CHAPTER 3
CHAPTER 3
3.1 At common law, native title can be extinguished by legislation or
inconsistent Crown grant or Crown use, subject to the operation of the
Racial Discrimination Act 1975 (the RDA). The decision of the High
Court in Mabo (No 2) created doubt as to the validity of some acts
that affected native title which occurred after the RDA came into force
on 31 October 1975. It was accepted by the Parliament in 1993 that these
'past acts' should be validated. Accordingly, the Native Title Act
1993 contains provisions to achieve this (ss.14-20).
3.2 The Act removed the vulnerability of native title to extinguishment
under the common law by providing that it could only be extinguished henceforth
in one of the three ways provided in the Act (s.11). These are by agreement
on the part of the native title holders, by the occurrence of a 'past
act' that has been validated by the Act, or by the doing of a 'permissible
future act' as defined in the 'future act' regime in the legislation.[1]
Acts that ought to follow the 'future act' regime but fail to do so are
as a result invalid to the extent that they affect native title (s.22).
3.3 As noted in Chapter 1 of this report, the Preamble to the Act reflects
the view, widespread in 1993, that a grant of a pastoral lease had at
common law extinguished any native title that may have existed in relation
to that land. It followed logically from this view that acts relating
to that land did not need to follow the 'future act' regime of the Act
because there was no existing native title which they could affect. Some
governments carried out acts based on this view. The Wik decision
on 23 December 1996 made it clear that this view was not necessarily correct.
An unknown number of acts occurred between the coming into operation of
the Act and the date of the Wik decision that, with post-Wik
hindsight, should have complied with the 'future act' regime but did not
do so and are invalid to the extent that they affect native title.
3.4 It seems that the vast majority of these possibly invalid acts are
not grants of pastoral leases. Rather they are mineral exploration permits
issued on the basis that an earlier grant of a pastoral lease had extinguished
any native title that might have otherwise existed.
3.5 The Bill deals with the question of Wik-related invalidity
by following the precedent set in the Parliament's 1993 response to the
'past act' invalidity created by the Mabo (No 2) decision. It provides
for the validation of the acts, except those relating to land where the
only type of lease ever granted over that land was a mining lease or where
the land has always been vacant Crown land. The Bill defines the acts
to be validated as 'intermediate period acts', with the period defined
as being after 31 December 1993 and before 24 December 1996. The Bill
contains provisions to validate such acts attributable to the Commonwealth
(new s.22A). The Bill also enables a State or Territory to legislate to
validate intermediate period acts attributable to it (new s.22F). The
Bill requires the government doing the validating to pay compensation
to any native title holders affected (new ss.22D, 22G).
3.6 A number of criticisms were made in evidence and submissions to the
Committee that the validation provisions go beyond what is necessary as
a result of the Wik decision in several respects.[2]
The main criticism was that the provisions are not justified in the first
place.[3]
3.7 The Government has stated that it does not believe that invalidity
is the appropriate consequence for acts done on the basis of what it regards
as a legitimate assumption subsequently proved wrong.[4]
The South Australian Solicitor-General, Mr Brad Selway QC, put a similar
view on behalf of the South Australian Government:
We say that the validation issue is sensible and appropriate
simply because, if it is accepted that all parliaments and all governments
in Australia took a reasonable position - we now know a wrong position,
but a reasonable position - in thinking that native title had been extinguished
on pastoral leases, then to put it bluntly there is a public policy
issue which now needs to be resolved: what about the people who, in
reliance upon that government position, have been prejudiced? Validation
is the obvious answer. Compensation needs to be paid, we accept that.
We say that there cannot be a sensible argument against that validation.[5]
3.8 Others however attacked the legitimacy of the assumption on which
governments and others acted. For example, the National Indigenous Working
Group told the Committee:
no such assumption could have been made in good faith on the
basis of competent legal advice, without at least acknowledging that
there was a serious risk that the assumption was wrong.[6]
3.9 The Committee notes, however, that not all Indigenous leaders have
accepted this view. For example, on 10 November 1993 Mr Noel Pearson said
in an address to the National Press Club:
I rule out the possibility in Queensland of people pursuing any
rights in relation to pastoral leases owned by non-Aboriginal people
... and it's not in our interest to pursue challenges in relation to
pastoral leases, particularly since there are no reservations of any
Aboriginal rights to pastoral leases in Queensland. ... As to litigating
on the basis of native title, it would be as fruitless as pursuing native
title claims in relation to valid freehold titles.[7]
The Submission from the Queensland Government (p.30) quoted Mr Michael
Mansell as saying that 'leasehold lands extinguished native title because
they provide for the right to exclude others ...'.
