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Editors --- "Wilson v Anderson - Case Summary" [2002] AUIndigLawRpr 44; (2002) 7(3) Australian Indigenous Law Reporter 19

Court and Tribunal Decisions - Australia

Wilson v Anderson

High Court of Australia (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ)

8 August 2002

(2002) 190 ALR 313

Native title — extinguishment — application for determination of native title to land and waters — claim area partly subject to lease granted ‘in perpetuity’ under Western Lands Act 1901 (NSW), s 23 — whether ‘lease in perpetuity’ conferred upon lessee a right of exclusive possession — historical development of statutory ‘lease in perpetuity’ and other species of perpetual tenure as substitutes for Crown grant of determinable fee simple — whether grant of lease extinguished any native title in relation to land covered by lease — operation of Div 2B of Pt 2 of Native Title Act 1993 (Cth) and Pt 4 of Native Title (New South Wales) Act 1994 (NSW) — whether grant of lease is a ‘previous exclusive possession act’ under Native Title Act 1993 (Cth) s 23B

Practice and procedure — appropriateness of reserving for separate determination questions respecting alleged extinguishment of native title

Facts:

The proceedings were for special leave to appeal from the determination by the Full Court of the Federal Court (Black CJ, Beaumont and Sackville JJ) of several questions reserved for separate decision by that Court. The High Court heard full argument on the special leave application.

An application for determination of native title under the Native Title Act 1993 (Cth) (NTA) was made by Michael Anderson and others on behalf of the direct descendants of Ethel and Tinka Dixon of the Nyoongah Ghurradjong Murri (Granny Ethel) clan of the Euahlayi on 18 July 1996. It covered land (the claim area) under the Western Lands Act 1901 (NSW).

Mr Wilson, the applicant for leave, held Western Lands Lease 7951 (the Lease). The Lease was granted ‘in perpetuity’ under s 23 of the Western Lands Act in 1955. Mr Wilson acquired the Lease by transfer by way of sale in 1984. It was located within the claim area.

Among other things, cll 3 and 4 of the Lease obliged the lessee not to use or permit the use of the leased land for any purpose other than grazing. Clause 2 required the lessee to make his bona fide residence there. The lessee was obliged by cl 14 not to transfer, convey, assign, sub-let or mortgage the leased land without the written consent of the Minister. The Lease stipulated an ‘unrestricted’ right to proclaim travelling stock routes, camping places and other reserves (cl (l) of Sch A to the Western Lands Act) without payment of compensation and to withdraw land for the purposes of such reserves. A lessee was placed under obligations with respect to fencing (cl 5), destruction of vermin (cl 7), improvements (cl 12) and stocking levels (cl 15). There was an obligation to allow authorised persons to enter the leased land to examine improvements (cl 12) and to search for and remove minerals (cl 16).

On 29 April 1999, Beaumont J made orders for the separate determination by a Full Court of the question whether the lease extinguished native title, before any factual inquiry into any native title rights and interests in respect of the claim area.

The answers given by Black CJ and Sackville J, and Beaumont J, allowed the possibility that some native title rights and interests might continue to exist in respect of the leased land. The applicant applied for special leave to appeal to the High Court.

Held, allowing the appeal:

1. Per Gleeson CJ, Gaudron, McHugh, Kirby, Gummow, Callinan, and Hayne JJ: Despite the fact that native title may have been extinguished by the common law before the enactment of the NTA, that does not entitle a court charged with the determination of a native title under the NTA to ignore the operation of that statute (and of satellite State and Territory laws) upon the acts constituting the alleged prior extinguishment. Section 10 of the NTA states that native title is recognised and protected in accordance with the NTA and s 11(1) that native title cannot be extinguished contrary to the NTA. Furthermore, an act that would otherwise not fully extinguish native title under the common law may do so with reference to the NTA: [3], [44]-[51], [144], [191].

2. Per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ: Native title has been extinguished, by operation of the NTA, with effect from the date of the grant of the Lease: [3], [119], [206].

3. Per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ: It is right to say that rights and interests are not to be held to have been abrogated by statute, except where the intention to do so is plainly expressed. But the relevant question in the present matter is the nature of the rights that were created by the grant of the Lease. It is to be answered by analysing the nature and extent of the rights that were conferred by the grant: [6]-[13], [61], [194]. Wik Peoples v Queensland (1996) 187 CLR 1 at 84-85 followed. Western Australia v Ward [2002] HCA 28 at 78 followed.

4. Per Gleeson CJ: The incidents of statutory perpetual leasehold may not be exhaustively defined by the statute: [19]. Southern Centre of Theosophy Inc v South Australia [1982] AC 706 considered. Davies v Littlejohn [1923] HCA 64; (1923) 34 CLR 174 considered.

