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Federal Court (Full Court)
Case stated for determination by Full Federal Court
5 April 2000
By Patricia Lane
Aboriginal people and farmers impatiently waited for the results of this decision. The Federal Court delivered an answer: yes, native title rights can exist over leasehold. This issue is important right across Australia, but particularly in the Western Division of NSW, where most, if not all, pastoral properties are leasehold in perpetuity.
The long-running saga of native title in the Western Division ended another chapter when the full Federal Court handed down its decision in Anderson v Wilson. The Full Court had heard a stated case in which one of the leaseholder parties to the Euahlay-I Dixon application, Douglas Wilson, asked the court to consider the question whether leases granted under the Western Lands Act 1901 (NSW) (the ‘Western Lands Act’) conferred a right to exclusive possession. Mr Wilson’s expectations of a final resolution of the native title question were disappointed. The court held that it was not possible to say that all native title rights over the leasehold had been extinguished, when there had not yet been any evidence presented of the nature and extent of the native title rights.
Although the native title claimants hailed the decision as a victory because the court did not find that native title was extinguished, the decision does not significantly advance the progress of the native title application, nor does it give the leaseholders the certainty they desired. Readers of the ILB may recall that Mr Wilson had previously sought a declaration in the NSW Supreme Court[1] that native title was extinguished by the Western Lands Act, or by the terms of the leasehold interests granted under it. In January 1999 Justice Levine held that although the Supreme Court had jurisdiction to hear his application, he declined to exercise his discretion to do so because there were concurrent proceedings for native title in the Federal Court.
The next step for Mr Wilson was to ask Justice Beaumont to state a case for the determination by the Full Court in the Federal Court proceedings. The questions for the court were framed in terms similar to those considered by the High Court in Wik Peoples v Queensland (the ‘Wik case’).[2] The questions focussed on whether the Western Lands Act and Regulations had conferred exclusive possession on the leaseholders,[3] and, if so, whether the native title rights were extinguished or suspended.
Inherent in this approach is the assumption that a grant of a right of exclusive possession by the Crown will extinguish native title at common law.
If this approach had been successful it would have meant that Mr Wilson could knock out the native title application in its early stages, without the Court having to consider any evidence in relation to native title. Because the concept of ‘exclusive possession’ is used at common law to identify when a lease is created,[4] Mr Wilson sought to demonstrate that in the case of his lease, the Crown had conferred a lease at common law, which was inconsistent with the existence of any native title rights.
The focus on identifying a right of exclusive possession can be traced back to the decision of Justice Brennan in Mabo v Queensland [No 2]. He expressed the view that, in respect of leased land, ‘the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Crown’s title is thus expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium.’[5] Therefore, when the Crown granted a common law lease, it had the effect of extinguishing native title because it meant that the Crown claimed full ownership of the land, and when the lease was over, it would continue as Crown land, not native title. Underlying this approach is the assumption that interests granted by the Crown pursuant to statutory authority, using the terminology of the common law, are intended in the absence of some contrary expression to convey the common law rights. In other words, because the government called it a ‘lease’ in the Western Lands Act, leaseholders had exclusive possession, just like in leases under the common law. Chief Justice Brennan (as he had become) also used this reasoning in the Wik case to hold that the leases referred to there had a right to exclusive possession.[6]
However, in the Wik case, Chief Justice Brennan was in the minority. In Wik, the fundamental question for the majority was whether Parliament had demonstrated a sufficiently clear and plain intention to abrogate the rights of native title holders. But the majority preferred to look at the purpose and object of the relevant statute (the Land Act 1910 (Qld)) under which the leases were granted, to see whether the leases were intended to have the characteristics of a common law lease.
Therefore, in the Wik case, asking the court to decide whether the leases conferred exclusive possession clouded the issues for consideration.[7] Although the conferral of a right of exclusive possession is a normal incident of a lease at common law, it does not exclude ‘an inquiry into whether exclusive possession is in truth an incident of every arrangement which bears the title of lease’.[8] The result in Wik was that the questions posed had to be answered in the negative.
In Anderson v Wilson Mr Wilson argued that the lease under the Western Lands Act was significantly different to those considered in Wik. However, bearing in mind the reservations expressed by the High Court over both the form and content of the questions, in the Wik case, it was always going to be difficult for Mr Wilson to succeed in this approach.
The Full Court decided unanimously that the questions were, strictly speaking, unnecessary to answer. In applying the comparative test to determine inconsistency between any native title rights and the pastoral lease the leaseholder could only succeed if he could show that the interest was inconsistent with ‘all possible native title rights’[9] which could have existed at the time of the grant. In the absence of any finding about the nature and incidents of native title, the lessee had not discharged this burden.
