Federal Court of Australia

Metropolitan Local Aboriginal Land Council v Attorney General of New South Wales [2025] FCA 1183

ORDERS

THE COURT DETERMINES AND DECLARES THAT:

1.    Native title does not exist in relation to the area of land and waters in the State of New South Wales comprised in and known as Lot 1205 in Deposited Plan 752067.

THE COURT ORDERS THAT:

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCDONALD J

Introduction

1    By its non-claimant application dated 10 November 2023, the applicant, the Metropolitan Local Aboriginal Land Council (Metropolitan LALC) seeks a determination pursuant to s 61(1) of the Native Title Act 1993 (Cth) (NT Act) that native title does not exist in relation to a single parcel of land comprised in and known as Lot 1205 in Deposited Plan 752067 (Land). The Land is approximately 0.51 hectares in area and is located at Waverton, in the Parish of Willoughby, County of Cumberland, in the North Sydney local government area. It was formerly the site of the Waverton Bowling Club.

2    Metropolitan LALC, a Local Aboriginal Land Council incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act), holds a non-native title interest in relation to the whole of the Land. By operation of ss 36(9) and 42 of the ALR Act, Metropolitan LALC is prevented from dealing with the Land unless and until the Court makes a determination that no native title exists in relation to it. Metropolitan LALC contends that native title in respect of the Land has been extinguished, and relies on three historical events which are said to have had that effect.

3    The first respondent (Attorney-General) is a party pursuant to s 84(4) of the NT Act in his capacity as the “State Minister” for New South Wales, as defined in s 253 of the NT Act. On 30 April 2025, the Attorney-General filed a notice under s 86G of the NT Act, by which he indicated that he does not oppose the orders sought by Metropolitan LALC, on the basis that he accepts that native title in respect of the Land has been extinguished by operation of s 3 of the David Berry Hospital Act 1906 (NSW) (DBH Act).

4    On 8 February 2024, the second respondent (NTSCORP) filed a notice of intention to become a party to the proceedings. On 14 May 2024, a registrar of the Court made orders pursuant to s 84 of the NT Act, joining NTSCORP as a respondent to the proceedings. NTSCORP opposes the orders sought by Metropolitan LALC and contends that the Court should not be satisfied that native title does not exist in relation to the Land.

5    For the reasons that follow, I am satisfied that the requirements of the NT Act have been met and that a determination should be made in the terms sought by Metropolitan LALC on the basis that any native title in respect of the Land has been extinguished.

Statutory framework

6    Section 13(1) of the NT Act provides that an application may be made to this Court under Part 3 of the Act for a determination of native title in relation to an area for which there is no approved determination of native title. By s 225 of the NT Act, a determination of native title relevantly means “a determination whether or not native title exists in relation to a particular area”. Pursuant to s 81 of the NT Act, the Court has jurisdiction to hear and determine applications “that relate to native title”.

7    Section 36 of the ALR Act deals with “Claims to Crown lands”. A Local Aboriginal Land Council may make a claim for land within its area provided the claim is in writing, specifies the lands in respect of which it is made, and is lodged with the Registrar appointed under the ALR Act, who must (subject to certain irrelevant exceptions) refer the claim to the relevant Crown Lands Minister: ALR Act, s 36(3) and (4). A Crown Lands Minister to whom a claim is referred must (subject to certain exceptions) grant a claim if the subject of the claim is “claimable Crown lands” (defined in s 36(1)), and must refuse a claim if the subject of the claim is “not claimable Crown lands”.

8    Section 36(9) and (9A) of the ALR Act provide as follows:

(9)    Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.

(9A)    Where the transfer of lands to an Aboriginal Land Council under this section is of land to which the Western Lands Act 1901 applies but which is not within an area determined by the Minister administering that Act as being the urban area of a city, town or village, the transfer shall be effected by the granting to the Council of a lease in perpetuity under that Act but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.

9    Section 42 of the ALR Act restricts an Aboriginal Land Council from dealing “with land vested in it subject to native title rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the [NT Act])”. Section 40(1) defines “deal with land” as follows:

(a)    sell, exchange, lease, mortgage, dispose of, or otherwise create or pass a legal or equitable interest in, land, or

(b)    grant an easement or covenant over land or release an easement or covenant benefiting land, or

(c)    enter into a biobanking agreement relating to land under the Threatened Species Conservation Act 1995 or a conservation agreement under the [National Parks and Wildlife Act 1972], or

(d)    enter into a wilderness protection agreement relating to land under the Wilderness Act 1987, or

(e)    enter into a property vegetation plan under the Native Vegetation Act 2003, or

(f)    subdivide or consolidate land so as to affect, or consent to a plan of subdivision or consolidation of land that affects, the interests of an Aboriginal Land Council in that land, or

(g)    make a development application in relation to land, or

(h)    any other action (including executing an instrument) relating to land that is prescribed by the regulations.

