Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609

FEDERAL COURT OF AUSTRALIA

Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609

NATIVE TITLE - estates in fee simple in land granted by the State of Western Australia to Guildford Municipality in 1916 pursuant to the Land Act 1898 (WA) and to the Commonwealth in 1962 pursuant to the Land Act 1933 (WA) – estates in fee simple in land acquired by the Commonwealth by compulsory process in 1943 from the State of Western Australia and in 1949 from Guildford Municipality pursuant to the Lands Acquisition Act 1906 (Cth), and in 1960 from the State of Western Australia pursuant to the Lands Acquisition Act 1955 (Cth) – transfers registered under the Transfer of Land Act 1893 (WA) – whether the grant of an estate in fee simple by the Crown in right of one polity to the Crown in right of another polity, or the acquisition of an estate in fee simple by the Crown in right of one polity from the Crown in right of another polity, extinguishes any native title which might previously have existed – whether Guildford Municipality, a body corporate under s 10 of the Municipal Corporations Act 1906 (WA), was to be taken as representing the Crown – whether the purposes of the 1943, 1949 and 1960 acquisitions were insufficiently expressed in the notifications in the Gazette so as to invalidate the acquisitions – whether the Minister was obliged by s 9(1) of the Lands Acquisition Act 1955 (Cth) to notify any native title holders of the 1960 acquisition, whether native title holders were "owners" within the meaning of s 9(1) and whether s 10(6) would, in any event, overcome any invalidity which would otherwise arise from a failure to comply with s 9(1) – whether, in circumstances where an estate in fee simple has been granted to a person who is not the Crown or a representative of the Crown but is subsequently granted to, or acquired by, the Crown or a representative of the Crown, native title rights can be revived EQUITY – whether the Crown in right of the State of Western Australia or the Crown in right of the Commonwealth owed a general fiduciary duty to indigenous people in relation to dealings with land in respect of which those persons held native title rights – whether, if such a duty existed, the Crown had breached it by disposing of and acquiring such land, in accordance with legislation which in terms authorised those dealings, in a manner which had the effect of extinguishing native title rights – whether, if such a breach had occurred, it affected the validity of those dealings or their effect on native title rights – whether, if such a breach had occurred, a remedial constructive trust could now be imposed Transfer of Land Act 1893 (WA), s 68 Land Act 1898 (WA), ss 4, 5 Land Act 1933 (WA), ss 3(1), 5, 7 Lands Acquisition Act 1906 (Cth), ss 15, 16, 17, 18, 20 Lands Acquisition Act 1955 (Cth), ss 9(1), 10, 11 Municipal Corporations Act 1906 (WA) Real Property (Commonwealth Titles) Act 1925 (WA) National Security (Supplementary) Regulations, reg 72 Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269, followed WH Blakely & Co. v The Commonwealth (1953) 87 CLR 501, referred to Commonwealth v Anderson (1960) 105 CLR 303, referred to Jones v The Commonwealth (1963) 109 CLR 475, referred to Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, referred to Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282, referred to Mabo v State of Queensland [No 2] (1992) 175 CLR 1, referred to Coe v Commonwealth (1993) 118 ALR 193, referred to Sydney City Council v Reid (1994) 34 NSWLR 506, referred to Western Australia v the Commonwealth (1995) 183 CLR 373, followed Re Gurubana-Gunggandji Peoples (1995) 123 FLR 462, referred to Wik Peoples v Queensland (1996) 187 CLR 1, referred to Breen v Williams (1996) 186 CLR 71, referred to Thorpe v The Commonwealth [No. 3] (1997) 71 ALJR 767, referred to Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513, referred to Fejo v Northern Territory of Australia (1998) 195 CLR 96, followed Ward v Western Australia (1998) 159 ALR 483, referred to Yanner v Eaton (1999) 166 ALR 258, referred to Commonwealth v Yarmirr (1999) 168 ALR 426, followed Western Australia v Ward (2000) 170 ALR 159, followed Guerin v The Queen (1985) 13 DLR (4th) 321, distinguished R v Sparrow (1990) 70 DLR (4th) 385, considered Delgamuukw v British Columbia (1997) 153 DLR (4th) 193, considered Cherokee Nation v State of Georgia 8 L Ed 25 (1831), considered US v Creek Nation 295 US 103 (1934), considered Pyramid Lake Paiute Tribe of Indians v Morton 354 Supp 252 (1973), considered US v Wheeler 435 US 313 (1978), considered US v Mitchell 463 US 206 (1983), considered Te Runanga o Wharekauri Rekohu Inc v A‑G [1993] 2 NZLR 301, considered Te Runanganui o Te Ika Whenua Inc Society v A‑G [1994] 2 NZLR 20, considered P D Finn "The Fiduciary Principle", in Youdan (Ed), Equity, Fiduciaries and Trusts, 1989