Jim Fejo & Anor on their own behalf & on behalf of the Larrakia People v Northern territory of Australia & Anor [1998] FCA 119 (27 February 1998)

Last Updated: 4 March 1998

FEDERAL COURT OF AUSTRALIA

NATIVE TITLE - application for injunctive relief to preserve status quo pending determination of application - grant of fee simple - freehold land compulsorily acquired 46 years later - subsequent period when land was unalienated crown land - whether grant of an estate in fee simple extinguished native title - meaning of "extinguished" - could native title survive or be revived.

Native Title Act 1993 (Cth)

Jurisdiction of Courts (Cross Vesting) Act 1987 (NT)

Judiciary Act 1903 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Aboriginal Land Rights (Northern Territory) Act 1976

Ward v The State of Western Australia (judgment delivered 21 December 1995) considered

Taylor on behalf of the Kalkadoon People v North Queensland Electricity Commission (judgment delivered 14 October 1996) considered

Bropho v Ball (judgment delivered 1 February 1997) considered

North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 considered

Wik Peoples v Queensland (1996) 187 CLR 1 followed

Fourmile v Selpam Pty Ltd (unreported: judgment delivered 13 February 1998) applied

Mabo v Queensland (No 2) [1992] HCA 23; (1991-1992) 175 CLR 1 followed

The New Shorter Oxford English Dictionary

Chambers Twentieth Century Dictionary

The Macquarie Dictionary

JIM FEJO AND DAVID MILLS on their own behalf and on behalf of the LARRAKIA PEOPLE v NORTHERN TERRITORY OF AUSTRALIA and OILNET (NT) PTY LTD (ACN 007 755 545)

DG 10 OF 1997

JIM FEJO AND DAVID MILLS on their own behalf and on behalf of the LARRAKIA

PEOPLE v NORTHERN TERRITORY OF AUSTRALIA

DG 11 OF 1997

O'LOUGHLIN J

DARWIN

27 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	No dg 10 of 1997

BETWEEN:	JIM FEJO AND DAVID MILLS on their own behalf and on behalf of the LARRAKIA PEOPLE Applicants
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent OILNET (NT) PTY LTD (ACN 007 755 545) Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	No DG 11 of 1997

BETWEEN:	JIM FEJO AND DAVID MILLS on their own behalf and on behalf of the LARRAKIA PEOPLE Applicant
AND:	NORTHERN TERRITORY OF AUSTRALIA Respondent

JUDGE:	o'loughlin j
DATE OF ORDER:	27 february 1998
PLACE:	darwin

JIM FEJO AND DAVID MILLS on their own behalf and on behalf of the LARRAKIA PEOPLE v NORTHERN TERRITORY OF AUSTRALIA and OILNET (NT) PTY LTD (ACN 007 755 545) - DG 10 OF 1997

THE COURT ORDERS THAT:

1. The Northern Territory of Australia bring in short minutes of order in terms consistent with these reasons.

2. The parties have liberty to speak to the minutes.

3. There be liberty to apply on seven day's notice.

4. The question of costs be reserved for further consideration.

JIM FEJO AND DAVID MILLS on their own behalf and on behalf of the LARRAKIA

PEOPLE v NORTHERN TERRITORY OF AUSTRALIA - DG 11 OF 1997

THE COURT ORDERS THAT:

1. The Northern Territory of Australia bring in short minutes of order in terms consistent with these reasons.

2. The parties have liberty to speak to the minutes.

3. There be liberty to apply on seven day's notice.

4. The question of costs be reserved for further consideration.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	no dg 10 of 1997

BETWEEN:	JIM FEJO AND DAVID MILLS on their own behalf and on behalf of the LARRAKIA PEOPLE Applicants
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent OILNET (NT) PTY LTD (ACN 007 755 545) Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	No DG 11 of 1997

BETWEEN:	JIM FEJO AND DAVID MILLS on their own behalf and on behalf of the LARRAKIA PEOPLE Applicant
AND:	NORTHERN TERRITORY OF AUSTRALIA Respondent

JUDGE:	o'loughlin j
DATE:	27 february 1998
PLACE:	darwin

REASONS FOR JUDGMENT

In these two actions, which have been instituted on behalf of the Larrakia people, declarations are sought that native title exists in relation to certain nominated parcels of land. There are presently two notices of motion before the Court in each action. In the first, the Larrakia people seek injunctive orders to protect their claimed interests in certain areas of the subject land; in the second the respondent, the Northern Territory of Australia, having claimed that no cause of action has been established, seeks an order for summary dismissal of both actions.