10    Division 2B of Part 2 of the NT Act confirms the past extinguishment of Native Title by an act that comes within the definition of “previous exclusive possession act” (PEPA). So far as it is relevant to the Land, s 23B(2) of the NT Act provides that an act is a PEPA if it is valid, took place on or before 23 December 1996, and consisted of the grant or vesting of a freehold estate, Scheduled interest or lease. Section 23E of the NT Act effectively provides that PEPAs which are attributable to a State or Territory may be confirmed by legislation of that State or Territory. In respect of acts attributable to New South Wales, s 20(1) of the Native Title (New South Wales) Act 1994 (NSW) confirms that the effect of a PEPA attributable to New South Wales is to extinguish any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned.

Notification Requirements

11    Section 66 of the NT Act sets out the formal requirements for giving notice of native title applications. There is no dispute among the parties that those formal requirements for making the determination sought by Metropolitan LALC have been satisfied. Evidence of compliance with the notice requirements was set out in an affidavit of the solicitor for Metropolitan LALC, Louise Mallon, sworn on 30 September 2024. On the basis of that affidavit, I am satisfied that the formal notification requirements have been addressed.

Legal principles applicable to non-claimant applications

12    In Deerubbin Aboriginal Land Council v Attorney-General (NSW) [2017] FCA 1067 (Deerubbin), Griffiths J set out (at [48]) two bases upon which it can be established that native title does not exist in relation to land the subject of a non-claimant application, namely that:

(a)    native title does not presently exist because it is not claimed by or cannot be proved by a native title claimant (eg Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW [2011] FCA 383 per Perram J); [or]

(b)    native title has been extinguished by prior acts of the Crown (eg Gandangara Local Aboriginal Land Council v A-G (NSW) [2013] FCA 646 per Griffiths J; Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as State Minister pursuant to the Native Title Act 1993 (Cth)) [2012] FCA 792 per Perram J at [44]).

13    The approach taken by the Court in proceedings similar to these demonstrates that it is unnecessary to consider whether native title exists in circumstances where an applicant can establish that native title has been extinguished: see, eg, Leeton and District Local Aboriginal Land Council v Attorney-General (NSW) [2021] FCA 356 at [9]; Griffith Local Aboriginal Land Council v Attorney-General (NSW) [2020] FCA 1501 at [44].

14    The relevant question for the Court in determining a non-claimant application, whether contested or unopposed, is whether Metropolitan LALC has “discharged its burden of proof that no native title exists in the claim area”: Mace v Queensland (2019) 274 FCR 41; [2019] FCAFC 233 (Mace) at 50 [44], 51 [54] (Jagot, Griffiths and Mortimer JJ).

15    In its reasons for judgment, the Full Court in Mace said (at 50 [47]-[49]) that the “clearly established approach” set out in the relevant authorities is as follows:

The overriding proposition, emphasised by the Full Court in Worimi [Local Aboriginal Land Council v Minister for Lands (NSW) (No 2) (2008) 181 FCR 300; [2008] FCA 1929] at [58], is that each case must be assessed on its own particular facts.

The Court’s assessment will depend on those particular facts, on the nature of the land and the tenure involved, on the presence or absence of any present or previous native title claims and the nature and content of those claims, and on any particular evidence adduced on behalf of an applicant, and on behalf of any respondents.

In some cases, and at one end of the evidentiary scale, as the Full Court in Worimi observed at [58] and [59], there may be no need to go beyond proof of an extinguishing grant of freehold title.

16    In the present case, while Metropolitan LALC did suggest in the course of argument that it may well be that native title did not exist in respect of the Land because it had not been claimed or could not be proved by any actual or potential native title claimants, it did not seek the determination that native title did not exist on that basis. Rather, the application was advanced on the basis that, even assuming that native title in respect of the land might otherwise exist, it had been extinguished as a consequence of historical events.

History of the Land

17    It is convenient at this point to set out a general description of the dealings (or purported dealings) with the Land since the British acquisition of sovereignty over New South Wales in 1788, noting the events which Metropolitan LALC submits resulted in the extinguishment of native title and the positions of the parties in respect of those events. The following is drawn principally from historical title records and the written submissions of the parties.

18    On 30 June 1825, a grant of 524 acres of land in North Sydney, which included the Land, was made to Edward Wollstonecraft in fee simple (1825 grant). Earlier, a deed dated 30 June 1823, which would have granted the same land to Mr Wollstonecraft, was drawn up, but does not appear to have been executed or witnessed (1823 unexecuted deed). Metropolitan LALC does not rely on the 1823 unexecuted deed as having effected a grant to Mr Wollstonecraft.

