Fejo & Ors v Northern Territory - [1998] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D7 of 1998

B e t w e e n -
JIM FEJO and DAVID MILLS on behalf of the LARRAKIA PEOPLE
Appellants
and
NORTHERN TERRITORY OF AUSTRALIA
First Respondent
OILNET (NT) PTY LTD
Second Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 22 JUNE 1998, AT 10.21 AM

MR J. BASTEN, QC: May it please the Court, I appear MR R.W. BLOWES, for the appellants. (instructed by the Northern Land Council)

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory: May it please the Court, I appear with my learned friend, MS R.J. WEBB, for the Northern Territory of Australia, the first respondent. (instructed by the Solicitor for the Northern Territory)

MR H.C. BURMESTER, QC, Acting Solicitor-General for the Commonwealth: If it please the Court, I appear with MS M.A. PERRY and MR G.J. LOUGHTON for the Attorney‑General of the Commonwealth seeking leave to intervene. (instructed by the Australian Government Solicitor)

GLEESON CJ: Is there any objection to the application for leave to intervene made on behalf of the Commonwealth?

MR BASTEN: No, your Honour, not for our part.

GLEESON CJ: You have that leave.

MR P.A. KEANE, QC, Solicitor-General for the State of Queensland: May it pleases the Court, I appear with MR G.R. COOPER and MRS D.A. MULLINS, for the Attorney-General for the State of Queensland who also seek leave to intervene in the interests of the respondent. (instructed by the Crown Solicitor for Queensland)

GLEESON CJ: Yes, Mr Solicitor. Is there any opposition to that application?

MR BASTEN: No, your Honour.

GLEESON CJ: Yes, you have that leave.

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR K.M. PETTIT, on behalf of the Attorney‑General for the State of Western Australia seeking leave to intervene. (instructed by the Crown Solicitor for Western Australia)

GLEESON CJ: Yes, Mr Solicitor. Is that opposed?

MR BASTEN: No, your Honour.

GLEESON CJ: You have that leave.

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear with my learned friend, MS D.T. SEAL, for the Attorney‑General for the State of South Australia seeking leave to intervene in support of the respondent. (instructed by the Crown Solicitor for South Australia)

GLEESON CJ: Yes, Mr Solicitor. Is that opposed?

MR BASTEN: No, your Honour.

GLEESON CJ: You have that leave.

MR L.S. KATZ, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR V.B. HUGHSTON, for the State of New South Wales seeking leave to intervene in the interests of the first respondent. (instructed by the Crown Solicitor for New South Wales)

GLEESON CJ: Yes,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] HCATrans 241
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of the Northern Territory concerning the rights of Aboriginal people to hunt and gather on Crown land. The appellants, a group of Aboriginal individuals, asserted native title rights to hunt and gather on certain pastoral leases in the Northern Territory. The respondents, the Northern Territory government and the pastoral leaseholders, contested these claims.

The central legal issue before the High Court was whether the appellants' asserted native title rights to hunt and gather were extinguished by the grant of pastoral leases. Specifically, the Court had to determine whether the rights conferred by a pastoral lease were inconsistent with the continued existence of native title rights to hunt and gather on that land. This involved an examination of the nature and scope of native title rights and the nature and effect of the rights granted under a pastoral lease.

The High Court, in a majority decision, held that the grant of a pastoral lease did not necessarily extinguish all native title rights. The Court reasoned that the rights conferred by a pastoral lease were primarily for the purpose of grazing stock and did not grant exclusive possession of the land to the exclusion of all other uses. Therefore, native title rights to hunt and gather could coexist with pastoral leases, provided that the exercise of those native title rights did not substantially interfere with the rights of the pastoral lessee. The Court applied the principle that native title is not extinguished unless the rights granted by the Crown are so extensive as to be irreconcilable with the continued existence of native title.

The High Court allowed the appeal in part, remitting the matter to the Supreme Court of the Northern Territory for further determination of the specific native title rights and interests that might exist and their relationship with the rights of the pastoral lessees.

Orders