5. Per Gleeson CJ, Gaudron, Gummow, and Hayne JJ: The main objective in making provision for holdings to be identified as ‘leases in perpetuity’ under the Western Lands Act had been to assist in gaining finance for development of the land and to make it easy for the government to attach stipulations to the use of the land. These leases were still very similar to the old quit-rent system that preceded fees simple. The conditions and obligations attached to these leases were not inconsistent with the incidents of a grant of a determinable fee simple. The lease in perpetuity was to have the attraction of a tenure with all the advantages and essence of a freehold. For the purposes of the NTA, this included a right of exclusive possession: [17], [19], [21], [77], [94]-[119]. Wik v Peoples of Queensland (1996) 187 CLR 1 distinguished.

6. Per Gleeson CJ, McHugh and Callinan JJ: The use of the word ‘lease’ should be given weight in determining the rights under an instrument creating an interest in land: [18], [194]. Goldsworthy Mining Ltd v Federal Commissioner of Taxation [1973] HCA 7; (1973) 128 CLR 199 at 212 referred to. American Dairy Queen (Queensland) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65; (1981) 147 CLR 677 at 686 per Brennan J referred to. Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 691 per Kirby P, 712 per Mahoney JA referred to. Wik v Peoples of Queensland (1996) 187 CLR 1 at 74-81 per Brennan CJ, 151 per Gaudron J referred to.

7. Per McHugh and Callinan JJ: The pursuit of pastoral purposes, properly understood, is incompatible with the pursuit of any other activity involving unrestricted access to or physical presence upon the land: [194]. Western Australia v Ward [2002] HCA 28 at [694] referred to.

8. Per McHugh and Callinan JJ: The Western Lands Act contains no special part, or set of special provisions, dealing with pastoral leases to distinguish them from common law leases: [197]. Wik v Peoples of Queensland (1996) 187 CLR 1 distinguished.

9. Per McHugh and Callinan JJ: The Western Lands Act consistently distinguished between ‘leases’ and ‘licences’. Leases required payment of ‘rent’, while licences required payment of a licence ‘fee’: [198]. Wik v Peoples of Queensland (1996) 187 CLR 1 distinguished.

10. Per McHugh and Callinan JJ: The Western Lands Act did not suggest that the Crown enjoyed possession of the land rather than the lessee — incidents of forfeiture are those attendant upon the forfeiture of a common law lease: [199], [200]. Wik v Peoples of Queensland (1996) 187 CLR 1 distinguished.

11. Per McHugh and Callinan JJ: The Western Lands Act made no distinction between statutory leases and common law leases in terms of when they vested in the lessee: [201]. Wik v Peoples of Queensland (1996) 187 CLR 1 distinguished.

12. Per Gaudron, Gummow, Kirby and Hayne JJ: The practice of reserving questions for separate determination can save significant time and expense. However there are dangers in adopting the procedure, especially where no findings of fact have been made and the questions are capable of different interpretations: [34]-[38], [132]-[136]. Wik v Peoples of Queensland (1996) 187 CLR 1 at 131, 169-171, 204-205, 210-213 referred to. Yanner v Eaton (1999) 201 CLR 351 at 396 referred to. Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 357-358 referred to. Anderson v Wilson [2000] FCA 394; (2000) 97 FCR 453 at 461 referred to.

13. Per Kirby J (dissenting): Native title rights persist, in the face of legislation said to be inconsistent with them, ‘unless there be a clear and plain intention’ to extinguish such rights. Native title rights may be fragile, but they are still protected against accidental, unintended, collateral or unnecessary extinction: [139]-[143]. Wik v Peoples of Queensland (1996) 187 CLR 1 at 85, 149-155, 166,185, 247-249 referred to. The Commonwealth v Yarmirr [2001] HCA 56; (2001) 75 ALJR 1582 at 1641, [291]; [2001] HCA 56; 184 ALR 113 at 195 referred to. Delgamuukw v British Columbia [1997] 3 SCR 1010 at 1058 referred to.

14. Per Kirby J (dissenting): Despite a high particularity in regards to the acts covered, neither the NTA nor the Native Title (New South Wales) Act 1994 (NSW) expressly specified that ‘leases’ under the Western Lands Act constitute ‘previous exclusive possession acts’. The ordinary presumption for the interpretation of legislation applies. That presumption protects the civil and property rights of all Australians: [156], [157], [171].

15. Per Kirby J (dissenting): Leases ‘in perpetuity’ under the Western Lands Act are not equivalent to freehold estate. The history of the Western Lands Act shows that the addition of the words ‘in perpetuity’ represented something of a legislative sleight of hand. It was designed to make it easier for grantees of leases to raise finance by mortgage of the land. Yet borrowings sustained by mortgages are a common feature of a huge variety of legal interests that fall short of affording exclusive possession to land: [158].

16. That statutory leasehold was subject to incidents adapted to the geographic area that are not features of freehold land, or indeed of other leaseholds. Most important amongst these was its use for grazing purposes only and forfeiture for breach of conditions of residence on, and maintenance of, the land. The similarity to the statutory tenure considered in Wik is overpowering: [160]-[162]. Wik v Peoples of Queensland (1996) 187 CLR 1 considered.

Gleeson CJ:

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16. Wik decided that, having regard to the legislation under which they were granted, and the terms and conditions of the instruments of lease, certain pastoral leases did not confer upon the lessees a right of exclusive possession.