19    There is no dispute between the parties that, if the 1825 grant was valid, then it was a grant of fee simple, was inconsistent with the continued existence of native title with respect to the Land, and was effective to distinguish native title. However, both the Attorney-General and NTSCORP submit that the Court cannot be satisfied that the 1825 grant was valid. As was explained by Burley J in Dungog Shire Council v Attorney-General (NSW) [2024] FCA 166 (Dungog) at [85]-[86], the power conferred on Governor Brisbane to make grants of land was subject to a requirement of royal approbation in the case of grants exceeding 100 acres. The 1825 grant was one to which the approbation requirement applied. The 1823 unexecuted deed was expressed to be subject to approbation, but the 1825 grant made no reference to approbation. No record has been found which confirms that royal approbation of the 1825 grant occurred. The issue joined between the parties is whether it should be inferred (or presumed) in all the circumstances that approbation was given. A similar issue was considered in the context of a different grant in Dungog, and in that case Burley J held (at [169]-[240]) that he was not satisfied that approbation had been given to the grant. Given the conclusion I have reached about the effect of s 3 of the DBH Act, it will not be necessary to resolve this issue.

20    There were various old system dealings with the land that was the subject of the 1825 grant to Mr Wollstonecraft. On 16 August 1872, part of the land originally granted to Mr Wollstonecraft, including an area identified as “Block I”, which incorporated the Land, was registered in fee simple to Alexander Berry, as Torrens title land under the Real Property Act 1862 (NSW) (1862 RPA) (Certificate of Title Vol 144 Fol 103).

21    It may be arguable that the registration of Alexander Berry’s estate in fee simple, and each subsequent registration of a fee simple estate under the 1862 RPA and, later, the Real Property Act 1900 (NSW) (1900 RPA), conferred on the registered proprietor an indefeasible title in fee simple, and that this extinguished certain native title rights and interests. This view would seem consistent with the central tenet of the Torrens system, namely that “[t]he title of the registered proprietor comes from the fact of registration”: see Peldan v Anderson (2006) 227 CLR 471; [2006] HCA 48 at 480 [20]; Breskvar v Wall (1971) 126 CLR 376. There is, however, some authority to the contrary: Hayes v Northern Territory (1999) 97 FCR 32; [1999] FCA 1248 at 89-90 [111(iv)]; Daniel v Western Australia [2003] FCA 666 at [883]-[884]; Allen v Western Australia (Nyamal Palyku Proceeding) (No 2) [2020] FCA 788 at [131]; see also Jango v Northern Territory (2006) 152 FCR 150; [2006] FCA 318 at 331-2 [701]-[705]. It was also suggested in argument that some native title rights and interests might fall within the exception to indefeasibility provided for in s 40 of the 1862 RPA and s 42 of the 1900 RPA (each of which, at the relevant points in time, referred to “the omission … of any right-of-way or other easement … existing upon any land”). If that were so, then the registration of a fee simple estate on the title may not have extinguished all native title rights and interests. Interesting though these issues are, it will not be necessary to consider them further in these reasons for judgment.

22    Upon the death of Alexander Berry, Block I was transferred to David Berry, who became the new registered proprietor. On 23 September 1889, David Berry died and on 6 October 1897, a new title which included the land in Block I was created and was registered in fee simple in the names of the trustees to David Berry’s estate (Certificate of Title Vol 1232 Fol 74).

23    On 13 August 1903, the trustees of David Berry’s estate set aside some of the lands of the estate, including Block I, to service the David Berry Hospital trust. On 23 March 1904, the land in Certificate of Title Vol 1232 Fol 74, including Block I, was registered in the names of the then trustees, Alexander Hay, Philip Horton and Dr Sinclair Gillies in Certificate of Title Vol 1524 Fol 244.

24    On 28 December 1906, the DBH Act was enacted. Metropolitan LALC and the Attorney-General contend that the effect of s 3 of the DBH Act was to vest an estate in fee simple in the Crown, and that that was effective to extinguish any subsisting native title rights or interests in respect of the land. NTSCORP contends that the DBH Act should not be understood to have vested a fee simple estate. On 8 March 1907, an entry was made in the register to reflect the transfer of the land in Certificate of Title Vol 1524 Fol 244 to “his Majesty King Edward the seventh” by operation of the DBH Act.

25    The legal effect of the DBH Act is addressed at [33]-[73] below.

26    On 30 July 1925, pursuant to the surrender of the land in Certificate of Title Vol 1524 Fol 244, Certificate of Title Vol 3757 Fol 174 was issued in the name of King George V. On 20 November 1928, Certificate of Title Vol 4218 Fol 5 was issued in the name of King George V. It included the land in Certificate of Title Vol 3757 Fol 174, including Block I, and also incorporated other land transferred to the Crown by the Sydney Harbour Trust Commissioners.

27    On 12 November 1943, some of the land in Certificate of Title Vol 4218 Fol 5, including the Land, was excised from the title and dedicated for the public purpose of recreation. On 15 September 1967, that dedication was revoked in relation to some of the dedicated land, including the Land.

28    On 16 September 1967, the Minister for Land granted a special lease over the Land, Special Lease 1961-110 Metropolitan, to the trustees of the Waverton Bowling and Recreation Club for the purpose of “[r]ecreation and erection of buildings (clubhouse)”. The grant of the special lease was notified in the New South Wales Government Gazette on 13 October 1967. The Minister relied on powers conferred on him by the Crown Lands (Consolidation) Act 1913 (NSW) (CLC Act) as the basis for granting the special lease. Certain special leases under the CLC Act are Scheduled interests for the purposes of Division 2B of Part 2 of the NT Act. I do not understand NTSCORP to dispute that the special lease in respect of the Land, if it was valid, was a Scheduled interest.

