Dalziel, Jamie --- "Pastoral Leases in the Northern Territory and the Reservation of Aboriginal Rights, 1863-1931" [1999] UNSWLawJl 4; (1999) 22(2) UNSW Law Journal 462
[∗] Legal Research Officer, Central Land Council, Alice Springs. The article is based on a submission prepared by the author for the Alice Springs Arrernte Native Title Claim. I would like to thank John Basten QC for reading drafts of this paper and offering valuable analysis and comments. I am particularly indebted to Mandy Paul. Parts VII and VIII are based on her research on the Crown Lands Ordinances of 1912 and 1924 undertaken for the purpose of the Alice Springs Arrernte Native Title Claim.
[2] R Webb and K Pettit, “The Effect of Wik on Pastoral Leases with Provision for Access by Aboriginal People” in G Hiley (ed), The Wik Case: Issues and Implications, Butterworths (1997) 30.
[3] See North Ganalanja Aboriginal Corporation v The State of Queensland (1995) 132 ALR 565.
[4] See Native Title Act 1993 (Cth), ss 248A(a) and 248B and Part 2, Division 2B.
[5] [1998] FCA 1478; (1999) 159 ALR 483.
[6] Ibid at 561.
[7] Hayes v Northern Territory [1999] FCA 1248 (9 September 1999, unreported).
[8] Ibid at [84].
[9] While the presence of Aboriginal people was acknowledged in the Instructions issued to successive Governors of New South Wales there was no official recognition at the time of settlement and during the establishment of the colony of any indigenous rights and interests in the land. That New South Wales was terra nullius underpinned and came to explain the legal consequences of the settlement of the colony.
[10] Memorandum from James Stephen (Permanent Under-Secretary, Colonial Office) to Mr Gairdner (Colonial Office), 7 January 1836, CO 13/3.
[11] Letter from Sir George Grey to Colonel Torrens, South Australian Commission, 15 December 1835, CO 13/3.
[12] Letters Patent dated 19 February 1836 erecting and establishing the Province of South Australia and fixing the boundaries thereof. See also the Preamble to “An Act to amend an Act of the Fourth and Fifth Years of His late Majesty, empowering His Majesty to erect South Australia into a British Province or Provinces,” 1 & 2 Vic c 60 (1838). As to the legal effect of the Letters Patent, see Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 156 ALR 721.
[13] 5 & 6 Vic c 36.
[14] Lord Stanley to Governor Grey, Despatch No 67, 15 September 1842, IUP Series of British Parliamentary Papers, “Papers Relative to Affairs of South Australia”.
[15] 9 & 10 Vic c 104.
[16] The 1847 and 1849 New South Wales Orders in Council, which were referred to by the High Court in the Wik case, were made pursuant to this power.
[17] Earl Grey to Lieutenant-Governor Robe, Despatch No 97, 21 July 1847, State Records GRG 2/1/7.
[18] Earl Grey to Lieutenant-Governor Young, Despatch No 2, 27 April 1848, CO 396/7.
[19] Earl Grey to Governor Sir CA FitzRoy, Despatch No 24, 11 February 1848, Historical Records of Australia, Series I, vol 26, CO 201/382.
[20] Earl Grey to Sir C FitzRoy, Despatch No 26, 10 February 1850, CO 202/58.
[21] Earl Grey to Lieutenant-Governor Young, Despatch No 23, 8 March 1850, CO 396/10.
[22] Earl Grey to Sir Charles FitzRoy, Despatch No 134, 6 August 1849, Despatches to the Governor, Mitchell Library, MSA 1308.
[23] New South Wales, Government Gazette, 26 April 1850 at 685-6.
[24] Report of the Select Committee of the New South Wales Legislative Council on Crown Lands, New South Wales, Votes and Proceedings, Legislative Council, 29 November 1854, vol II, p 1137.
[26] Ibid at 228.
