Wilson v Anderson

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.