Extinguishment
The Principle of Extinguishment
2.1 In Mabo (No2) the High Court majority confirmed that the Meriam people
were entitled to the possession, occupation, use and enjoyment of the
lands of the Murray Islands: native title was recognised. The High Court
also found that, in certain circumstances, native title can be extinguished.
2.2 The Aboriginal and Torres Strait Islander Social Justice Commissioner,
Mr Michael Dodson, has asserted a view about the extinguishment of native
title and the 'people who are being dispossessed':
... regardless of what the common law says, we have not lost
our connection with our lands. In the minds of Indigenous people, our
laws and customs do not disappear just because the common law deems
them to be extinguished. All that the common law changes is the enforceability
of our laws and customs in the Australian courts. [1]
2.3 In some respects this is a difficult proposition. First, in Mabo
(No2) the majority of the High Court observed that native title has its
origin in and is given its content by the traditional laws acknowledged
by and the traditional customs observed by the Indigenous inhabitants
of a territory. [2] The common law
cannot deem Indigenous laws and customs to be extinguished, although it
may do so in regard to acts affecting native title. Accordingly, to the
extent that Mr Dodson's assertion is intended as a comment on the law,
it is questionable. Second, native title, while a common law concept,
is now recognised by statute law. The Native Title Act 1993 (s.3) was
enacted in part to recognise and protect native title. Native title holders
now have the opportunity to pursue their rights under the Act. Such native
title holders should seek the recognition of their statutory rights.
2.4 Because the statutory recognition of native title is important so
is the question of extinguishment. The Social Justice Commissioner provided
an extensive treatment of the issue in his first report. In commenting
on the power to extinguish, Commissioner Dodson noted that:
The assumed power to extinguish the property of Indigenous people
was sanctioned by the common law in Australia in Mabo [No:2]. ...Australian
governments may justify extinguishment of native title with the court's
endorsement as a valid exercise of sovereign power. Indigenous people,
however, are unlikely to be satisfied with the explanation as to the
validity of the extinguishment. [3]
2.5 In Mabo (No2), and in regard to extinguishment, Justice Brennan provided
a nine point summary of the common law with reference to land titles;
it is reproduced at Appendix 2 of this report. The first five points of
the summary by Brennan J cover extinguishment by the Crown. In essence
they are:
1. The Crown's acquisition of sovereignty cannot be challenged in an
Australian municipal court.
2. On acquisition of sovereignty, the Crown acquired radical title.
3. Native title survived the acquisition of radical title, but the
acquisition of sovereignty exposed native title to extinguishment by
a valid exercise of sovereign power inconsistent with the continued
right to enjoy native title.
4. Native title has been extinguished by freehold and leasehold grants
but not necessarily by the grant of lesser interests.
5. Native title is extinguished to the extent of the inconsistency
where the Crown has validly and effectively appropriated land to itself
and the appropriation is wholly or partially inconsistent with a continuing
right to enjoy native title. Native title continues where the waste
lands of the Crown have not been so appropriated or used or where the
appropriation and use is consistent with the continuing concurrent enjoyment
of native title over the land.
Clearly, point 3 is the issue that has drawn the Social Justice Commissioner's
most basic concern:
Governments must recognise that regardless of their basis for
considering that the extinguishment of native title is a valid exercise
of their sovereign power, the grievance to Indigenous people that results
is a matter that cannot be ignored and will have to be dealt with. [4]
2.6 Importantly, the March 1995 judgement of the High Court in the Western
Australian challenge to the Native Title Act had as its premise the acceptance
of the principle that the sovereign power could extinguish native title.
