Anderson v Wilson [2000] FCA 394

FEDERAL COURT OF AUSTRALIA

Anderson v Wilson [2000] FCA 394 NATIVE TITLE – Native Title Act 1993 (Cth) – Western Lands Act 1901 (NSW) ("the WLA") – lease in perpetuity the subject of a native title claim ("the Lease") – separate questions pursuant to O29 r 2 of the Federal Court Rules – whether the Lease conferred on the lessee a right of exclusive possession by virtue of the WLA or regulations made thereunder as in force at the time of the grant of the Lease or one or more of the terms and conditions of the Lease – no facts yet found. NATIVE TITLE – extinguishment – requirement of clear and plain intention to extinguish incidents of native title – question of whether the Lease gave right to exclude those claiming native title – inconsistency and requirement of identification of extent of inconsistency – whether leases conferred right of exclusive possession involves complex questions of law and fact – not appropriate to finally decide questions until facts found. NATIVE TITLE – use of early colonial history – whether historical and legislative context is a decisive consideration – relevance of extrinsic material – relevance of size and location of area subject to claim. Native Title Act 1993 (Cth)

Land Act 1910 Western Lands Act 1901 (NSW)

Crown Lands Consolidation Act 1913 Western Lands (Amendment) Act 1934 Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 Brayson Motors Proprietary Limited (In liquidation) v The Commissioner of Taxation for the Commonwealth of Australia (1985) 156 CLR 651 Hawkins v The Minister for Lands (1949) 78 CLR 479 De Britt v Carr (1911) 12 CLR 114 Davies v Littlejohn (1923) 34 CLR 174 O'Keefe v Williams (1910) 11 CLR 171 The Wik Peoples v The State of Queensland (1996) 187 CLR 1 Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 The Wik Peoples v The State of Queensland (1996) 63 FCR 450 Macdonald v Tully (1870) 2 QSCR 99 Mabo v Queensland (No. 2) (1992) 175 CLR 1 Yarmouth Corporation v Simmons [1878] 10 Ch D 518 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Newcastle City Council v GIO General Limited (1997) 191 CLR 85 Yanner v Eaton (1998) 166 ALR 258