17. The Court is presently concerned with different legislation, and different instruments of lease. Uninformed by Wik, I would readily have come to the conclusion that the lease in perpetuity presently in question conferred a right of exclusive possession. The decision in Wik does not require any different conclusion.

18. The nature of the incidents of a statutory lease in perpetuity under the Western Lands Act was considered by the Court of Appeal of New South Wales in Minister for Lands and Forests v McPherson.16 The issue in that case concerned whether a lessee could obtain relief against forfeiture. The argument against such relief was that the statute embodied a self-contained scheme, and that the incidents of a statutory lease were to be found within the four corners of the statute. In rejecting that argument, Kirby P, with whom Meagher JA agreed, said: ‘In the case of an interest called a “lease”, long known to the law, the mere fact that it also exists under a statute will not confine its incidents exclusively to those contained in the statute.’17 Later, he said: ‘Whilst the “leasehold” envisaged by the Act has particular incidents, it remained a “leasehold”.’18 Mahoney JA, referring to earlier legislation which was followed by the Western Lands Act, said that ‘the rights described as “lease” in the 1884 Act were essentially the rights given to a lessee under a lease of land as understood under the common law’.19

19. The decision in Wik makes it necessary now to approach such general statements with caution. Even so, as the joint judgment in the present case demonstrates comprehensively, the history of perpetual leases of Crown land in New South Wales shows a strong affinity between the interests granted under such leases and freehold estates. There is nothing surprising or novel about a conclusion that the incidents of a statutory lease are not exhaustively defined by statute, and may include the incidents of a lease as provided by the common law. Exactly such a conclusion underlay the decision of the Privy Council in Southern Centre of Theosophy Inc v South Australia.20 That case concerned a perpetual lease of land pursuant to South Australian Crown lands legislation. The issue was as to the application to the land of the common law doctrine of accretion. The land was bordered by an inland lake. An area of about 20 acres was added to the land by the deposit of soil and sand resulting from longshore drift, the retreat of water, and wind-blown sand. The State of South Australia argued, unsuccessfully, that the doctrine of accretion did not apply to an interest in land granted pursuant to a statutory scheme.21 Reliance was placed on passages in the judgment of this Court in Davies v Littlejohn 22 referring to the statutory basis of interests in land created under Crown lands legislation. Lord Wilberforce, who delivered the judgment of the Privy Council, saw no reason why the doctrine of accretion should not apply to the leasehold interest in question.23 That decision was not referred to either in argument, or in the judgments, in the later case of McPherson, but it reached that same conclusion with respect to the common law doctrine of accretion as was reached in McPherson with respect to the equitable doctrine of relief against forfeiture. Essential to both decisions was a finding that the incidents of a statutory perpetual leasehold were not exhaustively defined by the statute.

20. Section 23 of the Western Lands Act, pursuant to which the lease in the present case was granted, in the form it took at the time of the grant, empowered the Minister to grant leases of Crown lands as leases in perpetuity or for a term. The Act enabled leases for a term to be extended to leases in perpetuity (s 18E). Such an extension had occurred in the case of the lease in McPherson.24 Such leases might be of land set apart for grazing (s 19B), or of land set apart for agriculture, or for agriculture and grazing combined, or for mixed farming or any similar purposes (s 19C). It may be doubted that the juristic nature of the leases referred to in the opening words of s 23 would vary, in relation to the matter of rights of exclusive possession, according to whether they were perpetual or for a term, but that issue does not arise for decision. It is also unlikely that their relevant juristic nature would vary according to whether the subject land had been set apart for grazing, agriculture, or mixed farming. But the various possibilities emphasise the difference between the lease holding presently in contemplation and those of the lessees in Wik.

21. As the joint judgment shows, when regard is had to the genesis of the interest in land referred to in the Western Lands Act as a lease in perpetuity, and its affinity with freehold title, the inference that it was the intention of the legislation that the Minister should be empowered to grant leases which conferred upon lessees a right to exclusive possession of land is compelling. Wik does not deny the relevance of the use by the statute of the term ‘lease’. But it requires a court to look further. In the present case, when one considers the object and purpose of the legislation, the primary impression created by the statutory language is not weakened; it is strongly reinforced. And the language of the instrument of lease, which uses the language of demise historically associated with the conferring of a right of exclusive possession, read in the light of the statutory power and purpose, evinces the same intention.

