Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38

Federal Court of Australia Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38 Appeal from: Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169

File number(s): NSD 292 of 2021

Judgment of: BROMBERG, MORTIMER AND JACKSON JJ

Date of judgment: 16 March 2022

Catchwords: NATIVE TITLE – extinguishment – appeal from orders of primary judge in relation to separate questions – whether statutory leases conferred exclusive possession over the lease areas within the meaning of s 23B(2)(c)(viii) of the Native Title Act 1993 (Cth) – whether certain statutory leases consisted of a grant of a "Scheduled interest" within the meaning of s 23B(2)(c)(i) of the Native Title Act 1993 (Cth) – challenge to primary judge's characterisation of statutory leases – meaning of exclusive possession in s 23B – comparison of statutory leases with pastoral leases – consideration of size of statutory leases – consideration of legislative references to lessee's rights to bring an action in trespass – consideration of conditions, reservations, restrictions and other limitations on the rights of lessees – consideration of the language used in governing statutes – appeal dismissed

Legislation: Native Title Act 1993 (Cth), ss 10, 11, 23B, 61, 85, 228, 242, 248A, 249C Crown Lands Act 1884 (NSW) Crown Lands Act 1889 (NSW) Crown Lands Act 1895 (NSW) Crown Lands Act Amendment Act 1903 (NSW) Crown Lands and Closer Settlement (Amendment) Act 1968 (NSW) Crown Lands Consolidation Act 1913 (NSW) Mining Act 1874 (NSW) Mining Act 1906 (NSW) Native Title (New South Wales) Act 1994 (NSW), s 20 Western Lands Act 1901 (NSW)