Attorney-General (NSW) v Ohlsen

Case [2022] FCAFC 38

FEDERAL COURT OF AUSTRALIA

Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38

Appeal from: Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169
File number(s): NSD 292 of 2021
Judgment of: BROMBERG, MORTIMER AND JACKSON JJ
Date of judgment: 16 March 2022
Catchwords: NATIVE TITLE – extinguishment – appeal from orders of primary judge in relation to separate questions – whether statutory leases conferred exclusive possession over the lease areas within the meaning of s 23B(2)(c)(viii) of the Native Title Act 1993 (Cth) – whether certain statutory leases consisted of a grant of a “Scheduled interest” within the meaning of s 23B(2)(c)(i) of the Native Title Act 1993 (Cth) – challenge to primary judge’s characterisation of statutory leases – meaning of exclusive possession in s 23B – comparison of statutory leases with pastoral leases – consideration of size of statutory leases – consideration of legislative references to lessee’s rights to bring an action in trespass – consideration of conditions, reservations, restrictions and other limitations on the rights of lessees – consideration of the language used in governing statutes – appeal dismissed
Legislation:

Native Title Act 1993 (Cth), ss 10, 11, 23B, 61, 85, 228, 242, 248A, 249C

Crown Lands Act 1884 (NSW)

Crown Lands Act 1889 (NSW)

Crown Lands Act 1895 (NSW)

Crown Lands Administration Act 1903 (NSW)

Crown Lands and Closer Settlement (Amendment) Act 1968 (NSW)

Crown Lands Consolidation Act 1913 (NSW)

Mining Act 1874 (NSW)

Mining Act 1906 (NSW)

Native Title (New South Wales) Act 1994 (NSW), s 20

Western Lands Act 1901 (NSW)

Cases cited:

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

Brown v Tasmania [2017] HCA 43; 261 CLR 328

C Pty Ltd v Sommer [2021] FCAFC 87

Cleaver v Mackinnon (1910) 10 SR (NSW) 377

Coulton v Holcombe [1986] HCA 33; 162 CLR 1

District Council of Streaky Bay v Wilson [2021] FCAFC 181; 394 ALR 33

Fejo v Northern Territory [1998] HCA 58; 195 CLR 96

Fergusson v Mackinnon (1912) 12 SR (NSW) 406

Goldsworthy Mining Limited v Federal Commissioner of Taxation (1973) 128 CLR 199

Leeton and District Local Aboriginal Land Council v Attorney General of New South Wales [2021] FCA 356

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

McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; 144 CLR 633

Newington v Windeyer (1985) 3 NSWLR 555

North Ganalanja Aboriginal Corporation v State of Queensland [1995] FCA 869; 61 FCR 1

Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169

Radaich v Smith (1959) 101 CLR 209

Smith v Ward (2002) 20 SR (NSW) 299

State of Queensland v Congoo [2015] HCA 17; 256 CLR 239

Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418

Western Australia v Brown [2014] HCA 8; 253 CLR 507

Western Australia v Ward

Continue reading Attorney-General (NSW) v Ohlsen

Sign in free to access the full text

Details
AGLC
Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38
Case
[2022] FCAFC 38
Decision Date

CaseChat Overview and Summary

In the case of Attorney-General (NSW) v Ohlsen, the dispute centred on the interpretation of statutory leases under the Native Title Act 1993 (Cth) and their impact on native title rights. The Attorney-General of New South Wales sought to challenge the primary judge's characterisation of certain statutory leases, arguing whether these leases conferred exclusive possession over the lease areas, and whether they constituted a "Scheduled interest". The Court of Appeal was tasked with reviewing the primary judge's interpretation of the statutory leases and determining if they met the criteria for extinguishing native title under the Act.

The legal issues before the Court of Appeal revolved around the interpretation of sections 23B(2)(c)(viii) and 23B(2)(c)(i) of the Native Title Act. Specifically, the Court needed to determine whether the statutory leases granted exclusive possession and if they were indeed "Scheduled interests". This required a detailed analysis of the statutory language, legislative intent, and comparison with pastoral leases. The Court also considered the size of the leases, the rights of lessees to bring an action in trespass, and the various conditions, reservations, restrictions, and limitations imposed on the lessees.

