Wilson v Anderson

Case [2002] HCA 29

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

DOUGLAS WILSON  APPLICANT

AND

MICHAEL ANDERSON & ORS  RESPONDENTS

Wilson v Anderson [2002] HCA 29
8 August 2002
S101/2000

ORDER

1.   Special leave to appeal granted and the appeal treated as instituted and heard instanter.

2.   Order 1 of the orders made by the Full Court of the Federal Court on 5 April 2000 is set aside and in its place order that the questions for separate decision be answered as follows:

Question (a):

By virtue only of

i.the Western Lands Act 1901 (NSW); and

ii.the regulations thereunder, as in force at the time of the grant of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

Question (b):

If the answer to question (a) is "No", by virtue of

i. the Western Lands Act 1901 (NSW);

ii.the regulations thereunder, as in force at the time of the grant of the Lease; and

iii. one or more of the terms and conditions of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

Answer to questions (a) and (b)

Save to say that the Lease conferred upon the lessee a right of exclusive possession over the land, the subject of the Lease, as the expression "a right of exclusive possession over … land" is used in s 23B(2)(c)(viii) and s 248A of the Native Title Act 1993 (Cth), it is inappropriate to answer questions (a) and (b).

Question (c)

If the answer to question (a) or question (b) is "Yes", were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

i. extinguished by the grant of the Lease; or alternatively

ii. suspended upon the grant of the Lease for the duration of the Lease?

Answer

Save to say that by operation of ss 23B and 23E of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW), the grant of the Lease extinguished any native title in relation to the land covered by the Lease and the extinguishment is to be taken to have happened when the Lease was granted, it is inappropriate to answer this question.

3.   Otherwise the appeal is dismissed.

4.   First respondent to pay the appellant's costs of the appeal in this Court.

On appeal from the Federal Court of Australia

Representation:

D F Jackson QC with J M C Emmerig for the applicant (instructed by Blake Dawson Waldron)

C J Birch SC with J J T Loofs for the first respondent (instructed by Craddock Murray Neumann)

V B Hughston with S B Lloyd for the second respondent (instructed by Crown Solicitor for New South Wales)

J Basten QC with R W Blowes for the third respondent (instructed by Chalk & Fitzgerald)

Intervener:

T I Pauling QC,…

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Details
AGLC
Wilson v Anderson [2002] HCA 29
Case
[2002] HCA 29
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Wilson against a decision of the Full Court of the Federal Court concerning the determination of native title. The dispute centred on whether a "lease in perpetuity" granted under the *Western Lands Act 1901* (NSW) extinguished native title over the leased land. The first respondent, Mr Anderson, sought a determination of native title, and the appeal concerned preliminary questions about the effect of the lease.

The legal issues before the High Court included whether the "lease in perpetuity" conferred upon the lessee a right of exclusive possession, both by virtue of the *Western Lands Act 1901* and its regulations, and by virtue of the lease's specific terms and conditions. Further, if exclusive possession was granted, the court was asked to consider whether any native title rights were extinguished or suspended by the lease. The court also commented on the appropriateness of reserving questions of native title extinguishment for separate determination, particularly in the absence of factual findings regarding the existence and content of native title rights.

The High Court noted that the practice of reserving questions for separate determination, especially concerning extinguishment, can be problematic without adequate factual findings, as exemplified in cases like *Wik Peoples v Queensland*. However, the court indicated that in certain circumstances, issues of extinguishment can be determined in advance, such as where the extinguishing act is the grant of a fee simple or a common law lease, both of which are considered to grant exclusive possession and thus preclude partial extinguishment. The court found that the grant of the lease in question conferred a right of exclusive possession for the purposes of the *Native Title Act 1993* (Cth).

The High Court ordered that special leave to appeal be granted and the appeal treated as instituted and heard instanter. It set aside an order of the Federal Court and substituted its own, stating that the lease conferred a right of exclusive possession as defined in the *Native Title Act 1993* (Cth). Consequently, it deemed it inappropriate to answer the specific questions posed regarding the lease's effect on native title, noting that by operation of relevant sections of the *Native Title Act 1993* (Cth) and the *Native Title (New South Wales) Act 1994* (NSW), the grant of the lease extinguished any native title in relation to the land. The appeal was otherwise dismissed, with the first respondent ordered to pay the appellant's costs.

