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High Court of Australia [Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] High Court of Australia You are here: AustLII >> Databases >> High Court of Australia >> 1996 >> [1996] HCA 40 [Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Help ] Wik Peoples v Queensland ("Pastoral Leases case") [1996] HCA 40; (1996) 187 CLR 1; (1996) 141 ALR 129; (1996) 71 ALJR 173 (23 December 1996) HIGH COURT OF AUSTRALIA BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ ______________________ Matter No B8 of 1996 THE WIK PEOPLES APPELLANTS AND THE STATE OF QUEENSLAND & ORS RESPONDENTS Matter No B9 of 1996 THE THAYORRE PEOPLE APPELLANTS AND THE STATE OF QUEENSLAND & ORS RESPONDENTS ORDER 1. Each appeal allowed in part. 2. Set aside the answers given by Drummond J to Question 1B(b), (c) and (d) and Question 1C(b), (c) and (d). Affirm the answers given by Drummond J to Question 1C(a), Question 4 and Question 5. 3. Answer Questions 1B, 1C, 4 and 5 as follows: Question 1B " If at any material time Aboriginal title or possessory title existed in respect of the land demised under the pastoral lease in respect of the Holroyd River Holding a copy of which is attached hereto (pastoral lease): (a) [not pressed] (b) does the pastoral lease confer rights to exclusive possession on the grantee? If the answer to (a) is 'no' and the answer to (b) is 'yes': (c) does the creation of the pastoral lease that has these two characteristics confer on the grantee rights wholly inconsistent with the concurrent and continuing exercise of any rights or interests which might comprise such Aboriginal title or possessory title of the Wik Peoples and their predecessors in title which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales? (d) did the grant of the pastoral lease necessarily extinguish all incidents of Aboriginal title or possessory title of the Wik Peoples in respect of the land demised under the pastoral lease?" Answer (b) No. (c) Does not arise. (d) Strictly does not arise but is properly answered No. Question 1C " If at any material time Aboriginal title or possessory title existed in respect of the land demised under the pastoral leases in respect of the Mitchellton Pastoral Holding No 2464 and the Mitchellton Pastoral Holding No 2540 copies of which are attached hereto (Mitchellton Pastoral Leases): (a) was either of the Mitchellton Pastoral Leases subject to a reservation in favour of the Thayorre People and their predecessors in title of any rights or interests which might comprise such Aboriginal title or possessory title which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales? (b) did either of the Mitchellton Pastoral Leases confer rights to exclusive possession on the grantee? If the answer to (a) is 'no' and the answer to (b) is 'yes': (c) does the creation of the Mitchellton Pastoral Leases that had these two characteristics confer on the grantee rights wholly inconsistent with the concurrent and continuing exercise of any rights or interests which might comprise such Aboriginal title or possessory title of the Thayorre People and their predecessors in title which existed before the New South Wales Constitution Act 1855 (Imp) took effect in the Colony of New South Wales? (d) did the grant of either of the Mitchellton Pastoral Leases necessarily extinguish all incidents of Aboriginal title or possessory title of the Thayorre People in respect of the land demised under either of the Mitchellton Pastoral Leases?" Answer (a) No. (b) No. (c) Does not arise. (d) Strictly does not arise but is properly answered No. Question 4 " May any of the claims in paras 48A to 53, 54 to 58(a), 59 to 61, 61A to 64 and 65 to 68 of the further amended statement of claim [being claims of alleged breach of fiduciary duty and failure to accord natural justice] be maintained against the State of Queensland or Comalco Aluminium Limited notwithstanding the enactment of the Comalco Act, the making of the Comalco Agreement, the publication in the Queensland Government Gazette of 22 March 1958 pursuant to s 5 of the Comalco Act of the proclamation that the agreement authorised by the Comalco Act was made on 16 December 1957 and the grant of Special Bauxite Mining Lease No 1?" Answer No. Question 5 " May any of the claims in paras 112 to 116, 117 to 121, 122 to 124, 125 to 127, 128 to 132, and 141 to 143 of the further amended statement of claim [being claims of alleged breach of fiduciary duty and failure to accord natural justice] be maintained against the State of Queensland or Aluminium Pechiney Holdings Pty Ltd notwithstanding the enactment of the Aurukun Associates Agreement Act 1975, the making of the Aurukun Associates Agreement, the publication in the Queensland Government Gazette of the proclamation of the making of the agreement pursuant to the Act and the grant of Special Bauxite Mining Lease No 9?" Answer No. 4. The respondents who opposed the orders sought in relation to Question 1B(b), (c) and (d) pay the costs of the proceedings in this Court of the Wik Peoples relating to that question. 