[27] An Act for protecting the Waste Lands of the Crown in South Australia from encroachment intrusion and trespass 1842 (SA); An Ordinance to Regulate the Occupation of Crown Lands in South Australia 1846 (SA); An Ordinance to facilitate the Recovery of Assessments under the Crown Lands Ordinance 1847 (SA); An Ordinance to Regulate the Occupation of Crown Lands in South Australia 1848 (SA); An Act to Regulate the Occupation of Crown Lands in South Australia 1853 (SA).
[28] A similar approach was taken in the New South Wales Crown Lands Unauthorized Occupation Acts 1839-41. See Wik, note 1 supra at 109-10, per Toohey J.
[29] Lieutenant-Governor Sir HEF Young to Earl Grey, Despatch No 25, 23 February 1849, IUP Series of British Parliamentary Papers, “Papers Relative to Crown Lands in the Australian Colonies”, vol 12 at 18-30; Correspondence, Proclamations and Orders of the Queen in Council relative to the Granting of Pastoral Leases of the Waste Lands of the Crown, South Australian Parliamentary Paper No 176 of 1857. The Regulations differed from those in operation in New South Wales because of “differences of territorial character and extent of the two colonies”.
[30] Earl Grey to Lieutenant-Governor Sir HEF Young, Despatch No 48, IUP Series of British Parliamentary Papers, “Papers Relative to Crown Lands in the Australian Colonies”, vol 12 at 53-6; Letter from Colonial Land and Emigration Office, 8 September 1849, CO 13/65.
[31] A county subdivision, which in this context was employed to distinguish between the settled and unsettled parts of the colony: “Col Light was instructed by the Colonization Commissioners to divide the province into towns and Counties… By 1846 it was clear that units smaller than Counties would be needed as a framework for surveying rural Sections and for delimiting the extent of temporary grazing rights which early purchasers of land had over the neighbouring unsold Sections. A system of Hundreds, as used in some parts of England, as adopted. Hundreds in South Australia were frequently, but not universally, of about 100 square miles”, T Griffin and M McGaskill (eds), Atlas of South Australia, South Australian Government Printing Division and Wakefield Press (1986) p 14.
[32] TP Fry, “Land Tenures in Australian Law” (1947) 3 Res Judicatae 158 at 160-1.
[33] See R Foster, “The Origin of the Protection of Aboriginal Rights in South Australian Pastoral Leases”, Issues Paper No 24, in Land, Rights, Laws: Issues of Native Title, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, August 1998 at 3-7.
[34] South Australian Parliamentary Paper 176, Correspondence, Proclamations and Orders of the Queen in Council relative to the Granting of Pastoral Leases of the Waste Lands of the Crown, 1857 at 9-11.
[35] Commissioner of Crown Lands to Colonial Secretary, 16 January 1851, South Australia, Government Gazette, 30 January 1851 at 79.
[36] South Australia, Government Gazette, 30 January 1851 at 75.
[37] Lieutenant-Governor Young to Earl Grey, Despatch No 23, 6 February 1851, State Records, GRG 2/5/13.
[38] Ibid.
[39] Note 35 supra.
[40] Colonial Secretary’s Office, Correspondence Files, State Records, GRG 24/4/1851/166, 22 January 1851.
[41] Ibid, State Records, GRG 24/4/1851/164, 22 January 1851.
[42] Ibid, State Records, GRG 24/4/1851/267, 10 February 1851.
[43] Note 35 supra.
[44] Commissioner of Crown Lands to the Colonial Secretary, 24 January 1851, South Australia, Government Gazette, 30 January 1851 at 79.
[45] Archdeacon Hale to Lieutenant-Governor Young, Port Lincoln, “Relative to recent murders committed and attempted by Natives in that District”, 27 May 1851, Colonial Secretary's Office, Letters received, Docket No 1581 of 1851, GRG 24/6/1851/1581.
[46] Ibid.
[47] Commissioner of Crown Lands to the Colonial Secretary, 3 June 1851, Colonial Secretary’s Office, Letters received, Docket No 1662 of 1851, GRG 24/6/1851/1662.
[48] Colonial Secretary to Commissioner of Lands, 17 June 1851, Colonial Secretary’s Office, Letter Book: Letters sent, No 1331, GRG 24/4/S 1851.
