2 Coexistence and necessary inconsistency

HIGH COURT OF AUSTRALIA, 1996

The Wik peoples and the Thayorre people brought a claim for native title over areas of land and sea in the Cape York Peninsula on the Gulf of Carpentaria and for damages and relief for any extinguishment.¹ The country over which they asserted native title included a group of pastoral leases known as the Holroyd River Holding and the Mitchellton pastoral lease. The proceedings were initiated shortly after the High Court’s decision was handed down in Mabo v Queensland [No. 2] (1992) (Mabo)² and prior to the enactment of the Native Title Act 1993 (Cth) (NTA).³ This case became the test for native title over pastoral leases and, more generally, the ability of native title to survive a grant to a third party, with⁴ a majority of the Court finding that native title and pastoral leases were capable of coexisting.⁵

Justice Gaudron summarised the dispute between the principal parties. The respondents, including the State of Queensland, the Commonwealth and the pastoralists, argued, simply, that:

The Wik and Thayorre peoples claimed that their native title was not extinguished by the granting of pastoral leases; rather, it was a valid and enforceable interest in the land coexisting with the interests of the lessees. The native title applicants, according to Justice Gaudron, argued that ‘pastoral leases granted under those Acts were not true leases and did not confer rights of exclusive possession but merely rights to use land for pastoral purposes’.⁷

The applicants proposed that, in any event, it was not the mere grant of a right but the exercise of that right in a manner inconsistent with native title that effected extinguishment. Argument was also put that the grant of inconsistent rights for a fixed period merely suspended native title rights, which then revived on the expiry, surrender or forfeiture of the interest. The Thayorre people offered the further argument that a fiduciary duty arose from the Crown’s relationship with native title holders and that any reversion to the Crown on expiry of the leases was held in trust for the native title holders.⁸

At trial, Justice Drummond sought to deal with the question of whether native title was extinguished by the pastoral leases as a preliminary issue before deciding whether native title could be established. This approach was criticised by members of the High Court, first because it acted as an effective ‘strike out’ proceeding⁹ and, second, because it forced the current proceedings to operate within ‘a certain unreality’.¹⁰

Justice Drummond had determined that binding authority existed to support the conclusion that a pastoral lease granted exclusive possession, and thus extinguished native title.¹¹ In North Ganalanja Aboriginal Corporation v Queensland (1995) (North Ganalanja), the full Federal Court had considered a pastoral lease issued in Queensland in 1904 and concluded that it conferred exclusive possession on the grantee, although limited by duration and purpose.¹² After Justice Drummond’s decision, the High Court, on appeal, had cast doubt on the decision in North Ganalanja and, by majority, had considered that it was premature to consider the ‘pastoral lease question’.¹³ Justice Drummond did recognise that the proper inquiry was not to be determined by reference to precedent, but to examine whether the particular lease conferred a right of exclusive possession or at least a right of possession sufficiently exclusive to extinguish native title.¹⁴ Given the important principles at issue, the appeal was referred straight to the High Court, with no full Federal Court decision in the case.¹⁵

NATURE OF THE INQUIRY

A number of questions were drafted for consideration by the High Court.¹⁶ The most significant question before the Court was whether the grant of a pastoral lease necessarily extinguished all native title rights.¹⁷ Justice Toohey set out the inquiry:

Consistent with Western Australia v Commonwealth (1995) (Native Title Act case),²⁰ this intention does not refer to the state of mind of the legislators, but to the intention of the legislation: what the statute means.²¹

HISTORY OF PASTORAL LEASES UNDER STATUTE

In order to answer the questions before the Court, significant attention was paid by all of the judges to the historical context in which pastoral leases developed under Australian land law, as well as to the history of the particular interests in question in order to determine the intention behind the statute and, hence, the effect of the grant.

