mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325
Outcome: followed
However, a Full Court of this Court has held that the transitional provisions of the NTAA 1998 do not require a claim made before the commencement of that Act to comply with the new authorisation requirements, at least in the absence of a material change in the composition of the compensation claim group: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77, at [84], per Stone J; De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 (' De Rose (FC) (No 1) '), at [26]-[28], per curiam . The respondents do not suggest that the Application changed the compensation claim group in a manner that required the applicants to comply with s 61(1) and s 61(3) of the NTA (as amended). Nor has any suggestion been made that the applicants' attempt in final submissions to further amend the Points of Claim requires compliance with s 61(1) and s 00061(3) of the NTA. Accordingly, no issue arises concerning authorisation of the compensation claim.
Case: Dobbie v Davidson (1991) 23 NSWLR 625
Outcome: cited
The effect of the statutory exceptions to indefeasibility was that a wide range of unregistered interests in land received protection from what otherwise would be the indefeasible title conferred on the first registered proprietor of the fee simple estate, by virtue of s 69 of the Real Property Act . The following interests were protected from s 69 of the Real Property Act : the interest of any person in adverse possession of the land (or part of it); an 'omitted' easement (which expression encompasses an easement which is simply not on the register: Dobbie v Davidson (1991) 23 NSWLR 625, at 627; Williams v State Transit Authority of NSW [2004] NSWCA 179 ; (2004) 60 NSWLR 286 at [105] [109], per Mason P); the interest of a proprietor of land included in a certificate of title by wrong description; public rights of way and easements enjoyed by the public; and a short-term lease held under an unregistered instrument or agreement.
Case: Elkington v Shell Australia Ltd (1993) 32 NSWLR 11
Outcome: cited
A failure to cross-examine a witness on contentious issues may have at least two consequences: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, at 587, per Samuels JA (with whom Meagher JA agreed). First, the so-called rule in Browne v Dunn (1893) 6 R 67, which reflects a principle of procedural fairness, may prevent the cross-examining party asking the court not to accept the evidence of the witness on that particular issue: J D Heydon, Cross on Evidence (6 th Aust ed, 2000), at [17460]. Secondly, the failure to cross-examine may provide a cogent reason for accepting the witness's evidence, particularly if it is not contradicted: Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362, at 371. However, there is no rule that evidence which is unchallenged in cross-examination must be accepted by the trier of fact, especially if it appears to be inherently incredible or is contradicted by other credible evidence: Bulstrode v Trimble [1970] VR 840, at 849, per Newton J; Ellis v Wallsend District Hospital , at 586-588, per Samuels JA; Elkington v Shell Australia Ltd (1993) 32 NSWLR 11, at 17, per Kirby ACJ.
Case: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Outcome: cited
A failure to cross-examine a witness on contentious issues may have at least two consequences: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, at 587, per Samuels JA (with whom Meagher JA agreed). First, the so-called rule in Browne v Dunn (1893) 6 R 67, which reflects a principle of procedural fairness, may prevent the cross-examining party asking the court not to accept the evidence of the witness on that particular issue: J D Heydon, Cross on Evidence (6 th Aust ed, 2000), at [17460]. Secondly, the failure to cross-examine may provide a cogent reason for accepting the witness's evidence, particularly if it is not contradicted: Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362, at 371. However, there is no rule that evidence which is unchallenged in cross-examination must be accepted by the trier of fact, especially if it appears to be inherently incredible or is contradicted by other credible evidence: Bulstrode v Trimble [1970] VR 840, at 849, per Newton J; Ellis v Wallsend District Hospital , at 586-588, per Samuels JA; Elkington v Shell Australia Ltd (1993) 32 NSWLR 11, at 17, per Kirby ACJ.
