action such as the upgrading of title to perpetual or ‘exclusive’ leases or freehold, would necessitate the acquisition of any native title rights proven to exist and the application of the regime described in 7 below (except where this is unnecessary because the pastoralist has an existing legally enforceable right to upgrade).

Confirmation of partial extinguishment by previous non-exclusive pastoral or non- exclusive agricultural leases is achieved by new ss 23G–J.

[589] Division 2B of part 2 of the NTA. Section 23A provides an overview of div 2B.

Like the validation regimes, the confirmation regime does not require States and Territories to legislate to confirm extinguishment.

[590] Or a State or Territory that has legislated in accordance with div 2B of the NTA.

[591] NTA, ss 23C,E.

[592] NTA, ss 23B(2)(c)(ii)–(viii); 23B(3),(7).

[593] NTA, ss 23B(2)(c)(i), 249C and schedule 1.

[594] NTA, s 23B(2)(c)(ii).

[595] Division 3 of part 2 of the NTA achieves points 3, 4, 5, 6, 7, 8 and 10 of the 10- point plan.

[596] Other provisions of the amended NTA also have some bearing on the future act regime for the purposes of implementing the 10-point plan. Apart from the definition provisions which define the terms used in div 3 of part 2 of the NTA, the new registration test, referred to in points 6, 7 and 9 of the 10-point plan, is contained in part 7 of the NTA, (in particular ss 190B and 190C of the NTA); the register of Indigenous Land Use Agreements, a measure introduced to facilitate point 10 of the 10-point plan, is set up by new part 8A of the NTA, and the management of claims within State or Territory systems and amendments to the claims process, both referred to in point 9 of the 10-point plan, are dealt with in part 12(A) and parts 3 and 4 of the NTA, respectively (ss 207A, 207B respectively). Point 9 of the 10-point plan also envisaged the introduction of a sunset clause within which new claims would have to be made. The Howard/Harradine agreement, however, accepted the Senate amendments in April 1998 which removed the sunset clause. The Government had proposed a six-year time limit for making an application for a determination of native title under the NTA: proposed s 13(1A) —the limitation period was to run from the date that the proposed s 13(1A) took effect. This limitation period was intended to apply to applications covering areas which had not been the subject of any previous approved determination of native title. Accordingly, the limitation period was not intended to apply to applications for a revised determination of native title. However, the circumstances in which such applications can be made are restricted under s 13(4). A time limit had also been proposed for the making of compensation applications for the effect of future acts on native title: proposed s 50(2A). This limitation period was to be six years from the date that the proposed s 50(2A) took effect, or six years from the date that the act giving rise to the compensation was done, whichever was the later. If the proposed sunset clause had been implemented, it is unlikely that it would have affected common law claims: see J Clarke, ‘The Native Title Amendment Bill 1997’ [1997] IndigLawB 86; (1997) 4(6) Indigenous Law Bulletin 4, 6.

[597] An act consisting of either an administrative act that takes place on or after 1 January 1994 or the making, amendment or repeal of legislation that takes place on or after 1 July 1993 is a future act if it affects native title: NTA, ss 226 and 233(1)(a). An act affects native title if it extinguishes native title rights and interests or is otherwise wholly or partially inconsistent with their continued existence, enjoyment or exercise: s 227. Technically, past acts are not future acts, but intermediate period acts are: NTA, s 233(1)(b).

[598] Part 2, div 2A of the NTA; see text accompanying n 565ff above.

[599] Part 2, div 2B of the NTA; see text accompanying n 586ff above.

[600] As a result of the restructuring of the future act regime, the definitions of ‘low impact future act’, ‘permissible future act’ and ‘impermissible future act’ used in original div 3 of the NTA have been repealed and are now located within the new division itself in another form. For example, ‘low impact future acts’ are dealt with in subdivision L of div 3 of part 2 of the NTA.

[601] NTA, subdivisions B, C, D and E.

[602] NTA, subdivision F. This subdivision is similar in effect to original s 24 of the NTA which was repealed by the NTAA. A primary purpose of subdivision F is to ensure, in certain circumstances, the validity of future acts done before a determination as to whether native title exists over that area has been made. When procedures indicate that no native title is claimed to exist in respect of an area, the area is subject to ‘section 24FA protection’: s 24FA (See also the definition of ‘section 24FA protection’ in s 253 of the NTA). Although a future determination that native title does exist removes this ‘section 24FA protection’, it does not do so retrospectively: s 24FA(1)(a). Thus, any future act done by a person in relation to an area is valid and remains valid notwithstanding a subsequent determination that native title exists in relation to the area, provided the act was done when section 24FA protection applied to the area. An area can become subject to s 24FA protection in three circumstances: where the area is subject to a ‘non- claimant application’ by a government (s 24FB); where an area is subject to a ‘non-claimant application’ by a person other than a government (s 24FC); and where the area is subject to an entry on the National Native Title Register specifying that native title does not exist in relation to the area (s 24FD). Governments and others with an interest in an area can apply for a determination as to whether native title exists over that area: s 61. If, within three months, there is no relevant native title claim (s 24FE) in response to such a ‘non-claimant application’ (ss 24FB, 24FC), or if there is a determination that native title does not exist in relation to the area (s 24FD), any act in relation to the land or waters is valid: s 24FA.

[603] NTA, subdivision G; especially s 24GB.

[604] NTA, subdivision G, especially s 24 GD.

[605] NTA, subdivision G, especially s 24GE.

[606] NTA, subdivision H.

[607] NTA, subdivision I.

[608] NTA, subdivision J.

