...Inconsistent Grants...
The question of precisely what sort of interest is sufficiently inconsistent with native title to effect extinguishment has been the source of much heated controversy. At the epicentre of this controversy has been the question of whether the grant of pastoral leases extinguish native title, a question complicated by the different forms of pastoral leases granted at different times both within and between the various States and Territories.
The decision itself revealed the difficulty of such questions, as the Judges came to differing views as to whether the grant of the twenty year Crown lease over the islands of Dauar and Waier for a sardine factory was sufficient to extinguish native title over the islands. The lease contained a condition that the lessee must not interfere with the Meriam people's use of their traditional gardens and reef fishing areas. While Justices Deane and Gaudron suggested (175 CLR at 117), without having to rule on the question, that the lease did not extinguish native title, Justice Brennan (175 CLR at 71) and Justice Dawson (175 CLR at 158) came to the opposite conclusion.
The decision itself revealed the difficulty of such questions, as the Judges came to differing views as to whether the grant of the twenty year Crown lease over the islands of Dauar and Waier for a sardine factory was sufficient to extinguish native title over the islands. The lease contained a condition that the lessee must not interfere with the Meriam people's use of their traditional gardens and reef fishing areas. While Justices Deane and Gaudron suggested (175 CLR at 117), without having to rule on the question, that the lease did not extinguish native title, Justice Brennan (175 CLR at 71) and Justice Dawson (175 CLR at 158) came to the opposite conclusion.
Keywords: Brennan, Chief Justice Gerard, Brennan, Justice Gerard, Dauar, Dawson, Justice, Deane, Sir William, extinguishment, Gaudron, Justice Mary, Waier, 1992
Author: Kenna, Jonathan