Before considering the respective arguments of the parties, it is necessary to set out the relevant facts; they are complex but, with one major exception, I do not understand them to be disputed.

1. On 20 April 1882 a grant in fee simple of certain land was made in favour of John James Benham. It was a parcel of twelve sections of land in the Hundred of Bagot; two of those sections were numbered 400 and 402. Generally, the land was immediately to the south of what is now the city of Darwin and its suburbs. The grant was expressed to be "together with all timber, minerals and appurtenances". There were no reservations to the Crown.

2. The land referred to in par 1 hereof was compulsorily acquired by the Commonwealth of Australia for quarantine purposes in 1928 and thereafter, until 1935, remained as unalienated Crown land.

3. On 4 January 1935 the same land was part of a larger area that was proclaimed as a Quarantine Station and on 5 September 1956 it was within an area of land that was appointed to be a Leprosarium.

4. In 1980 the Proclamation of the Quarantine Station was revoked as was the appointment of the Leprosarium.

5. In March 1991 portions of sections 400 and 402 were subsumed into sections 4246 and 4337 in the Hundred of Bagot.

6. On 15 March 1996 an application on behalf of the Crown in right of the Northern Territory of Australia was lodged in the Lands Titles office; the application sought approval for the subdivision of adjoining portions of section 4246 and 4337 into fifteen separate parcels of land. The area of land which was the subject of the application is south of Darwin, fronting Berrimah Road and opposite freehold land identified as the "Trade Development Zone". No notice was served on any person pursuant to any of the provisions of the Native Title Act 1993 (Cth) ("the NTA") with respect to the intended subdivision.

7. In due course the application for subdivision was approved. The fifteen new parcels of land were created and were identified as sections 4735 to 4749 inclusive ("the 1996 subdivision"). This case has proceeded upon the premise that these fifteen new sections form part of the sections 400 and 402 that were the subject of the original grant to Mr Benham.

8. On 24 July 1996 an auction was conducted on behalf of the Northern Territory Department of Lands, Planning and Environment for grants of fifteen leases, each for a term of three years with building covenants. Each proposed lease granted to the lessee an option to convert the Crown Lease to a freehold grant in terms such as:

"The lessee may on completion of development in terms of the lease and upon payment of any monies owing to the Territory surrender the whole of the lease in exchange for a freehold title at nil cost, subject to payment of any administrative costs and lodgement fees required by the Registrar-General."

9. From the date of the auction up to and including 5 December 1996, eight Crown Leases issued in respect of eight of the sections in the 1996 subdivision.

10. On the following day, 6 December 1996, a native title determination application ("the native title application") was lodged with the Registrar ("the Registrar") of the National Native Title Tribunal ("the Tribunal") on behalf of the Larrakia people. That application covers extensive portions of land in the area of Darwin, Palmerston and Litchfield.

11. The applicants say that the subdivided land is included in the land which is the subject of the native title application. This claim was disputed but I am satisfied that the applicants are correct. I will deal with this issue separately at a later stage in my reasons.

12. The native title application was accepted pursuant to s 63 of the NTA by the Registrar of the Tribunal on 1 April 1997.

13. Subsequent to the lodgment of the native title application, a further four Crown Leases were issued between March and August 1997. As at August, three sections remained, they being sections 4735, 4741 and 4747.

14. On 3 October 1997, the Northern Territory News published an article reporting that work by Oilnet (NT) Pty Ltd ("Oilnet") had commenced on a $7m facility at Hudson Creek (the name for the locality in which the 1996 subdivision is situated). Oilnet had in May and August 1997 successfully tendered for leases of sections 4748 and 4749 ("the Oilnet lease area"), two of the fifteen parcels of land in the 1996 subdivision. Oilnet's development was said to be part of a $20m offshore supply base that was to be built at Darwin's East Arm Port to service the oil and gas industry.