[609] NTA, subdivision K.

[610] NTA, subdivision L. This subdivision reproduces the effect of original s 234 of the NTA which was repealed by the NTAA. Subdivision L allows a range of acts to happen where the act has minimal effect on any native title. For a future act to be valid under this subdivision, the act must take place before there has been an approved determination that native title exists in relation to the land or waters affected by the act, must not continue after the determination is made (s 24LA(1)(a)), and must not consist of, authorise or otherwise involve the grant of a freehold estate; the grant of a lease; the conferral of a right of exclusive possession; excavation or clearing; mining (other than fossicking by using hand held implements); the construction or placing of any building, structure or other thing that is a fixture; or the disposal or storage of any garbage or any poisonous, toxic or hazardous substance: ss 24LA(1)(b)(i)-(vii). The non-extinguishment principle applies to future acts which are valid under subdivision L: s 24LA(4).

[611] NTA, subdivision M.

[612] NTA, subdivision N. This subdivision reflects the policy in original s 23 and s 235(8)(a), which have been repealed by the NTAA. The term ‘offshore place’ is defined in s 253 of the NTA. Subdivision N ensures that all future acts in offshore places are valid irrespective of whether that place is subject to native title: s 24NA(2). Where the future act is the compulsory acquisition of the whole or part of any native title, the acquisition extinguishes the whole or part of the native title. This will only be the case, however, if the law under which the acquisition is done permits both the acquisition of native title and non-native title rights and interests: s 24NA(3). Where the future act is anything other than a compulsory acquisition of native title, the non-extinguishment principle applies: s 24NA(4). Native title holders have the same procedural rights as they would have if they instead held corresponding non-native title rights and interests in the offshore place affected by the act: s 24NA(8). Subdivision N of the NTA also provides guidance for compliance with procedural obligations where there has been no determination of native title: s 24NA(9) and (10). Native title holders are entitled to just terms compensation for all future acts offshore: s 24NA(5),(6). The compensation is payable by governments unless a law provides that it is payable by the person who requested the doing of the act: s 24NA(7).

[613] Original s 235 of the NTA. This section essentially provided that an act could be done over land subject to native title only if it could be done over freehold land.

[614] Original s 23(3) of the NTA. Where, during negotiations in relation to an application for compensation under part 3 of the original NTA, the native title holders requested the whole or part of the compensation in the form of non- monetary compensation, such request had to be considered and negotiated in good faith: original s 79 of the NTA.

[615] Original s 23(3)(a) of the NTA.

[616] Original s 23(3)(b) of the NTA.

[617] Subdivision M of div 3 of pt 2 of the NTA. Subdivision M is based upon original ss 23 and 235 of the NTA, which were repealed by the NTAA.

[618] For example, facilities for services to the public (subdivision K); reserved land (subdivision J); future water and airspace management (subdivision H); primary production (subdivision G) and opal and gem mining (subdivision M).

[619] NTA, s 24MC. The term ‘onshore place’ is defined in s 253 of the NTA to mean any land or waters within the territorial limits of a State or Territory (including an external Territory). The term ‘offshore place’ is defined in s 253 to mean any land or waters to which the NTA extends other than those that are in an onshore place. Acts dealing with offshore places are dealt with in subdivision N. All future acts in an offshore place are valid even if that place is subject to native title: s 24NA(2). Nevertheless, native title can only be extinguished by a compulsory acquisition which meets the requirements of the freehold test regime: s 24NA(3).

[620] Subdivision P of div 3 of pt 2 of the NTA.

[621] NTA, s 24MD(1).

[622] NTA, s 24MA(a). ‘Ordinary title’ is defined to mean either freehold or, in the case of the ACT or Jervis Bay, leasehold: s 253 of the NTA.

[623] NTA, s 24MA(b). ‘Ordinary title’ is defined to mean either freehold or, in the case of the ACT or Jervis Bay, leasehold: s 253 of the NTA.

[624] Defined in s 253 of the NTA.

[625] Defined in s 253 of the NTA.

[626] NTA, s 24MB(1)(b)(i) and (ii).

[627] NTA, s 24MB(2).

[628] Clarke, above n 597, 5.

[629] NTA, s 24MD(2)(c). See also text accompanying nn 560–4 above.

[630] NTA, s 24MD(3)(a).

[631] NTA, s 24MD(3)(b). Compensation is generally payable by governments unless a law provides that it is payable by someone else (for example, a person who requested the doing of the act): s 24MD(4) of the NTA. However, the compensation arrangements ensure that any holder of a non-exclusive agricultural or pastoral lease will not be liable for compensation where they request a government to compulsorily acquire any native title existing in relation to the land or waters covered by the lease: s 24MD(5) of the NTA.

[632] If the relevant State or Territory law does not provide compensation on just terms, then s 24MD(2)(e) of the NTA does so. Where compensation on just terms is provided to the native title holders under a Commonwealth, State or Territory law and the native title holders request that the whole or part of any such compensation be in a form other than money, the person providing the compensation must consider the request and negotiate in good faith in relation to it: s 24MD(2)(d) of the NTA.

[633] Wik (1996) 187 CLR 1, 234 (Kirby J).

[634] WA v Ward [2000] FCAFC 191; (2000) 170 ALR 159, 367 [843].

[635] See text accompanying n 300ff above.

[636] See text accompanying n 407ff above.

[637] See text accompanying n 234ff above.

[638] See text accompanying nn 484–8, 494, 497–8 above.

[639] See text accompanying nn 499–502, 510–17 above.

[640] See text accompanying n 324–6 above.


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