The Court of Appeal found that the primary judge's characterisation of the statutory leases was accurate and in line with the legislative intent. The Court held that the statutory leases did not confer exclusive possession over the lease areas, as they contained numerous conditions, reservations, and restrictions that limited the rights of the lessees. Furthermore, the Court noted that the legislative references to the lessee's rights to bring an action in trespass did not alter this conclusion. Consequently, the appeal was dismissed, and the primary judge's orders were upheld.

The Court of Appeal dismissed the appeal and upheld the primary judge's orders, finding that the statutory leases did not confer exclusive possession over the lease areas. The Court found that the primary judge's interpretation of the statutory leases was consistent with the legislative intent and that the leases did not meet the criteria for extinguishing native title under the Native Title Act. The Court also noted that the conditions, reservations, restrictions, and limitations imposed on the lessees further supported this conclusion. Consequently, the appeal was dismissed, and each party was ordered to bear its own costs.

Orders

Orders of the court

1. The time in which an application for leave to appeal may be brought from orders A, B(i), B(v), C, D, F(i), G(ii), G(vii), G(viii), H(i) and H(ii) of the Court made on 5 March 2021 be extended to 22 April 2021.

2. Leave be granted to the Attorney General of New South Wales to:

(a) appeal from orders A, B(i), B(v), C, D, F(i), G(ii), G(vii), G(viii), H(i) and H(ii) of the Court made on 5 March 2021; and

(b) rely in that appeal on the Notice of Appeal filed on 7 April 2021.

3. The appeal be dismissed.

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

Background

Background to the litigation

For the reasons that follow, leave to appeal is granted, but the appeal is dismissed. BACKGROUNDLegal framework Section 10 of the Native Title Act provides that native title is recognised and protected in accordance with the Act, and s 11(1) provides that native title cannot be extinguished contrary to the Act: see Wilson v Anderson [2002] HCA 29; 213 CLR 401 at [46] about the importance of these provisions. Those two general provisions conceal the complexities of the legislative scheme concerning extinguishment, and its interaction with the common law. Some of those complexities are at work in these appeals. However, below we set out only those parts of the Native Title Act relevant to the issues on the appeal. For example, Division 2 of Part 2 of the Native Title Act deals with the validation of certain acts that took place before 1 January 1994 and which would otherwise be invalid because of the operation of the Racial Discrimination Act 1975 (Cth). These acts are known as “past acts” and they are defined in s 228 of the Native Title Act. Since all the acts in question on the appeal, and before the primary judge, occurred decades before the Racial Discrimination Act was enacted, the “past act” provisions have no relevance, as was the case in Wilson (see Wilson at [53]). Division 2B of Part 2 was introduced by the Native Title Amendment Act 1998 (Cth). The objective was to implement points 2 and 4 of the Commonwealth Government’s Ten Point Plan, in response to the High Court’s determination in Wik Peoples v Queensland (1996) 187 CLR 1 that the rights conferred by Queensland pastoral leases did not include a right of exclusive possession and did not completely extinguish native title: see Minchin N, The Ten Point Plan: Federal Government’s Response to the Wik Decision (Department of the Prime Minister and Cabinet, 1997); Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) at [5.1]. These points declared the Government’s intention that:States and Territories would be able to confirm that “exclusive” tenures such as freehold, residential, commercial and public works in existence on or before 1 January 1994 extinguish native title. Agricultural leases would also be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended. Any current or former pastoral lease conferring exclusive possession would also be included.…As provided in the Wik decision, native title rights over current or former pastoral leases and any agricultural leases not covered under 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralists. Part 2 Division 2B includes the concept of a “previous exclusive possession act”, which is taken to extinguish native title completely: if attributable to the Commonwealth, by reason of s 23C(1); if attributable to a State or Territory, by reason of s 23E read with the applicable State or Territory legislation. See further Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [8]-[10].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

That is why, at [115], the plurality expressed the other reservations as “not inconsistent with” their principal conclusion. The primary judge understood the emphasis in Wilson. The State’s contentions should be rejected. CONCLUSION The appeal will be dismissed. The respondents did not submit there should be a costs order against the State, on the basis that the circumstances set out in s 85A(2) of the Native Title Act existed. Therefore, each party should bear its own costs of the appeal and there should be no order as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.