[49] Commissioner of Crown Lands to Colonial Secretary, 24 June 1851, Colonial Secretary’s Office, Letters received, Docket No 1885 of 1851, GRG 24/6/1851/1885.
[50] Ibid.
[51] Lieutenant-Governor Sir HEF Young to Earl Grey, Despatch No 108, 11 August 1851, IUP Series of British Parliamentary Papers, “Papers Relative to Crown Lands in the Australian Colonies”, vol 15 at 40-7.
[52] Earl Grey to Lieutenant-Governor Young, Despatch No 10, 6 February 1852, State Records, GRG 2/5/13.
[53] 5 & 6 Vic c 61.
[54] 4 & 5 Will c 95.
[55] Sections 21 and 22 of The Sale of Waste Lands Act 1842 (Imp). See also, United Kingdom, Report from the Select Committee on South Australia: Together with Minutes of Evidence, IUP Series of British Parliamentary Papers, vol 2; Villiers and Elliot (Colonial Land and Emigration Office) to James Stephen (Colonial Office), 17 July 1841, CO 386/59.
[56] 13 & 14 Vic c 59.
[57] In New South Wales s 32 was regarded as an opportunity to achieve legislative and executive independence from the United Kingdom. However, to secure control over the management of Crown lands the relevant constitutional provisions had to be incorporated in an Act of the Imperial Parliament. The New South Wales Constitution Act 1855 (Imp) (18 & 19 Vic c 54) and The Australian Waste Lands Act 1855 (Imp) (18 & 19 Vic c 56) transferred control over the management of Crown lands to the local legislature.
[58] The term “Waste Lands of the Crown” was defined in s 17 to comprise any lands in South Australia “which now are, or shall hereafter be vested in Her Majesty, Her heirs, and successors, and which have not already been granted or lawfully contracted to be granted to any person or persons in fee simple, or for an estate of freehold, or for a term of years, and which have not been dedicated and set apart for public use”.
[60] Supplementary Commission under the Great Seal for Altering the Boundary of the Colony of South Australia in Duke of Newcastle to Governor of South Australia, Sir Dominick Daly, 16 July 1863, South Australia, Parliamentary Paper, No 113 of 1863. See also, South Australia, Parliamentary Paper, No 127 of 1863.
[61] Preamble to The Northern Territory Justice Act 1884 (SA).
[62] See also, Sources of Law Act 1985 (NT).
[63] The Northern Territory Act 1863 (SA), s 15.
[64] Initially leases could be granted for any period not exceeding 14 years; however, the maximum term was extended to 25 years by s 7 of The Waste Lands Amendment Act 1865-66 (SA). At the expiration of the term the land and all improvements reverted absolutely to the Crown. This amendment was incorporated into The Northern Territory Act.
[65] Governor Daly to Duke of Newcastle (Enclosures), Despatch No 20, 25 April 1864, CO 13/114.
[66] South Australian Colonization Commission to Lord Glenelg, 1 January 1836, CO 13/4; Sir George Grey to Robert Torrens, 11 January 1836, CO 13/4; Robert Torrens, South Australian Commission to Sir George Grey, 16 January 1836, CO 13/4; Sir George Grey to Colonel Torrens, South Australian Commission, 21 January 1836, CO 13/5; First Annual Report of the Colonization Commissioners of South Australia, ordered by the House of Commons to be printed, 28 July 1836, CO 13/4; Report from the Select Committee on the Disposal of Lands in the British Colonies: together with Minutes of Evidence and Appendix, ordered by the House of Commons to be printed, 1 August 1836, CO 13/4; Official Instructions to William Wyatt Esq Ad Interim Protector of Aborigines, South Australian Gazette and Colonial Register, 12 August 1837, vol I, No 5; Second Annual Report of the Colonisation Commissioners for South Australia, 22 December 1837, CO 13/8.
[67] South Australia, Report of the Select Committee of the Legislative Council upon “The Aborigines”: together with Minutes of Evidence and Appendix, South Australian Parliamentary Paper, No 165 of 1860.
