HIGH COURT OF AUSTRALIA
GLEESON CJ
GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJALAN GRIFFITHS ON BEHALF OF THE
NGALIWURRU AND NUNGALI PEOPLES
AND ANOR APPELLANTSAND
MINISTER FOR LANDS, PLANNING
AND ENVIRONMENT AND ANOR RESPONDENTSGriffiths v Minister for Lands, Planning and Environment
[2008] HCA 20
15 May 2008
D8/2007ORDER
1. Appeal dismissed.
2. Appellants to pay the costs of the first respondent.
On appeal from the Supreme Court of the Northern Territory
Representation
S J Gageler SC with S A Glacken for the appellants instructed by (Northern Land Council)
D F Jackson QC with R J Webb QC for the first respondent (instructed by Solicitor for the Northern Territory)
Interveners
R G Orr QC with M A Perry QC intervening on behalf of the Attorney-General for the Commonwealth of Australia (instructed by Australian Government Solicitor)
R J Meadows QC Solicitor-General for the State of Western Australia with G J Ranson intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)
M G Sexton SC Solicitor-General for the State of New South Wales with S B Lloyd intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GLEESON CJ. I agree with the orders proposed by Gummow, Hayne and Heydon JJ, and with their reasons ("the joint reasons") for those orders. I would make the following additional observations about the second issue dealt with in those reasons, that is, the construction of s 24MD(2)(b) of the Native Title Act 1993 (Cth).
Section 24MD(2) provides for the extinguishment of native title on just terms as to compensation if:
"(a)the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:
(i)the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and
(ii)the compulsory acquisition by the Commonwealth, the State or the Territory of non-native title rights and interests in relation to land or waters; and
(b)the whole, or the equivalent part, of all non-native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and
(ba)the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their rights and interests are acquired[.]"
The evident concern of these three conditions of the operation of the substantive provisions of s 24MD(2) relating to extinguishment of native…
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- Case
- [2008] HCA 20
- Decision Date
CaseChat Overview and Summary
The central legal issues before the High Court were whether section 43(1) of the *Lands Acquisition Act* (NT) conferred power on the Minister to compulsorily acquire land for any purpose, including solely for subsequent sale or lease for private use, and whether this power extended to the extinguishment of native title rights and interests. The court also considered whether section 24MD(2) of the *Native Title Act* 1993 (Cth) permitted the extinguishment of native title by compulsory acquisition when no other non-native title rights subsisted, and whether the *Lands Acquisition Act* (NT) provided sufficiently clear and express terms for the acquisition of native title interests, given their unique communal and spiritual characteristics.
A majority of the High Court, in separate judgments, found that the *Lands Acquisition Act* (NT) did confer the power to acquire land for any purpose, including for subsequent private development. They held that the Act did not require the acquisition to be for a direct governmental purpose. Furthermore, the majority concluded that the *Native Title Act* 1993 (Cth), specifically section 24MD(2), did permit the extinguishment of native title by compulsory acquisition under the *Lands Acquisition Act* (NT) even in the absence of other subsisting interests. The majority reasoned that the language of the *Lands Acquisition Act* (NT) was sufficiently broad to encompass the acquisition of native title interests, and that there was no requirement for express and plain language to that effect in this context.
The appeal was dismissed, with the appellants ordered to pay the costs of the first respondent.
Orders
Orders of the court
1. Appeal dismissed.
2. Appellants to pay the costs of the first respondent. (Per Gummow, Hayne and Heydon JJ, with Crennan J agreeing, Gleeson CJ agreeing with additional reasons; Kirby and Kiefel J dissenting in separate judgments)
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ,
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