Fourmile, Henrick v Selpam Pty Ltd & Ors Fourmile, Henrick v The State of Queensland & Ors [1998] FCA 67

Fourmile, Henrick v Selpam Pty Ltd & Ors Fourmile, Henrick v The State of Queensland & Ors [1998] FCA 67

Subdivision E of Division 5 of Part 6 of the Native Title Act 1993 (Cth), insofar as it purports to allow determinations of the National Native Title Tribunal to be registered and given effect as orders of the Federal Court, involves an invalid exercise of Commonwealth judicial power by a non-judicial body, and is accordingly invalid. The constitution of land as a public road through a statutory procedure extinguishes any existing native title rights in that land due to inconsistency between the rights conferred on the public and those comprising native title.

Jurisdiction
Australia
Judgment Date
13 February 1998
Procedural Posture
Native Title Application (review, Appeal) / Final Judgment
Outcome
Subdivision E of Div 5 of Pt 6 of the Native Title Act 1993 (Cth) declared invalid; review application upheld regarding validity; appeal dismissed regarding President's rejection of claimant application.
Legal Topics
['judicial Power Under the Constitution' 'extinguishment of Native Title by Statutory Public Road Creation' 'validity of Native Title Act Provisions for Tribunal Determinations' 'administrative Vs Judicial Decision Making']
['constitutional Law' 'native Title Law'] ['judicial Power Under the Constitution' 'extinguishment of Native Title by Statutory Public Road Creation' 'validity of Native Title Act Provisions for Tribunal Determinations' 'administrative Vs Judicial Decision Making']

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Procedural Posture

Native Title Application (review, Appeal) / Final Judgment

Legal Issues

  1. 1 ['Whether Subdivision E of Division 5 of Part 6 of the Native Title Act 1993 (Cth) is constitutionally invalid as involving an exercise of judicial power by a body other than a federal court' 'Whether the statutory constitution of land as a public road extinguishes native title' 'Whether the President of the National Native Title Tribunal exercised judicial power in rejecting a claimant application']

Ratio Decidendi

Subdivision E of Division 5 of Part 6 of the Native Title Act 1993 (Cth), insofar as it purports to allow determinations of the National Native Title Tribunal to be registered and given effect as orders of the Federal Court, involves an invalid exercise of Commonwealth judicial power by a non-judicial body, and is accordingly invalid. The constitution of land as a public road through a statutory procedure extinguishes any existing native title rights in that land due to inconsistency between the rights conferred on the public and those comprising native title.

Court Disposition

Subdivision E of Div 5 of Pt 6 of the Native Title Act 1993 (Cth) declared invalid; review application upheld regarding validity; appeal dismissed regarding President's rejection of claimant application.

Orders

  • ['Declare that Subdivision E of Division 5 of Part 6 of the Native Title Act 1993 (Cth) is invalid.' "Declare that the Tribunal's determination on Selpam's non-claimant application is incapable of having legal effect, notwithstanding registration." "Dismiss Mr Fourmile's appeal from the President's rejection of his...