Courts confirm extinguishment of native title by crown actions

by Ben Zillmann

As the number of court decisions on native title matters grow, further certainty is continually being provided as to when native title has been extinguished at law. These two recent decisions of the Federal Court have provided further guidance as to when native title will be extinguished by public works1 and fee simple grants to the Crown2.

Public works – Darnley Island

The issue in question in the Darnley Islanders case was whether the construction of public works on land that had been reserved for the benefit of indigenous people extinguished native title. The land in question was the Island of Erub (also known as Darnley Island) in the East Torres Strait, close to the sea border between Australia and Papua New Guinea. The land was subject to a deed of grant in trust, granting fee simple to the local council to be held on trust for the benefit of the indigenous inhabitants. The fee simple grant had been made in 1985. Between 1977 and 2002, a number of public works (including a windmill, a dam, a school and residential houses) had been constructed on land that was subject to the applicants' native title claim. The parties had agreed in principle to a consent determination in respect of the applicants' native title claim, but required the court to decide the extinguishing effect of the public works.

The full Federal Court decided that public works that had been constructed prior to 23 December 1996 did extinguish native title. However, public works that had been constructed after 23 December 1996 did not extinguish native title. Further, the court held that if native title had been extinguished by public works, then section 47A of the Native Title Act (which provides for certain extinguishing acts to be disregarded if land is subject to a grant for the benefit of indigenous people) did not operate to disregard that extinguishment.

On its face, the decision of the court did not appear surprising. However, it is interesting to note the arguments advanced by both parties regarding the interpretation of certain provisions of the Native Title Act. For example, the applicants had sought to rely on s23B of the Native Title Act to overcome the otherwise extinguishing effect of pre-23 December 1996 public works. In essence, s23B provides that the granting or vesting of anything for the benefit of, or to a person to hold on trust for the benefit of, Aboriginal people or Torres Strait Islanders will not be a 'previous exclusive possession act' that extinguishes native title. However, the court did not consider that the establishment or construction of public works could be regarded as the 'granting' or 'vesting' of something, and therefore s23B did not apply. On a similar basis, the court did not consider s47A applied to the public works.

In seeking to argue that public works established after 23 December 1996 were extinguishing acts, the Crown sought to argue that the public works had been constructed under the authority and reservations contained in the 1985 deed of grant. The 1985 deed had contained a reservation that the grantee was to hold the land in trust for the benefit of the Islander inhabitants and for no other purpose, and the Crown argued that this was a 'particular purpose' under to which the post-23 December 1996 public works were constructed. The Court rejected this argument on the basis that the grant, being 'for the benefit of Islander inhabitants' was for a very general purpose and it could not be said that the public works in question were being constructed pursuant to a 'particular' purpose as contemplated by the legislation.

Freehold grants to the Crown

The Lawson case confirmed the position that freehold grants to the Crown prior to 31 October 1975 will extinguish native title. This is because such grants do not rely upon the Native Title Act for their validity (which will not necessarily be the case for grants after this date).

The case involved Lake Victoria and certain watercourses, which had been vested in the State of South Australia (in fee simple). The land had been vested in the State of South Australia under the Public Works Act 1912 (NSW) and the River Murray Waters Act 1915. The native title representatives had argued that the vesting had not extinguished native title rights that may otherwise exist in the area. However, the court cited the High Court decision in Ward3 in deciding that the vesting of an estate in fee simple in the Crown will extinguish any native title over the land, provided the grant itself does not rely upon the validating provisions of the Native Title Act for its validity. As the grant was in December 1922, the grant was valid 'apart from the Native Title Act'.


The two cases serve to highlight the importance of paying careful consideration to the dates when certain events have occurred in order to determine their possible extinguishing impact on native title, and the need to carefully work through all possible relevant provisions in the Native Title Act to determine if there may be an exception to the general rule in any particular case.


1. Erubam Le (Darnley Islanders) 1 v State of Queensland [2003] FCAFC 227 (14 October 2003)

2. Lawson v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA1127 (17 October 2003)

3. Western Australia v Ward (2002) 76 ALJR 1098


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