Anderson v Wilson

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,Gummow,Hayne JJ,McHugh J,Kirby J,Callinan J
• Judgment Date: 08 August 2002
• Neutral Citation: 2002-0808 HCA F,[2002] HCA 29
• Court: High Court
• Docket Number: S101/2000
• Date: 08 August 2002

Douglas Wilson

Applicant

and

Michael Anderson & Ors

Respondents

[2002] HCA 29

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S101/2000

HIGH COURT OF AUSTRALIA

Wilson v Anderson

Aboriginals — 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 over leased land — 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 a ‘previous exclusive possession act’ under Native Title Act 1993 (Cth), s 23B.

Property — Real property — ‘Lease in perpetuity’ — Operation of Real Property Act 1900 (NSW) in respect of perpetual leases — Historical development of statutory ‘lease in perpetuity’ and other species of perpetual tenure as substitutes for Crown grant of determinable fee simple — Whether imposition of conditions and tenurial incidents on grantee of ‘lease in perpetuity’ denied to grantee right of exclusive possession.

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

Words and phrases — ‘previous exclusive possession act’, ‘lease’.

Native Title Act 1993 (Cth), ss 23B, 23E, 242(1), 248A.

Racial Discrimination Act 1975 (Cth).

Crown Lands Act 1884 (NSW).

Real Property Act 1900 (NSW).

Western Lands Act 1901 (NSW), ss 18, 23, Sched A.

Crown Lands Consolidation Act 1913 (NSW).

Native Title (New South Wales) Act 1994 (NSW), s 20.

Representation:

D F Jackson QC with J M C Emmerig for the applicant (instructed by Blake Dawson Waldron)

C J Birch SC with J J T Loofs for the first respondent (instructed by Craddock Murray Neumann)

V B Hughston with S B Lloyd for the second respondent (instructed by Crown Solicitor for New South Wales)

J Basten QC with R W Blowes for the third respondent (instructed by Chalk & Fitzgerald)

Intervener:

T I Pauling QC, Solicitor-General for the Northern Territory with R J Webb intervening on behalf of the Attorney-General for the Northern Territory (instructed by Solicitor for the Northern Territory)

ORDER

1. Special leave to appeal granted and the appeal treated as instituted and heard instanter.

2. Order 1 of the orders made by the Full Court of the Federal Court on 5 April 2000 is set aside and in its place order that the questions for separate decision be answered as follows:

Question (a):

By virtue only of

i. the Western Lands Act 1901 (NSW); and

ii. the regulations thereunder, as in force at the time of the grant of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

Question (b):

If the answer to question (a) is ‘No’, by virtue of

i. the Western Lands Act 1901 (NSW);

ii. the regulations thereunder, as in force at the time of the grant of the Lease; and

iii. one or more of the terms and conditions of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

Answer to questions (a) and (b)

Save to say that the Lease conferred upon the lessee a right of exclusive possession over the land, the subject of the Lease, as the expression ‘a right of exclusive possession over … land’ is used in s 23B(2)(c)(viii) and s 248A of the Native Title Act 1993 (Cth), it is inappropriate to answer questions (a) and (b).

Question (c)

If the answer to question (a) or question (b) is ‘Yes’, were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

i. extinguished by the grant of the Lease; or alternatively

ii. suspended upon the grant of the Lease for the duration of the Lease?

Answer

Save to say that by operation of ss 23B and 23E of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW), the grant of the Lease extinguished any native title in relation to the land covered by the Lease and the extinguishment is to be taken to have happened when the Lease was granted, it is inappropriate to answer this question.

3. Otherwise the appeal is dismissed.

4. First respondent to pay the appellant's costs of the appeal in this Court.

1 Gleeson CJ. This is an application for special leave to appeal from a decision of the Full Court of the Federal Court 1. On the hearing of the application there was full argument on the merits of the proposed appeal.

2 The central issue is whether native title rights and interests claimed in respect of land in the Western Division of New South Wales, assuming they otherwise existed, were extinguished in consequence of the grant in 1955 (with effect from 31 August 1953) of a lease in perpetuity pursuant to s 23 of the Western Lands Act 1901 (NSW) (‘the Western Lands Act’).

3 The nature of the proceedings, the facts, and the relevant statutory provisions are set out in the joint judgment of Gaudron, Gummow and Hayne JJ (‘the joint judgment’). For the reasons there explained, the question to be addressed is whether the lease conferred upon the lessee a right of exclusive possession over the subject land, within the meaning of s 23B(2)(viii) and s 248A of the Native Title Act 1993 (Cth) (‘the NTA’). If it did, then by operation of ss 23B and 23E of the NTA and s 20 of the Native Title (New South Wales) Act 1994 (NSW), the grant of the lease was a ‘previous exclusive possession act’, it extinguished native title in relation to the subject land, and the extinguishment is taken to have happened when the act was done. I would answer the question in the affirmative.

4 The legislation governing the case was enacted, and amended, in response to decisions of this Court, notably Mabo v Queensland [No 2]2 and Wik Peoples v Queensland3. In Wik, Brennan CJ explained the principles as to extinguishment that were stated in Mabo [No 2], and taken up in legislation. He said (omitting references) 4:

‘As I held in Mabo [No 2], native title “has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory”. Those rights, although ascertained by reference to traditional laws and customs are enforceable as common law rights. That is what is meant when it is said that native title is recognised by the common law. Unless traditional law or custom so requires, native title does not require any conduct on the part of any person to complete it, nor does it depend for its existence on any legislative, executive or judicial declaration. The strength of native

title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it. Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.

A law or executive act which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect “unless there be a clear and plain intention to do so”. Such an intention is not to be collected by inquiry into the state of mind of the legislators or of the executive officer but from the words of the relevant law or from the nature of the executive act and of the power supporting it. The test of intention to extinguish is an objective test.

A law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title.’

5 In the majority judgment in Western Australia v Ward5 there is a discussion, consistent with what Brennan CJ said in Wik, of the subject of ‘clear and plain intention’.

6 Where, as in the present case, the Court is considering an argument as to whether there has been extinguishment by reason of the second of the three kinds of law or act referred to by Brennan CJ then, as his Honour said, and as was repeated by the majority in Ward, no question arises as to whether, at the time of the act said to extinguish native title, there was any specific intention to extinguish such title, or even as to whether anyone adverted to the existence of native title. In such a case, the test is one of inconsistency. If it is satisfied, the extinguishment results from the inconsistency, not from the existence of a purpose of abrogating native title rights or interests.

7 That is not to say that matters of intention are irrelevant. A decision as to whether an act, such as the grant of an estate in land, creates rights inconsistent

with native title rights and interests, may turn upon a question of construction of an instrument, or of a statute pursuant to which an instrument was made. Questions of construction and interpretation are bound up...