FEDERAL COURT OF AUSTRALIA

[2000] FCA 394

MICHAEL ANDERSON ON BEHALF OF THE EUAHLAY-I DIXON CLAN

DOUGLAS WILSON

EXPLANATORY STATEMENT

1 The Judges in this case (Chief Justice Black, Justice Beaumont and Justice Sackville) have prepared the following explanatory statement to assist in understanding the essential nature of the proceeding in which judgment is delivered today and their reasons for judgment.

2 The matter before the Court for judgment arises out of an application by Michael Anderson on behalf of the Euahlay-I Dixon Clan for a determination of native title in respect of land in the Western Division of New South Wales. The land is in the far north of the State, approximately thirty kilometres south of the Queensland border. The nearest towns are Lightning Ridge and Collarenebri. The land over which the native title claim has been made (“the land”) is held by Douglas Wilson as lessee under a Western Lands Lease, granted under the Western Lands Act 1901 (NSW) in March 1955 and transferred to Mr Wilson in 1984.

3 The claim for the determination of native title has not yet been heard by the Court. Counsel for Mr Wilson have contended, however, that native title cannot exist over the land because the effect of the Western Lands Act 1901, the regulations made under the Act, and/or the terms of Mr Wilson’s lease itself, is to extinguish or suspend any native title rights which involve presence on the land by the holders of any native title.

4 Because it was contended that the existence of Mr Wilson’s lease provides a complete answer to the native title claim, the Court agreed to hear and determine three separate questions about whether the Western Lands Act, the regulations under that Act, and/or Mr Wilson’s lease, did extinguish any native title rights that might otherwise exist in respect of the land.

5 The precise questions before the Court, which are answered in the judgments being delivered today, are set out in paragraph 2 of the joint judgment of the Chief Justice and Justice Sackville and in paragraph 2 of the separate judgment of Justice Beaumont.

6 The joint judgment and the separate judgment of Justice Beaumont examine the history and content of the Western Lands Act and of Mr Wilson’s lease. They also examine the decisions of the High Court of Australia, particularly The Wik Peoples v The State of Queensland (1996) 187 CLR 1, and relevant decisions of the Federal Court of Australia.

7 In Wik, the High Court considered the meaning and operation of Crown lands legislation of the State of Queensland. Counsel for Mr Wilson contended that the Queensland statutes differed from the Western Lands Act in material respects, so that, it was said, the reasoning of the Wik majority ought to be distinguished and not followed here. The Court has not accepted this submission.

8 The questions before the Court and the answers given are as follows:

Question (a)

“(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?”

Answers

The Chief Justice and Justice Sackville find it unnecessary to answer question (a).

Justice Beaumont also considers that it is not necessary to answer question (a).

Question (b)

“(b) If the answer to the 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?”

Answers

The Chief Justice and Justice Sackville find it unnecessary to answer question (b).

Justice Beaumont would answer question (b) as follows:

“The Lease confers upon the lessee a right to possession of the leased land. This right is subject to certain exceptions and reservations that are not presently material. It is not appropriate to answer this question further at this stage of the principal proceedings.”

Question (c)

“(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?”

Answers

The Chief Justice and Justice Sackville consider that question (c) should be answered as follows:

“Strictly unnecessary to answer, but on the materials presently before the Court, it cannot be said that any native title rights, the exercise of which involve a presence on the Leased Land by the holders of the native title, were extinguished by the grant of the Lease or suspended upon the grant of the Lease for the duration of the Lease.”

Justice Beaumont would answer question (c) as follows:

“The grant of the Lease extinguished such incidents of native title (as may be held to exist), as were inconsistent with the rights conferred by the Lease upon the lessee. It is not appropriate to answer this question further at this stage of the principal proceedings.”

9 In these circumstances, the questions will be answered by the Court in accordance with the opinions of the majority, but although the Judges differ in the answers they would give, they all follow the majority opinions of the High Court of Australia in Wik.

10 In the opinion of the Chief Justice and Justice Sackville (see para 75 of their joint judgment):

· The critical question for present purposes (see para 75 of the joint judgment) is not whether, as an abstract proposition, Mr Wilson’s lease confers “exclusive possession” of the land. It is whether the rights conferred upon him as lessee are inconsistent with any and all of the rights and interests which together make up such native title rights as may exist over the land. The reason why, in the case of Fejo v Northern Territory (1998) 195 CLR 96, native title was held to have been extinguished by the grant of a freehold estate, was that the holder of the freehold estate was able to “use the land as he or she saw fit and to exclude any and everyone from access to the land” and so the grant of freehold was inconsistent with the existence of any rights of native title over the land. (This is the position with respect to freehold land everywhere in Australia; none of it is subject to native title.)

· In the present case, the terms of the lease make it impossible to conclude that there can be no native title rights that are capable of being exercised consistently with the rights of Mr Wilson as defined (and limited) by his lease (see para 135 of the joint judgment).

· Thus, in order for Mr Wilson to succeed in having the questions and in particular question (c)(i), answered in his favour, he would have to show that the rights granted under his lease are necessarily inconsistent with all native title rights that may be held to exist over or in relation to the land. This has not been shown, and so it will be necessary for evidence to be taken to ascertain the nature and content of the native title rights (if any) that existed immediately prior to the grant of the lease in 1955 (see para 136 of the joint judgment).

· The appropriate legal test for inconsistency will then have to be applied to determine whether any such rights have survived the grant of the lease.

· The appropriate course to adopt in answering the separate questions in the present case is the approach taken by the Wik majority in answering the similar questions asked in that case.

11 Justice Beaumont is essentially of the same opinion, but places a different emphasis upon some matters. Accordingly, Justice Beaumont would prefer to answer the questions in accordance with the postscript written on behalf of the Wik majority for the purpose of illuminating their answers to those hypothetical questions (see para 129 of his reasons).

12 This explanatory statement is intended to assist in understanding, but it does not take the place of the Judges’ reasons for judgment, which are the only authoritative statement of the Court’s reasons. Those reasons, which are necessarily lengthy, will be available to the parties at the time judgment is delivered and will be available to the public generally shortly afterwards via the Federal Court’s homepage at www.fedcourt.gov.au.

Federal Court of Australia

Sydney

5 April 2000

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