Two of the judges, Chief Justice Black and Justice Sackville, referred also to the difficulties in asking a question based on the effect of exclusive possession.[10] They said that:
[But] it is not necessarily easy or appropriate to apply a concept developed for one purpose (that is, distinguishing between a lease and a licence, usually in the context of commercial disputes) for a quite different purpose (determining whether the rights conferred on the holder of a statutory lease are inconsistent with the continued entitlement of Aboriginal people to native title rights). Particularly is this so when it is remembered that the common law accepts the idea of relative claims to possession, or relativity of titles...[11]
When Black CJ and Sackville J turned to consider the nature of interests granted under the Western Lands Act, they concluded, consistently with Wik, that leases for pastoral purposes granted under the Western Lands Act do not necessarily refer to a lease in the common law sense. The decision of the NSW Court of Appeal in Minister for Lands and Forests v McPherson (‘McPherson’),[12] in which the Court of Appeal had decided that a lessee under the Western Lands Act could seek relief against forfeiture of that interest, had been strongly relied on by counsel for Mr Wilson in support of his argument that the leases ought to be considered to be leases at common law. However, the court concluded that this decision did not require a conclusion that the lessee’s rights were inconsistent with native title, as the purpose of undertaking the inquiry in McPherson (exercising jurisdiction to grant relief against forfeiture) did not involve the issue of inconsistency of the lease with other rights.
Chief Justice Black and Justice Sackville referred to other specific characteristics of Western Lands Act leases to support their conclusions about inconsistency.
Mr Wilson’s lease was granted for the purpose of grazing, and the Western Lands Act authorised the creation of a wide variety of interests, all described as ‘leases’ which would vary considerably in their effect on native title according to their differing purposes. There was no basis for concluding that the leases conferred uniform rights on all lessees, especially in respect of the entitlement of lessees to exclude others from the land.[13]
The leases were granted in perpetuity. The concept of a lease in perpetuity is unknown to the common law,[14] and this supported a conclusion that the common law meaning of the lease was not intended by Parliament.[15]
The lease contained many reservations of rights to the Crown and to third parties, including an obligation not to obstruct reserves or tracks; a requirement to permit the Western Lands Commissioner to enter and view the property; a restriction on the lessees power to remove material from the land; an obligation to prevent others from removing timber, and reservation of rights to the Crown in relation to minerals, stone and metals. The extent and variety of these reservations suggested that the Crown had not intended to grant a right which was inconsistent with any possible native title rights.[16]
Although the lessee made submissions that attempted to distinguish the Western Lands leases from those considered in Wik, the court was not convinced that those differences took the matter outside the general principles relied on by the High Court.
Counsel for Mr Wilson also submitted that the Full Court ought to take a different view of the historical circumstances in which pastoral leases had been granted. He referred to historical documents not mentioned in the decisions in Wik which, he argued, supported the proposition that Parliament had intended to abrogate Aboriginal rights over the land entirely. No member of the court was prepared to embark on an extensive examination of the use of historical material in Wik. Chief Justice Black and Justice Sackville considered that it was not necessary, or appropriate to do so, and Justice Beaumont, while setting out the legislative history of the Western Lands Act in some detail, considered that the use of historical material in Wik was not part of the ratio for the decision.
The decision reaffirms the reluctance of courts to approach cases where issues of extinguishment are raised on an abstract level. Native title is ‘highly fact specific’[17] and even if the concept of native title as a bundle of rights is accepted, a finding of partial extinguishment requires a detailed comparison between the native title rights asserted and the rights conferred on the holder of the statutory interest. The decision leaves open the way for mediation of the application in the National Native Title Tribunal to continue. If mediation does not produce an agreement about the existence of native title and its interaction with other rights, the question of the continued existence of native title over Western Division leases can then be determined on the evidence.
Patricia Lane is a barrister and part-time Member of the National Native Title Tribunal.
The views expressed in this casenote are those of the author and do not represent any policy or position of the National Native Title Tribunal.
[1] Wilson v Anderson (Unreported, Supreme Court of NSW, Justice Levine, 20 January 1999). See casenote by the author at 4(20) ILB 21.
[2] Wik Peoples v Queensland (1996) 187 CLR 1.
[3] ‘(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 on the lessee under the lease a right of exclusive possession of the leased land?
(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
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?
(c) If the answer to question (a) or question (b) is ‘Yes’, were any native title right 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?’
[4] Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209; Street v Mountford [1985] UKHL 4; [1985] AC 809.
[5] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, 68.
[6] Above n 2, 80-81.
[7] (1996) 187 CLR 1 at 131 (Toohey J); 204 (Gummow J).
[8] (1996) 187 CLR 1 at 118 (Toohey J).
[9] Para [42] (emphasis in judgment).
[10] Paras [28] – [39]. See also Richard Bartlett, The Wik decision and Implications for Resource Development (1997) 16 AMPLA Journal 27, 30.
[11] Para [45].
[13] Para [113].
[14] (1996) 187 CLR 1, 153 (Gaudron J).
[15] Paras [101], [114].
[16] Para [117].
[17] Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426, 435.
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