29    Metropolitan LALC contends that the grant of the special lease was authorised by the CLC Act, that the special lease was therefore valid, and that it therefore extinguished any then-subsisting native title rights and interests in respect of the land. The Attorney-General and NTSCORP submit that there is doubt as to whether the special lease was valid, because s 4 of the DBH Act could be construed as impliedly limiting the exercise of powers under Crown Lands legislation in respect of the Land. Given the conclusion I have reached about the effect of s 3 of the DBH Act, it will not be necessary to resolve these issues.

30    On 30 April 2020 and 6 November 2020, the NSWALC lodged Aboriginal land claims over the Land pursuant to the ALR Act. On 23 November 2020, a delegate of the State Minister refused both claims. NSWALC appealed against the delegate’s refusal to the Land and Environment Court of New South Wales. On 3 November 2022, Duggan J found that the Land was claimable Crown Land within the meaning of s 36 of the ALR Act, allowed the appeal and ordered that the Land be transferred to Metropolitan LALC in fee simple: New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Waverton Bowling Club [2022] NSWLEC 130 at [78]-[79].

Has native title in respect of the Land been extinguished?

31    Metropolitan LALC asserts that there are three historical events, each of which is sufficient to satisfy the Court, on the balance of probabilities, that native title in the Land has been extinguished. The first such event is the 1825 grant of the freehold title in the Land to Mr Wollstonecraft. The second is the transfer of the Land to the Crown under the DBH Act in 1907. The third is the grant of a special lease over the Land in 1967.

32    I will deal first with the DBH Act. For the reasons that follow, I am satisfied that Metropolitan LALC has discharged its burden of proving that the operation of s 3 of the DBH Act extinguished native title in the Land, on the assumption that native title was not already extinguished by the 1825 grant. In light of this conclusion, it is not necessary to form a concluded view on the more complex issues of whether native title in respect of the Land was extinguished by the 1825 grant or the grant of the special lease in 1967.

Transfer of the Land to the Crown under the DBH Act

Introduction

33    Metropolitan LALC and the Attorney-General contend that, by operation of s 3 of the DBH Act, on 8 March 1907, a freehold estate in the Land (that is, in substance, an estate equivalent to an estate in fee simple) was vested in the Crown. They contend that any native title rights or interests then existing were thereby extinguished. NTSCORP submits that the DBH Act should not be construed as vesting in the Crown an estate in the nature of a fee simple.

34    It is clear that native title is extinguished by a grant of an estate in fee simple “because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title”: Fejo v Northern Territory of Australia (1998) 195 CLR 96; [1998] HCA 58 (Fejo) at 126 [43]. As Deane and Gaudron JJ said in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 110, in a passage that was quoted in Fejo at 127 [44]:

The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession.

35    In Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 (Ward) at 134 [204], Gleeson CJ, Gaudron, Gummow and Hayne JJ confirmed that, subject to any issue concerning the operation of the Racial Discrimination Act 1975 (Cth), “vesting an estate in fee simple in the Crown would … extinguish any native title over the land”.

36    The issue for the determination of the Court is whether s 3 of the DBH Act should be construed as having the effect that an unqualified inconsistent estate in the Land was vested in the Crown. As the facts in Fejo demonstrate, the fact that the expression “fee simple” is not used is not conclusive as to whether an estate of that kind has been granted or vested; it is the legal effect of the legislation that matters.

Relevant provisions of the DBH Act

37    The DBH Act remains in force. However, the operative effect of its most relevant provision, s 3, occurred in 1907, and it is convenient to refer to the DBH Act in the past tense. I note that what appear as the section headings in the modern publication of the DBH Act were originally presented as marginal notes.

38    Section 3 provided as follows:

Vesting of lands.

3 Lands in Schedules vested in Crown

The lands described in the Schedules to this Act are vested in His Majesty, free from all estates and interests, and from all trusts, conditions, reservations, dedications, and easements affecting the same, and are divested from any other person having any right, title, or interest to or in the same.

The hospital trustees, the trustees of the will, and all persons claiming through or under them, shall, at the request of the Colonial Treasurer, execute all conveyances, transfers, and assurances, and do all things necessary to convey, transfer, and assure the said lands to His Majesty. The costs of such conveyances, transfers, and assurances shall be borne by the Crown.

39    The language seen in s 3 of the DBH Act was not a standard form of expression that was in common use in legislation around the time of its enactment. Section 3 appears to have been the only legislative provision which employed the expression “free … from all trusts, conditions, reservations, dedications, and easements affecting” or the expression “divested from any other person having any right, title, or interest to or in”.