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Gaudron, Gummow and Hayne JJ:

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34. It is convenient now to say something respecting the practice of reserving questions for separate determination, particularly respecting alleged extinguishment of native title. The difficulties that arise when an attempt is made to determine, in the absence of adequate findings of fact, issues of extinguishment of native title are well known. They were referred to in Wik31 and Yanner v Eaton32 and exemplify the general considerations referred to in Bass v Permanent Trustee Co Ltd.33

35. In the Full Court, Black CJ and Sackville J observed that, while the identification of separate questions for determination can be a convenient procedure, there ‘are dangers in adopting the procedure, especially where no findings of fact have been made and the questions are capable of different interpretations’.34 Their Honours recognised that the procedure had been adopted in this case as ‘a short cut’ designed, depending on the outcome, ‘to obviate the necessity for a very complex, lengthy and expensive factual inquiry’.35

36. In some circumstances it is possible to determine issues of extinguishment in advance of findings as to the existence and content of the anterior native title rights and interests in question. One such example is where the extinguishing act relied upon is the grant of an estate in fee simple or of a common law lease. The grant of a fee simple extinguishes all native title rights that may exist in relation to the land the subject of the grant. This is so because the estate of fee simple ‘does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title’.36 The same reasoning applies to the grant of a common law leasehold estate.37 In both instances ‘the comprehensiveness of the grant precludes any question of partial extinguishment’.38

37. Questions respecting the satisfaction of the criteria contained in s 23B of the NTA may provide a further occasion where findings of fact that establish the ambit of any native title rights and interests claimed are not required. This is because an ‘act’39 which satisfies the criteria in s 23B is a ‘previous exclusive possession act’.

38. The identification of separate questions for determination must also be considered having regard to the provisions of s 84C of the NTA which permit a party to apply on stated grounds to strike out an application filed in the Federal Court that relates to native title. Those grounds include non-compliance with the basic requirements for an application and non-compliance with s 61A of the NTA. This section, among other things, prohibits the making of a native title determination application if a previous exclusive possession act was done in relation to the area and that act either was an act attributable to the Commonwealth or it was attributable to a State or Territory and a law of the State or Territory has made provision of the kind mentioned in s 23E in relation to the act.

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44. It is convenient here to note that Div 2B of Pt 2 of the NTA commenced operation on 30 September 1998 and was therefore in force when the matter was argued before the Full Court. The provisions of Div 2B are adopted, in respect of acts attributable43 to New South Wales, by Pt 4 of the Native Title (New South Wales) Act 1994 (NSW) (‘the State Act’). Part 4 of the State Act (added by the Native Title (New South Wales) Amendment Act 1998 (NSW)) also commenced operation on 30 September 1998.

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50. Provision for compensation in respect of extinguishment effected by a previous exclusive or non-exclusive possession act is made by s 23J of the NTA. No question of compensation arises at this stage of the litigation, but reference to s 23J demonstrates the point that questions of extinguishment and the degree thereof do not fall for consideration purely under the common law and divorced from statute. Section 23J provides:

Entitlement

(1) The native title holders are entitled to compensation in accordance with Division 5 for any extinguishment under this Division of their native title rights and interests by an act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act.

Commonwealth acts

(2) If the act is attributable to the Commonwealth, the compensation is payable by the Commonwealth.

State and Territory acts

(3) If the act is attributable to a State or Territory, the compensation is payable by the State or Territory.

51. Subsection (1) of s 23J has the effect of conferring upon native title holders an entitlement to compensation only where the statutory extinguishment exceeds the extinguishment that would have occurred at common law. The evident purpose of s 23J is to limit, so far as possible, the entitlement to compensation under s 23J, to cases where the ‘act’ is invalid by reason of the Racial Discrimination Act 1975 (Cth) (‘the RDA’) and is subsequently validated by s 14 of the NTA or s 8 of the State Act.52 However, s 23J also may be attracted in respect of a valid ‘act’ which, although satisfying the definition of ‘previous exclusive possession act’, would not completely extinguish native title at common law. That a different result may be reached under Div 2B of Pt 2 of the NTA or Pt 4 of the State Act emphasises the point that it is the statutory criteria provided for by those provisions which are to be applied when determining issues of extinguishment.

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60. It is possible that, as an exclusive pastoral lease or as a lease conferring a right of exclusive possession over particular land, the Lease, being a ‘lease in perpetuity’ under the Western Lands Act, satisfies either or both of pars (iv) and (viii) of s 23B(2)(c) of the NTA; par (iv) engages the definition of ‘exclusive pastoral lease’ in s 248A. It is in this way that the issue for determination arises — whether on grant in 1955 the Lease conferred a right of exclusive possession upon the grantee thereof.56 That issue turns upon the meaning of the statutory expression ‘lease in perpetuity’ and requires an examination of the nature of the perpetual holdings created under the Western Lands Act and the Consolidation Act.

61. No doubt it is right to say that rights and interests are not to be held to have been abrogated by statute, except where the intention to do so is plainly expressed. But the relevant question in the present matter is what are the rights that were created by the grant of the Lease. In particular, did the holder of the Lease acquire a right to exclusive possession of the Leased Land? That question is not to be answered by presuming its answer any more than it is to be answered by noticing that later legislation has attributed certain legal consequences to the fact of the grant of such rights. It is to be answered by analysing the nature and extent of the rights that were conferred by the grant.

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77. The objective in making provision for holdings identified as leases in perpetuity under the Western Lands Act had been to strengthen the tenure thereby provided and to attract the provision of finance for development of the land. However, provision previously had been made in various provisions of the Consolidation Act for the grant of what were described as leases in perpetuity. Controversy had arisen whether some of those species of perpetual lease were grants in fee simple. That controversy throws light on what was involved in the strengthening of tenure under the Western Lands Act and the affinity between that tenure and grants of a freehold estate, which plainly would extinguish native title (par (ii) of s 23B(2)(c) of the NTA).

