8 Rules of interpretation

HIGH COURT OF AUSTRALIA, 2008

On 15 May 2008 the High Court of Australia, with little fanfare or media coverage, handed down a decision in its first native title case for some years. Griffiths v Minister for Lands, Planning and Environment (2008) (Griffiths) concerned a compulsory acquisition of native title by the Northern Territory Government in the Timber Creek township.¹ The case required the High Court to consider some fundamental questions of the reach of executive power to divest private citizens of their property. The case therefore has broader reach than the acquisition of native title. Indeed, while there are many issues that could have been considered in the jurisprudence of native title, the majority of the Court dealt with the ase as ne oncerning any ordinary title.

The case was precipitated in 1997 by a request from the holder of a grazing licence to purchase the land under which the licence was held and other blocks in the Timber Creek area for development as commercial enterprises. In 2000 the Northern Territory Government issued three notices to acquire all native title rights and interests, in particular parcels of land. The traditional owners of the area lodged objections to the acquisition and lodged an application for a determination of native title over the area in response to the notices, and were successful.²

The notices clearly stated that the purpose of the acquisition was to grant a lease, which could be exchanged for freehold upon completion of the development. This raises a central question of the power of the Crown to acquire the private rights of one citizen (or group of citizens) for the immediate benefit of another private citizen.

THE STATUTORY FRAMEWORK

Section 43 of the Northern Territory Lands Acquisition Act 1978 (NNT) (LL had previously provided the Minister with power to compulsorily acquire land for ‘public purposes ’ and, later, more simply, to ‘acquire land ’. In 1998 the Act was amended to allow the Minister to acquire land for ‘any purpose whatsoever’, so long as the ‘pre-acquisition procedures’ were complied with.

The 1998 amendments to the LAA took into account the amendments to the Native Title Act 1993 (Cth) (NTA). Indeed, the provision was amended to refer to ‘any purpose whatsoever’ so as to ensure that the processes for acquisition of land in the Northern Territory complied with the NTA. The legislature may also have had in mind the decision of the High Court in Clunies Ross v The Commonwealth (1984).³ In that case, the High Court determined that the power to acquire land for a public purpose, under the federal legislation, required that there be a proposed use or application for the land that advances a public purpose. The legislature had clearly intended to remove any fetters on the executive power to acquire land.

PUBLIC PURPOSE AND PRIVATE BENEFIT

The majority of the High Court in Griffiths agreed that, whether there were any ultimate limits on the broad phrasing of s 43, the LAA at least included acquisition ‘for the purpose of enabling the exercise of powers conferred on the executive by another statute of the territory’; in this case, the Crown Lands Act 1992 (NT), s 9, which provides that the Minister may grant estates in fee simple or lease Crown land.⁴ The majority disregarded cases involving local government and statutory authorities that establish a clear line of authority against local governments interfering with the private title of one party for the private benefit of another.⁵