Wilson v Anderson [2002] HCA 29

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

DOUGLAS WILSON APPLICANT

AND

MICHAEL ANDERSON & ORS RESPONDENTS

Wilson v Anderson [2002] HCA 29

8 August 2002

S101/2000

ORDER

1. Special leave to appeal granted and the appeal treated as instituted and heard instanter. 2. Order 1 of the orders made by the Full Court of the Federal Court on 5 April 2000 is set aside and in its place order that the questions for separate decision be answered as follows:

Question (a):

By virtue only of

1. the Western Lands Act 1901 (NSW); and

ii. the regulations thereunder, as in force at the time of the grant of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

Question (b):

If the answer to question (a) is "No", by virtue of

i. the Western Lands Act 1901 (NSW);

ii. the regulations thereunder, as in force at the time of the grant of the Lease; and

iii. one or more of the terms and conditions of the Lease;

did the Lease confer upon the lessee under the Lease a right to exclusive possession of the leased land?

Answer to questions (a) and (b)

Save to say that the Lease conferred upon the lessee a right of exclusive possession over the land, the subject of the Lease, as the expression "a right of exclusive possession over … land" is used in s 23B(2)(c)(viii) and s 248A of the Native Title Act 1993 (Cth), it is inappropriate to answer questions (a) and (b).

Question (c)

If the answer to question (a) or question (b) is "Yes", were any native title rights the exercise of which involved the presence on the leased land by the holders of the native title:

i. extinguished by the grant of the Lease; or alternatively

ii. suspended upon the grant of the Lease for the duration of the Lease?

Answer

Save to say that by operation of ss 23B and 23E of the Native Title Act 1993 (Cth) and s 20 of the Native Title (New South Wales) Act 1994 (NSW), the grant of the Lease extinguished any native title in relation to the land covered by the Lease and the extinguishment is to be taken to have happened when the Lease was granted, it is inappropriate to answer this question.