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Strelein, Lisa --- "Fiction over Fact: Extinguishing Native Title in the Larrakia Case" [1999] IndigLawB 16; (1999) 4(18) Indigenous Law Bulletin 18


Fiction over Fact:
Extinguishing Native Title in the Larrakia Case

Jim Fejo & David Mills on behalf of the Larrakia People v The Northern Territory & Oilnet (NT) Pty Ltd

High Court of Australia

18 September 1998

by Lisa Strelein

The result in Fejo & Mills v The Northern Territory & Oilnet (NT) Pty Ltd (‘Fejo’) was not unexpected. As was predicted by commentators and largely foreshadowed by previous decisions, the High Court confirmed that a grant of freehold title permanently extinguishes native title. However, the outcome remains disappointing in a number of respects. For the Larrakia people, it was disappointing that no accommodation of native title could be found in the circumstances of this case. Further cause for disappointment may be found in those aspects of the High Court’s decision that indicate a more restrictive approach to, and a recasting of, the nature of native title.

Background to the Case

The Larrakia people lodged an application for a determination of native title with the National Native Title Tribunal in December 1996. The application, for areas in and around Darwin, Palmerston and Litchfield in the Northern Territory, was accepted by the Registrar of the Tribunal in April 1997.

The present case arose in response to the Northern Territory government’s grant of Crown leases, which included an option to acquire freehold, over lands subject of the Larrakia people’s native title application. In December 1997, the appellants commenced action in the Federal Court challenging the validity and consequences of the grant of the mining leases.

The Larrakia people sought a declaration that native title exists in relation to the lands in question and that the Larrakia people are the native title-holders of those lands. They argued that before granting the leases, the Northern Territory government was required by the Native Title Act 1993 (Cth) to either negotiate with the Larrakia or to compulsorily acquire their native title. The Larrakia people also sought injunctions preventing further development of the lands and preventing the Northern Territory government from accepting the leasee’s exercise of the option to surrender of the Crown lease in exchange for freehold title.

The Federal Court refused to grant the injunction and refused to make a declaration of native title.

The Appeal

The High Court was asked to consider a single ground of appeal: that the trial judge had erred in holding that the grant of land was effective to extinguish all native title rights and interests in it, with the consequence that on the Crown’s re-acquisition of that land, no native title rights and interests could then be recognised by the common law.

The tenure history of the area was central to the case.[1] The area in dispute was once part of a tract of land granted to John Benham in April 1882. The grant conveyed an estate in fee simple, or freehold title, which included the land, all timber, minerals and appertenances to Benham, ‘His Heirs, and Assigns for ever’. The land was later acquired by the Commonwealth in 1927 for public purposes, specifically, as a quarantine station and later a leprosarium. Both public purpose proclamations were revoked in 1980. The land thus became vacant Crown land once again.

The facts of the case raised two important issues that had not been authoritatively determined by the High Court. The first was whether a grant of freehold extinguished native title so that no form of native title can co-exist with freehold title. The second issue was whether extinguishment was permanent and absolute or whether there was potential for common law native title to ‘revive’ when the land returned to the Crown.

In relation to the trial judge’s refusal to grant the injunctions sought by the appellant, the issue of whether common law injunctive relief is available to claimants in addition to the relevant provisions of the Native Title Act 1993 (Cth) was also raised and addressed.

The Freehold Question

An estate in fee simple is said to be the closest thing to absolute ownership that exists in the Australian system of land tenure, by which it allows ‘every act of ownership which can enter into the imagination’.[2] The conclusion that freehold extinguishes native title was foreshadowed in Mabo No. 2,[3] where justice Brennan explained the relationship between the concepts of inconsistency and extinguishment as follows:

Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. The native title has been extinguished by grants of freehold or of leases but not necessarily by the grant of a lesser interest (e.g. authorities to prospect for minerals).

Similarly, justices Deane and Gaudron stated that native title was ‘susceptible of being extinguished by an unqualified grant by the Crown of an estate in fee...’.[4] However, these statements were not binding on the Court in this case. Indeed, the case for co-existence between freehold and native title was not argued.[5]

In Fejo, the High Court was unanimous in determining that native title was extinguished by a grant in fee simple, although justice Kirby gave separate reasons. For chief justice Gleeson and justices Gaudron, McHugh, Gummow, Hayne and Callinan, native title is extinguished by a grant in fee 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.[6]

The Court did not compare the nature of the rights arising under the Crown grant with the nature of the rights asserted under native title. Instead, it was assumed that because freehold title approaches absolute ownership, no form of native title could exist concurrently with it.