Before the court the State of Western Australia argued that native title
had been extinguished upon British settlement; the WA legislation Land
(Titles and Traditional Usage) Act 1993 had purported to extinguish any
native title in the state and replace it with more limited statutory rights
to traditional usage of land. In finding that native title had not been
extinguished wholesale in Western Australia the High Court confirmed in
its judgement:
Although an acquiring sovereign can extinguish such rights and
interests in the course of the act of State acquiring the territory,
the presumption in the case of the Crown is that no extinguishment is
intended. That presumption is applicable by the municipal courts of
this country in determining whether the acquisition of the several parts
of Australia by the British Crown extinguished the antecedent title
of the Aboriginal inhabitants. [5]
The High Court also considered that :
Apart from extinguishment by past acts and future acts, native
title can be extinguished by agreement between the holders of native
title and the Commonwealth, State or Territory (as the case may be)
in which the relevant land is situated. [6]
2.7 The concern expressed by the Social Justice Commissioner, then, relates
to a pivotal aspect of the judgement of the High Court to the effect that
native title can be extinguished by the Crown. This fact is not diminished
by the view taken by Mr Dodson that:
as long as our laws and customs are being observed and practised,
the only manner in which our title can be validly extinguished is through
consent. [7]
[Table of Contents]
Conditions for Extinguishment
Valid exercise of sovereign power
2.8 The High Court in Mabo (No2) held that sovereignty carries the power
to create and to extinguish private rights and interests in land within
the sovereign's territory. [8] While
that power prevails, the High Court also considered that under Australian
constitutional law, the legality and validity of an exercise of sovereign
power depends on the authority vested in the organ of Government purporting
to exercise it. For the Commonwealth, the provisions of s.51(31) of the
Constitution relating to just terms compensation apply; for the States
and Territories, the provisions of the Racial Discrimination Act 1975
(RDA) apply. Sections 9 and 10 of the RDA provide that is unlawful to
discriminate on racial grounds and that all persons enjoy rights equally
under the law; by virtue of ss.109 and 122 of the Constitution the RDA
prevails over any conflicting State and Territory legislation.
2.9 In both Mabo (No2) and the Western Australian Government challenge,
the High Court accepted that a sovereign power can in law extinguish rights
and interests in land in the act of, and at the time of, acquiring sovereignty.
The common law presumption, however, was that no such extinguishment was
intended. [9]
2.10 It should be acknowledged that the High Court has made plain that
native title was a lesser title than others. Not only could native title
be extinguished by the sovereign power, but as a title it did not enjoy
the status of titles conferred by the sovereign power. Native title is
not granted by the Crown; other titles, granted by the Crown, could not
be impaired by the Crown without statutory authority but native title
could. [10] It required the Native
Title Act 1993 at s.11(1) (together with the Racial Discrimination Act
acknowledged at s.7(1) of the Native Title Act) to ensure that native
title enjoyed similar rights (against impairment) as other titles.
Clear and plain intent
2.11 The High Court majority judgements confirmed in Mabo (No2) that
the exercise of a power to extinguish native title must reveal a 'clear
and plain intention' to do so. [11]
In order for the High Court to determine that native title had not been
extinguished in the Murray Islands, it needed to conclude that the Crown
did not purport to extinguish that title either when the islands were
annexed in 1879 or when they were reserved for public purposes under the
Land Act 1910. The majority judgement considered that:
... the exercise of a power to extinguish native title must reveal
a clear and plain intention to do so, whether the action be taken by
the Legislature or by the Executive. [12]
And Justice Toohey advised:
Where the legislation reveals a clear and plain intention to
extinguish traditional title, it is effective to do so. [13]
Clear and plain intent, then, was acknowledged by the High Court as a
condition for extinguishment.
2.12 The Social Justice Commissioner has noted some ironies and difficulties
confronting the condition requiring clear and plain intent for the extinguishment
of native title. Mr Dodson has observed that throughout Australian history
native title was largely ignored by the legislature. That is, while colonial
Governments were aware of Indigenous occupation, they chose, with the
exception of some reservations in pastoral leases, to ignore Indigenous
interests in land. [14]
2.13 The President of the National Native Title Tribunal referred to
this issue in his ruling on the acceptance of the Waanyi application.
He pointed out that the clear and plain intention condition for extinguishment
does not entail that the proponent of extinguishment must demonstrate
the existence of an actual intention to extinguish native title:
Native title, having been recognised for the first time by the
common law of Australia in Mabo (No.2) it is difficult to see how such
a requirement could ever have been satisfied. [15]
Mr Dodson's rejoinder to this view was that it ignored the widespread
awareness of Aboriginal rights and interests by colonial and subsequent
authorities in Britain, Australia, New Zealand, North America and elsewhere.