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95. No wholly satisfactory answer is to be found to the question whether, by the grant of the Lease, there was created and vested an estate in fee simple, whether conditional or subsequent. Nor, for the purpose of considering whether the grant of the Lease was an act bringing about extinguishment for the purposes of the NTA, is it necessary to do so. The issue, as in the Indian case, turns upon a proper analysis of the statutory regime under the Western Lands Act provided in s 23 for the creation of leases in perpetuity. Does this have the same consequences with respect to extinguishment as would have followed from the grant of a fee simple? The answer is to be found by having regard to the scope and purpose of the Western Lands Act and the anterior situation under other New South Wales legislation respecting dealings in Crown lands.

96. In Randwick Corporation v Rutledge,89 Windeyer J explained that the early Governors of New South Wales had under their commissions express powers to make grants of land and continued:

The principles of English real property law, with socage tenure as the basis, were introduced into the colony from the beginning — all lands of the territory lying in the grant of the Crown, and until granted forming a royal demesne.

There was controversy, upon which it is unnecessary to enter, as to the jurisdiction of the Supreme Court of New South Wales to issue scire facias for revocation and cancellation of such grants.90

97. In his work Freehold and Leasehold Tenancies of Queensland Land, published in 1946, Dr T P Fry wrote:91

Before 1847 all grants of Australian land made by the Crown were grants of freehold; there were few ‘grants’ of leaseholds before 1847. This is understandable, because until 1855, the date of self-government in New South Wales, control of the sale of land in New South Wales ... had remained in the hands of the Imperial Government, who knew only one form of ‘free’ land tenure: free and ancient socage.

In the earliest days of the settlement alienation of the land in New South Wales was by means of free grants, grants for which no purchase price was paid, but which were subject to the reservation of annual quit-rents payable to the Crown.

98. Writing in 1902 for a British audience, W P Reeves said in his work, State Experiments in Australia & New Zealand:92

Usually these quit-rents were supposed to equal 5 per cent of the value of the granted land, but seem never to have been higher than twopence an acre on country lands, and often lower than a farthing an acre. Sometimes the land was granted rent free for a time, with a stipulation that a quit-rent should be paid after a few years. Residence and improvement were almost always insisted upon, and a common practice was to oblige the settler to feed, clothe, and employ a certain number of convict labourers. This service was often accepted in lieu of rent, and, if rendered for a term of years, entitled the settler to hold his grant rent free for ever.

99. The quit-rent was the only incident of socage tenure ever required of a tenant in fee simple in New South Wales.93 Beginning in 1846, various legislative provision was made in New South Wales for relief against and redemption of quit-rents. The legislation included s 143 of the Conveyancing Act 1919 (NSW), but it was not until the insertion in 1964 into the Consolidation Act of s 234A94 that all quit-rents were released. Section 234A stated:

Where any quit-rent issues to the Crown out of any land, or the residue of any quit-rent issues to the Crown out of any residue of any land in respect of which quit-rent has been apportioned or redeemed, such land or residue shall be deemed to have been released therefrom.

100. Fry observed:95

The old Australian type of freehold grants, subject to annual ‘quit-rents’ in perpetuity, bears a striking resemblance to Crown Perpetual Leaseholds of modern Australian land, especially as the old type of freehold grants often imposed a condition of residence or occupation for a limited number of years and conditions of development, as other incidents of tenure. (emphasis added).96

101. Of the ‘lease in perpetuity’, W P Reeves wrote:97

Under it, the occupier has a tenure as secure as a freehold, yet can keep his capital to spend on improving his holding, while the State, though it loses the unearned increment, can always insist that a genuine working settler shall live on each farm. In more than one way the lease bears an odd likeness to the old quit-rent system of the despotic governors of New South Wales.

102. Fry, after observing that the holder of a Crown leasehold ‘in perpetuity’ may not acquire an estate in fee simple, said:98

These perpetual Crown leaseholds nevertheless resemble such of those freehold grants made in the early nineteenth century, in respect of which quit-rents were imposed in perpetuity and in respect of which permanent improvement had to be made to the land on pain of forfeiture. Indeed, it would seem that the principal aim sought to be achieved by means of perpetual Crown leaseholds is to ensure that the widespread modern conceptions of freehold as a tenure that is free from tenurial incidents and from the liability to forfeiture for breach thereof shall not prevent the continued imposition of conditions of development, conditions of personal residence, and the like, even after land has been granted ‘in perpetuity’ by the Crown to the Crown tenants (emphasis added).

103. The legislative history in New South Wales bears out the accuracy of what is there stated. The notion of perpetual tenurial incidents created under Crown lands legislation appears first in New South Wales in the provisions (ss 17-23) of the Crown Lands Act 1895 (NSW) (‘the 1895 Act’) dealing with ‘homestead grants’, the term used for the grant of a homestead selection. Section 17 imposed obligations upon the grantee to live on the land granted and to pay rent, and stated that these obligations ‘shall be incidents in perpetuity of the tenure of the lands held under a homestead grant’.

