Anderson v Wilson

Case [2000] FCA 394

FEDERAL COURT OF AUSTRALIA

Anderson v Wilson [2000] FCA 394

NATIVE TITLE – Native Title Act 1993 (Cth) – Western Lands Act 1901 (NSW) (“the WLA”) – lease in perpetuity the subject of a native title claim (“the Lease”) – separate questions pursuant to O29 r 2 of the Federal Court Rules – whether the Lease conferred on the lessee a right of exclusive possession by virtue of the WLA or regulations made thereunder as in force at the time of the grant of the Lease or one or more of the terms and conditions of the Lease – no facts yet found.

NATIVE TITLE – extinguishment – requirement of clear and plain intention to extinguish incidents of native title – question of whether the Lease gave right to exclude those claiming native title – inconsistency and requirement of identification of extent of inconsistency – whether leases conferred right of exclusive possession involves complex questions of law and fact – not appropriate to finally decide questions until facts found.

NATIVE TITLE – use of early colonial history – whether historical and legislative context is a decisive consideration – relevance of extrinsic material – relevance of size and location of area subject to claim.

Native Title Act 1993 (Cth)

Land Act 1910

Western Lands Act 1901 (NSW)

Crown Lands Consolidation Act 1913

Western Lands (Amendment) Act 1934

Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687
Brayson Motors Proprietary Limited (In liquidation) v The Commissioner of Taxation for the Commonwealth of Australia (1985) 156 CLR 651
Hawkins v The Minister for Lands (1949) 78 CLR 479
De Britt v Carr (1911) 12 CLR 114
Davies v Littlejohn (1923) 34 CLR 174
O’Keefe v Williams (1910) 11 CLR 171
The Wik Peoples v The State of Queensland (1996) 187 CLR 1
Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485
The Wik Peoples v The State of Queensland (1996) 63 FCR 450
Macdonald v Tully (1870) 2 QSCR 99
Mabo v Queensland (No. 2) (1992) 175 CLR 1
Yarmouth Corporation v Simmons [1878] 10 Ch D 518
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Newcastle City Council v GIO General Limited (1997) 191 CLR 85
Yanner v Eaton (1998) 166 ALR 258

New South Wales Legislative Assembly, New South Wales Royal Commission to Inquire into the Condition of Crown Tenants (Western Division of New South Wales) – Report and Summary of Evidence (Sydney: Government Printer, 1901)
New South Wales, Parliamentary Debates, Legislative Assembly 1901, Vol. 1, 3374
New South Wales, Parliamentary Debates, Legislative Assembly 1934, Vol. 1, 401
Sir Victor Windeyer, History in Law and Law in History, (11)(1) Alberta Law Review (1973) 123

MICHAEL ANDERSON FOR AND ON BEHALF OF THE EUAHLAY-I DIXON CLAN V DOUGLAS WILSON

NG 6043 OF 1998

JUDGES:      BLACK CJ, BEAUMONT & SACKVILLE JJ
DATE:           5 APRIL 2000
PLACE:         SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 6043 OF…

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Details
AGLC
Anderson v Wilson [2000] FCA 394
Case
[2000] FCA 394
Decision Date

CaseChat Overview and Summary

The matter of Anderson v Wilson came before the court to address the rights of a lessee under a lease granted pursuant to the Western Lands Act 1901 (NSW) and its regulations. The dispute centred on whether the lease conferred a right to exclusive possession of the land and if such a right would extinguish or suspend any native title rights. The case required the court to determine the nature of the rights granted under the lease and the impact, if any, on native title.

The court had to decide if the lease granted the lessee exclusive possession of the land and whether such possession would exclude the rights of Aboriginal people under native title. This involved interpreting the legislative scheme, the lease terms, and considering the implications of relevant case law, including the High Court decisions in Wik and McPherson. The court also needed to assess whether the grant of the lease extinguished or suspended any native title rights that would involve the presence of native title holders on the leased land.

In its reasoning, the court found that the lease did grant the lessee a right to possession for the purposes of grazing and other incidental uses. However, the court emphasised that this possession was not exclusive in the sense of excluding native title rights. The court clarified that the decision in McPherson, which dealt with the right to relief against forfeiture, did not address the question of native title. Instead, the court held that the grant of the lease did not extinguish or suspend any native title rights that would require the presence of native title holders on the leased land. The court concluded that it was unnecessary to answer the questions posed about exclusive possession as the materials before it did not support the extinguishment or suspension of native title rights.

The court's final orders were to reserve the costs of the stated case and to state that the grant of the lease did not extinguish or suspend any native title rights that required the presence of native title holders on the leased land.

Orders

Orders of the court

1. The questions in the stated case be answered 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?”

Answer

Unnecessary to answer.

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?”

Answer

Unnecessary to answer.

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?”

Answer

“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.”

2. The costs of the stated case be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLACK CJ
These considerations reinforce the point that, for legal purposes, we should not attempt to assess, even if it were practicable, relativities of size and remoteness as decisive considerations in the present context.CONCLUSIONS ON THE SEPARATE QUESTIONS It will be convenient to consider first the issues concerning the right to possession, and then to turn to the extinguishment issues.(a) Possession issues – the lessee’s rights As I followed the arguments before us, it was not, and could not be, seriously in dispute that the lessee had a right to possession for grazing and for the incidental purposes of the kind described by Toohey J in Wik (at 114, see para 84). That is to say, the provisions of the legislative scheme, and of the lease itself, to the effect that the lessee is to use the lands for a particular purpose, must carry with them, by necessary implication, the intention of the Parliament and the Executive that the lessee have such possession of the area which is needed to achieve that purpose. Moreover, that a possessory or proprietary right was intended by the Parliament and the Executive to be granted is indicated by other express provisions of the legislative scheme and of the lease. The residence requirement, the fencing obligations, the requisite home maintenance area, the elaborate provisions dealing with the transfer or mortgage of a WLA lease and its devolution upon death, together with the detailed provisions with respect to improvements previously described, illustrate and confirm this. These provisions are more consistent with an intention to create a more permanent, possessory title than the merely personal, ephemeral relationship which is found in, for example, a bare licence. The real issue here is whether that possession was “exclusive”. On any view, to use Toohey J’s words, the answer to this question must be accepted to be a complex question of law and fact. The decision and the reasoning in McPherson stand for the proposition that, for the purposes of the availability of relief against forfeiture, the lessee should be treated as having exclusive possession: that is, in the sense that, in this context, a WLA lease in perpetuity is to be regarded as relevantly the same as, or equivalent to, a common law lease. But in the light of Wik, the reasoning in McPherson must, I think, now be read as directed only to its context, i.e. forfeiture. The ratio in McPherson did not encompass any claim of native title, which was not in issue there. In other words, we should not interpret McPherson as deciding that the right to possession under a WLA lease carried with it the right to exclude Aboriginals: that question was simply not there an issue. This is not to cast any doubt at all upon the decision in McPherson. There is nothing in the statutory scheme (relevantly described at paras 23 – 48 above), or in the High Court decision in Hawkins or in Wik, which detract from what McPherson actually decided. As I have said, I respectfully agree with what it decided, and with the reasons given by each member of the Court of Appeal for the decision.

Ratio Decidendi

Legal Principle Established

Established by: BLACK CJ

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