[16] One approach taken by the High Court over
this 'irony' was expressed by Brennan J in Mabo (No2):
The extinguishing of native title does not depend on the actual
intention of the Governor in Council (who may not have adverted to the
rights and interests of the indigenous inhabitants or their descendants),
but on the effect which the grant has on the right to enjoy the native
title. [17]
2.14 This is a somewhat confusing approach. In principle it is difficult
to accept that the judgement should refer to the significance of intention
if it is the outcome that is important. Outcomes can bear little resemblance
to the intention of the act.
2.15 The majority High Court decision concerning the Western Australian
challenge to the Native Title Act 1993 is enlightening on the issue of
extinguishment (on acquisition of sovereignty) by clear and plain intent.
There it was acknowledged that although an acquiring sovereign can extinguish
pre-existing land rights, the presumption in the case of the Crown is
that no extinguishment is intended. [18] The State of Western Australia sought
to show that the British Crown, in acquiring the colony, manifested an
intention to extinguish all native title to land within its boundaries.
It was claimed that that intention followed from the Crown's intention
to assume absolute ownership of all land within the Colony:
To discharge the onus, it is necessary to show at least that
the Crown has manifested clearly and plainly an intention to extinguish
all native title. [19]
The High Court concluded that the Crown's colonial policy of making the
whole territory available for sale was capable of being implemented without
a general extinguishment of native title. Native title in Western Australia
was not extinguished in the course of acquiring the colony, with two consequences:
First, since the establishment of the Colony native title in
respect of particular parcels of land has been extinguished only parcel
by parcel. It has been extinguished by the valid exercise of power to
grant interests in some of those parcels and to appropriate others of
them for the use of the Crown inconsistently with the continuing right
of Aborigines to enjoy native title. Second, it may be found that, at
the time when the W.A. Act came into operation, native title (as recognised
by this Court in Mabo [No.2]) existed in Western Australia in
respect of land where the continuing right of Aborigines to enjoy their
native title was inconsistent neither with the valid grant of an interest
nor with a valid appropriation of the land for the use of the Crown.
[20]
Inconsistency of interests
2.16 In Mabo (No2) the majority High Court considered that:
A Crown grant which vests in the grantee an interest in land
which is inconsistent with the continued right to enjoy a native title
in respect of the same land necessarily extinguishes the native title.
[21]
The decision acknowledged that to treat the dispossession of Australian
Aborigines as the working out of the Crown's acquisition of ownership
of all land on first settlement is contrary to history. The High Court
majority noted that Aborigines were dispossessed of their land parcel
by parcel to make way for expanding colonial settlement. [22]
The majority found that nothing had been done to extinguish native title
in the Murray Islands on land that had not been subject to leases:
There the Crown has alienated only part of the land and has not
acquired for itself the beneficial ownership of any substantial area.
And there may be other areas of Australia where native title has not
been extinguished and where an Aboriginal people, maintaining their
identity and their customs, are entitled to enjoy their native title.
[23]
[Table of Contents]
Pastoral Leases
2.17 Very large areas of Australia are held by pastoral lease. And, of
course, it is in many areas subject to pastoral lease that Aboriginal
people have traditionally lived. Provided that pastoral leases did not
irrefutably extinguish native title, then, it was to be expected that
numerous native title applications would eventuate over pastoral leases.
2.18 In Mabo (No2) Justice Brennan was categorical in his view that the
valid grant of freehold and leasehold title extinguished native title:
Where the crown has validly alienated land by granting an interest
that is wholly or partially inconsistent with a continuing right to
enjoy native title, native title is extinguished to the extent of the
inconsistency. Thus native title has been extinguished by grants of
freehold or of leases but not necessarily by the grant of lesser interests
(eg, authorities to prospect for minerals). [24]
2.19 While Justice Brennan expressed a clear view, the majority High
Court in Mabo (No2) did not hand down a decision as to whether leases
extinguished native title. In fact, the justices differed significantly
in their opinions. In considering the effect of a twenty-year lease for
a sardine factory, Brennan J stated (Mason and McHugh JJ concurring) that
native title has been extinguished by the valid grant of a leasehold estate.