Case: Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96
Outcome: cited
As I have noted, prior to the 1998 amendments, the NTA did not affect an act that was valid when done and which was effective at the time it was done to extinguish or impair native title. In Mabo (No 2), the High Court recognised that in Australia native title to land survived the Crown's acquisition of sovereignty (at 69, per Brennan J). From the outset, however, the High Court accepted that native title rights and interests: 'are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession. They can also be terminated by other inconsistent dealings with the land by the Crown'. Mabo (No 2) at 110, per Deane and Gaudron JJ; Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 (' Fejo '), at [42]-[48].
Case: Fejo v Northern Territory (1998) 152 ALR 477
Outcome: cited
I note in passing that at the time the 1997 Explanatory Memorandum was circulated (9 March 1998), litigation was under way to challenge the apparently clear proposition that the grant of a freehold estate in land necessarily extinguished all native title rights and interests in that land. The challenge had failed in the Federal Court on 27 February 1998 ( Fejo v Northern Territory (1998) 152 ALR 477), but in early March 1998 an appeal from this decision was apparently in contemplation. Part of that appeal was ultimately removed to the High Court and the challenge was finally rejected by the High Court on 10 September 1998, shortly before the NTAA came into force. 758 The 1997 Explanatory Memorandum stated (par 5.1) that Div 2B was to be inserted in Part 2 of the NTA in order to achieve points 2 and 4 of the 10 Point Plan. Those points relevantly provided as follows: 'Point 2 Confirmation of extinguishment of native title on "exclusive" tenures States and Territories would be able to confirm that 'exclusive' tenures such as freehold, residential, commercial and public works in existence on or before 1 January 1994 extinguish native title. Agricultural leases would also be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended. Any current or former pastoral lease conferring exclusive possession would also be included. ... Point 4 Native title and pastoral leases As provided in the Wik decision, native title rights over current or former pastoral leases and any agricultural leases not covered under [Point] 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralist. All activities pursuant to, or incidental to, "primary production" would be allowed on pastoral leases...'
Case: Frazer v Walker [1967] 1 AC 589
Outcome: cited
Dr Perry relied on authorities that establish that a registered proprietor under the Real Property Act of an estate or interest in land acquires an indefeasible title to that estate or interest notwithstanding that the dealing pursuant to which registration was obtained was void: Breskvar v Wall [1971] HCA 70 ; (1971) 126 CLR 376 at 385-386, per Barwick CJ; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59 ; (2004) 220 CLR 472, at [52], per McHugh ACJ, Hayne and Heydon JJ. Dr Perry submitted that the fact the grant of the fee simple estate or lease (in the case of CL 256) was invalid by reason of the operation of s 10(1) of the RD Act does not prevent the grantee obtaining an indefeasible title upon the estate or interest being brought under the Real Property Act , just as a person registering a forged transfer obtains an indefeasible title to the registered estate provided he or she acts without fraud: Frazer v Walker [1967] AC 589; Breskvar v Wall , at 385-386, per Barwick CJ.
Case: Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59 ; (2004) 220 CLR 472
Outcome: cited
Dr Perry relied on authorities that establish that a registered proprietor under the Real Property Act of an estate or interest in land acquires an indefeasible title to that estate or interest notwithstanding that the dealing pursuant to which registration was obtained was void: Breskvar v Wall [1971] HCA 70 ; (1971) 126 CLR 376 at 385-386, per Barwick CJ; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59 ; (2004) 220 CLR 472, at [52], per McHugh ACJ, Hayne and Heydon JJ. Dr Perry submitted that the fact the grant of the fee simple estate or lease (in the case of CL 256) was invalid by reason of the operation of s 10(1) of the RD Act does not prevent the grantee obtaining an indefeasible title upon the estate or interest being brought under the Real Property Act , just as a person registering a forged transfer obtains an indefeasible title to the registered estate provided he or she acts without fraud: Frazer v Walker [1967] AC 589; Breskvar v Wall , at 385-386, per Barwick CJ.
