Now we know Full Court ends discussion on NSW statutory lease classes no extinguishment
11 July 2022
11 July 2022
In Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38 the Full Federal Court dismissed the State's appeal and upheld the primary judge's findings that certain historical statutory leases do not extinguish native title.
The appeal arose in the context of separate questions referred in the Ngemba/Ngiyampaa native title claim.
The interests in question were:
The Court was asked to consider whether each lease extinguished native title as a grant of exclusive possession, a "Scheduled Interest" or a "commercial lease" under the Native Title Act 1993 (Cth).
The primary judge found that many of the leases had not extinguished native title and were not grants of exclusive possession (Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169). The Full Court agreed with the primary judge on all findings that were the subject of the appeal. The primary judge's extinguishment findings in relation to some classes of statutory leases were not appealed.
The Full Court considered previous authorities on the meaning of exclusive possession in the context of the Native Title Act and focused particularly on the High Court's decision in WA v Brown [2014] HCA 8.
The Full Court held that the core assessment is whether what was conferred by the grant could be characterised as being "a right to exclude anyone and everyone for any reason or no reason", including by an assessment of whether a lessee was granted a right to use the land as the lessee saw fit.
The Full Court noted that many leases granting exclusive possession have some restrictions on use. Broad reservations permitting the grantor and others to pass through or use the land in limited circumstances may not be inconsistent with exclusive possession.
Whether reservations or conditions are inconsistent with exclusive possession depends on the circumstances of the grant in question, including the nature of the right granted and the extent to which any such reservation precludes the grantee to use the land.
The primary judge (whose approach was approved by the Full Court) took into account a number of factors when considering whether the statutory leases were grants of exclusive possession, including:
The following leases were held to be Scheduled interests under the Native Title Act that extinguished native title. These findings were not appealed:
Interestingly, the Full Court concluded that several Scheduled Interests which have the effect of extinguishing native title by virtue of the Native Title Act did not confer exclusive possession so would not have extinguished native title at common law. This will likely add to the State's compensation burden.
The State of NSW ran this matter as a test case for extinguishment of native title by statutory leases that did not otherwise fulfil the criteria for extinguishment (as "Scheduled Interest" etc). The Full Court's dismissal of all of the State's grounds for appeal clearly resolves this issue in NSW and other States will similar types of statutory leases.
To prove exclusive possession in the context of a statutory lease under the Native Title Act, the Full Court held that the core assessment is:
This test will make it difficult to argue that a statutory lease for limited purposes that does not otherwise meet the criteria for extinguishment under the Native Title Act (eg as Scheduled interest or commercial lease) is a grant of exclusive possession that extinguishes native title.
It is hard to believe there are any more unsettled extinguishment questions. However, novel circumstances will no doubt arise requiring further judicial guidance. In the meantime, compensation arising from extinguishment will be the subject of judicial attention.
Authors: Leonie Flynn, Expertise Counsel and Clare Lawrence, Partner.
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.