3.10 It is also notable that the then Democrat Senator, Sid Spindler,
told the Senate on 15 December 1993:
The High Court's Mabo judgment deals with the proof required
to establish native title. The report from the Senate Standing Committee
on Legal and Constitutional Affairs states:
Proof of the existence of native title is relatively difficult
to establish. The elements include the need to show the existence
of an identifiable community or group; that there be a traditional
connection with the land under the laws and customs of the Aboriginal
group; and that there has been a substantial maintenance of the connection
since Crown sovereignty. These elements will place strict limits upon
the making of successful claims to native title.
In recognition of this difficulty, and the fact that over most
usable land in Australia native title has been extinguished, this bill
contains a provision for the establishment of a land acquisition fund
and the government has made a commitment to create a social justice
package due to be introduced as the second leg of the government's response
to Mabo.[8]
3.11 Because native title had been extinguished over most useable land
in Australia, the Native Title Bill 1993 contained a provision for the
establishment of a land acquisition fund. This fund of about $1.29 billion
will make $45 million available annually in perpetuity for the purchase
of suitable land. When the legislation creating the land fund was passed
in 1995 the Prime Minister, the Hon Paul Keating, said:
This is going to be a great day for Aboriginal people. They will
now have the twin parts, that is the two bits - the Native Title legislation
for those that still have a traditional association with the land, and
for those dispossessed of the land, they'll have the opportunity to
buy land through a cogent coherent Aboriginal land fund.[9]
3.12 Much evidence was provided to the Committee on who, amongst the
various governments and stakeholders in 1993, did and did not share in
the assumption that pastoral leases extinguished native title.[10] Certainly the Keating Government adopted it as its
working assumption. Senator the Hon Gareth Evans QC on behalf of that
Government told the Senate during debate on the Native Title Bill on 20
December 1993:
I am proceeding on the assumption that the native title has been
extinguished by the pastoral lease concerned; that is the clear intimation
from the High Court so far as the common law position is concerned.
We have not determined that as a matter of statute. It has been left
to be further explored if anyone wants to explore it. The working assumption
is that the vesting of a pastoral lease extinguishes native title ...[11]
Further, in reference to Queensland pastoral leases, Senator Bob Collins
assured the Senate prior to the passing of the Act in 1993:
If those titles are valid, they extinguish native title.[12]
The Minister for Aboriginal and Torres Strait Islander Affairs, the Hon
Robert Tickner, prepared a pamphlet entitled Rebutting Mabo Myths
in June 1993 which was widely-circulated. It stated that the effect of
the High Court's decision was to 'rule out any possibility that private
land could be successfully claimed under Mabo'. It also stated:
It is highly likely that the Mabo decision will only be of direct
application to a small percentage of Aboriginal people and will apply
mainly to remote Australia. ... ... Almost all farming and grazing land
In Australia is held under freehold, perpetual leasehold or long-term
leasehold titles. As a result of the High Court's decision, these lands
cannot be successfully claimed because the grant of these titles extinguishes
any native title.
3.13 Those opposing the legitimacy of the assumption note that the Wik
litigation had commenced in the Federal Court in June 1993, before the
Native Title Bill was debated and eventually passed by the Parliament.