Brennan J decided that native title would have been extinguished even
though the lease was subject to the condition that the lessees would not
obstruct or interfere with the Meriam people's use of their tribal gardens
or fishing on the reefs. While Dawson J [25] expressed a similar view, Deane and Gaudron
JJ suggested that the sardine factory lease would not have extinguished
native title. [26] Toohey J did not express a view. [27] The High Court also considered a special
lease of two acres to the London Missionary Society. Brennan J (with Mason
CJ and McHugh J concurring) expressed the view that the lease extinguished
native title, as did Dawson J; Deane, Gaudron and Toohey JJ refrained
from expressing their views on the issue. [28] In that the High Court was not asked to
answer this question and did not provide a decision on the extinguishment
of native title by leases, the native title acknowledged in Mabo (No2)
did not include the areas of the Murray Islands covered by the 1882 lease
to the London Missionary Society or the 1931 sardine factory lease. [29]
2.20 Prime Minister Keating made comment on pastoral leases and native
title extinguishment late in 1993 prior to the passing of the Act. In
a 7.30 Report interview on 19 October 1993, Mr Keating indicated that
pastoral leases extinguished native title. [30]
The same day in Parliament Mr Keating had said:
And the former Special Minister of State, the Hon Frank Walker QC, responded
to a letter dated 14 December 1993 from the Northern Territory Cattlemen's
Association:
The Government firmly believes that any native title claim over
a valid pastoral lease is unlikely to succeed. [32]
2.21 Significantly, in his Second Reading Speech on the Native Title
Bill 1993, Prime Minister Keating drew attention to the preamble of the
bill where it recorded the Government's view that under the common law
past valid freehold and leasehold grants extinguish native title:
I draw attention also to the recording in the preamble of the
bill of the government's view that under the common law past valid freehold
and leasehold grants extinguish native title. [33]
The wording of the preamble is:
The High Court has:
...
(c) held that native title is extinguished by valid government
acts that are inconsistent with the continued existence of native title
rights and interests, such as the grant of freehold or leasehold estates.
[34]
2.22 It is notable that although this was the Keating Government's view
about extinguishment on pastoral leases, it was not accepted by Indigenous
interests in the development of the Native Title Bill. Commissioner Dodson
has advised:
There was an undertaking not to legislate to have pastoral leases
extinguish native title, and leave it up to the courts to determine
that question. I was also aware at the time that many in the government
- and, it seems clear, the Prime Minister of the day also - had advice
that pastoral leases extinguish native title. But that was not the law
then and it is not the law now. [35]
And the ATSIC Chairperson confirmed:
.... it was a government position, but the government position
was that it would be a matter that would be decided by the courts. [36]
2.23 The approach to this matter taken by the Tribunal President has
been less sweeping than that expressed in the preamble to the Act. Appendix
A to the Procedures for Applications for Native Title Determination and
Compensation, originally issued on 16 May 1994, indicated that where an
application relates to a pastoral lease not having a 'reservation' in
favour of Aboriginal people it will 'not ordinarily' be accepted by the
Registrar. And the Tribunal's document A Guide to Native Title issued
on 16 September 1994 confirmed:
Pastoral leases that contain a 'reservation', such as a condition
that Aboriginal people and Torres Strait Islanders can also use the
land for traditional purposes, may be an exception to the general rule
about leasehold interests. [37]
2.24 One of the most significant native title applications over a pastoral
lease to have been considered by the Tribunal under its procedures is
the Waanyi claim (QN 94/9). This application was referred to the President
by the Registrar on 16 August 1994; the President issued his Reasons for
Ruling in Relation to Criteria for Acceptance of a Native Title Determination
Application on 15 September 1994. There Justice French made two significant
points:
- It is not necessary that applicants identify comprehensive
evidence of non-extinguishment as a condition of acceptance of their
claim.