5. The respondents who opposed the orders sought in relation to Question 1C(b), (c) and (d) pay the costs of the proceedings in this Court of the Thayorre People and the Wik Peoples relating to that question. The Thayorre People pay the costs of the proceedings in this Court of the respondents relating to Question 1C(a). 6. The Wik Peoples pay the respondents' costs of the proceedings in this Court relating to Questions 4 and 5. 7. Remit the matters to the Federal Court with respect to the costs of the proceedings before Drummond J or otherwise in that Court. 23 December 1996 On appeal from the Federal Court of Australia. Representation: W Sofronoff, QC, with R W Blowes and G C Newton for the appellants in B8/96 and for the nineteenth respondents in B9/96 (instructed by Ebsworth & Ebsworth) M H Byers, QC, with J W Greenwood, QC, G E Hiley, QC and P M McDermott for the appellants in B9/96 and for the nineteenth respondents in B8/96 (instructed by Bottoms English) P A Keane, QC, Solicitor-General for the State of Queensland, with G J Gibson, QC, G J Koppenol and D A Mullins for the first and third respondents in each matter (instructed by B T Dunphy, Crown Solicitor for the State of Queensland) G Griffith, QC, Solicitor-General for the Commonwealth, with D J McGill, SC and M A Perry for the second respondent in each matter (instructed by the Australian Government Solicitor) H B Fraser, QC, with P L O'Shea and J K Bond for the fourth respondent in each matter (instructed by Blake Dawson Waldron) G A Thompson for the fifth respondent in each matter (instructed by Feez Ruthning) No appearance for the sixth respondent G M G McIntyre for the seventh respondent in each matter (instructed by S M Coates) P J Favell for the eighth respondent in each matter (instructed by Farrellys) D J S Jackson, QC, with J D McKenna for the ninth to twelfth respondents and the fourteenth to eighteenth respondents in each matter (instructed by Corrs Chambers Westgarth) S L Doyle, SC for the thirteenth respondent in each matter (instructed by Clayton Utz) Interveners: D Graham, QC, Solicitor-General for the State of Victoria, with M Sloss intervening on behalf of the Attorney-General for the State of Victoria (instructed by R C Beazley, Victorian Government Solicitor) R J Meadows, QC, Solicitor-General for the State of Western Australia, with C A Wheeler, QC and K M Pettit intervening on behalf of the Attorney-General for the State of Western Australia (instructed by P A Panegyres, Crown Solicitor for Western Australia) B M Selway, QC, Solicitor-General for the State of South Australia, with E E David intervening on behalf of the Attorney-General for the State of South Australia (instructed by M D Walter, Crown Solicitor for South Australia) D M J Bennett, QC, with R J Webb intervening on behalf of the Attorney-General for the Northern Territory (instructed by the Solicitor for the Northern Territory) J L Sher, QC, with B A Keon-Cohen intervening for the Northern Land Council and the Central Land Council (instructed by B Midena, Principal Legal Officer of the Northern Land Council) G M G McIntyre intervening on behalf of the Kimberley Land Council, the Nanga-Ngoona Moora-Joonga Association Aboriginal Corporation, the Western Desert Punturkurnuparna Aboriginal Corporation and the Ngaanyatjarra Land Council (instructed by the DCH Legal Group) R H Bartlett intervening on behalf of Ben Ward, John Toby, Jimmy Ward, Ronnie Carlton, Jeff Janama, Button Jones, Ben Barney, Dodger Carlton, Kim Aldus, Paddy Carlton, Rita Gerrard, Murphy Simon, Sheba Dignari, Joe Lissadell, Chocolate Thomas and Peter Newry on behalf of the Miriuwung and Gajerrong People (instructed by the Aboriginal Legal Service of Western Australia) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS The Wik Peoples v The State of Queensland & Ors The Thayorre People v The State of Queensland & Ors Aborigines - Native Title- Grant of pastoral leases pursuant to Land Act 1910 (Q) and Land Act 1962 (Q) - History of pastoral tenures and disposal of Crown land considered - Whether leases conferred rights to exclusive possession - Application of principles of statutory construction - Whether legislative intention to confer possession to exclusion of holders of native title rights - Rights and obligations of pastoral lessees determined by reference to the language of the statute authorising the grant and terms of the grant - Grant for "pastoral purposes only" - Whether grant of pastoral lease necessarily extinguished all incidents of Aboriginal title - Whether clear and plain intention to extinguish exists - Inconsistency of native title rights and rights conferred on pastoral lessees - Whether grant or exercise of the rights may operate to extinguish - Whether reversion to the Crown - Whether reversion inconsistent with continued existence of native title rights - Effect of non-entry into possession of lease.
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