40    The Land was Torrens title land under the 1900 RPA. Accordingly, the second paragraph of s 3 of the DBH Act required the trustees (who were in possession of the Land at the time of the enactment of the DBH Act) to do what was necessary to ensure that the register reflected the operation of s 3. The operation of s 3 was ultimately reflected by the registration, on 26 March 1907, of a transfer of 524 acres of land (which included the Land) to the Crown. The relevant entry in the register refers to a “transfer” dated 8 March 1907 from the three former proprietors (the trustees) to “his Majesty King Edward the seventh”.

41    Section 4 of the DBH Act provided as follows:

How lands may be dealt with.

4 Manner in which lands may be dealt with

(1)    The said lands, or any part thereof, may be dealt with as follows: —

(a)    The land described in Schedule One may be used as the site for the David Berry hospital, or may be dealt with under the next succeeding paragraph.

(b)    The residue of the lands described in the Schedules to this Act not so used may be reserved or dedicated for public purposes, including wharves, railways, recreation reserves, and public roads and places, or may be vested in the Sydney Harbour Trust Commissioners, and for such purposes, and for purposes relating thereto, shall be deemed to be Crown lands within the meaning of the Crown Lands Acts.

(c)    Any part thereof not required for any such purpose as aforesaid may be sold by the Governor by public auction or private contract on such conditions as he thinks fit.

(d)    Any part thereof may be leased by the Governor for such term and subject to such conditions as he thinks fit.

(2)    The proceeds and revenues of such lands shall be paid into the Treasury, and shall form part of the Consolidated Revenue Fund.

42    The Land was not among the lands identified in Schedule One to the DBH Act, which were lands situated in the municipal district of Berry. Section 4(1)(a) therefore had no application to the Land. It was, rather, among the lands identified in Schedule Two, situated in North Sydney. So, in accordance with s 4(1)(b), (c) and (d), the Land could lawfully be:

(a)    reserved or dedicated for public purposes or vested in the Sydney Harbor Trust Commissioners;

(b)    sold by the Governor by public auction or private contract on such conditions as the Governor thought fit; or

(c)    leased by the Governor for such term and subject to such conditions as the Governor thought fit.

43    The long title and the following part of the preamble to the DBH Act are also potentially relevant:

An Act to vest in the Crown certain lands held in trust for the erection and endowment of a hospital under the will of the late David Berry and certain other lands …

And whereas it is not necessary … that the whole of the said legacy and the endowments … should be devoted exclusively to the purposes of erecting and endowing a hospital …, and it is expedient and will be in furtherance of the objects of the testator, and for the advantage of those intended to be benefited thereby, that the lands so set apart and appropriated in satisfaction of the said legacy should be vested in the Crown on just terms, and that the trusts relating to the said hospital should be administered by the Governor, with the advice of the Executive Council, with such modifications and variations of the original objects of the testator as are hereinafter provided for …

44    Section 6 of the DBH Act provided that the Governor was to construct and fit out a hospital for non-infectious diseases on the site described in Schedule One, or on some other suitable site, and in the meantime was to maintain the then existing temporary hospital at Berry.

45    Section 7 of the DBH Act stated:

7 Application of amount charged

After providing out of the amount so charged for the outlay incurred in pursuance of the preceding section, the Governor shall apply the net revenue derived from the lands described in Schedules One and Two hereto, or the residue thereof, in the maintenance of the hospital, and subject thereto in or towards the establishing, maintenance, and repair, in the district of Berry, of technical and agricultural colleges and other institutions for the promotion of agricultural and veterinary science: Provided that the total amount to be expended under this subsection upon the hospital and other institutions shall not exceed three and a half per centum per annum on the said value of the land described in Schedule Two.

46    The relationship between s 4(1), which contemplated the “residue of the lands” (that is, lands not used for the hospital) being used for public purposes or being sold or leased, and s 7, which required that “the net revenue derived from the lands” (up to 3.5% of the value of the land described in Schedule Two) be applied in the manner described, is far from clear. One possible view is that s 4 empowered the Governor to use the lands for any public purpose, or to sell or lease it, and not necessarily to pursue the purpose of raising revenue for the hospital, but that any revenue that was derived from the lands (up to the 3.5% cap) was required to be applied to the maintenance of the hospital or the other purposes described in s 7. It is not necessary to decide whether that is right.

Construction and operation of s 3 of the DBH Act

47    Metropolitan LALC and the Attorney-General submit that the language of s 3 of the DBH Act, and in particular the expressions “vested in his Majesty, free from all estates and interests” and “divested from any other person having any right, title, or interest”, indicates that the rights being transferred to the Crown amount to unqualified title, free from any other interest in the Land. They submit that s 3 had the effect of granting a fee simple estate and therefore wholly extinguishing native title in the Land.