15. The newspaper article came to the attention of the Northern Land Council ("the NLC") the representative of the Larrakia people, and Mr Ron Levy, a solicitor employed by the council, caused searches to be made of the subject land. His inquiries lead to the Council writing Oilnet and the Northern Territory Minister for Lands, Planning and Environment on 17 November 1997 (Exs RL27 and 28) complaining that the Northern Territory Government had failed to observe "the requirements of the NTA regarding major developments, especially in the Darwin region". The letter complained that neither the Council nor the Larrakia people had been advised of the proposal for the offshore supply base. The clear inference is, and I find, that the applicants had no prior knowledge of the subdivisional and developmental work in and about the land in the 1996 subdivision. The letter further complained that subsequent to the lodgment of the application, the Northern Territory government "then produced its own maps ... which purport to show the land which is subject to the Larrakia application" and that the government falsely asserted "that the Larrakia claim does not include the above subdivided areas of vacant crown land ...". The letter to the Minister continued:

"The lodgement of the native title application provided clear notice to the NTG and other interested persons that the Larrakia assert traditional interests to the land which is now located in the subdivisions. Notwithstanding that lodgement the NTG has purported to alienate a further four subdivisions during 1997, being sections 4745, 4746, 4748 and 4749. I understand that an additional three subdivisions have been offered for sale (sections 4735, 4741 and 4747). The NLC and the Larrakia were not informed of these purported grants, a fact which again raises serious concerns as to the proprietary of the Government's actions in this matter.

The NLC considers that these grants are invalid due to a failure to comply with the future act requirements of the NTA (see below). The NTG's failure to issue a notice under s 29 of the NTA or even to notify the NLC and the Larrakia as to the subdivisions and grants, publication of incorrect maps, and lack of openness regarding this matter means that the Larrakia have been denied the opportunity, until now, to challenge the grants or to be included in negotiations regarding the developments."

At a later stage the council sought undertakings "that the Government will not purport to alienate sections 4735, 4741 and 4747" and that the Government will not purport to grant "any additional or greater interest regarding" the remaining twelve sections.

16. On 19 November 1997 a Crown lease issued to Kean Agencies Pty Ltd ("Kean Agencies") in respect of section 4741, one of the three remaining sections in the 1996 subdivision.

17. By letter dated 24 November 1997, the Minister replied to the NLC asserting that it was "the Government's view that at all times it has acted properly and in accordance with the law in respect of matters raised by you". The Minister therefore declined to give the undertakings sought. The letter did not allude to the grant of the lease to Kean Agencies.

18. On 16 December 1997 the applicants instituted proceedings in the Northern Territory District Registry of the Court.

In Action No DG 10 of 1997, the Northern Territory of Australia and Oilnet were both named as respondents and the relief that was sought was limited to the Oilnet lease area. In Action No DG 11 of 1997, the relief that was sought was limited to the three sections 4735, 4741 and 4747 and, not knowing that section 4741 had been leased to Kean Agencies, only the Northern Territory of Australia was named as a respondent. There is evidence before the Court that Kean Agencies has been made aware of these proceedings but has opted not to take part in them, relying instead upon the arguments that were advanced on behalf of the Northern Territory. I have accepted that position and I have proceeded accordingly.

19. Because the two proceedings address the same issues, an order was made that the two matters be heard together. However, for the balance of these reasons, I will refer, in the main, only to the proceedings in Action No DG 10 of 1997 ("the Oilnet proceedings").

In their application, the applicants sought injunctive relief restraining:

"(a) second respondent (ie Oilnet) from undertaking or continuing to undertake any development of, or the erection of improvements on or affecting, the Oilnet lease area; and

(b) first respondent (ie the Northern Territory Government) from accepting a surrender of the Oilnet Crown leases or either of them, or exchanging the Oilnet Crown leases or either of them for a freehold title."

The breadth of those claims was materially reduced however, and in their Notice of Motion as amended during the course of the hearing, the applicants sought an order in the following terms:

"An order restraining the First Respondent during the pendency of these proceedings or until further order of the Court, in respect of land identified as sections 4748 and 4749, Hundred of Bagot in the Northern Territory ("the land") from:

(a) accepting a surrender of the Crown leases granted to the Second Respondent and regranting any lease or granting to the Second Respondent or vesting in the Second Respondent any other interest in respect of the land, or

(b) granting, transferring or otherwise disposing of any interest in the land to any other person, or

(c) vesting or causing any interest in the land vested in any other person, or

(d) carrying out or causing or permitting any person to carry out any development on the land, other than development currently permitted, authorised or required under the terms of the Crown leases held by the Second Respondent."

No restraining order is now sought against Oilnet. It remains free to develop the Oilnet lease area in accordance with its rights and obligations under the two leases. But it is, of course, materially affected in an indirect manner if the Northern Territory is restrained from issuing grants of freehold to Oilnet upon the expiry of the three year terms.