Case: Jango v Northern Territory (No 2) [2004] FCA 1004
Outcome: cited
Prior to 1998, the applicants in native title claims or other litigation under the NTA were not constrained by the rules of evidence. Until the NTAA 1998 substituted a new s 82 for the original version, s 82(3) provided that the Court, in conducting proceedings under the NTA, was not bound by 'technicalities, legal forms or rules of evidence'. Section 82(1) of the NTA now provides that the Court is bound by the rules of evidence, except to the extent it otherwise orders. Regrettably, as I observed in an interlocutory judgment in the present case, the applicants paid insufficient attention to the laws of evidence, especially in relation to the so-called Yulara Anthropology Report prepared by Professor Peter Sutton and Ms Petronella Vaarzon-Morel: see Jango v Northern Territory (No 2) [2004] FCA 1004 (' Jango (No 2) '), at [8]. Among other consequences, this has led to an unnecessary increase in the costs of conducting the case. 39 The validation and extinguishment regime established by the NTA , of which the compensation provisions form part, is extraordinarily complex. In this section of the judgment I outline the compensation regime, referring to the validation and extinguishment provisions only to the extent necessary to understand that regime. 40 Section 13(2) of the NTA provides that if the Court is making a determination of compensation in accordance with Div 5 of Part 2 , and an approved determination of native title has not previously been made in relation to the whole or part of the area concerned, the Court: 'must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made'.
Case: Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168
Outcome: cited
Section 10 of the RD Act was enacted to implement art 5 of the Convention : Mabo v Queensland [1988] HCA 69 ; (1988) 166 CLR 186 (' Mabo (No 1)' ). The legislation, at least in large measure, is an exercise of the power of the Commonwealth Parliament to make laws with respect to external affairs pursuant to s 51(xxix) of the Constitution ( Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168), although its application to the Territories is supported by s 122 of the Constitution : Ward (HC), at [129].
Case: Kruger v Commonwealth [1997] HCA 27 ; (1996) 190 CLR 1
Outcome: cited
In 1911, the Acceptance Act came into force. The effect of the surrender of the Northern Territory by South Australia and its acceptance by the Commonwealth was to confer on the Commonwealth Parliament exclusive power to make laws for the government of the Territory: Constitution , s 122 ; Kruger v Commonwealth [1997] HCA 27 ; (1996) 190 CLR 1, at 49-50, per Dawson J; Ward (HC), at [390]. The Acceptance Act continued all laws in force in the Territory at the time of the acceptance, but provided that all such laws could be altered or repealed under any law of the Commonwealth: s 7. All estates and interests held by any person from the State of South Australia within the Northern Territory continued to be held from the Commonwealth on the same terms and conditions: s 10. 125 The Northern Territory (Administration) Act 1910 (Cth) (' Administration Act ') empowered the Governor-General to make ordinances having the force of law in the Northern Territory, although either House of Parliament could disallow an ordinance: s 13. This was essentially the position until 1947, when the Administration Act was amended to create a Legislative Council for the Northern Territory. The Legislative Council was given power to make ordinances for the peace, order and good government of the Territory, subject to the assent of the Administrator and a power of disallowance vested in the Governor-General: Administration Act , ss 4U, 4V, 4W. In 1978, the Northern Territory was established as a body politic under the Crown and the Legislative Assembly was given power to such laws for the peace, order and good government of the Territory: Self-Government Act , ss 5, 6. 126 In 1914, according to Mr Tindale, a vast area of South Australia extending north-west from the Victorian border for over 3,200 kilometres, was in a severe drought that lasted until mid-1915. However, because of local summer thundershowers, the situation in the eastern Musgrave Ranges was nearly normal. The drought forced Pitjantjatjara people to the west to shift eastward. By 1916 they had usurped the territory of some Yankunytjatjara people in the eastern Musgraves, in turn forcing them southwards: N B Tindale, Aboriginal Tribes of Australia: Their Terrain, Environmental Controls, Distribution, Limits and Proper Names (Uni of California, 1974), at 69.