The Court specifically rejected any analogy between native title and other tenures that have been long accepted as capable of coexisting with a fee simple interest.[7] Their honours explained that native title rights could be distinguished from rights arising under these lesser tenures and that

reference to those rights in the present context is misplaced. They are creatures of the common law finding their origins in grant or presumed grant ... But very different considerations arise when there is an intersection between the rights that owe their origin to a different body of law and traditions.[8]

The Nature of Native Title

The signal tension arising in cases and commentary on the nature of native title is whether native title is conceived of as a bundle of rights and interests under Australian law or whether its essential character is seen to lie in the recognition of Indigenous systems of law and culture. The judgements in Fejo give judicial support to the conception of native title as a ‘bundle of rights’. For example, the joint judgement referred to ‘the rights which together constitute native title’.[9] Similarly, justice Kirby referred to ‘the bundle of interests we now call native title’.[10] The joint judgement then listed the rights of native title. These relate to the use of land, and ‘may encompass a right to hunt, to gather or to fish, a right to conduct ceremonies on the land, a right to maintain the land in a particular state or other like rights and interests’.[11]

Attributing a class of rights to native title in this way undermines its unique or sui generis character. To characterise native title simply as a ‘bundle of rights’ moves away from earlier conceptions which attempted to recognise Indigenous systems of law, towards a usufructuary title which would deny the title to the land itself.[12] Consequently, native title is seen to occupy a subaltern status in relation to other forms of title and is inserted at the bottom of the hierarchy of recognised tenures. This is demonstrated in Justice Kirby’s reliance on the ‘inherent vulnerability’ of native title as the basis for its extinguishment in the present case:

The inconsistency lies not in the facts or in the way in which the land is actually used. It lies in a comparison between the inherently fragile native title right, susceptible to extinguishment or defeasance, and the legal rights which fee simple confers.[13]

Revival and Extinguishment

The Larrakia people argued that, to the extent that any inconsistency had extinguished native title, that title could be revived if the land were to return to the Crown and its essential character as unalienated Crown land was restored. Of course this would depend upon the Indigenous people showing that native title had continued in fact.

In the Fejo joint judgment, the Justices stated that:

references to extinguishment rather than suspension of native title rights are not to be understood as some incautious or inaccurate use of language to describe the effect of a grant of freehold title. A grant in fee simple does not have only some temporary effect on native title rights or some effect that is conditioned upon the land not coming to be held by the Crown in the future.[14]

Acknowledging that native title may have its origins in Indigenous law, the judgement stated that while the existence of Indigenous law is necessary to establish native title, it is not sufficient to invite recognition under the common law.[15]

Justice Kirby took a slightly different view. He did not consider that the ordinary meaning of extinguishment was a sufficient basis for rejecting the appellants’ arguments.[16] However, in deciding that a grant of freehold extinguished native title, his Honour had already stated that:

Doubtless the bundle of interests we now call ‘native title’ would continue, for a time at least, within the world of Aboriginal custom. It may still do so. But the conferral of a legal interest in land classified as fee simple had the effect, in law, of extinguishing the native title rights.[17]

Thus, the High Court has made a distinction between native title which exists in fact and where it may exist in law. As a result, it becomes increasingly difficult to reconcile the idea that the source of the right lies in Indigenous law and custom.

Issues of Legal Policy and Principle

All of the judges questioned the relevance of overseas precedents relied upon by the appellants to support their arguments. In a departure from the trend in native title cases, the High Court distinguished the position of Indigenous peoples in Australia from those in other common law countries in light of different legal and political histories.[18] In the joint judgement their Honours commented that:

Although reference was made to a number of decisions in other common law jurisdictions about the effect of later grants of title to land on preexisting native title rights, we doubt that much direct assistance is to be found from these sources ... In some cases the answer that has been given in other jurisdictions may have been affected by the existence of treaty or other like obligations. Those considerations do not arise here.[19]

Justice Kirby agreed with the majority that little guidance could be taken from comparative law:

The ways in which each of the former colonies and territories of the Crown addressed the reconciliation between native title and the legal doctrine of tenure sustaining estates in law varied so markedly from one former territory to the other and were affected so profoundly by local consideration (legal and otherwise) that it is virtually impossible to derive applicable common themes of legal principle. Still less can be detected which affords guidance for the law of this country.[20]

Reaffirming the primacy of fee simple as a fundamental and untouchable principle of Australia’s land tenure system, Justice Kirby, enlarging upon justice Brennan’s comments in Mabo (No.2),[21] stated that ‘a court should not destroy or contradict an important and settled principal of the legal system’.[22] The fact that Australian law was so long in recognising and protecting the rights of Indigenous peoples was seen as part of the fabric of legal principle, in which political history provides an excuse for limiting the scope of native title.[23]