48    In Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ drew a distinction between the resumption by the Crown of radical title with respect to land and the vesting of an estate in the land. Resumption would “not give the Crown any larger title to the land than the radical title acquired at sovereignty”, and did not mean “that the Crown acquired all right and title to the land” so as to extinguish native title (at 134-5 [208]). The distinction is perhaps most clearly drawn in the following passage (at 115 [151]):

Just as the change in sovereignty at settlement worked no extinguishment of native title, the bare fact that there is statutory authority for the executive to deal with the land in a way which would, on the occurrence of that dealing, create rights inconsistent with the continued existence of native title rights will not suffice to extinguish native title. … Yet there may be cases where the executive, pursuant to statutory authority, takes full title or plenum dominium to land and it is clear that this would extinguish native title. Likewise, it may be that the assertion or exercise of some rights in relation to land which fall short of the taking of full title to it, may have some relevant effect on native title rights and interests.

(Emphasis added.)

49    However, it should be noted that the language of “resumption” was also, at least sometimes, historically used to describe the acquisition by the Crown of a fee simple estate in land from a private owner; the use of the word “resumption” was not limited to the mere restoration of the Crown’s radical title. Hence, for example, the term “resumption” was used to describe the effect of s 18 of the Public Works Act 1902 (WA), the operation of which was held, in Ward at 133-4 [204], to extinguish native title.

50    Metropolitan LALC and the Attorney-General submit that the language of s 3 of the DBH Act is not language of “mere resumption”. That is, they submit that the effect of s 3 was that the executive took full title to land; it was an exercise of power to appropriate ownership of the land to the Crown, not merely to free the radical title and return it to the status of unalienated Crown land.

51    The submissions of NTSCORP emphasise that, in order to extinguish native title, legislation must “clearly and plainly” demonstrate an intention to do so: Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 423. NTSCORP submits that the DBH Act does not exhibit such an intention.

52    In Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ explained what was meant by such references to an “intention” to extinguish native title, as follows (at 89 [78]):

… The subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant. Nor is it relevant to consider whether, at the time of the act alleged to extinguish native title, the existence of, or the fact of exercise of, native title rights and interests were present to the minds of those whose act is alleged to have extinguished native title. It follows that referring to an “expression of intention” is apt to mislead in these respects. As Wik [(1996) 187 CLR 1 at 185-6 (Gummow J)] and Fejo reveal, where, pursuant to statute, be it Commonwealth, State or Territory, there has been a grant of rights to third parties, the question is whether the rights are inconsistent with the alleged native title rights and interests. …

(Emphasis in original.)

53    Their Honours observed (at 140 [225]) that what was required to answer the questions that arose in that case was “the identification of the rights which vesting a reserve under the relevant Western Australian legislation gave to the body or person in whom it was vested”. Those questions were to be answered by reference to the legal effect of the legislation. Their Honours also emphasised that the “central inquiry” is “an inquiry about rights created in others or asserted by the executive, not the way in which they may have been exercised at any time” (at 142-3 [234]; and see also 89-90 [78]-[80] (Gleeson CJ, Gaudron, Gummow and Hayne JJ), 264 [619] (Callinan J)). That was “a question which can be answered only by examining the relevant statutory basis for the assertion or exercise of a right or power in relation to the land”: Ward at 115 [151].

54    I accept the submissions of Metropolitan LALC and the Attorney-General. The evident intention disclosed by the language used in s 3 was to exclude all other interests in favour of any other person, and to vest the Land in the Crown. The breadth and repetition of the language – “free from all estates and interests”, and “free … from all trusts, conditions, reservations, dedications, and easements affecting”, and “divested from any other person having any right, title, or interest to or in” the Land – demonstrate a legislative intention to transfer to the Crown an estate that is inconsistent with the preservation of any other kind of right or interest. Considering the language of both paragraphs of s 3 as a whole, I accept that it vested an estate in the Crown, rather than merely resuming the Crown’s radical title, and excluded all rights or interests held by any other person in respect of the Land.

55    Obviously, no-one in 1907 could have subjectively had in mind native title rights or interests, but I am satisfied that the effect of s 3 was to grant a freehold estate that was not subject to any other rights or interests, and that was inconsistent with the continuing existence of native title interests in respect of the Land.

56    NTSCORP contends that the words in s 3, “divested from any other person having any right, title, or interest” are principally directed to existing interest holders, and that it is not necessary to construe them as being sufficiently broad to capture native title interests. For the reasons already given, I do not accept this submission. The effect of s 3 was to vest a freehold estate in the Crown which was inconsistent with the continuing existence of native title interests.

57    The submissions of NTSCORP emphasise that the term “fee simple” does not appear in the DBH Act. This is said to distinguish s 3 of the DBH Act from s 18 of the River Murray Waters Act 1915 (NSW), which was considered by the Full Court in Lawson v Minister Assisting the Minister for Natural Resources (Lands) (2004) 139 FCR 548; [2004] FCAFC 308 and was held to have had the effect of extinguishing native title. While I accept that the language of s 3 of the DBH Act is different from the language of s 18 of the River Murray Waters Act, the fact that the language of s 3 differs from that used in other legislation does not ultimately assist much in determining its legal effect. As was said in Ward at 141 [228], “the relevant starting point is the legislation; it is not what has been held about other statutes”.

