Chapter 5
Extent of Extinguishment - s.206(d)(iv)
Mabo (No2)
5.1 On 3 June 1992 the High Court handed down its decision in Mabo
v State of Queensland (No2) (1992) 175 CLR 1. By a 6:1 majority, the
Court recognised the existence of native title, thus overturning the doctrine
of terra nullius in Australia.
5.2 The majority decided that native title had survived the acquisition
of sovereignty because, while the Crown had acquired radical title to
all land within its sovereignty, it had not thereby achieved absolute
beneficial ownership of that land. [1] That
is, radical title had not extinguished native title; rather, native title
existed as a burden on the radical title. Further, certain acts had not
extinguished native title on the Murray Islands. The Court held that neither
the annexation of the islands to the colony of Queensland in 1879, nor
their being set apart from sale pursuant to the Crown Lands Alienation
Act 1876 (Q), had extinguished native title.
5.3 Because the High Court had acknowledged the possibility of extinguishment,
and because there had been activity with the potential to extinguish,
the Court did not acknowledge native title over the entirety of the islands.
In fact, the judges differed significantly in their opinions. Nevertheless,
Justice Brennan was categorical in his view that the valid grant of freehold
and leasehold title extinguished native title to the extent of the
inconsistency:
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). [2]
On this opinion, native title was a vulnerable title; valid alienation
of land by the Crown would extinguish native title to the extent of the
inconsistency. While Justice Brennan expressed this clear view, the majority
in Mabo (No2) did not decide the question whether leases extinguished
native title.
5.4 In Mabo (No2) the High Court had considered a special lease of two
acres to the London Missionary Society in 1882. 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. Further, in considering the
effect of a (1931) twenty-year lease over Dauar and Waier for a sardine
factory, Brennan J stated (Mason CJ and McHugh J concurring) that native
title had been extinguished by the valid grant of a leasehold estate.
[3] 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 expressed
a similar view, Deane and Gaudron JJ believed that the sardine factory
lease would not have extinguished native title. Toohey J did not comment
on this issue.
5.5 The native title acknowledged in Mabo (No2), then, did not
include the areas of the Murray Islands covered by the 1882 lease to the
London Missionary Society (on Mer) and the 1931 sardine factory lease
(on Dauar and Waier). The Mabo decision put 'to one side':
… the Islands of Dauar and Waier, the land leased to the Board
of Missions and any land which was validly appropriated for use for
administrative purposes the use of which is inconsistent with the continued
enjoyment of the rights or privileges of the Meriam people under native
title ... [4]
5.6 Accordingly, in that the High Court was not asked to answer the question,
it did not provide a decision on the extinguishment of native title by
leases. At most, in Mabo (No2) some interim guidance could be discerned
concerning the principles of extinguishment for native title up to the
date of the decision. The following could be drawn from Justice Brennan's
opinion:
- Native title survived the Crown's acquisition of sovereignty and radical
title.
- 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.
- 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.
- 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 is extinguished to the extent
of the inconsistency.
- Native title is extinguished where a clan or group ceases to acknowledge
its laws and observe its customs.
- Native title is extinguished where a clan or group loses its connection
with the land, or the last member of the group dies. [5]
5.7 Justice Brennan then noted the practical effect of these principles:
- Native title has been extinguished by grants of estates of freehold
or of leases but not necessarily by the grant of lesser interests, such
as the authority to search for minerals.
