Case: De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290
Outcome: followed
A number of other propositions were endorsed in Ward (HC). They were recently summarised in De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (' De Rose (FC) (No 2) '), at [145], as follows: (the references are to paragraphs in Ward (HC) ). '(i) Native title rights and interests are properly to be seen as a bundle of rights, the separate components of which can be extinguished separately (at [76]-[77]). (ii) Where a grant of rights in land is made pursuant to statute, the question (so far as extinguishment is concerned) is whether the rights are inconsistent with native title rights and interests in respect of the land [(at [214])]. This is an objective inquiry which requires identification of and a comparison between two sets of rights, one deriving from traditional laws and customs and the other from 'the new sovereign authority that came with settlement' (at [78], [82]). Reference to the use of land is relevant only to the extent that it focuses attention upon the rights pursuant to which the land is used (at [78]). (iii) Rights held under an interest in land less than a fee simple estate, such as a lease, can be inconsistent with the continued existence of native title rights and interests and therefore can extinguish them (at [80]). (iv) There is no such thing as degrees of inconsistency of rights: "Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency ... Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise " ( at [82]). (Emphasis added.) (v) Section 23G(1)(b)(i) of the NTA contemplates that a previous non-exclusive possession act, such as a pre- RD Act pastoral lease, may grant rights and interests that are inconsistent with native title rights and interests and extinguish the latter (at [192]; see, too, Wilson v Anderson, at [46]). Where that occurs, no question of suspension of native title arises. (vi) Section 23G(1)(b)(ii) of the NTA addresses the case where there is an inconsistent grant of rights which, apart from the NTA and its State [or Territory] counterpart, would not extinguish native title rights and interests. The example given is a post-1975 grant which, by operation of the RD Act , was ineffective to extinguish native title rights and interests (at [82]). (This seems to involve reading the expression "the grant of rights" in s 23G(1)(b) as including a purported grant, given that the RD Act would, apart from the NTA , presumably render the grant invalid.)' To these six propositions derived from Ward (HC) two others can usefully be added: (vii) Reference to the use of land in the context of extinguishment may distract attention from the true inquiry, namely whether rights have been created in third parties that are inconsistent with native title rights and interests. Use of land may suggest, or even demonstrate, that such rights have been created, but the basic inquiry is about inconsistency of rights, not use (at [215]). (viii) The metaphor of a 'bundle of rights' is useful in two respects: 'It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom' (at [95]). (Emphasis added.)