The first two pastoral leases were granted under the 1910 Act, in 1915 and 1919, constituting the Mitchellton pastoral lease. In 1945 a pastoral lease was granted over the Holroyd holding and a further lease was granted in 1973, under the 1962 Act. The first of the Mitchellton pastoral leases issued in 1915 lasted only three years, before being forfeited for non-payment of rent in 1918. The 1919 lease was surrendered in 1921 and neither was ever taken into possession by the lessees. Prior to the surrender, the Mitchellton pastoral leases were targeted for dedication as reserves to be held ‘for benefit of Aboriginal people’ in recognition of the significant community living in the area and the land had been held under similar tenure since that time.²² The first Holroyd pastoral lease was surrendered in 1973, with the second lease being issued in 1974 for a term of thirty years. There were few improvements ever completed on the lease, despite the conditions imposed, and the land remained marginal for grazing purposes. From the perspective of the native title holders, little of significance had occurred on their land that would disturb their enjoyment. To this, Justice Kirby suggested that it would require ‘a very strong legal doctrine to deprive them of their native title’.²³ While these leases were not necessarily typical, Justice Kirby used them to illustrate the purposes to which pastoral leases had been developed.

The judges in the majority surveyed the history of feudal tenures and the reception and modification of common law and property law in Australia, as well as the law of statutory interpretation.²⁴ The judges described the movement of ‘squatters’ into the hinterland and into areas that were unsurveyed, uncontrolled and over which they had no title.²⁵ At first, under royal prerogative (or executive power), the Governor issued occupation licences, and legislation was introduced to establish a border police force to protect persons ‘lawfully occupying or being upon’ Crown land outside the perimeters of the settlements.²⁶ The Sale of Waste Lands Act 1842 (Imp) replaced the prerogative power, bringing the management and disposition of Crown lands within a statutory framework and eventually within the purview of the colonial legislatures.

From the vesting of self-government and control over Crown lands, the colonial legislators quickly began to exercise their powers to develop a multiplicity of ‘new forms of tenure’ specific to their circumstances.²⁷ These ‘new tenures’, as Justice Toohey highlighted, reflected the ‘desire of pastoralists for some form of security of title and the clear intention of the Crown that pastoralists should not acquire the freehold of large area of land, the future use of which could not be readily foreseen’.²⁸

APPLYING THE RULES OF STATUTORY CONSTRUCTION

The Queensland legislature adopted the form of pastoral lease that had evolved in New South Wales and passed numerous Acts affecting and regulating pastoral leases. In none of these, apart from the use of the word ‘lease’, was there a clear indication of the nature of the interest conferred. Terms such as ‘lease’, ‘licence’ and ‘rents’ were applied in what has been described as a new, more ‘generic’ sense.²⁹ The judges in the majority undertook a detailed investigation of the statute and the instruments granted under it, emphasising the nature of the pastoral interest as a creature of statute, within a comprehensive legislative regime for the management of Crown lands, peculiar to the needs and circumstances of the country, and deliberately distinguished from the feudal doctrines that underpinned the common law of tenures and estates.³⁰ It would be a mistake, Justice Kirby suggested, to import such notions to statutory tenures unless necessary.³¹

The majority concluded that there was no evidence on the face of the legislation to suggest that it was intended that the pastoralists would receive possession of the land to the exclusion of the Indigenous peoples. Indeed, the judges highlighted the historical materials that indicated the degree to which the Indigenous peoples’ continued access to pastoral lands, as well as their protection against violence from the squatters, was contemplated by the early legislators and executive. In particular, they noted correspondence from Secretary of State, Earl Grey, who repeatedly assured that pastoral leases were only an exclusive right to pasture cattle, not exclusive occupation, and, in particular, were not intended to exclude Indigenous peoples from the land.³² These historical statements were not taken to constitute a promise or recognition of an interest vested in Indigenous peoples but they seem to have provided some factual context that militated against the argument that there was a necessary or intended inconsistency between the enjoyment of rights under the pastoral lease and the continued occupation of the land by the native title holders.³³

THE ARGUMENTS IN FAVOUR OF EXCLUSIVE POSSESSION

All of the judges considered the central arguments supporting the respondents’ contention that pastoral leases were effective to extinguish native title. There were three main arguments in favour of a presumption that exclusive possession was intended to be conveyed by the grant of a pastoral lease: the use of the term ‘lease’; the need for the Crown to hold a ‘reversion’ in the case of the forfeiture of the lease; and the distinction drawn in the legislation between the statutory pastoral leases and other statutory licences.