The affidavit of Peter Lawrence O'Shannessey, the managing director of Oilnet, sets out the importance of and urgency of this matter. It establishes, prima facie, a case for an early resolution of this problem if that is possible. Mr O'Shannessey explained that his company has been undertaking a substantial industrial development of the 4.3 hectares of the Oilnet lease area. That includes the construction of a 1500 square metre specialist warehouse complete with water, power and communication services; in addition, services have been reticulated to building pads formed to enable the construction of a further four warehouses. The entire site has been fenced.

To date, Oilnet has expended approximately $3.7m in acquiring and developing the Oilnet lease area; another $400,000 or thereabouts has been spent in business development expenses and the company plans to spend a further $3m in completing the development of the land.

Mr O'Shannessey claims that his company had no knowledge of any native title claims to the Oilnet lease area until the receipt of the letter (Ex RL27) dated 17 November 1997 from the NLC. He said that prior to completing the acquisition of the leases, his company had searched and relied on maps prepared by the Northern Territory Department of Lands Planning and Environment, none of which showed the land in the 1996 subdivision as being the subject of any claim for native title.

None of the factual assertions in Mr O'Shannessey's affidavit has been challenged by the applicants and for the purposes of the proceedings I accept the facts deposed to in his affidavit as accurate.

JURISDICTION

Counsel for the Northern Territory of Australia submitted that this court did not have jurisdiction to grant the substantive relief that is being sought on behalf of the Larrakia people. In the Oilnet proceedings, for example, the first two declarations sought are that:

"(a) native title exists in relation to the Oilnet lease area;

(b) the Larrakia people are the holders of that native title."

The submission on behalf of the government is to the effect that a declaration of native title may only be made by this Court as a consequence of the Registrar of the Tribunal lodging in this Court, for its decision pursuant to the provisions of s 74 of the NTA, the relevant native title application. This issue has been addressed in three unreported judgments that were drawn to the attention of the Court. In each case applicants, who had filed a native title application with the Registrar, filed ancillary proceedings in this Court seeking injunctive relief to preserve the interests that were the subject of the claims in the native title application. In each case the Court heard and adjudicated upon the application for injunctive relief upon the premise that no issue of jurisdiction was raised. The three cases, which are further referred to hereafter under the heading "Balance of Convenience" are Ward v The State of Western Australia (judgment delivered 21 December 1995); Taylor on behalf of the Kalkadoon People v North Queensland Electricity Commission (judgment delivered 14 October 1996); and Bropho v Ball (judgment delivered 1 February 1997).

In these proceedings the applicants have relied on subs 4(1) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NT) to give this Court jurisdiction. But, in my opinion, the Federal Court also has jurisdiction to hear this matter as a consequence of the recent introduction of subs (1A) of s 39B of the Judiciary Act 1903 (Cth). That subsection, which came into force on 17 April 1997 provides as follows:

"(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a) in which the Commonwealth is seeking an injunction or a declaration; or

(b) arising under the Constitution, or involving its interpretation; or

(c) arising under any laws made by the Parliament."

If these proceedings went to trial one matter that would have to be addressed would be the power of this Court to make a declaration with respect to native title. The answer to that question would require an investigation into the provisions of the NTA and so the Court would become seized of a matter arising under a law made by the Parliament. Whether the Court would proceed to hear the substantive application for the declaratory orders that are sought whilst the matter is still under consideration by the Tribunal is, of course, another matter. However, I am satisfied that the Court has jurisdiction to hear and dispose of the motions that are presently before it.

DOES THE NATIVE TITLE DETERMINATION APPLICATION INCLUDE THE LAND IN THE 1996 SUBDIVISION?

As I have earlier said, I am satisfied that this land is included but I set out hereunder the argument to the contrary and my reasons for rejecting it. The native title application, which is Ex RL2 to the affidavit of Ron Michael David Levy of 18 December 1997, states that the area covered by that application "comprised land and waters which are detailed in attachment B". The area in that attachment includes a region entitled "Trade Development Zone/Winnellie Area". Under that heading, there appears, among numerous other sections, sections 4246 and 4337.

The argument for the Crown was that on the date of the lodgment of the native title application, viz 6 December 1996, these two sections stood in an emasculated form; back in the preceding May, the 1996 subdivision had been approved, thereby excising the land represented by that subdivision from these sections. Whilst this submission is undoubtedly correct, it overlooks the fact that in the maps that accompanied the native title application, it is clearly shown that the land in the 1996 subdivision is included in the Larrakia native title application. An error has occurred in the technical description of the relevant land and, in due course, it should be corrected. But I do not regard that as a serious matter; no issue of prejudice was identified. In my opinion, it is proper to proceed upon the premise that the land in the 1996 subdivision is included in the native title application.