- Native title has been extinguished to parcels of the waste lands of
the Crown that have been validly appropriated for use (whether by dedication,
setting aside, reservation or other valid means) and used for roads,
railways, post offices and other permanent public works which preclude
the continuing concurrent enjoyment of native title. [6]
5.8 The extent to which caution was appropriate about this opinion is
demonstrated by the Attorney-General's Department description of the principles
of extinguishment effective upon the Mabo (No2) decision:
- While the acquisition of sovereignty did not of itself extinguish
native title, subsequent legislative or executive actions by governments
may have. But a clear and plain intention or clear and unambiguous words
are required for this to have occurred. The judgments variously considered
the position of a range of land, such as freehold, leasehold, land appropriated
by the Crown, national parks and land over which mining interests had
been granted. [7]
5.9 Accordingly, and with the benefit of hindsight, in 1992 (immediately
following the Mabo (No2) judgment) it should not have been considered
possible to articulate clearly what may have been the implications of
the judgment for extinguishment. At the most, native title could have
been considered to have been extinguished over all country to the extent
of inconsistency with freehold or leasehold grants, or which had been
set apart for public use. About eighty percent of Australia would have
been unavailable for native title claim under this scenario. However,
in that the High Court did not provide a definitive view about the extinguishing
effects of leases in Mabo (No2), it remained to be established whether
forms of native title could have survived, or could be revived, over all
but freehold grants in Australia.
5.10 In the Commentary on the Native Title Act 1993, published
as a preface to the Act, the Commonwealth expressed its (then) understanding
of the circumstances where native title would be extinguished by rights
inconsistent with the continued enjoyment of indigenous rights and privileges.
In addition to those instances where the traditional title holders lose
their connection with the land, legislative or executive actions could
be effective to extinguish. Notably, the Commentary confirmed that a clear
and plain intention or clear and unambiguous words are required for extinguishment
to have occurred by legislative or executive act. [8]
5.11 Importantly, however, the Preamble to the Act stated:
(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.
The Native Title Act 1993
5.12 The Native Title Act 1993 was enacted in response to Mabo
(No2). Most sections commenced operation on 1 January 1994.
5.13 Based on the Commentary, the Commonwealth subsequently issued
an explanation of the features of the Act including the recognition of
native title rights, provision for the validation of past acts which may
have been invalid and provision for a regime under which native title
rights are protected or affected. [9]
5.14 In validating past extinguishing acts, the Act provided that
the Commonwealth may grant compensation, even for the effect of State
and Territory validations. The Commentary (p.C14) advised:
These Commonwealth rights may be pursued in the National Native Title
Tribunal (NNTT) and the Federal Court. States and Territories may also
provide rights to compensation and a process for asserting those rights
...
5.15 Where native title rights can be affected by future extinguishment,
the Commonwealth expressed the following understanding of the Act:
Under the NTA, native title could only be extinguished by agreement
with the native title holders (section 21) or in giving effect to the
purpose of an acquisition of native title under the Compulsory Acquisition
Acts (section 23(3), and see section 11), and in some other very limited
cases. [10]
Importantly, native title holders would be entitled to `just terms' compensation
for any future extinguishment of their rights and interests.
5.16 In considering whether extinguishment of native title by inconsistent
Crown grant gave rise to a claim for compensatory damages, the majority
in Mabo (No2) held that the validity of such grants could not be challenged
merely on the basis that they extinguished native title without compensation.
This conclusion, however, was subject to the operation of the Racial
Discrimination Act 1975 (RDA). The Commonwealth has commented:
On one view, the RDA may in some cases render wholly or partly invalid
past laws or grants. [11]
5.17 The Native Title Act 1993 at s.14 provided for the validation
of past (invalid) Commonwealth acts. Section 19 enabled States and Territories
to validate their past (invalid) acts on the same terms. Again, the Commonwealth
has commented:
This is not to indicate that the Commonwealth is of the view that past
acts by the Commonwealth, States or Territories are invalid. The Mabo
(No2) decision clearly indicated that governments are able to affect
and indeed extinguish native title. However, significant concerns have
been expressed in relation to the validity of some past acts, and in
particular past grants to third parties. ... the invalidity of some
past acts is a legal possibility. [12]
5.18 Further, in April 1994 the Commonwealth [13]
expressed the effect of this validation on native title as follows:
The validation of past acts and grants will only extinguish native
title where there has been what the Act terms a Category A past act
..., that is, a grant of freehold or of a commercial, agricultural,
pastoral or residential lease ... or the construction of a public work
... Where there has been a grant of other leasehold interests (a Category
B past act), other than a mining lease, the validation will only extinguish
native title to the extent of any inconsistency between the two sets
of rights and interests ...