[68] Instructions to the Government Resident of the Northern Territory, South Australian Government Gazette, No 22, 12 May 1870 at 542-7; Instructions to the Government Resident of the Northern Territory, South Australian Parliamentary Papers, vol III, No 123 at 1-4.
[69] Pastoral Applications in the Northern Territory, State Records, GRS 1/132/72, Docket 132/72.
[70] D Carment, R Maynard, A Powell (eds), Northern Territory Dictionary of Biography, NTU Press (1990) pp 8-9.
[71] Index to Pastoral and Mineral Applications and Leases, NT 1864-84, National Archives of Australia, Northern Territory. In the subsequent footnote references the following abbreviations are used – NAAACT: National Archives of Australia, ACT; NAANT: National Archives of Australia, NT.
[72] Second Reading Speech by the Commissioner of Crown Lands, South Australia, House of Assembly 1872, Debates, 16 May 1872 to 28 November 1872, pp 952-2815. The Chief Secretary thought there would be considerable convenience in being able “to find the whole of the laws upon the subject, comprised in one Act”: South Australia, Legislative Council 1872, Debates, 8 October 1872 to 27 November 1872, pp 2179-770.
[73] It seems the purpose of s 5 was to make it clear that legislation which purported to apply to the colony as a whole did not apply in the Northern Territory. The 1872 Act was intended to “contain the entire law with respect to dealing with land in the Northern Territory”.
[74] See Osborne v Commonwealth [1911] HCA 19; (1911) 12 CLR 321 as to the effect of the repeal of a prior Act, all or part of which had been incorporated in a later Act.
[75] South Australia, Government Gazette, 9 January 1873 at 36-8.
[76] South Australia, Government Gazette, No 53, 31 December 1874 at 2515-17.
[77] Declaration of Stocking for Run No 50 by EM Bagot, State Records, GRS 1/237/1875 Docket 237/1875.
[78] See Registers of Northern Territory Pastoral Leases, NTAS: F670, Box 1 shows details of the date of grant, commencement and term of Pastoral Lease No 1. It is assumed that Pastoral Lease No 1 issued in the same form as the extant Pastoral Lease No 2.
[79] Pastoral Lease No 2 was expressed to be granted under the Waste Lands Act 1857 and the Waste Lands Amendment Act 1865-66. It may be accepted that it was intended to grant the lease (and also Pastoral Lease No 1) under The Northern Territory Land Act 1863.
[80] O’Keefe v Williams [1910] HCA 40; (1910) 11 CLR 171. See also Cudgen Rutile [No 2] Pty Ltd v Chalk [1975] AC 520.
[81] Memorandum, Re altered form of Lease for the Waste Lands of the Crown, Colonial Secretary’s Office, Docket No 577 of 1854.
[82] Section 4 of the Act repealed ss 1-9 of The Northern Territory Act 1863 together with other statutes set out in the First Schedule. Section 5 re-enacted s 5 of The Northern Territory Land Act 1872.
[83] Pastoral Lease Nos 1 and 2 were not “held under” the 1882 Act. Section 4 of that Act saved “all rights, claims, penalties, and liabilities already accrued or incurred, or in existence” under the 1872 Act, which it repealed. Section 4 of the 1872 Act saved all rights and liabilities under the repealed provisions of the 1863 Act. Assuming that the leases were otherwise valid the saving of rights and liabilities does not appear to be intended to convert a lease granted under an earlier Act into a lease “held under” the 1882 Act. Indeed the intended effect of savings clause would seem to be to save any accrued or existing rights and liabilities on the terms of the repealed Acts rather than treating them as having accrued under the later Act. If s 76 of the 1890 Act was intended to apply to any existing pastoral lease the following words might have been used – “Any holder of an existing lease of country may with the consent of the Minister …”. Cf the wording in reg 44. The provisions of the 1882 Act and 1883 Regulations operated prospectively and did not purport to apply to leases granted under the 1872 or earlier Acts.