- On the other hand, evidence of an extinguishing event may
be relied upon by the Registrar in deciding that prima facie
the claim cannot be made out. [38]
In the case of the Waanyi application, the President found that under
common law principles native title was extinguished by pastoral leases
granted in 1883 and 1904. The President emphasised that:
It is to be noted that the decision turns upon the effect of
pastoral leases granted without any reservation in favour of Aboriginal
persons. [39]
He advised that the question whether or not a pastoral lease containing
a reservation extinguishes native title remains open. The President also
noted that it may be that a distinction is to be drawn between pastoral
leases containing reservations expressly mandated by the Act under which
they were granted and pastoral leases containing reservations not so mandated
but inserted in the exercise of an administrative discretion.
2.25 The High Court's February 1996 decision in the Waanyi appeal overturned
the Tribunal's approach. In finding that the Waanyi claim was 'fairly
arguable' the High Court left open the question of extinguishment on any
pastoral lease. Further, judgement is still awaited from the High Court
in the Wik matter. An appeal is before that court concerning the 29 January
1996 decision of Justice Drummond of the Federal Court; he held that certain
Queensland pastoral leases, lacking reservations in favour of Aboriginal
access, extinguished native title.
2.26 In summary, then, although in Mabo (No2) Brennan J expressed a clear
view, the High Court has not made a majority judgement whether native
title is extinguished by pastoral leases; the Commonwealth has since suggested
that a native title claim is unlikely to succeed over any valid pastoral
lease; and the Tribunal originally determined that native title applications
over pastoral leases not containing a 'reservation' in favour of Aboriginal
people would 'not ordinarily' be accepted. Notably, in his first report
on the Native Title Act, Social Justice Commissioner Michael Dodson concluded
that:
Accurate guidelines as to when the common law will consider native
title to be extinguished do not presently exist. [40]
Despite the High Court's Waanyi decision that continues to be
the case, resulting in uncertainty.
[Table of Contents]
Footnotes
[1] Native Title Report January-June 1994,
p.80.
[2] Mabo 2 (1992) 175 CLR 1, p.58.
[3] Native Title Report, op.cit., p.79.
[4] Native Title Report, op.cit.
[5] The State of Western Australia v The
Commonwealth 16 March 1995, High Court, unreported, p.7.
[6] Mabo 2 (1992), op.cit., p.59.
[7] Native Title Report, op.cit., p.81.
[8] Mabo 2 (1992) 175 CLR, p.63.
[9] ibid., p.82.
[10] ibid., p.64; see also The State of
Western Australia & The Commonwealth 16 March 1995 High Court
No. P4, unreported, p.60.
[11] ibid., p.64.
[12] ibid.
[13] ibid., p.195
[14] Native Title Report, op cit., p.85.
[15] French J. Reasons for Ruling on Acceptance
of a Native Title Determination Application, p. 23.
[16] Native Title Report, op.cit., p.84.
[17] Mabo 2 (1992) 175 CLR, p.68.
[18] The State of Western Australia v The
Commonwealth 16 March 1995 High Court No. P4, unreported, p.7.
[19] ibid., p.8.
[20] ibid., p.23.
[21] Mabo 2 (1992) 175 CLR, p.68; paragraph
5 of Justice Brennan's summary (Appendix 2 of this report) also records
his view of extinguishment by inconsistent grant.
[22] ibid., p.69.
[23] ibid.
[24] ibid.
[25] ibid., p.158.
[26] Commentary on the Native Title Act 1993,
Native Title, AGPS 1993, p.C3.
[27] Mabo 2 (1992) 175 CLR, p.197.
[28] ibid., pp. 71, 117, 158, 197.
[29] ibid., pp.71-73.
[30] Evidence, pp. 966, 967.
[31] House of Representatives Hansard, 19 October
1993, p.2093.
[32] Evidence, p.967.
[33] House of Representatives Hansard, 16 November
1993, p.2880.
[34] Native Title Act 1993, Preamble,
p.2.
[35] Evidence, p.3290.
[36] Evidence, p.3512.
[37] NNTT, A Guide to Native Title,
p.6.
[38] French J, Reasons for Ruling in Relation
to Criteria for Acceptance of a Native Title Determination Application,
p. 30.
[39] French J, Reasons for Ruling on Acceptance
of a Native Title Determination Application, p.70.
[40] Native Title Report, op.cit.,
p.103.
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