They argue that the question of whether a pastoral lease extinguished
native title was therefore a live issue at the time, and that governments
and others who chose to ignore this should not now be rescued by the passage
of validation provisions. As the Aboriginal and Torres Strait Islander
Social Justice Commissioner, Mr Michael Dodson, put it, in its present
form the Bill provides dividends to those who ignored the warnings he
gave in his 1993 and 1994 Native Title Reports.13
3.14 The Queensland Government responded to this argument by pointing
out to the Committee that the consolidated statement of claim in the Wik
case comprised over 90 pages and included a large number of claims, including
one that the Queensland Parliament lacked the power to make laws which
enable grants to be made which extinguish or impair aboriginal or possessory
title. This particular claim was subsequently amended to apply only to
grants of pastoral leases. The Queensland Government argued:
Accordingly, to suggest that Queensland should not have dealt
in pastoral leases, contrary to its best advice, simply because this
claim was on foot is also to suggest that Queensland should have halted
many actions including - ceased to grant any mining leases at all, even
over freehold because minerals were under claim; stopped mining on the
mining leases in question; ceased all activities on DOGIT lands throughout
the State; ceased to grant any tenures under land legislation on the
basis that such legislation was invalid; stopped all activities by landholders
(including freehold until the amendment of the limitation of power point)
under their tenures on the basis that such grants were invalid because
the Parliament had no power to authorise their grant. ... Similarly,
the significant majority of native title claims in Queensland accepted
by the National Native Title Tribunal claim exclusive possession of
land which is the subject of grants to third parties. Should the State
and the tenure holders cease all activity with respect to such grants
because the claim is for exclusive possession? Such a suggestion would
be ridiculed.[14]
3.15 It is argued that to have assumed that pastoral leases did not extinguish
native title would have been to ignore the decisions in the Waanyi
case by French J. on 14 February 1995, by the Full Court of the Federal
Court on 1 November 1995 and the decision by Drummond J. in Wik on
29 January 1996, all of which held that pastoral leases extinguished native
title.[15] As the Commonwealth
Government's submission noted:
... up until the Wik decision itself the binding judicial
view was that pastoral leases extinguished native title although from
Waanyi, it was an issue to be determined finally by the High
Court.[16]
3.16 The submission from the Commonwealth Government also pointed out:
... the NNTT did not accept claims covering pastoral leases without
reservations for the benefit of indigenous people for a period from
16 May 1994 (when the first NNTT `General Procedures for Applications
for Native Title Determination and Compensation' were released) to 30
April 1996 (when the procedures were amended in response to the High
Court's Waanyi decision). Clearly, there would have been little
point in employing the available (albeit limited) future act provisions
of the NTA on pastoral lease land where there are no reservations if
the NNTT, operating under its general procedures, would not accept any
claims in response.[17]
3.17 Some submissions referred to the fact that the Western Australian
Government did follow the 'future act' provisions, once its own legislative
attempt to deal with native title had been found unconstitutional by the
High Court on 16 March 1995.[18]
It is argued that other governments, Queensland in particular, should
also have taken what is described as the cautious approach of following
the 'future act' provisions. However, the Queensland Government told the
Committee that the legislation governing pastoral grants in Western Australia
contains reservation clauses for the benefit of Aboriginal people. The
existence of reservation clauses meant that it was possible that native
title rights and interests continued to exist on pastoral leases in Western
Australia. This reasoning did not apply to Queensland, where such reservation
clauses fail to appear in pastoral leases issued after 1910.[19]
3.18 Finally, the Commonwealth Government also noted that there was opportunity
for dealings by government to be challenged in the courts by way of injunction
at the time on the basis that the government had failed to comply with
the 'future act' processes of the NTA. However, the Government told the
Committee it knew of no successful challenge.[20]
3.19 The Committee agrees that in all the circumstances the validation
provisions represent a reasonable solution to one of the impacts of the
Wik decision.
[Return to table of Contents]
Footnotes:
[1] Western Australia v The
Commonwealth (Native Title Act Case) (1995) 183 CLR 373, p.459.
[2] See for example the Submission
from the National Indigenous Working Group, pp.22-24. For a response to
these criticisms, see the Submission from the Commonwealth Government,
pp.26-28.
[3] See for example the Submission
from Australians for Native Title and Reconciliation, pp.11-12.
[4] Explanatory Memorandum,
para.4.5; House of Representatives, Daily Hansard, 4 September
1997, p.7527; Submission from the Commonwealth Government, p.20.
[5] Evidence, p.1767.
[6] Submission from the National
Indigenous Working Group, p.22.
[7] Quoted in the Submission from
the Queensland Government, p.29.
[8] Senate Hansard, 15 December
1993, p.4640.
[9] ABC 7.30 Report, 2 March
1995.
[10] See for example the Submission
from the Queensland Government, pp.15-32 which contains a broad range
of quotes from representatives of governments and other stakeholders,
including several spokesmen from Indigenous groups.
[11] Senate Hansard, 20
December 1993, p.5338.
[12] Senate Hansard, 20
December 1993, p.5288.
13 Submission from Mr Michael Dodson, Aboriginal and Torres
Strait Islander Social Justice Commissioner, p.8.
[14] Queensland Government, Answer
to Question taken on Notice on 30 September 1997 on why it did not follow
the future act provisions, p.2.
[15] ibid.; see also Submission
from the Commonwealth Government, p.24.
[16] Submission from the Commonwealth
Government, p.24.
[17] Submission from the Commonwealth
Government, p.23.
[18] Western Australia v The
Commonwealth (Native Title Act Case) (1995) 183 CLR 373.
[19] Queensland Government, Answer
to Question taken on Notice on 30 September 1997 on why it did not follow
the WA example, p.1.
[20] Submission from the Commonwealth
Government, p.25. See also the Submission from Fr Frank Brennan, p.1.
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