58    Metropolitan LALC and the Attorney-General point out that, in Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ mentioned (at 134 [204]) “the oddity of an estate in fee simple being vested in the Crown”. In his written submissions, the Attorney-General says:

… While their Honours did not develop what they meant by the “oddity”, it may be because a fee estate is an estate of inheritance as distinct from a lesser estate (see, eg, Commonwealth v State of NSW (1923) 33 CLR 1 at 42), or possibly because the “fee” in “fee simple” is a linguistic vestige reflecting the fact that all common law interests in land are ultimately derived from the Crown, so that it might be seen as odd to describe the Crown itself as having an estate of that kind. In any event, there is no suggestion that a vesting of land in the Crown must use the language of “fee simple” in order to extinguish native title.

(Footnote omitted.)

59    I understand the point of this submission to be that the perceived oddity of referring to an estate vested in the Crown using the language of “fee simple” may explain why the expression “fee simple” was not used in s 3 of the DBH Act, even if it were intended that the Crown should enjoy an estate of that kind. Any attempt to guess why particular language was not chosen seems quite speculative, especially given that the precise language used in s 3 of the DBH Act seems to have been unique to that provision. There is no need to posit any particular explanation as to why the expression “fee simple” was not used in s 3; it is, rather, a matter of construing the language that was used. However, the “oddity” of using the language of fee simple in connection with the Crown perhaps tends to confirm that the fact that s 3 did not include the words “fee simple” does not demonstrate that s 3 did not grant an estate to the Crown that was inconsistent with native title rights and interests.

60    NTSCORP submits that the preamble, and the terms of ss 4 and 9 of the DBH Act, limited the Crown’s ability to deal with the land, such that it should not be concluded that the Act resulted in the vesting in the Crown of a fee simple interest in the Land. For the reasons that follow, I do not accept this submission.

61    The part of the preamble to the DBH Act on which NTSCORP relies recognised that the lands dealt with by the Act were more extensive than the lands that would need to be devoted to the purposes of erecting and endowing a hospital, and that the excess lands should be vested in the Crown. Section 3 itself was the provision by which that vesting was to be achieved, and it is not apparent that the preamble should be used to read down the operative words of s 3, particularly where the granting of a full title to the Crown was an effective means by which the purpose identified in the preamble could be achieved.

62    Section 4(1) of the DBH Act was cast in permissive terms and provided that lands may be dealt with in certain identified ways. It appears that s 4(1)(b) was intended to allow for the use of lands identified in the Schedules to the DBH Act, at least insofar as they were not necessary for the purposes of the hospital, to be used by the Crown for other public purposes, and to ensure that the provisions of the Crown Lands legislation should apply to those lands (even if they would not otherwise fall within the definition of “Crown Lands”, for example, because they had been permanently dedicated to a public purpose (see Crown Lands Act 1884 (NSW), s 4, definition of “Crown Lands”).

63    However, it is not necessary to reach a final view about the operation of s 4(1) of the DBH Act. Even if s 4(1) were to be construed as impliedly limiting the uses the Crown could lawfully engage in with respect to the Land (which is not clear), it would not be determinative of the nature of the proprietary interest held by the Crown. Legislation may regulate the manner in which, or the conditions on which, the Crown (or other persons) may act in connection with land that is vested in the Crown in fee simple, but that does not mean that the Crown cannot or does not hold an estate in fee simple. Again, the provision by which the land was vested in the Crown is s 3, and it is the terms of s 3 to which attention must be directed in order to determine whether what was vested was a title that was inconsistent with the preservation of native title interests.

64    Likewise, even assuming that s 7 of the DBH Act imposed a statutory obligation on the Governor to use the Land in pursuit of the purpose of raising revenue for the hospital, that would not limit the nature of the estate vested in the Governor by s 3. The vesting of an estate in fee simple in the Crown is consistent with, and would facilitate, a purpose of the Governor using the Land to derive revenue to be applied to the maintenance of the hospital and the other purposes referred to in s 7.

65    I am conscious that, in Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ accepted that “vest” was a term “of elastic import” (at 140 [225], quoting Attorney-General (Quebec) v Attorney-General (Canada) [1921] 1 AC 401 at 409), which had “protean qualities” (at 141 [227]). The particular point their Honours were making was that the use of the term “vest” did not necessarily refer to the vesting of an interest in fee simple, and that, where Land is expressed to be “vested” in a public body, “what is ‘vested’ will often be no more than is necessary for the public body to discharge its function” (at 141 [227]). The conclusion I have reached about the operation of s 3 of the DBH Act does not depend on the use of the word “vest” in particular, but on a consideration of the whole of the language of the section.

