Indigenous Australian Law: Fejo v Northern Territory - Case Study Example

Case Citation Fejo v Northern Territory [1998] HCA 58; 195 CLR 96; 156 ALR 721; 72 ALJR 1442 (10 September 1998) Facts of the Case The Larrakia people, a community of Aboriginal Australians lodged an application for determination of native title with the Native Title Registrar on December 6, 1996. The application covers portions of land in the area of Darwin, Palmerston, and Litchfield. Before the filing of the application, the City of Darwin and its suburbs were subdivided by the Northern Territory in 15 parcels. Each parcel were leased with the condition that it must be surrendered in exchange for a freehold title at no further cost upon completion of development in accordance with the terms of the lease, and payment of any sum owing to the Northern territory. In the application a number of declarations were included and one of those is that a native title exists in relation to the area leased to Oilnet and the Larrakia people are the rightful holders of such title. The Act obliged the Northern Territory to negotiate with the Larrakia people before it could grant a valid lease to Oilnet. The Northern Territory filed by notice of motion dismissing the proceeding on the ground of no reasonable cause and that such is vexatious and an abuse of process. The appellants applied by notice of motion for interlocutory injunctions but was dismissed hence, the appeal before the Full Court of the Federal Court. It is also the contention of the appellants that the 1882 grant did not extinguish native title. Legal Issues The issues raised can be referred to as substantive and procedural questions. The substantive question is that whether or not the grant of a fee simple interest in land has the effect, for all time, of extinguishing any native title in that land which the courts of Australia will recognize and enforce.1 Second issue raised is whether or not a judge of the Federal Court of Australia erred in the present proceedings, either as a matter of power or of discretion in resolving the substantive question. It is suggested that the judge should have delayed his decision on the matter and provided the appellants with injunctive and other relief to protect various procedural rights arising from their claim.2 Legal Reasoning The Native Title Act 1993 provides for the protection and recognition of Native Title. It also establishes ways which affect Native Title of future dealings and provides for mechanisms of such dealings.3 Section 11 of the said Act further provides that Native title is not able to be extinguished contrary to this Act.4 Native Title originates in the traditions and customs of the indigenous peoples of Australia. It is from them and not from the common law, that it takes its content.5 A grant of fee simple extinguishes native title. It is extinguished because the rights given in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the interests or rights which together make up native title. The enjoyment of such rights or interests is not permitted unless conferred by statute, by the owner of the fee simple, or by a predecessor in title. Fee simple in the words of Isaacs J in the case of Commonwealth v New South Wales signifies an estate of inheritance as distinguished from a less estate. It is the most extensive in quantum and the most absolute with respect to right conferred. It conferred lawful right to exercise over such land and every act of ownership.6 It is a clear law in this country based from the case of Mabo [2], whatever may be the position elsewhere, that native title may be extinguished by the valid exercise of the sovereign power to grant inconsistent interests in land to third parties.7 In effect, any remaining native title which subsisted before such grant is expelled. Brennan J in Mabo [No 2] said that, “where the Crown has validly alienated land by granting interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests.”8 Furthermore, a joint judgment in the case of Western Australia v The Commonwealth held that, “after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel – for example, a grant by the Crown of a parcel of land in fee simple.”9 Regarding the second issue, McHugh J emphasis that in furtherance of this purpose, the effect of the Act, is irrespective of whether a claimant has native title as claimed, as long as the claimant has prima facie claim of title, he or she has obtained the right to negotiate with interested parties once their claim is accepted by the Registrar. These negotiation rights are valuable which protect the claimants against permissible future acts. For the protection of valuable statutory rights, when the parties have not reached an agreement they are encouraged to undergo voluntary negotiation or enter into a mediation process if the former is not forthcoming. The matter can then be referred to the Federal Court for judicial determination if mediation fails. In order for an injunctive relief to succeed, there must be a serious