Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169

FEDERAL COURT OF AUSTRALIA

Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169 File number: NSD 38 of 2019

Judgment of: GRIFFITHS J

Date of judgment: 5 March 2021

Catchwords: NATIVE TITLE – separate questions concerning multiple parcels of land the subject of one of eight different kinds of statutory leases in NSW – statutory leases comprise Scrub Leases, Settlement Leases, Improvement Leases, Homestead Leases, 18th Section Leases, Western Lands Leases for a Term, Special Leases for a Term and Special Leases for Grazing – history of Crown Lands legislation in NSW dating back to the Waste Lands Act 1842 (Imp) and including the Crown Lands Act 1884 (NSW), Crown Lands Act 1889 (NSW), Crown Lands Act 1895 (NSW), Western Lands Act 1901 (NSW) and the Crown Lands Consolidation Act 1913 (NSW) – 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) (NT Act) – whether statutory leases extinguished any native title in relation to the lands or waters within the lease areas in accordance with s 23E of the NT Act and s 20(1) of the Native Title (New South Wales) Act 1994 (NSW) – whether any one or more legislative or executive act or acts subsequent to the original grant of the statutory leases resulted in the lessee holding a right of exclusive possession – whether any such right of exclusive possession had the effect of wholly extinguishing any native title rights and interests in the lands or waters covered by the leases – whether the Settlement Leases, and certain of the Western Lands Leases for a Term and Special Leases for a Term, consisted of a grant of a "Scheduled interest" within s 23B(2)(c)(i) of the NT Act with reference to cll 3(3), 3(5) or 3(8) of Part 1 of Schedule 1 to the NT Act – validity of the Settlement Leases – whether two of the Special Leases for a Term are covered by s 23B(2)(c)(iii) of the NT Act – whether any native title rights and interests in the leased land have been extinguished by operation of common law principles NATIVE TITLE – separate question concerning reservation of lands and waters for temporary common – whether any native title rights and interests in the lands or waters the subject of the reservation were wholly extinguished during the period of the reservation by reason of the conferral of a right of exclusive possession by (a) the reservation, (b) appointment of trustees of the land and/or (c) the operation of any legislation which applied to the land – whether the reservation consisted of a "grant or vesting" of a "freehold estate" under s 23B(2)(c)(ii) of the NT Act