Case: Lardil Peoples v Queensland [2004] FCA 298
Outcome: distinguished
The Commonwealth cites several first instance decisions as authorities to the contrary of Ward (FC) (No 2) . Leaving aside the fact that I am bound by Ward (FC) (No 2), each of these cases is distinguishable. In Lardil Peoples v Queensland [2004] FCA 298 , Cooper J was concerned with native title rights over certain waters which rights were expressed to be good against all the world other than people exercising public rights of fishing, navigation or innocent passage, or other rights lawfully conferred by statute. Cooper J, with respect, correctly considered that a formulation in these terms amounted to an attempt to control access to and use of the land in a manner that was inconsistent with the reasoning in Ward (HC) : see at [188]. Lardil Peoples v Queensland did not involve any native title right of the kind dealt with either in para 5(e) of the determination in Ward (FC) (No 2) or in the determination made in De Rose (FC) (No 2). Similarly, the passages cited from Daniel v Western Australia [2003] FCA 666 , at [134]-[136], and Neowarra v Western Australia [2003] FCA 1402 , at [475], do not directly bear on a native title right to make decisions about the use and enjoyment of land by Aboriginal peoples bound by traditional laws and customs.
Case: Mabo v Queensland [1988] HCA 69 ; (1988) 166 CLR 186
Outcome: followed
Section 10 of the RD Act was enacted to implement art 5 of the Convention : Mabo v Queensland [1988] HCA 69 ; (1988) 166 CLR 186 (' Mabo (No 1)' ). The legislation, at least in large measure, is an exercise of the power of the Commonwealth Parliament to make laws with respect to external affairs pursuant to s 51(xxix) of the Constitution ( Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168), although its application to the Territories is supported by s 122 of the Constitution : Ward (HC), at [129].
Case: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422
Outcome: followed
In any claim for determination of native title, or for compensation for loss or impairment of native title rights and interests, the NTA is 'determinative': Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta (HC) ') , at [32], [70]. Accordingly, even if native title was extinguished under common law rules which are taken to have applied prior to the commencement of the NTA , it is still necessary to consider the application of the statute (and its State and Territory counterparts) to any act said to have extinguished native title: Wilson v Anderson [2002] HCA 29 ; (2002) 213 CLR 401 , at [45]-[47], per Gaudron, Gummow and Hayne JJ.
Case: Neowarra v Western Australia [2003] FCA 1402
Outcome: distinguished
The Commonwealth cites several first instance decisions as authorities to the contrary of Ward (FC) (No 2) . Leaving aside the fact that I am bound by Ward (FC) (No 2), each of these cases is distinguishable. In Lardil Peoples v Queensland [2004] FCA 298 , Cooper J was concerned with native title rights over certain waters which rights were expressed to be good against all the world other than people exercising public rights of fishing, navigation or innocent passage, or other rights lawfully conferred by statute. Cooper J, with respect, correctly considered that a formulation in these terms amounted to an attempt to control access to and use of the land in a manner that was inconsistent with the reasoning in Ward (HC) : see at [188]. Lardil Peoples v Queensland did not involve any native title right of the kind dealt with either in para 5(e) of the determination in Ward (FC) (No 2) or in the determination made in De Rose (FC) (No 2). Similarly, the passages cited from Daniel v Western Australia [2003] FCA 666 , at [134]-[136], and Neowarra v Western Australia [2003] FCA 1402 , at [475], do not directly bear on a native title right to make decisions about the use and enjoyment of land by Aboriginal peoples bound by traditional laws and customs.