The second reading speech for the DBH Act

66    The parties placed some reliance on aspects of what was said in the second reading speech for the Bill that became the DBH Act: Parliament of New South Wales, Legislative Assembly Hansard, 12 December 1906, p 4722-6. In the second reading speech, the Colonial Treasurer, Joseph Carruthers (later Sir Joseph Carruthers KCMG), set out certain background facts concerning the will of the late David Berry. He then identified the proposal that had originally led to the preparation of the Bill, and the considerations that had led to the proposal for the provision that was to become s 7 of the DBH Act, as follows:

… The proposal originally made, which led to the preparation of this bill, is contained in the records published here. The proposal was that the Government should take over all the obligations of building and maintaining the hospital, and that it should also take over the fee-simple of the land which has been set aside for the purpose of providing an endowment for the hospital. That proposal seems to be a very good one, but there would always be, when the land is realised upon, a margin above the cost of maintaining the hospital, and a question arose—what was to be done with any surplus? An agreement was arrived at that the surplus should be devoted, after providing for the maintenance of the hospital, to any kindred purpose—any kindred purpose being either technical colleges or colleges for the purposes of research and investigation into the diseases of animals. …

(Emphasis added.)

67    The reference to “the land which has been set aside for the purpose of providing an endowment for the hospital” was a reference to the lands referred to in Schedule Two, including the Land. There is no suggestion in the second reading speech that the original purpose of providing for the government to “take over the fee-simple” of that land had been altered or abandoned. The clause that was to become s 3 of the DBH Act remained in the same form it took when the Bill was first introduced to the Legislative Assembly and read a first time, on 22 November 1906. The second reading speech thus tends to confirm that a purpose of the DBH Act (given effect by s 3) was to vest the Land in the government in fee simple.

68    The Interpretation Act 1987 (NSW) applies to the DBH Act: Interpretation Act, s 5(1). The language of the second reading speech cannot be substituted for the language actually used in s 3 of the Act, but, in accordance with s 34(1) of the Interpretation Act (read with s 34(2)(f)), consideration may be given to the second reading speech:

(a)    to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b)    to determine the meaning of the provision--

(i)    if the provision is ambiguous or obscure, or

(ii)    if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

69    If, as I think, the ordinary meaning conveyed by the text of s 3 of the DBH Act, taking into account its context and purpose, was to vest in the Crown an estate in fee simple over the lands referred to in Schedule Two (including the Land), then the second reading speech may be considered to confirm that that is indeed the meaning of s 3. To be clear, I would reach the same conclusion, with or without regard to the second reading speech. Alternatively, if the meaning of s 3 were thought to be ambiguous or obscure, the second reading speech could be considered to determine that its meaning was to vest an estate in fee simple.

70    In the second reading speech, Mr Carruthers went on to explain that the land (that is, the land referred to in Schedule Two to the DBH Act) was “not urgently required for any public purpose”, but that it was “within measurable distance of time when this land will be used in conjunction with purposes which the state at present carries on, and in conjunction with businesses of which the Government has a monopoly”. In other words, a purpose of the DBH Act was that the land in Schedule Two (including the Land) be available for use for any public purposes if that became necessary in the future. This purpose was reflected in s 4 of the DBH Act.

71    Mr Carruthers further explained that it was his opinion that, “in a short period of time,—within the space of a life—the revenue derived from the land [would] be more than sufficient to maintain the hospital, and [would] leave a surplus for the maintenance of kindred institutions”. This expectation was, in turn, reflected in the terms of s 7 of the DBH Act. The precise relationship between these two apparent purposes of the DBH Act – and between the provisions of ss 4 and 7 – is not entirely clear, and need not be resolved.

72    NTSCORP relies on these parts of the second reading speech in support of a submission that the purpose of the DBH Act was to reserve the Land for the purpose of generating profit to fund the maintenance of the hospital, unless and until it was sold or leased in accordance with s 4(1)(c) or (d). NTSCORP submits that a vesting of land in the government for that purpose was not necessarily inconsistent with native title. I do not accept this submission because, even if s 7 of the DBH Act were to be construed as imposing an obligation to use the Land for the purpose of generating revenue to be applied to the maintenance of the hospital, the means by which Parliament elected to enable the government to derive revenue from the Land was by vesting it in the Crown in fee simple. That view is consistent with the terms of both ss 3 and 7 of the DBH Act, and with the tenor of the second reading speech when it is read as a whole.

73    NTSCORP also submits that the use in fact made of the Land, as a bowling club, was not necessarily inconsistent with the preservation of some native title rights and interests. However, it is not to the point that some particular uses to which the government might have (or did in fact) put the land might not themselves have been inconsistent with the exercise of native title rights and interests, had they not been extinguished by the vesting of a fee simple estate in the Crown.

The 1825 grant and the 1967 special lease

74    As indicated above, in light of the firm conclusion I have reached about the effect of s 3 of the DBH Act, it is not necessary to determine whether the 1825 grant was valid and effective to extinguish native title in respect of the Land, or whether the grant of the special lease in 1967 was valid and effective to extinguish native title.

Conclusion

75    For the reasons explained above, I consider that the operation of s 3 of the DBH Act was effective to vest an estate in fee simple in the Crown and that had the effect of extinguishing any then-subsisting native title in relation to the Land. It follows that Metropolitan LALC has satisfied its burden of proving that native title does not exist in respect of the Land. It is appropriate to make a determination to that effect.

Associate:

Dated:    26 September 2025