[84] Bagot assigned the leases to Andrew Tennant, John Love and Robert Love in 1877. After several intervening transfers the leases were finally transferred to The Willowie Land and Pastoral Association Limited in July 1891.
[85] Section 93 ensured that registered proprietors secured an indefeasible title, but registration and the application of the doctrine of indefeasibility did not operate to render an invalid grant valid. Therefore, leases invalidly granted for failure to comply with a statutory pre-condition, as in this case, will not be “valid” for the purposes of s 23B(2) of the Native Title Act: see also Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 59 and 63, per Brennan J. The Real Property Act 1861 did not make provision for the registration of Crown leases, which explains why the original leases granted to Bagot in 1876 were not assigned a Volume and Folio number.
[86] No surrender was to be of any force or effect until accepted by the Governor.
[87] Although it was pointed out that Richardson had sold the leases to Messrs W Hayes & Sons: Correspondence relating to the Transfer of Lease Nos 1 and 2, State Records, GRS 1/355/1907, Docket 355/1907.
[88] See note 85 supra.
[89] Dalgety and Company Limited to the Surveyor-General, 18 February 1911, NAAACT:CRS A3 NT 1921/2633.
[90] W Hayes & Sons, Blocks 1, 2, 16 and 17, Alice Springs, Minute Paper for Executive Council, NAANT:CRS A3/1, 6 July 1911.
[91] Acting Secretary External Affairs to Messrs Dalgety and Company, 10 July 1911, NAAACT:CRS A3 NT 1921/2633.
[92] Memorandum, JD Bancroft, Department of External Affairs, 3 September 1912, NAAACT:CRS A3 NT 1921/2633. The extension was granted under s 81 of the 1899 Act.
[93] Notice No 3108, Register Book, Vol 27 Folio 10; Vol 27 Folio 11; see also, Memorandum, JD Bancroft, Lands Officer, 19 December 1912, NAAACT CRS A3 NT 1921/2633.
[94] Lettergram, Atlee Hunt to Government Secretary, Darwin, 17 April 1919, NAAACT:CRS A3 NT 1921/2633.
[95] Section 4 was to come into force on a day to be fixed by proclamation dated 21 December 1910.
[96] Section 2 was to come into force on a date to be fixed by proclamation, as published in the Commonwealth Gazette on 24 December 1910.
[97] Section 111 of the Commonwealth Constitution provides that: “The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth”. See s 52(iii) of the Constitution. See also Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548 at 566, per Brennan J.
[98] Under s 122 of the Constitution the Commonwealth Parliament can “may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth.”
[99] See generally, Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 40-5, per Brennan CJ; at 49-50, 53-61, per Dawson J; at 78-97, per Toohey J; at 102-24, per Gaudron J and at 152-76, per Gummow J; McHugh J agreed with the reasoning of Dawson J. Newcrest Mining (WA) v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 535-45, per Brennan CJ; at 547-59, per Dawson J; at 560-1, per Toohey J; at 564-9, per Gaudron J; at 574-86, per McHugh J; at 591-5, 597-614, per Gummow J and at 640-62, per Kirby J.
[100] Governor-General’s Speech – Address in Reply (Minister of External Affairs), Australia, House of Representatives 1912, Debates, vol HR lxiv, p 392.
[101] See Northern Territory (Administration) Act 1910 (Cth), s 13(2)(c).
[102] Australia, Senate 1912, Debates, vol HR lviii, p 1523.
[103] Australia, House of Representatives 1912, Debates, vol HR lxv, p 1645.
[104] Note 102 supra, p 1894.
[105] House of Representatives, Notice Paper No 61, NAAACT:CRS A3/16 NT 1913/3924.
[106] This subsequently became Crown Lands Ordinance 1912 (Cth) (No 8 of 1912).
[107] Executive Council Minute, NAAACT CRS A3/16 NT 1913/3924.
[108] Australia, Senate 1912, Debates, vol HR lxviii, p 5316.
[109] Ibid, pp 5947, 6345.
[110] Ibid, p 6336.
[111] Australia, House of Representatives 1912, Debates, vol HR lxvi, p 7679.