Injunctions and Statutory Rights

The High Court considered the role of injunctions in protecting the rights of native title applicants awaiting a determination of native title. In particular, the role of injunctions in protecting the right to negotiate, discussed in the Waanyi case, was confirmed.[24] Moreover, justice Kirby decided that the right to negotiate was not the only statutory right that accrued to applicants prior to the determination of native title:

The mediation provisions, like the right to negotiate provisions ... are valuable statutory entitlements, placed in the Act for an obvious purpose. Given this, it would be surprising if, in a proper case, a court empowered to afford equitable remedies could not protect such rights of native title claimants before the final determination of their claim. Once its jurisdiction is invoked, the power of the Federal court to grant interlocutory injunctions is very large ... They certainly extend, in proper cases, to protecting the utility of the procedural rights conferred by legislation upon parties to litigation in the Federal Court where such rights are valuable and are seriously threatened by the conduct of others.[25]

The joint judgement of the remainder of the Court went further:

That is not to say that an injunction could be granted to a registered native title claimant only if it could be shown that the right to negotiate or other procedures required by the Act were at issue. Whether an injunction should be granted will depend upon the facts and circumstances of each particular case and much may turn upon the nature of the conduct that is threatened.[26]

Therefore, the Court considered that native title and the statutory rights guaranteed by legislation were valuable rights that could warrant protection. The general principles applicable to injunctive relief would then apply, having regard to whether there is a serious question to be tried and that relief is warranted by the balance of convenience. While acceptance by the Registrar establishes an arguable case, some inquiry may be made into the case of the other parties that may deal a ‘“knockout” point’ against the native title application, which on the balance of convenience would not warrant protection.[27]

Conclusion

The decision in Fejo clarifies the position of freehold title in relation to native title by adding a further dimension to the concept of extinguishment. There was no examination of the possibility of co-existence between Indigenous and non-Indigenous title to land; unlike the Wik[28] decision. The case also confirmed that native title does not revive once extinguished under the common law and will not be re-recognised; again, regardless of the rights that may exist under Indigenous law. However, the issue of suspension in relation to lesser interests was left unresolved.


[1] While the specific tenure history is common to large tracts of the Larrakia peoples’ territories, these issues are important for Indigenous peoples in other parts of Australia, particularly for those in more settled reigons. To this end, the Yorta Yorta, Nyungar, Wororra, Miriuwung and Gajerrong peoples, amongst others, intervened to support the action of the Larrakia people.

[2] Commonwealth v NSW [1923] HCA 34; (1923) 33 CLR 1, per Isaacs J at 42.

[3] Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1, at 69.

[4] Ibid at 89; cf at 110. WA v Cth (the Native Title Act case) [1995] HCA 47; (1995) 183 CLR 373 at 422; Wik Peoples v Queensland (1996) 187 CLR 1, per Gummow J at 176 and Kirby J at 250.

[5] Fejo, para 43.

[6] Ibid, per Kirby J at para 100..

[7] Rights under English law of common or customary usage or easements were specific examples raised.

[8] Fejo per Gleeson, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at para 53. Cf Kirby J at paras 107-8.

[9] Ibid at para 47.

[10] Ibid per Kirby J at para 106.

[11] Ibid per Gleeson, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at para 47.

[12] See, for example, Mabo (No 2), where Justice Brennan, at p. 51, states: ‘...it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title.’

[13] Loc cit. per Kirby J at para 105. Cf para 108.

[14] Ibid, per Gleeson, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at para 45.

[15] Ibid, at para 46.

[16] Ibid, per Kirby J at para 110.

[17] Ibid, per Kirby J at para 106, emphasis added.

[18] In Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1, the High Court relied heavily on overseas precedents in establishing the existence and nature of native title.

[19] Fejo, per Gleeson, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at para 54.

[20] Ibid, per Kirby J at para 103.

[21] Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1at 43.

[22] Loc cit. per Kirby J at para 104. His honour continued in this vein at paras 104-5: ‘in every society, rights in land which afford an enforceable entitlement to exclusive possession are basic to the social peace and the order as well as to economic investment and prosperity. Any significant disturbance of such established rights is therefore, ordinarily, a matter for the legislature not the courts...The Court should therefore approach with circumspection a submission which, if correct, would cast doubt upon the validity and effectiveness of fee simple interests throughout Australia.’

[23] Ibid, at paras 103, 111.

[24] Ibid, per Gleeson, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at para 33.

[25] Ibid, per Kirby J at para 79.

[26] Ibid, per Gleeson, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at para 39, original emphasis.

[27] Ibid, per Kirby J at para 84.

[28] Wik peoples & the Thayorre people v Queensland (1996) 187 CLR 1.


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