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	Australian Indigenous Law Reporter

re WADI WADI PEOPLE'S NATIVE TITLE APPLICATION

National Native Title Tribunal (French J, President)

15 February 1995, Perth

Aborigines and Torres Strait Islanders -- Native title -- Application for native title determination -- Referral by Registrar -- Land previously subject to leasehold and freehold grants -- Operation of leasehold and freehold grants -- Circumstances in which extinguishment to be inferred -- Fiduciary duty -- Existence -- Whether invalidating legislative or executive action.

Real property -- Title -- Native title -- Application for native title determination -- Referral by Registrar -- Land previously subject to leasehold and freehold grants -- Operation of leasehold and freehold grants -- Circumstances in which extinguishment to be inferred -- Fiduciary duty -- Existence -- Whether invalidating legislative or executive action.

A native title determination application was lodged with the Registrar of the Native Title Tribunal (the `Tribunal') on behalf of the Wadi Wadi people. It related to two pieces of land, one was a reserve, the other was vacant Crown land. The reserve was vested in the Shire of the Central Illawarra. The Crown land was leased to the Council of the City of Greater Wollongong under a "special lease".

The Registrar formed the view that the applicants could not succeed and the matter was therefore referred to the President of the Tribunal. The President formed the same view as the Registrar and invited submissions from the Wadi Wadi people.

The referral raised the issue of whether a fiduciary duty had existed between the Crown and traditional land owners and whether the Crown had breached that duty.

The applicants submitted that a grant of freehold over land that subsequently became a reserve may have been invalid constituting a breach of fiduciary duty owed by the Crown to traditional owners.

Held, directing the Registrar not to accept the claim on the basis that the applicants failed to show a prima facie claim could be made out:

The Test

(1) The test to be applied in deciding whether or not the application should be accepted was reflected in the following principles:

(a) An applicant who is invited, under s. 63(3) of the Native Title Act 1993 (Cth) (the `Act'), to show a presidential member that a prima facie claim can be made out must show that evidence exists or can be obtained which is capable of establishing each of the elements of native title. It does not require production of the evidence itself.

(b) For the purpose of showing that a prima facie claim can be made out it is not necessary for the applicant to show that it has evidence to negative extinguishment by legislative or executive act.

(c) The Presidential Member may have regard to evidence of extinguishing events in determining whether a prima facie case can be made out.

(d) The Presidential Member in deciding whether a prima facie claim can be made out can
form a concluded view on a question of law which, if decided one way, would be fatal to the application.

(e) The issues to be addressed by the Presidential Member in deciding whether a prima facie claim can be made out are not limited to those upon which the Registrar formed the opinion that prima facie a claim could not be made out.

Extinguishment of Title

(2) In respect of the reserve the grant of freehold land extinguished native title. The grant of freehold was an exercise by the Crown of sovereignty over the land in question. The sovereignty was not qualified by any requirement under the common law or the statute to give notice to such persons as may have been the traditional owners of the land.

Mabo v. Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1; 107 ALR 1, applied.

Fiduciary Duty

(3) Whatever the scope of any fiduciary duty in relation to Aboriginal and Torres Strait Islander persons who are native title holders, and whatever the circumstances in which it may arise, compliance with the duty does not as a general rule condition the validity of legislative or executive acts. That is not to say that principles analogous to those governing fiduciary relationships may not inform the exercise of statutory power as mandatory relevant elements for consideration. There is a theoretical possibility that there may be an implied principle in the Commonwealth and/or State Constitutions which governs the construction of laws made under them in their impact on the rights of indigenous peoples by reference to fiduciary considerations. But there is no such principle under existing law.

Leasehold Interest

(4) The grant of the special lease was, on the face of it, a grant of an interest which, subject to express reservations to the Crown under the regulations, conferred a right of exclusive possession upon the council. That right of exclusive possession and the requirement to carry out public works on the land for the construction of an aerodrome was inconsistent with the survival of native title and evidenced an exercise of sovereignty on the part of the Crown which extinguished such native title as survived.

(5) The nature of the special lease, the special conditions and the regulations under which it was granted, including the works to be carried out on the land and the restrictions on access, were all indicative of the grant of exclusive possession to the council subject to specific Crown rights, which was inconsistent with the survival of native title rights and interests, albeit the lease was for a term of nine years. Therefore no native title survived the grant of the lease.

The decision is reported in (1995) 129 ALR 167.