[112] Note 85 supra at 64 and 68. Emphasis added.
[113] Ibid at 111.
[114] Memorandum [unsigned and undated] from Department of External Affairs to the Minister, NAAACT:CRS A3/16 NT 1913/3924.
[115] Atlee Hunt, Secretary External Affairs to the Secretary Attorney-General’s Department, 1 March 1912, NAAACT:CRS A3/16 NT 1913/3924.
[116] The amendments are similar, but not identical to those in Hunt’s earlier memorandum to the Minister.
[117] Northern Territory, No … of 1912 (the number had not been allocated at this stage in the drafting process). An Ordinance relating to Crown Lands, NAAACT:CRS A3/16 NT 1913/3924.
[118] DJ Mulvaney and JH Calaby, So Much That Is New: Baldwin Spencer 1860-1929, Melbourne University Press (1985) p 268. Dr Gilruth was Professor of Veterinary Pathology at the University of Melbourne and later Administrator of the Northern Territory.
[119] PF Donovan, At The Other End of Australia: The Commonwealth and the Northern Territory 1911-1978, University of Queensland Press (1984) p 8.
[120] Northern Territory: Preliminary Scientific Expedition 1911, Professor Spencer’s Report re: Aborigines, NAAACT:CRS A1/2 1912/2991.
[122] Australia, The Northern Territory of Australia Report of the Administrator for the Year 1912, Parliamentary Papers, No 45 of 1913 at 12.
[123] Professor Baldwin Spencer’s Report re: Northern Territory Natives, 13 January 1913, NAAACT:CRS A3 1919/2897.
[124] Memorandum by Administrator JA Gilruth, 16 April 1913, NAAACT:CRS A3 1919/2897.
[125] The report was published as Bulletin of the Northern Territory No 7 in July 1913 and was included in the Administrator’s Annual Report, note 122 supra.
[127] “Preliminary Report on the Aboriginals of the Northern Territory”, Bulletin of the Northern Territory No 7 in Commonwealth of Australia, The Northern Territory of Australia Report of the Administrator for the Year 1912, Parliamentary Papers, No 45 of 1913 at 42-3.
[128] Ibid at 48-9. Emphasis added.
[129] Note 108 supra, p 6336.
[130] That is, that Aboriginal rights prevailed over the rights of lessees.
[131] Northern Territory Surrender Act 1907 (SA), s 7 and Northern Territory Acceptance Act 1910 (Cth), s 6. See Newcrest Mining (WA) v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 615, 634-5, per Gummow J.
[132] Northern Territory Acceptance Act 1910 (Cth), s 7.
[133] Memorandum, Policy background to the 1923 Crown Lands Ordinance, NAAACT A431 46/869.
[134] GF Pearce to Mr Atkinson MP, 27 March 1923, NAAACT A431 46/869.
[135] JG McLaren (Secretary) to Secretary, Attorney-General’s Department, 27 March 1923, NAAACT A431 46/869.
[136] Ibid.
[137] Minute Paper for the Executive Council, 29 June 1923, NAAACT A431 46/869.
[138] Telegram to Administrator, Darwin, 30 June 1923, NAAACT A431 46/869.
[139] See JG McLaren, Secretary to Secretary Attorney-General’s Department, 3 July 1923, NAAACT A431 46/860.
[140] Australia, Senate 1923, Debates, vol HR ciii-v, pp 873-1604.
[141] Memorandum signed WBH [WB Hicks], 6 September 1923, NAAACT A431/1 46/860.
[142] Northern Territory Crown Lands Bill (1923), NAAACT A2683 1924/65.
[143] Australia, House of Representatives 1924, Debates, vol HR cvi, pp 1076-7.
[144] Bill for an Act Relating to Crown Lands in the Northern Territory of Australia [initialled WBH on front page], NAAACT A431/1 46/860.
[145] Australia, Senate 1923, Debates, vol HR cvii, p 1799.
[146] Ibid, p 1800.
[147] Commonwealth Gazette, No 44, 9 July 1924 at 1431-60.
[148] Note 144 supra.