104. In his Second Reading Speech to the Legislative Assembly on the Bill for the 1895 Act, the Secretary for Lands, Sir Joseph Carruthers,99 said:100

I introduce a new principle — a principle which has tended to build up the greatness of the United States, which is building up the greatness of the Anglo-Saxon community of Canada, the principle of homestead selection, a principle which will enable a man to acquire a homestead in surveyed and subdivided areas which are found suitable for the purpose on terms which will not cripple his resources in the early stages. ... I cannot go so far as some of my friends and use the term ‘perpetual leasehold,’ but I will tell you what I do. I give them perpetual leasehold in all its incidents, in perpetual rent, which must be paid year by year. I give them the incidents and obligations of a leasehold tenure. Always having the Crown as the landlord I preserve the old title of freehold. ... Whilst I attach to these holdings the elements and incidents of perpetual leaseholds, I keep the old name of freehold because it will be more valuable to the holder, and it will be less likely to lead to complications which must arise in conveyancing if there is introduced a strange and hitherto unknown tenure, which may become a fertile source of litigation by its operation.

The reference by the Secretary to ‘perpetual leasehold’ may have been provoked by the situation under the New Zealand legislation. Sections 138 and 157-158 of The Land Act 1892 (NZ) provided for the selection of Crown land ‘on lease in perpetuity’; ‘perpetuity’, however, was measured at 999 years (s 157(1)).

105. The Land Act 1898 (Vic) provided in Pt 1, Div 4 (ss 79-87) for the grant by the Governor in Council of a ‘perpetual lease’, subject to conditions respecting residence, fencing, destruction of vermin, and improvements, and with a six year ban on alienation by the ‘perpetual lessee’ (s 80).

106. In New South Wales, matters developed in 1912 with the enactment of the Crown Lands (Amendment) Act 1912 (NSW) (‘the 1912 Act’). This appears to have introduced for the first time into the law of New South Wales the notion of ‘a lease in perpetuity’. Section 7 stated:

The title to a homestead farm shall be a lease in perpetuity.

Section 13(2) stated:

The title to a suburban holding shall be a lease in perpetuity.

107. In the Second Reading Speech in the Legislative Assembly of the Bill for the 1912 Act, Mr Beeby, the Secretary for Lands, said of the provisions respecting homestead farms:101

Under this arrangement the tenant will have an absolute guarantee that he will have to pay to the Crown only a low and reasonable rental, based upon the capital value of the land. A tenure of this nature after all contains all the advantages and essence of a freehold, with the supreme advantage that the whole of the capital that a man now puts into the purchase of the land can be devoted to improvements. That is the central idea of the measure (emphasis added).

108. In the debate in the Legislative Council on the Bill for the 1912 Act, Sir Joseph Carruthers said that, whilst he could not oppose the Bill, it was:102 ‘a great pity that the Minister did not go back and accept the principles of the 1895 Act, instead of trying to found a new tenure with a name which would be associated with himself.’ In the same speech, he looked back to 1895 and spoke of the objectives sought to be obtained by the 1895 Act as follows:103

I tried to ingraft the homestead lease of Canada and the United States of America on to our statute-book, and I associated with it the good principles of the old feudal system. ... I brought in the system of homestead selection, whereby men entered into covenants in perpetuity. I made one covenant the paying of rent, a second covenant the improvement of the land, and the third covenant residence upon the land. ... Bearing in mind that the feudal system originated in the attachment of duties and obligations to be performed by the subject to the Crown, I attached those conditions to the homestead selection tenure, and the only objection has been that it does not enable a man to borrow as freely as he otherwise would.

Conclusions

109. The interest conferred under s 23(1)(a) of the Western Lands Act and identified as a ‘lease in perpetuity’ was a creature of statute forming part of the special regime governing Crown land.104 That regime included the various tenures provided for in the Consolidation Act, some of which also were identified as a ‘lease in perpetuity’. Legislation establishing these perpetual tenures in New South Wales predated the introduction of the ‘lease in perpetuity’ into the Western Lands Act by the 1932 Act and the 1934 Act.

110. The evident purpose of the introduction to the Western Lands Act of the perpetual tenure already established in other respects in the Consolidation Act was to strengthen the position of settlers in the Western District, particularly by giving them an asset more likely to attract the provision and continuation of finance. The character of the lease in perpetuity derived from that of the tenures established by the earlier legislation in New South Wales.

111. There had been a history in colonial New South Wales of Crown grants of freehold for which no purchase price was paid but with the reservation to the Crown of annual quit-rents. Conditions also were imposed, upon pain of cancellation or revocation of the grant and determination of the fee simple. These conditions included requirements of residence and improvement of the land. By the time of the development in New South Wales of the legislative system of Crown land tenures in the second half of the nineteenth century, there was developing the popular perception of freehold as a tenure without risk of forfeiture for breach of tenurial incidents, a perception of which legislators would have been conscious. Yet it was in the interests of the Crown to achieve the economic and social goals of land settlement with the assistance of the controls imposed by conditional grants.