Extinguishment will not take place where the freehold or leasehold
grant ceased to have effect before 1 January 1994. Nor will it take
place where the validated grant was made under legislation for the benefit
of Aboriginal peoples or Torres Strait Islanders or where the validated
leasehold grant was over land where that land on 1 January 1994 is held
pursuant to grants under such land rights legislation ...
The validation of all other past acts by the Commonwealth, called Category
C and D past acts ... will not extinguish any native title ...
5.19 On 4 September 1997, when the Native Title Amendment Bill 1997 was
first introduced into the House of Representatives, the Government advised
that, generally speaking, the Native Title Act 1993 had only provided
a framework for dealing with native title:
The NTA currently says little about whether or where native title may
still exist in Australia, and apart from the very limited validation
provisions in Division 2 of Part 2, says nothing about whether native
title may or may not have been extinguished. The NTA generally leaves
these issues to be determined by the common law. [14]
5.20 From January 1994, then, the Act was intended to be a (minor) statutory
factor determining the extent of native title extinguishment. The common
law continued to be a (major) potential determinant. Important cases to
emerge were Waanyi, WA v The Commonwealth and Wik. [15]
Experience under the Native Title Act
Waanyi
5.21 Pursuant to s.61, the Native Title Act 1993 provided that
claimants could lodge applications directly with the NNTT. In receiving
claimant applications for determinations of native title under the Act,
it was to be expected that the NNTT would form its own clear understanding
(and express it) about the circumstances that extinguished native title.
On 12 September 1994 the NNTT issued Revised Procedures governing the
acceptance of applications. In regard to applications over freehold, the
Tribunal confirmed that the Registrar would not accept an application
unless the land was granted to an Aboriginal group under land rights legislation
and where there was native title in existence beforehand; procedure 2
of Appendix A to the Revised Procedures refers. In relation to pastoral
leases, the Tribunal stated that the Registrar would not usually accept
an application if the land involved did not contain a reservation in favour
of Aboriginal people. In such cases, the Registrar would refer the application
to a Presidential Member of the Tribunal.
5.22 On 15 September 1994 the Tribunal President, Justice Robert French,
published his (interim) Reasons for Ruling in relation to the Waanyi application.
The Waanyi Peoples had lodged an application for native title determination
on 27 June 1994; the area covered by the application, 247 hectares in
the vicinity of Lawn Hill (250 kilometres north west of Mt Isa), is the
site of the Century lead/zinc mine project.
5.23 Now, the Act originally provided that if the requirements of s.62
were met, the Registrar had to accept the application unless, pursuant
to s.63, the application was considered to be frivolous or vexatious,
or prima facie the claim could not be made out. The President concluded
that, in deciding whether a prima facie case can be made out for
a claim, the Presidential Member can form a concluded view on a question
of law. Further, Justice French advised that:
The Presidential Member may have regard to evidence of extinguishing
events in determining whether a prima facie claim can be made out. [16]
5.24 Subsequently, on 14 February 1995, Justice French published his
ruling in the Waanyi matter. The President found that, as a consequence
of the operation of the Queensland Land Acts, there was by necessary implication
a right of exclusive possession for two leases dated 1883 and 1905 (actually
issued in 1904). Accordingly, Justice French concluded that because (in
regard to the 1883 lease):
… the Executive Council effected the grant of a leasehold interest
conferring a right of exclusive possession for a significant period
of time, I am bound by the judgments in Mabo (No2), discussed earlier,
to conclude that any subsisting native title was extinguished. [17]
5.25 Importantly, Justice French's understanding of the extinguishing
effects of such pastoral leases was probably consistent with the view
then taken by the Keating Labor Government. In his Second Reading Speech
on the Native Title Bill 1993, Prime Minister Keating drew attention 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. [18]
5.26 The question of the extinguishing effects of certain kinds of pastoral
leases was further considered when the Waanyi appealed the Tribunal's
decision to the Federal Court. [19] On 1 November
1995, by a majority of two to one, the Federal Court held that the Tribunal
was correct to find that prima facie the claim could not be made
out.