THE CONSEQUENCES OF THE ACCEPTANCE OF A CLAIM

Counsel for the applicants submitted that the act of acceptance by the Registrar of the Tribunal of the Larrakia native title application on 1 April 1997 set in motion a regime that is set out in the NTA. The argument included the proposition that if a party was aggrieved by the Registrar's decision, the appropriate remedy was Judicial Review pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth). It may well be the case that such a course of action is available to a party who wishes to be the instigator of proceedings, but in this case the Northern Territory is merely defending a position: it is not the protagonist. In its defence it is, in my opinion, quite within its rights to raise an issue which has the effect of challenging an administrative act of the Registrar.

Counsel for the applicants also called in aid the provisions of s 67A of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). That section preserves the status quo until an application under that statute has been resolved. Where an application is made on behalf of Aboriginal people claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of Aboriginals, any grant of an estate or interest in that area of land that is purportedly effected before the final disposition of the traditional land claim is of no effect: subs 67A(2). If by his reference to this provision of the Land Rights Act, counsel was thereby suggesting that the same blanket prohibition is to be extended to native title applications I reject the submissions. The NTA has its own codes of procedure and in some cases, its own prohibitions. I do not gain any assistance from a consideration of s 67A of the Land Rights Act.

Another aspect of this particular submission was to the effect that the acceptance of the application meant that the "future Act" provisions of the NTA operated. In particular s 233 provides, among other things, that an act is a "future act" in relation to land or waters if "it validly affects native title in relation to the land or waters to any extent". But, as it seems to me, these arguments all beg the fundamental issue; they have all proceeded upon the premise that there is or may be an arguable case that native title exists. In the current proceedings that premise is the subject of fundamental challenge. The case for the respondents is that the grant of freehold title to Mr Benham in 1882 extinguished native title and that, it having been extinguished, it cannot be revived. It is not denied that the acceptance by the Registrar of an application sets in train procedures for the notification of the existence of the claim to the relevant State or Territory government and to other interested parties: North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 at 615. It is also true that in that case, the members of the majority were at pains to explain how the NTA "maintains the status quo as between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other ..." (at 616), But later, at the same page, their Honours added that "(t)he mere acceptance of an application for determination of native title does not otherwise affect rights, powers or interests."

In this case two opposing propositions have been advanced. On the one hand, the respondents say that native title was extinguished in 1882 and cannot be revived. The applicants, for their part, say that there may be cases where the particular facts permit of a survival or a revival of native title and that these facts may exist in both these applications. The view expressed by the NLC in its letter before action of 17 November 1997 to the Minister was as follows:-

"Applying these principles there would appear to be no basis for the conclusion that native title is permanently extinguished by an expired grant of freehold. The expiry of a freehold estate means that there can no longer be any inconsistency with native title rights, and that traditional rights and interests may once again be recognised, and enforced, at law.

Accordingly the issue of whether native title may revive after the expiry of an inconsistent tenure must be regarded not only as a substantial and unresolved issue, but as one quite likely to be resolved in favour of Aboriginal interests."

Putting to one side for the moment, the question of native title continuing or surviving, notwithstanding a grant of fee simple, it seems to me that where there is no disputed factual issue, where the question is - and only is - can there ever be a revival of native title subsequent to the grant of an unencumbered estate in fee simple, it is not a matter for determination under the regime of the NTA if the question is answered: "No! native title once extinguished cannot be revived". If that answer is correct, there is no work left for the NTA. The importance of this question cannot be overstated: it is not likely to remain the province of a single judge but that is no reason to avoid the commencement of what, more likely than not, will be a long litigious road.

HAS NATIVE TITLE BEEN EXTINGUISHED AND CAN IT BE REVIVED?

The respondents submit that dicta in the judgments of members of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1 makes it clear that native title is extinguished by an unencumbered grant of freehold; they then submit that the ordinary common usage of the word "extinguish" is wholly inconsistent with any suggestion that native title may ever revive once it has been extinguished. An examination of the better known dictionaries shows that the word "extinguish" has several quite diverse meanings. Thus the Macquarie Dictionary offers four meanings:

"1. to put out (a fire, light, etc.); put out the flame of (something burning or alight).

2. to put an end to or bring to an end; wipe out of existence: to extinguish a hope, a life, etc.