Orders

Orders of the court

1. Special leave to appeal granted and the appeal treated as instituted and heard instanter.

2. Order 1 of the orders made by the Full Court of the Federal Court on 5 April 2000 is set aside and in its place order that the questions for separate decision be answered as follows:

Question (a):

By virtue only of

i. the Western Lands Act 1901 (NSW); and

ii. the regulations thereunder, as in force at the time of the grant of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

Question (b):

If the answer to question (a) is "No", by virtue of

i. the Western Lands Act 1901 (NSW);

ii. the regulations thereunder, as in force at the time of the grant of the Lease; and

iii. one or more of the terms and conditions of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

Answer to questions (a) and (b)

Save to say that the Lease conferred upon the lessee a right of exclusive possession over the land, the subject of the Lease, as the expression "a right of exclusive possession over … land" is used in s 23B(2)(c)(viii) and s 248A of the Native Title Act 1993 (Cth), it is inappropriate to answer questions (a) and (b).

Question (c)

If the answer to question (a) or question (b) is "Yes", were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

i. extinguished by the grant of the Lease; or alternatively

ii. suspended upon the grant of the Lease for the duration of the Lease?

Answer

Save to say that by operation of ss 23B and 23E of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW), the grant of the Lease extinguished any native title in relation to the land covered by the Lease and the extinguishment is to be taken to have happened when the Lease was granted, it is inappropriate to answer this question.

3. Otherwise the appeal is dismissed.

4. First respondent to pay the appellant's costs of the appeal in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ GAUDRON, GUMMOW AND HAYNE JJ
A number of points should be made here. First, the separate questions, if answered favourably to Mr Wilson, would have the consequence of excluding, prior to trial, the Leased Land from the ambit of the determination of native title sought by the first respondent. Secondly, the separate questions are framed in the absence of factual findings respecting the existence and content of any native title rights which existed before the alleged extinguishing act, the grant of the Lease, and in a manner similar to that of the questions which arose for determination in Wik Peoples v Queensland[30]. Thirdly, the separate questions make no reference to the provisions of Div 2B (ss 23A‑23JA) of Pt 2 of the NTA, particularly to the concept of "previous exclusive possession act" in s 23B thereof. It will be necessary to return to consider the last of these points later in these reasons.[30](1996) 187 CLR 1.The practice of reserving questions for separate decision It is convenient now to say something respecting the practice of reserving questions for separate determination, particularly respecting alleged extinguishment of native title. The difficulties that arise when an attempt is made to determine, in the absence of adequate findings of fact, issues of extinguishment of native title are well known. They were referred to in Wik[31] and Yanner v Eaton[32] and exemplify the general considerations referred to in Bass v Permanent Trustee Co Ltd[33].[31](1996) 187 CLR 1 at 131, 169‑171, 204‑205, 210‑213.[32](1999) 201 CLR 351 at 396 [109].[33](1999) 198 CLR 334 at 357‑358 [51]-[53]. In the Full Court, Black CJ and Sackville J observed that, while the identification of separate questions for determination can be a convenient procedure, there "are dangers in adopting the procedure, especially where no findings of fact have been made and the questions are capable of different interpretations"[34]. Their Honours recognised that the procedure had been adopted in this case as "a 'short cut' designed, depending on the outcome, 'to obviate the necessity for [a] very complex, lengthy and expensive factual inquiry'"[35].[34](2000) 97 FCR 453 at 461.[35](2000) 97 FCR 453 at 461. In some circumstances it is possible to determine issues of extinguishment in advance of findings as to the existence and content of the anterior native title rights and interests in question. One such example is where the extinguishing act relied upon is the grant of an estate in fee simple or of a common law lease. The grant of a fee simple extinguishes all native title rights that may exist in relation to the land the subject of the grant. This is so because the estate of fee simple "does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title"[36]. The same reasoning applies to the grant of a common law leasehold estate[37]. In both instances "the comprehensiveness of the grant precludes any question of partial extinguishment"[38].[36]Fejo v Northern Territory (1998) 195 CLR 96 at 126 [43].[37]Yanner v Eaton (1999) 201 CLR 351 at 395-396 [108]. [38]Yanner v Eaton (1999) 201 CLR 351 at 396 [108].

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ

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