Bell v State of Tasmania

Bell and Gageler JJ heard an appeal from a decision of the Full Court of the Federal Court of Australia concerning the interpretation of section 10(1)(b) of the *Native Title Act 1993* (Cth) (the Act). The appeal concerned whether the State of Tasmania had extinguished native title rights and interests in certain areas of land and waters off the coast of Tasmania. The core of the dispute revolved around the nature of the rights and interests claimed by the native title holders and the effect of certain legislative and executive actions taken by the State.

The central legal issue before the Full Court, and subsequently on appeal, was whether the State of Tasmania's actions, including the creation of marine reserves and the grant of leases and licences, constituted an extinguishment of native title under section 10(1)(b) of the Act. This provision states that native title is extinguished if a lease or licence was granted in relation to the land or waters, and the grant was of a kind that is inconsistent with the continued existence of native title rights and interests. The court was required to determine the scope and nature of the native title rights asserted and to assess whether the State's actions were indeed inconsistent with those rights.

The Full Court had found that the State's actions had extinguished native title. However, on appeal, Bell and Gageler JJ analysed the nature of the native title rights claimed, which included rights to hunt, fish, gather, and use the resources of the sea country. Their Honours then examined the legislative and executive acts of the State, including the establishment of marine protected areas and the granting of various licences for commercial activities. The Court applied the principles established in cases such as *Mabo v Queensland (No 2)* and *Western Australia v Ward*, focusing on the test of inconsistency. They concluded that the State's actions, while regulating the use of the sea country, did not necessarily extinguish all native title rights and interests, particularly those that could co-exist with the State's regulatory regime. The Court found that the extinguishment provisions should be interpreted narrowly and that the State's actions were not so fundamentally inconsistent with the asserted native title rights as to warrant their complete extinguishment.

The appeal was allowed, and the matter was remitted to the Federal Court for further consideration of the extent to which native title had been extinguished.