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	Australian Indigenous Law Reporter

Douglas Wilson v Michael Anderson & Ors

Supreme Court of NSW (Levine J)

20 January 1999 [1999] NSWSC 8

Extinguishment of native title - s 81 Native Title Act 1993 - lease granted under Western Lands Act 1901 - jurisdiction of Supreme Court.

Facts:

The plaintiff applied for a declaration that any native title which may have existed over the area of a lease issued to him under the Western Lands Act 1901 (NSW) had been extinguished. It was alleged that extinguishment had occurred because of the provisions of the Western Lands Act, or by the grant of the lease, or under its terms, or by the grantee's entry into possession. It was further alleged in the alternative that native title had been suspended by the same events. The first defendant was the applicant for a native title determination over the area. The second defendant was the NSW Aboriginal Land Council (NSWALC), which been joined as a party to the proceedings on its own application.

NSWALC applied for a stay of the proceedings on the grounds that the Supreme Court lacked jurisdiction to hear the matter, or alternatively that the Supreme Court ought to exercise its discretion to grant a stay even if it did have jurisdiction. It argued in support of the absence of jurisdiction that the Native Title Act 1993 (Cth) (NTA) provides a complete and exclusive code for the determination of native title by vesting jurisdiction in the Federal Court pursuant to s 81 of the NTA. In support of the exercise of discretion, NSWALC contended that a stay should be granted because:

1. Other parties to the application were not before the Court and could not be bound.
2. The plaintiff had not taken steps to invoke the Court's jurisdiction for a year after having been notified of the application.
3. The proceedings involved an unauthorised attempt to review the decision of the Native Title Registrar who had accepted the application for mediation, or otherwise constituted an abuse of process.

The plaintiff argued that s 81 of the NTA did not oust the jurisdiction of other courts, and that the Court should exercise its discretion to hear the matter because:

1. A decision from the Court on the question of extinguishment would assist mediation by clarifying the legal position of parties.
2. Considerations of comity would lead the Federal Court to respect any decision of the Court.
3. The decision would resolve the parties' private rights.
4. It was further argued that a decision on this point was of public importance in relieving the uncertainty generated by the decision in Wik Peoples v State of Queensland [1996] HCA 40; (1996) 187 CLR 1.

Held:

1. There was no evidence on which the Court could rely that the subject lease was typical of leases granted under the Western Lands Act 1901.
2. The NTA did not constitute an exclusive scheme for recognition and protection of native title such as to oust the jurisdiction of the Supreme Court. Referred to Mason v Tritton (1994) 34 NSWLR 572.
3. A stay of proceedings would be granted in the exercise of the Court's discretion because:
4. The Mabo decision and the NTA have brought into existence a body of common law and statute to resolve new legal and factual issues uniformly. Referred to North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595; Mason v Tritton.
5. The parties were concurrently involved in the mediation of the application.
6. The proceedings for a declaration were of questionable utility.
7. There was no evidence that a stay would prejudice or disadvantage the applicant.1

Endnotes

1 See casenote in (1999) 4 ILB (20) 21.