Fejo & Ors v Northern Territory

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.