Case: Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38 ; (1996) 190 CLR 513
Outcome: cited
Section 50(1) of the Self-Government Act provides that: 'The power of the Legislative Assembly conferred by section 6 in relation to the making of laws does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms'. Section 50(1) is designed to impose a statutory restriction on the Legislative Assembly similar to the restriction imposed on the Commonwealth Parliament by s 51(xxxi) of the Constitution : Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38 ; (1996) 190 CLR 513, at 542-543, per Brennan J. It follows that a law passed by the Legislative Assembly which provides for the acquisition of property otherwise than on just terms will be ultra vires the Legislative Assembly. 711 Part IV of the Self-Government Act is headed: 'The Administration'. Section 31 provides as follows: 'The duties, powers, functions and authorities of the Administrator, the Executive Council and the Ministers of the Territory imposed or conferred by or under this Part extend to the execution and maintenance of this Act and the laws of the Territory and to the exercise of the prerogatives of the Crown so far as they relate to those duties, powers, functions and authorities.' Section 31 must be read with s 35 of the Self-Government Act , which states that: 'The regulations may specify the matters in respect of which the Ministers of the Territory are to have executive authority.' 712 At all material times, reg 4(1) of the Self-Government Regulations has provided that, subject (relevantly) to subreg (4), the Ministers of the Territory are to have executive authority in respect of a number of matters including the following: 'Matters in respect of which duties, powers, functions or authorities are imposed or conferred by or under another Act in force in the Territory on a Minister or the Territory ... Land, public and private (including internal waters) ... Surface transport regulation (including ... roads and bridges ...) ... Public works.' Regulation 4(3) states that the inclusion of any matters in subreg (1) 'does not derogate from or affect the generality of any other matter specified in that subregulation'. 750 As I have noted, prior to the 1998 amendments, the NTA did not affect an act that was valid when done and which was effective at the time it was done to extinguish or impair native title. In Mabo (No 2), the High Court recognised that in Australia native title to land survived the Crown's acquisition of sovereignty (at 69, per Brennan J). From the outset, however, the High Court accepted that native title rights and interests: 'are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession. They can also be terminated by other inconsistent dealings with the land by the Crown'. Mabo (No 2) at 110, per Deane and Gaudron JJ; Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 (' Fejo '), at [42]-[48].
Case: Paulette v The Queen [1977] 2 SCR 628
Outcome: cited
Callinan J acknowledged that there were Canadian authorities to the effect that caveats could not be lodged to protect Aboriginal title under the Torrens system. However, the decision of the Supreme Court of Canada in Paulette v The Queen [1977] 2 SCR 628, turned on the fact that the land had never been granted by the Crown and was not the subject of any registered title (see Paulette v The Queen, at 630). The decision therefore said nothing about whether native title rights and interests could be protected by caveat after a Crown grant had issued in respect of the land. His Honour considered that other Canadian decisions turned on the particular provisions of the Torrens statutes in force: see Uukw v British Columbia (1987) 37 DLR (4 th ) 408, followed in Skeetschestn Indian Band v British Columbia (Registrar of Land Titles) [2001] 1 CNLR 310 (both decisions of the British Columbia Court of Appeal).
Case: Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362
Outcome: cited
A failure to cross-examine a witness on contentious issues may have at least two consequences: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, at 587, per Samuels JA (with whom Meagher JA agreed). First, the so-called rule in Browne v Dunn (1893) 6 R 67, which reflects a principle of procedural fairness, may prevent the cross-examining party asking the court not to accept the evidence of the witness on that particular issue: J D Heydon, Cross on Evidence (6 th Aust ed, 2000), at [17460]. Secondly, the failure to cross-examine may provide a cogent reason for accepting the witness's evidence, particularly if it is not contradicted: Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362, at 371. However, there is no rule that evidence which is unchallenged in cross-examination must be accepted by the trier of fact, especially if it appears to be inherently incredible or is contradicted by other credible evidence: Bulstrode v Trimble [1970] VR 840, at 849, per Newton J; Ellis v Wallsend District Hospital , at 586-588, per Samuels JA; Elkington v Shell Australia Ltd (1993) 32 NSWLR 11, at 17, per Kirby ACJ.