3. to obscure or eclipse, as by superior brilliancy.

4. Law, to discharge (a debt), as by payment."

It would be the first and second parts of the second meaning which, most likely, would be the appropriate interpretation for the purposes of these reasons:

" to put an end to or bring to an end;

wipe out of existence:"

To put an end to something or to wipe it out of existence does not readily suggest revival. The definitions in the The New Shorter Oxford English Dictionary and Chambers Twentieth Century Dictionary are consistent in that they each acknowledge that the word has many meanings including respectively "to put a total end to, to do away with completely, blot out of existence" and "to put an end to: to destroy, annihilate".

The decision in Wik dealt with pastoral leases, and, having regard to their terms, it was the view of the majority that the grants of the leases did not necessarily extinguish all incidents of native title; their Honours were of the view that the leases did not confer rights of exclusive possession to the areas on the lessees. But, so it would seem to me, when one is called upon to consider the meaning of the word "extinguish" and its subsequent effect, it is not a matter of concern to identify the cause of the extinguishment. If an unencumbered grant of freehold can extinguish native title and if a grant of a pastoral lease can also, in appropriate circumstances, extinguish native title, I would think that the consequences of extinguishment would be the same in both cases. I set out therefore what the members of the majority in Wik had to say on the subject of extinguishment. Toohey J said at p 125:

"It is fair to comment that while there are passages in the judgments of the Court dealing with the circumstances in which native title may be extinguished, no great attention has been focused on the idea itself. Hitherto it has not been necessary to do so. What is meant by extinguishment is alluded to by Macfarlane JA in Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 525."

At p135 Gaudron J said:

"

As Deane J and I pointed out in Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 110; see also at 68, per Brennan J; at 195-196, per Toohey J. native title rights "are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession" or other inconsistent dealings with the land by the Crown."

At p176 Gummow J said:

"The extinguishment of existing native title readily is seen as a consequence of a grant in fee simple. That is because the fee simple, as the largest estate known to the common law, confers the widest powers of enjoyment in respect of all the advantages to be derived from the land itself and from anything found upon it."

Finally Kirby J said at p250:

"Such would not be the case where an estate or interest in fee simple had been granted by the Crown. Such an interest, being the local equivalent of full ownership, necessarily expels any residual native title in respect of such land."

None of these passages from the judgments address the question of a revival of a native title interest in a case where the grant of freehold is subsequently revoked as a result of compulsory acquisition and the land becomes unalienated Crown land, although Gummow J did say:

"My conclusion is that none of these grants necessarily extinguished all incidents of native title which then were subsisting. Accordingly, on these appeals no further question remains as to the existence of any doctrine as to suspension of native title and the revival thereof upon expiration of these grants."(at 204)

But I cannot proceed upon a premise that, because his Honour decided not to comment about a doctrine, there is therefore such a doctrine in existence. I would, on the contrary, feel obliged, in the light of the dicta first mentioned, to reject the submission that native title might somehow survive the grant of an estate in fee simple.

Drummond J, as a member of a Full Court in Fourmile v Selpam Pty Ltd (unreported: judgment delivered 13 February 1998) summed up the situation in these terms (but without addressing the question of revival) when he said:

"If one thing is already certain in the area of native title law, it is that native title cannot subsist in land the subject of an existing freehold grant. It may be that there is no binding decision of a majority of the High Court to this effect. But so many members of the Court have so frequently and so recently expressed the considered opinion that this is the law that there is , in my opinion, no room for doubt."

His Honour cited in support of his proposition the remarks of Brennan J (with whom Mason CJ and McHugh J agreed) in Mabo v Queensland (No 2) [1992] HCA 23; (1991-1992) 175 CLR 1 at 69:

"Where the Crown has validly alienated land by granting an 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 (e.g., authorities to prospect for minerals)."

His Honour also noted the remarks of Deane and Gaudron JJ at p 110:

"The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession."

It is true, as counsel for the applicants submitted, that not all grants of fee simple are inimical to the continuation of native title. Two examples which can be extracted from the authorities are first, a vesting of lands on trust for Aboriginal people and secondly a grant coupled with a reservation for a purpose consistent with continuing use by native title holders. But no such exceptions exist in these proceedings. Although there is no evidence as to the manner in which the relevant land was used between 1882 and 1928 when it was compulsorily acquired, it is a fact that the grant was an unfettered grant of a freehold interest - the highest interest in land and for the forty six years that followed until the compulsory acquisition, the registered proprietor of that land was entitled to exclusive possession. That evidence, without more, has satisfied me that there was an extinguishment of native title and that it would be inconsistent with the concept of extinguishment to consider the possibility of a survival or revival of native title.

