3 The vulnerability of native title

HIGH COURT OF AUSTRALIA, 1998

Most observers expected that the High Court would find that native title was extinguished by the grant of a freehold estate. Yet, despite the outcome being as predicted, many Indigenous peoples were disappointed by the decision in Fejo v Northern Territory (Fejo).¹ Arguably, there was scope within the concept of native title for recognition of the interests of Indigenous peoples in freehold land in some form, and certainly in land that had been resumed as vacant Crown land. It was possible that a principle or presumption of non-extinguishment may have resulted in a more positive outcome in this case. More than this, there are aspects of the Court’s reasoning in Fejo, and in particular the characterisation of the title, that were troubling for the doctrine of native title as a vehicle for recognising the rights of Indigenous peoples over lands.

The Larrakia people, whose country includes areas in and around Darwin, Palmerston and Litchfield in the Northern Territory, had lodged an application for a determination of native title. The action in Fejo was precipitated by the granting of leases, with an option to acquire freehold title, over lands that had been subdivided by the Northern Territory Government but which were within the area subject to the native title application. The Larrakia people took action against the Northern Territory Government and one of the lessees, Oilnet, with respect to the validity and consequences of the grant of such leases.

The land that was the subject of the Crown leases in dispute was once part of a tract of land granted as freehold in April 1882. The land was later acquired by the Commonwealth in 1927 for public purposes, specifically, as a quarantine station and later a leprosarium. Both public purpose proclamations were revoked in 1980. The land thus became vacant Crown land once again.

In the Federal Court, the Larrakia people sought a declaration of native title in relation to the subject lands. They argued that the Northern Territory Government was required by the Native Title Act 1993 (Cth) (NTA) to either negotiate with the Larrakia or to compulsorily acquire their native title. The Larrakia people also sought injunctions to prevent any further development on the lands. The High Court was asked to consider a single ground of appeal: that the trial judge erred in holding that the grant of freehold was effective to extinguish all native title rights and interests in the land subject of the grant so that, upon the land being reacquired by the Crown, no native title rights and interests could then be recognised by the common law.²

The facts of the case, specifically the tenure history, raised two important issues that were yet to be authoritatively determined by the High Court. The first issue was whether a grant of freehold extinguished native title so that no form of native title could coexist with freehold title. The second question was whether extinguishment was permanent and absolute or whether there was potential for native title under the common law to ‘revive’ when the land returned to the Crown. The case also dealt with the issue of injunctive relief available outside the operation of the NTA. These issues were important for Indigenous peoples in all parts of Australia, but particularly for those in more settled regions. To this end, the Yorta Yorta, Nyungar, Wororra and Miriuwung Gajerrong peoples, among others, intervened to support the action of the Larrakia people.

THE FREEHOLD QUESTION

The grant made in 1882 was for the land, all timber, minerals and appurtenances to the grantee, ‘His Heirs, and Assigns for ever’.³ These terms were recognised to convey an estate in fee simple, commonly called a grant of freehold title. The High Court was unanimous in determining that native title was extinguished by a grant in fee simple, although Justice Kirby gave separate reasons. For Chief Justice Gleeson and Justices Gaudron, McHugh, Gummow, Hayne and Callinan, native title was extinguished by such a grant because ‘The rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title’.⁴ An estate in fee simple was said to be the closest thing to absolute ownership that exists in the Australian system of land tenure, by which it allows ‘every act of ownership which can enter into the imagination’.⁵

The conclusion that freehold extinguishes native title was foreshadowed in Mabo v Queensland [No. 2] (1992) (Mabo) when Justice Brennan explained the relationship between inconsistency and extinguishment by reference to freehold:

Similarly, Justices Deane and Gaudron stated that native title was ‘susceptible of being extinguished by an unqualified grant by the Crown of an estate in fee’.⁷

In a separate judgment in Fejo, Justice Kirby admitted that these statements were not essential to the cases then at hand — indeed, the question had not been fully argued — and, as such, the Court in this instance was not strictly bound by previous statements.⁸ Moreover, the authorities to date had given rise to a test that needed to be applied to determine whether, and to what extent, native title was extinguished by the grant of freehold title. This test focused on inconsistency as the essence of extinguishment. In Western Australia v Commonwealth (1995) (Native Title Act case), for example, the joint judgment of the majority referred to ‘extinguishment or impairment’ by ‘a valid exercise of sovereign power inconsistent with the continued or unimpaired enjoyment of native title’.⁹ As such, the extent of extinguishment or impairment would depend on the extent of any inconsistency. It was open to suggestion that, under the test, extinguishment could not be construed in a way that takes on an absolute character. This view was reinforced by the decision of the High Court in Wik Peoples v Queensland (1996) (Wik). There, the nature of the pastoral lease was examined to assess the extent of inconsistency and, indeed, was found not to be inconsistent with the continued enjoyment of some elements of native title, although the rights of the pastoralist, to the extent of any inconsistency, would prevail.¹⁰ Therefore, the question of whether freehold title extinguished native title was open to be tested.

A ‘BUNDLE OF RIGHTS’

In applying the test of inconsistency in Fejo,