Fejo & Freehold
The Larrakia people had registered an application for a determination of native title over lands in and around Darwin, Palmerston and Litchfield in the Northern Territory. In December 1997 the Larrakia took their case to the Federal Court, seeking a declaration that, in respect of those particular lands, native title exists and that the Larrakia people are the native titleholders. The action was taken in response to the granting of Crown leases, with an option to acquire freehold.
The question had not been answered in Wik as to whether, in circumstances where an inconsistency did arise between native title and an interests granted by the Crown, whether native title may be merely suspended for the period of the grant. That is, could native title be said to be merely regulated rather than extinguished. That question was reserved for a later time.
The Fejo case was the natural successor to the Wik decision. The Larrakia people claimed native title over lands that were planned for development. While vacant Crown land at the moment, the land had once been subject to a grant of freehold title. There were two questions for the court. The first was whether a grant of freehold extinguished native title completely and the second was whether native title could revive or be re-recognised once the land reverted back to Crown land.
In the case of extinguishment, the Court said, in Fejo v Northern Territory (1998) 156 ALR 721, that native title cannot 'revive'(per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, at 740). The High Court confirmed that any native title the Larrakia had held in the land had been extinguished absolutely and forever by the grant of freehold title. The existence of rights and interests under Aboriginal law while considered necessary to prove native title were not always sufficient to establish native title at common law.
The Court also discussed the nature of native title emphasising that it is an inherently vulnerable title. Native title was characterised as a bundle of rights, which, because it has its source in Aboriginal law rather than in the Crown, creates an inherently vulnerable title when recognised within the Australian legal system. Although the outcome in Fejo was not surprising, the reasoning of the Court was in many ways a retreat from the positive development of native title in the Wik decision.
Keywords: aboriginal law, crown land, extinguishment, Federal Court of Australia, Fejo decision, Fejo v Northern Territory (1998), High Court of Australia, Larrakia, native title, Northern Territory, Wik, 1997-1998
Author: Strelein, Lisa