Counsel for the applicants is correct when he says that there is no authority that negates a proposition that native title might be revived in certain circumstances. But equally there is no authority that supports the proposition. My conclusion is that once native title has been extinguished, the issue has come to an end and there can be no revival of that title under the common law. I have come to this decision for three reasons.

First, I believe that the ordinary usage of the word "extinguish" favours a meaning that supports an end without any means of survival or revival. Secondly, I favour an interpretation that supports certainty. If, not withstanding that a native title had been extinguished, it remained dormant ready to be revived upon the alleged happening of some event, there would be ongoing uncertainty and doubt. Finally, the word "extinguish" and its derivates is used in the NTA and its manner of use in the legislation aids in coming to a conclusion on its true meaning. Section 11 of the NTA now limits the circumstances under which native title may be extinguished. It provides:

"11. (1) Native title is not able to be extinguished contrary to this Act.

(2) An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:

(a) in accordance with Division 3 of Part 2 (which deals with future acts and native title); or

(b) by validating past acts in relation to the native title."

In s 21 of the NTA, which appears in Division 3 of Part 2, there is provision for native title holders to enter into an agreement with the Commonwealth, a State, or a Territory to surrender their native title rights to land or waters and by so surrendering their rights they may "extinguish those rights and interests". I take that to mean a final act that would prevent any revival of those rights.

SUMMARY DISMISSAL

Assuming that I am right in concluding that the evidence before the Court establishes that native title was extinguished in 1882 and further assuming that I am right in concluding that once it has been extinguished, native title cannot survive or be revived, it seems to me that it becomes inevitable that there should be orders of summary dismissal. My conclusions mean that the applicants have no cause of action and none would be available to them through amendment. No point would be served in merely striking out the statement of claim; this is one of those rare cases where a final order of dismissal must be the only consequence.

I will, however, give my views on the issue of the injunction in the event that this matter should go further.

BALANCE OF CONVENIENCE

Should it be that I am in error in concluding that these actions should be summarily dismissed, it becomes necessary to consider whether the facts of these cases warrant injunctive relief. If I had come to the conclusion that the applicants had established that they had an arguable case that native title existed over the land in the 1996 subdivision, I would have had no difficulty in acknowledging that there would be a serious question to be tried. But what of the balance of convenience?

In my opinion the material that is before the Court militates against the grant of any injunctive relief. Perhaps of greater significance is the absence of evidence that one would expect to find in support of the orders sought. In the first place, no evidence of prejudice to applicants was lead. It was not suggested, for example, that the land in the 1996 subdivision, or any part of it, extends to areas or sites of cultural, spiritual or religious significance. Secondly, the reasons advanced by the claimants in seeking relief only against Oilnet and the three remaining sections are difficult to comprehend. If, as they claim, the Larrakia people are entitled to enjoy native title over the whole of the land in the 1996 subdivision, why did they not seek to preserve what was left of their entitlement by seeking injunctive relief against all other lessees? Thirdly, why would the applicants, who are pursuing a right to be acknowledged as parties enjoying native title over the Oilnet lease area modify their initial claim for injunctive relief so that Oilnet could proceed with its development? That development should properly be regarded as anathema to their position as native title holders. Next, I was given to understand that most of the land in the 1996 subdivision - and the Oilnet lease area in particular - was in an advanced stage of urban industrial development at the time of the lodgment of the native title application and any potential for the original enjoyment of native title had substantially been lost to the Larrakia people. Perhaps that was the reason why they have not pursued their claimed rights to the fullest extent; but if that is the answer, it should appear in the form of evidence and the Court should not be left to speculate. Finally, there is the failure on the part of the applicants to give the usual undertaking as to damages. Their counsel made it clear in his submissions that no such undertaking could realistically be given: his clients did not have the necessary financial resources. In Ward v The State of Western Australia (supra) aboriginal applicants sought injunctive relief with respect (inter alia) to proposed water supply and drainage works over land that was included in land that was the subject of their claim for native title. In that case undertakings were proffered but it was acknowledged that they were inadequate. Nicholson J concluded that the inability of the applicants to provide an adequate undertaking remained a matter which was "to weigh against the grant of relief". I respectfully agree with his Honour.

