Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38 (16 March 2022) (Bromberg, Mortimer and Jackson JJ)


Catchwords:


NATIVE TITLE – extinguishment – appeal from orders of primary judge in relation to separate questions – whether statutory leases conferred exclusive possession over the lease areas within the meaning of s 23B(2)(c)(viii) of the Native Title Act 1993 (Cth) – whether certain statutory leases consisted of a grant of a “Scheduled interest” within the meaning of s 23B(2)(c)(i) of the Native Title Act 1993 (Cth) – challenge to primary judge’s characterisation of statutory leases – meaning of exclusive possession in s 23B – comparison of statutory leases with pastoral leases – consideration of size of statutory leases – consideration of legislative references to lessee’s rights to bring an action in trespass – consideration of conditions, reservations, restrictions and other limitations on the rights of lessees – consideration of the language used in governing statutes – appeal dismissed