Wilson v Anderson [2002] HCA 29

Wilson v Anderson [2002] HCA 29

A lease in perpetuity granted in 1955 under the Western Lands Act 1901 (NSW) conferred a right of exclusive possession, as used in s 23B(2)(c)(viii) and s 248A of the Native Title Act 1993 (Cth). 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, with effect from the time of the grant.

Parties
Applicant: Douglas Wilson; Respondents: Michael Anderson & Ors; Intervener: Attorney-General for the Northern Territory
Jurisdiction
Australia
Judgment Date
08 August 2002
Procedural Posture
Special Leave to Appeal (native Title) / High Court Special Leave Granted, Appeal Heard and Determined
Outcome
Special leave to appeal granted. Appeal otherwise dismissed. Orders of the Full Court set aside in part and varied. First respondent to pay the appellant's costs in the High Court.
Legal Topics
Native Title Extinguishment, Exclusive Possession, Statutory Leases, Interpretation of Native Title Act 1993 (cth) and Western Lands Act 1901 (nsw)
Administrative Law Native Title Law Property Law Statutory Interpretation Native Title Extinguishment Exclusive Possession Statutory Leases Interpretation of Native Title Act 1993 (cth) and Western Lands Act 1901 (nsw)

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Parties

Douglas Wilson

Applicant

Michael Anderson & Ors

Respondents

Attorney-General for the Northern Territory

Intervener

Procedural Posture

Special Leave to Appeal (native Title) / High Court Special Leave Granted, Appeal Heard and Determined

Legal Issues

  1. 1 Whether a lease in perpetuity granted under the Western Lands Act 1901 (NSW) confers a right of exclusive possession for the purposes of the Native Title Act 1993 (Cth)
  2. 2 Whether the grant extinguished native title rights under the Native Title Act 1993 (Cth) and related statutory provisions
  3. 3 Whether the particular features of the lease preclude a finding of exclusive possession

Ratio Decidendi

A lease in perpetuity granted in 1955 under the Western Lands Act 1901 (NSW) conferred a right of exclusive possession, as used in s 23B(2)(c)(viii) and s 248A of the Native Title Act 1993 (Cth). 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, with effect from the time of the grant.

Court Disposition

Special leave to appeal granted. Appeal otherwise dismissed. Orders of the Full Court set aside in part and varied. First respondent to pay the appellant's costs in the High Court.

Orders

  • Special leave to appeal granted; appeal instituted and heard instanter.
  • Order 1 of the Full Court of the Federal Court (5 April 2000) set aside; replaced with answers to separate questions (see below).