In my opinion, this is a case where damages would be an appropriate remedy in the event of the applicants ultimately succeeding in their substantive action. By refusing the applicants the injunctive relief that they have sought I am aware that I am leaving open for the Crown the right to issue freehold titles in due course in accordance with the terms of the respective leases. That does not however, represent any additional prejudice to the applicants. This same situation was addressed by Nicholson J in Ward v The State of Western Australia where his Honour pointed out that if the applicants ultimately establish their native title rights in respect of the relevant land any additional grants by the Crown "will be invalidated so far as they affect native title : NTA s 22."

The decision of Drummond J in Taylor on behalf of the Kalkadoon People v North Queensland Electricity Commission (supra) also lends support to the conclusion that injunctive relief should be denied. Like Ward's case, that also was a case that was ancillary to a native title application. In that case the applicants claimed an interlocutory injunction restraining the respondent from constructing a power transmission line "upon or over the land and waters claimed". In coming to the conclusion that it was not an appropriate case for injunctive relief Drummond J said:

"That the respondents have not accepted that the Kalkadoon People have the native title claimed and have not sought their consent and have not attempted to compulsorily acquire their interest in the land on which the power line is being built does not mean that construction of a power line is an impermissible future act. It only means that if native title is ultimately established, the respondents will have failed either to obtain the Kalkadoon People's consent or to compulsorily acquire their interests in the lands in question and so will be liable in damages for trespass to the Kalkadoon People. There can be no basis for an interlocutory injunction founded on such a trespass in my opinion. In such event, the loss that the native title owners suffer is measured by the compensation they would have received if their interests in the land had been compulsorily acquired, something the respondents could lawfully have done pursuant to s116 of the Electricity Act. Damages are plainly an adequate remedy for such an infringement of native title rights, given the status of the respondents. No suggestion to the contrary was made."

Injunctive relief was also refused by Carr J in Bropho v Ball (supra). That case related to an attempt by the applicant to prevent piles for a jetty being driven into the bed of the Swan River. His Honour accepted in that case that there was evidence of a serious spiritual and religious impact as a result of the work but he also accepted that the respondents were potentially at risk to suffer a "quite substantial loss" and that the balance of convenience favoured them. His Honour noted that if Mr Bropho succeeded then "the probabilities are that the respondents would be made to remove the piles." Later he added:

"The respondents have been put on notice of the applicant's claim and, doubtless with legal advice, have decided to proceed with the Work. If these actions are at a later date found by the Court after a full trial in these or any other proceedings to constitute something in the nature of what we call a trespass, then their advisers well know the usual remedies for such a civil wrong. I make no further comment in that regard."

Having regard to these matters, and bearing in mind that the applicant's case faces the severe hurdle of circumventing the effect of the grant of freehold title, I am of the opinion that the balance of convenience leads to the conclusion that no interlocutory relief should be granted in either action.

Counsel for the respondents further claimed that, in the exercise of my discretion, injunctive relief should be refused because of delay and because the proceedings were an abuse of process in that they sought to obtain some collateral advantage (in the form of "financial negotiations when in fact native title is extinguished"). I do not consider that there is any force in either of these propositions. I have accepted that the applicants did not know about the 1996 subdivision until October 1997. In the two months that elapsed before the institution of proceedings they had to attend to extensive land tenure searches and the preparation of voluminous affidavits. I assess that they acted very expeditiously. The allegation that the applicants are seeking a collateral advantage is unclear. They were seeking a declaration that they were entitled to be recognised as the owners of native title in the subject land. If, contrary to my findings, they had succeeded, the right, thereafter, to enter into negotiations, financial and otherwise, would have been a logical consequence. In that context I cannot perceive a collateral purpose that would or might amount to an abuse of process.

I order the respondent, the Northern Territory of Australia, to bring in short minutes of order in terms consistent with these reasons. I reserve for further consideration all questions of costs. I grant leave to speak to the minutes and leave to apply generally.

I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin

Associate:

Dated:

Counsel for the Applicant:	Mr J Basten QC
Solicitor for the Applicant:	Northern Land Council
Counsel for the First Respondent Northern Territory of Australia:	Mr T Pauling QC and Mr G N Nicholson
Solicitor for the First Respondent Northern Territory of Australia:	Solicitor for the Northern Territory
Counsel for the Second Respondent Oilnet (NT) Pty Ltd	Mr T Riley QC
Solicitor for the Second Respondent Oilnet (NT) Pty Ltd	Messrs Cridlands
Dates of Hearing:	17 - 18 February 1998