112. The legislative solution began with the ‘perpetual’ obligations imposed upon the holders of homestead grants by the 1895 Act. As Sir Joseph Carruthers later was proud to declare, the inspiration for this legislation lay in the old common law notions of tenurial incidents. The legislative regime was developed with the appearance, in the 1912 Act, of the ‘lease in perpetuity’. By this means there was created a tenure which, like freehold tenure, was to last ‘for ever’ but the term ‘lease’ indicated that the continued retention of title by the grantee was dependent upon the performance of many tenurial incidents imposed to further the objectives of the legislature with respect to land development.

113. The number and scope of those incidents developed as time passed. The Lease contains a number. Reference already has been made to the requirement of residence (cl 2) and the stipulations respecting use for the purpose of grazing stock (cll 3, 4). Further, the lessee was obliged by cl 14 not to transfer, convey, assign, sub-let or mortgage the Leased Land without the written consent of the Minister; cl 20 provided that the Lease was not to be transferable except by way of mortgage for 10 years following its commencement, save to certain members of the armed forces.

114. The Lease stipulated an ‘unrestricted’ right to proclaim travelling stock routes, camping places and other reserves (cl (l) of Sched A to the Western Lands Act) without payment of compensation and to withdraw land for the purposes of such reserves. The Lease was also expressed (cl 23(d)) to be subject to the withdrawal of land for any public purpose mentioned in the Consolidation Act.105 A lessee was placed under obligations with respect to fencing (cl 5), destruction of vermin (cl 7), improvements (cl 12) and stocking levels (cl 15). There was an obligation to allow authorised persons to enter the Leased Land to examine improvements (cl 12) and to search for and remove minerals (cl 16). The lessee also was obliged to permit authorised persons to enter for purposes connected with soil conservation and erosion mitigation (cl 22).

115. The point of present importance is that these conditions and obligations, whether imposed directly by the Western Lands Act or permitted by the statute to be attached to the grant, were not inconsistent with the incidents of a grant of a determinable fee simple. The right of forfeiture for failure to pay rent or non-observance of conditions is equivalent to the right of re-entry on breach of a condition subsequent attached to a determinable fee simple.

116. However, in other respects, the legislative creation of the lease in perpetuity was to have the attraction, both for leaseholders and those financing their operations upon mortgaged security, of a tenure with, as the Secretary put it in 1912, ‘all the advantages and essence of a freehold’. Save where statute otherwise provided, that essence denied to anyone else the enjoyment of any right or interest in respect of the land.106 For the purposes of the NTA, this included a right in the grantee of a lease in perpetuity of exclusive possession.

117. The question in this litigation thus differs from that considered with respect to the legislation in cases such as Wik. The pastoral lease tenures there considered lack the historical and conveyancing background from which the lease in perpetuity was derived as a substitute for the old Crown grant of the determinable fee simple.

118. The restraints upon alienation which applied to the Leased Land and the requirement to allow entry by certain persons for particular purposes and the other restrictions which we have described were consistent with the attachment of conditions to what in substance was a freehold. Their existence did not deny what otherwise was involved in the comprehensive statutory grant of a ‘lease in perpetuity’, including the right to exclusive possession.

119. It has been pointed out earlier in these reasons that it is unnecessary to determine whether the ‘lease in perpetuity’ under the Western Lands Act is a ‘freehold estate’ for the purposes of the NTA. The grant here was of a ‘lease’ within the meaning of s 242 of the NTA which, upon the true construction of the Western Lands Act, conferred upon the lessee ‘the essence of a freehold’, including a right of exclusive possession, within the meaning of pars (iv) (with s 248A) and (viii) of s 23B(2)(c) of the NTA. Section 20 of the State Act then mandates extinguishment of any native title, with effect from the grant of the Lease.

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McHugh J:

124. The facts, issues and relevant legislation are set out in the judgment of Callinan J. For the reasons given by his Honour and for the reasons that I gave in Western Australia v Ward,107 I would grant special leave to appeal and answer the questions in the manner proposed by Callinan J.

Kirby J:

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139. Nevertheless, once the Rubicon was crossed, as it was in Mabo No 2, and once it was made clear that the Australian legal system did, after all, accord recognition and protection to the native title rights of Australia’s indigenous peoples in certain circumstances, it was fundamental that such rights would persist, in the face of legislation said to be inconsistent with them, ‘unless there be a clear and plain intention’ to extinguish such rights.129 It cannot be doubted that this has been one of the guiding principles of this field of jurisprudence, regularly applied and never questioned.130 In a world of uncertainty it has been a constant. It is a beam of light in the legal jungle. Moreover, it is a bright beam because it is the product of ‘conventional legal theory’.131