[149] Section 39(b).
[150] Commenced on 1 February 1927.
[151] For example, Crown Lands Ordinance 1927 (Cth), ss 21(e) and 34(b).
[152] The Act was proclaimed to commence on 12 June 1931.
[154] Ibid at 259.
[155] Ibid at 259-61.
[156] Mabo [No 2], note 85 supra at 55, per Brennan J.
[157] Ibid at 54-8.
[158] Ibid at 66-7.
[160] Ibid at 561.
[161] [1898] UKLawRpAC 57; [1899] AC 41.
[162] Gummow J commented as follows: “The term ‘reservation’ in strict usage identifies something newly created out of the land or tenement demised and is inappropriate to identify an exception or keeping back from that which is the subject of the grant. However, in accordance with the Australian usage referred to by Windeyer J in Wade v New South Wales Rutile Mining Co Pty Ltd, ‘reservation’ was apt in Form 3 to identify that which was withheld or kept back by the grants made by the Governor in Council under the 1910 Act”.
[163] Note 5 supra at 556-7.
[164] Ibid at 636.
[165] Ibid at 562. See Native Title Act 1993 (Cth), ss 23B(2)(c)(iv) and (viii).
[166] Note 144 supra.
[167] Note 7 supra.
[168] Ibid at [77].
[170] Ibid at 137.
[171] Ibid at 138.
[173] Ibid at 581
[174] The reservation in relevant Queensland pastoral leases was expressed in the following terms: “... AND WE DO FURTHER RESERVE to the Aboriginal Inhabitants of Our said Colony such free access to the said Run or parcel of Land hereby demised, or any part thereof, and to the trees and water thereon, as will enable them to procure the animals, birds, fish, and other food on which they subsist...”.
[177] [1969] HCA 28; (1969) 121 CLR 177 at 194, per Windeyer J.
[178] [1925] HCA 38; (1925) 36 CLR 340.
[179] The Third Schedule of the Pastoral Act 1904 (SA) is substantially the same as Schedule A of the Northern Territory Land Act 1899.
[180] Note 178 supra at 376-7.
[181] Ibid at 348.
[182] The wording of the reservation in the Crown Lands Ordinance 1924 is even clearer, “as those aboriginal inhabitants have before the commencement of the lease been accustomed to make and erect”: s 26(e).
[183] Note 5 supra at 561-2. Emphasis added.
[184] See note 1 supra at 133. This statement was made with the concurrence of all other members of the majority.
[185] Cf Victoria v The Commonwealth (Kakariki) [1937] HCA 82; (1937) 58 CLR 618. For the purpose of s 109 of the Constitution where a federal law confers a power the exercise of which is intended to be exclusive, no inconsistency between that law and a state law conferring power in the same area will arise until the federal power is exercised. See also Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574 at 608, per Brennan J.
[187] See for example, note 2 supra at 33-4.
[188] Note 5 supra at 508, 510.
[189] It might be the case however, that if the rights under the reservation are more limited than those claimed and determined, only reserved rights and interests would prevail over the rights of the lessee, to the extent of any inconsistency.
[190] Section 23F. A previous non-exclusive possession act includes a non-exclusive pastoral lease, that is a pastoral lease which does not confer a right of exclusive possession: ss 248A and 248B.
[191] Supplementary Explanatory Memorandum, Native Title Amendment Bill 1997 [No 2], July 1998 at 7-8.
[192] There seem to be three possibilities:–
(a) the rights and interests granted prevail over native title rights and interests, irrespective of whether any activity is done in giving effect to them; or
(b) the doing of an activity in giving effect to the rights and interests granted will prevail over native title rights and interests; or
(c) the rights and interests granted and the doing of an activity in giving effect to them will prevail over native title rights and interests.
[193] Another view is that the words “and the doing of any activity in giving effect to them” were only added to clarify that neither the rights or interests granted, nor the doing of any act in giving effect to them, extinguish native title.
[194] Explanatory Memorandum, Native Title Amendment Bill 1997 at [5.25].
[195] Note 35 supra.