question to be tried and the establishment of fact is warranted by a balance of convenience. Ratio Decidendi There are two basic considerations borrowed from the case of Mabo [No 2] to restrain the disturbance of interests in land established by the law as previously understood: (1) The court should not destroy or contradict an important and settled principle of the legal system; (2) In every society, rights in land which afford an enforceable entitlement to exclusive possession are basic to social peace and the order as well as to economic investment and prosperity. Any disturbance to the above mentioned established rights is a matter before the legislature not the courts. Fee simple interests, whether granted by or under statute or otherwise have well settled legal features. The most important of these, is the right in law to exclusive possession. Naturally, that right cannot co-exist with native title. Inconsistency lies not in the facts or in the way in which the land is actually used.10 It lies in a comparison between the inherently fragile native title right, susceptible to extinguishment or defeasance, and the legal rights which fee simple confers.11 Decision of the Court In consideration of legal history, authority, and principle combined also supported by considerations of legal policy, native title is extinguished by a grant in fee simple. This statement is considered as settled. However, it was argued that extinguishment is not forever. It could be reversed by the occurrence of legal events which restored the possibility of according recognition to native title, provided the traditional owners could establish that such native title had survived in fact in the interval. The High Court ruled that the contention of Northern Territory is undisputed and demonstrated the fatal flaw asserted in the appellants’ claim before the primary judge. The court concluded that no additional evidence could have altered the position or added substance to the appellant’s legal claims. The primary judge was therefore entitled to make orders which he did. Significance of the Case for Legal Principle A person or persons authorized by the native title claim group may lodge an application before the Federal Court for the determination of Native Title. The application having conformed to the prescribed form with the corresponding fees must be given to the Registrar. The case at bar was accepted by the Registrar not because it is frivolous or vexatious but sufficient to demonstrate arguability. Although the application was accepted it was on proper analysis of the claim that the appellant’s claim was bound to fail, whilst a procedural injustice was done to the appellant no substantive injustice. Despite the fact that native title originates in the traditions and customs of the indigenous peoples of Australia, this particular case of Fejo shows that such is not a guarantee for continued possession of native title. It was pointed out in the case of Wik that in support of the submissions it must be expressed in the principle of law appropriate to Australian conditions and legal history. Reference to overseas authority must be taken with caution because of differencing historical, constitutional and other circumstances which might not be applicable under Australian laws. In other cases referred to in the case of Fejo it was held that the extinguishment of native title could be reversed by the occurrence of legal events. However, Gleeson CJ in this case cannot accept such proposition. There must be a true test propounded by the Court to include a comparison between the legal character of the interest in the land under Australian law and the native title interest in the same land. The conferral of new rights by common law would be completely incompatible with the notion that native title rights have their origin in Aboriginal custom; not in the Australian legal system. There is a difference in principle between the recognition of native title of the indigenous people of Australia which pre-dated the sovereignty of the Crown and ‘revival” of a right which has, in law, earlier extinguished.12 The absolute nature of fee simple is a central feature of Australia’s land system; it follows Australia’s legal history, authority, and principle. It is not susceptible to alteration by the Court as a re-expression of the common law.13 . References: Section 3, Native Title Act 1993 Section 11, Native Title Act 1993 Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923) Fejo v Northern Territory [1998] HCA 58 par 61 Fejo v Northern Territory [1998]HCA 58; 195 CLR 96; 156 ALR 721; 72 ALJR 1442 (10 September 1998) per Gleeson CJ Mabo v Queensland (No 2) ("Mabo case") [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992) Western Australia v Commonwealth [1995] HCA 47; (1995) EOC 92-687 (extracts); (1995) 69 ALJR 309; (1995) 183 CLR 373 (16 March 1995) Wik Peoples v Queensland ("Pastoral Leases case") [1996] HCA 40; (1996) 187 CLR 1; (1996) 141 ALR 129; (1996) 71 ALJR 173 (23 December 1996) Read More