Fejo v The Northern Territory of Australia [1998] HCA 58 (10 September 1998)

Between: Fejo and Mills on behalf of the Larrakia People (Applicant) and Northern Territory of Australia and Oilnet (NT) Pty Ltd (Respondents)

Judges: Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, and Callinan JJ

Judgment

The Larrakia People sought declarations that they held native title over an area of land which had been previously granted as freehold title but later was taken back by the Crown.

The granting of a freehold or fee simple estate, complete ownership of the land, extinguishes native title over that land. Once the land has been granted and native title has been extinguished it cannot be brought back.

Background

In December 1997, the Larrakia People asked the Federal Court to declare that the Larrakia People hold native title over land and waters around Darwin and the Cox Peninsula area of the Northern Territory. This was in response to the granting of Crown leases, with an option to acquire freehold, over lands within the area. Freehold title over the area in dispute had previously been granted in 1882, but was later taken back by the Crown in 1980 after it forcibly acquired the land for use as a quarantine station in 1928.

The Larrakia People argued that the Northern Territory government was required by the Native Title Act 1993 (Cth) to either negotiate with them or to compulsorily acquire their native title.

Decision

The High Court was asked to consider two important issues:

• whether a grant of freehold title extinguished native title so that no form of native title can co-exist with the grant, and
• whether extinguishment was permanent or whether native title could be re-recognised when the land returned to the Crown.

The Court held that native title is completely extinguished by the grant of a freehold estate. The rights granted under a freehold estate are inconsistent with native title, meaning that no native title rights survive the grant.

The Court also held that the grant of freehold estate extinguishes native title permanently regardless of whether the land returns to the Crown in the future.

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References

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