140. I say that this is a fundamental rule because this Court constantly applies the same principle to cases in which it is asserted that legislation has taken away the civil rights of non-indigenous Australians.132 It is an old, wise and beneficial presumption, long obeyed, that to take away people’s rights, Parliament must use clear language.133 The basic human right to own property and to be immune from arbitrary dispossession of property is one generally respected by Australian lawmakers.134 This fundamental rule attributes to the legislatures of Australia a respect for the rights of the people which those legislatures have normally observed, being themselves regularly accountable to the electors as envisaged by the Constitution.135 In some circumstances, at least in respect of federal legislation depriving people of established property rights, the presumption to which I have referred is reinforced by constitutional imperatives.136

141. Whatever may have been its character when the Constitution first came into force and this Court was first established, the Australian legal system is now race- and colour-blind. There is no reason why the long-established principle, applied in respect of other Australians, obliging that a clear and plain intention in Parliament be established to deprive people of their rights (including rights to property interests), should not inure to protect the rights of indigenous Australians. Indeed, there is no reason why, in respect of indigenous Australians, McHugh J’s dictum in Marshall v Director-General, Department of Transport137 should not be faithfully applied. His Honour there said that legislation empowering the deprivation of rights that an Australian would otherwise enjoy ‘should be construed with the presumption that the legislature intended the claimant to be liberally compensated’. After so many legal injustices in the past, I cannot accept that presumptions such as this are available to the settlers and their descendants and successors but not to indigenous Australians.

142. Where the rights concern native title, they may be fragile but they are still protected against accidental, unintended, collateral or unnecessary extinction. To be extinguished, a clear purpose on the part of the legislature must be manifest.138 The inquiry is, of course, an objective, not a subjective, one. This fundamental rule is not only a statement of the repeated authority of this Court. No other principle could, in my view, be adopted in a legal system that accords equal protection to the rights of all of the people subject to it. In Australia, this includes indigenes and descendants of, and successors to, the settlers; native title claimants under the NTA and lessees under the WLA. One of the principal purposes of the NTA was to ensure that surviving native title, still existing in 1993, should not thereafter be extinguished contrary to the provisions of that Act.139 That statutory principle gives expression to the fundamental rule.

143. It follows that I do not agree with the opinion of Callinan J, that the ‘clear and plain intention’ requirement ‘forms no part of our law’.140 A lot of law would be thrown overboard by me before I would contemplate discarding a principle so central to the fundamental postulate of equality before the law of this country.141

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156. Absence of express legislative provision: It is also clear that the WLA itself did not, in terms, afford the right to exclusive possession. Equally, the NTA does not expressly identify ‘leases’ under the WLA as being amongst the categories of ‘previous exclusive possession acts’. In those categories various interests of considerable variety are specified. They include a ‘freehold estate’165 but they get down to interests of quite particular kinds. The latter include ‘an exclusive pastoral lease’,166 a ‘community purposes lease’167 and even ‘what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to ‘1 January 1994’ were instead a reference to ‘24 December 1996’.168 It would be hard to be more specific and particular than this.

157. Despite such high particularity, no express reference is made either in the NTA or in the State Act, to a ‘lease’ under the WLA. It is not even as if the provisions of s 23B(2)(c)(i) have been enlivened under which a facility is provided for the specification of particular interests in Sched 1 of the NTA.169 Nor has ‘an interest, in relation to land or waters been declared by a regulation for the purposes of this paragraph to be a Scheduled interest’.170 In short, neither the NTA nor the State Act has expressly specified that ‘leases’ under the WLA constitute ‘previous exclusive possession acts’. This could have been done. It was not. Instead, the question was left to be decided according to whether, within s 23B(2) of the NTA and its State counterpart, the WLA ‘lease’ constituted a ‘previous exclusive possession act’ applying the applicable legal analysis.

158. Lease ‘in perpetuity’ is insufficient: With respect, I cannot agree that the fact that the WLA was amended to describe its leases as being ‘in perpetuity’ converted such ‘leases’ from special statutory interests subject to forfeiture for breach of conditions, effectively, or in law, to a freehold estate. The history of the WLA171 shows that the addition of the words ‘in perpetuity’ represented something of a legislative sleight of hand. This was a truth that Sir Joseph Carruthers, one-time Secretary for Lands, never ceased to point out.172 The phrase involved nothing more than the adoption of terminology designed to make it easier for grantees of ‘leases’ under the WLA to raise finance by mortgage of the land. Yet borrowings sustained by mortgages are a common feature of a huge variety of legal interests that fall short of affording exclusive possession to land.173 The incorporation of the additional phrase in the WLA did not alter the character of the peculiar statutory tenure in question.

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160. The latter included the right of the Minister, under WLA s 18, to exercise his or her powers to grant a ‘lease’ or to modify, or add to, the terms contained in Sched A. Such modification could, in a particular case, provide that the lessee should receive by grant an interest equivalent to a mere right of occupancy.178 To transfer land under the WLA, the lessee had to obtain the Minister’s consent179 and a large range of matters relating to the use of the land and its economy were laid down, inconsistent with freehold tenure and inconsistent with a common law lease.180 Add to this the exceptions and reservations for entry upon the land and the power reserved to resume parcels of the land, and the similarity to the peculiar statutory tenure considered in Wik becomes overpowering.