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Fejo v The Northern Territory of Australia [1998] HCA 58 (10 September 1998)

Category: Case Law
Sub Category:Case Law
Location:Australia
Subject Matter:Native Title
Summary Information:
'In December 1997, the Larrakia people sought a declaration in the Federal Court that native title exists in relation to particular lands and that the Larrakia people are the native title holders in respect of those lands. This was in response to the granting of Crown leases, with an option to acquire freehold, over lands within the area subject to an application for a determination of native title. The area in dispute was once granted in fee simple, but later reverted to vacant Crown land. The Larrakia argued that the Northern Territory government was required by the Native Title Act 1993 (Cth) to either negotiate with the Larrakia or to compulsorily acquire their native title.'
Detailed Information:
'The High Court was asked to consider whether a grant of freehold or fee simple was effective to extinguish all native title rights and interests so that, upon the land being re-acquired by the Crown, no native title rights and interests could then be recognised by the common law.
The case raises two important issues. The first issue is whether a grant of freehold extinguished native title so that no form of native title can co-exist with freehold title. The second question is whether extinguishment was permanent and absolute or whether there was potential for native title under the common law to be re-recognised or to 'revive' when the land returned to the Crown. The case also dealt with the issue of injunctive relief available outside the operation of the Native Title Act 1993.
Held
1. Native title is completely extinguished by the grant of a freehold estate. The rights granted under fee simple are inconsistent with the continued existence of any form of native title and no coexisting or concurrent rights can survive.
2. The grant of freehold extinguishes native title permanently regardless of the land being held by the Crown in the future.
3. While the existence of Indigenous law is necessary to establish native title, it is not sufficient to invite recognition under the common law.
4. Statutory rights under the Native Title Act are valuable rights that may warrant protection by injunctions. General principles of injunctive relief apply. Acceptance by the Registrar establishes an arguable case, but some inquiry may be made into the case of the other parties.' (Lisa Strelein, 'Fejo and Mills on Behalf of the Larrakia People v the Northern Territory and Oilnet (NT)', (1998/99) (No. 1/99) Native Title Newsletter 6-7: http://www.aiatsis.gov.au/rsrch/ntru/newlet/ntru1-99.pdf (at 2 May 2005)).

Related Entries

Organisation
  • Northern Territory of Australia - Respondent
  • Northern Land Council
  • Larrakia Nation Aboriginal Corporation
  • Oilnet (NT) Pty Ltd - Respondent
  • High Court of Australia
  • Legislation
  • Native Title Act 1993 (Cth)
  • People
  • Larrakia People - Native Title Claimant

  • References

    Article
    Lisa Strelein (1999) Extinguishment and the Nature of Native Title: Fejo v Northern Territory
    Resource
    Lisa Strelein (1998/99) Fejo and Mills on Behalf of the Larrakia People v the Northern Territory and Oilnet (NT)

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