5.27 All three Federal Court judges observed that it was arguable that
the 1883 lease as issued may have contained a reservation in favour of
indigenous access and may not have extinguished native title. But for
the majority (Hill and Jenkinson JJ), this made no difference to the result;
in their view the 1904 lease (over the same area) had extinguished native
title even if the 1883 lease arguably had not. In dissenting, Justice
Lee observed that the 1904 lease was expressed to be `for pastoral purposes
only': arguably the Crown intended this lease to be enjoyed in coexistence
with traditional Aboriginal users of the land.
5.28 Although the Waanyi subsequently appealed to the High Court, the
High Court's decision of 8 February 1996 [20]
did not further inform the question of extinguishment. The High Court
upheld the appeal, finding that the NNTT had incorrectly administered
the s.63 prima facie acceptance test. The Court held that the NNTT
must accept an application if, on its face, and on the face of the information
supplied by the applicant, the claim is arguable, or `fairly arguable'.
5.29 Accordingly, six of the seven High Court judges considered it unnecessary,
and on this occasion beyond the Court's power, to decide categorically
whether the 1904 pastoral lease extinguished native title. Crucially,
they agreed with Justice Lee of the Federal Court that it was arguable,
at least on the limited information the NNTT was permitted to consider,
that the 1904 lease did not extinguish native title. The Court directed
that the claim be accepted and the hearing was terminated before argument
could be heard on the issue of extinguishment.
WA v The Commonwealth
5.30 The next significant case involving the effect of the Native
Title Act 1993 on extinguishment was Western Australia v the Commonwealth.
5.31 The Western Australian Government had reacted to Mabo (No2) and
the Keating Government's proposed Native Title Act with its own legislation
before the Commonwealth legislation was enacted. The Land (Titles and
Traditional Usage) Act 1993 (WA) commenced operation on 2 December
1993. The Native Title Act 1993 received Assent on 24 December
1993 when ss.1 and 2 commenced; the balance of the Act came into effect
on 1 January 1994. Professor Garth Nettheim has described the State legislation
as follows:
Putting it briefly, the WA Act extinguished native title throughout
the State, and substituted statutory “rights of traditional usage”
which would be, in effect, subordinate to all other interests. It offered
limited compensation for some effects on native title and for some future
effects on statutory rights. [21]
5.32 Three separate actions came before the High Court in September 1994.
Two actions challenged the validity of the State Act: first, Wororra and
Yawuru Peoples v Western Australia and, second, Biljabu and Others (representing
the Martu peoples) v Western Australia. The third was brought by Western
Australia challenging the application and validity of the Native Title
Act. The three cases were heard together:
The Aboriginal challenges to the WA Act relied largely on the RDA
and the NTA as Commonwealth Acts prevailing over inconsistent
State legislation by virtue of s109 of the Constitution. The
State challenge to the NTA argued, firstly, that it had no application
to WA on the ground that, if native title had ever existed in that State,
it had been extinguished on settlement of the colony or at some stage
afterwards. Secondly, it was argued that the NTA was not a law
which fell within Commonwealth power because it was really a law about
land management and related matters in the States. It was also claimed
to infringe implied prohibitions in the Constitution ... that
it was invalid by reference to .. the RDA, ... that it offended
the RDA by discriminating against non-indigenous West Australians
... that Senate amendments to the Bill for the NTA offended s53
of the Constitution ... Also challenged was the validity of s12
of the NTA which provides that “the common law of Australia
in respect of native title has, after 30 June 1993, the force of a law
of the Commonwealth”. [22]
5.33 The State of Western Australia, then, argued before the High Court
that native title had been extinguished on British settlement; it further
argued that 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. On 16 March 1995 the High Court found against WA and confirmed
that although an acquiring sovereign can extinguish rights and interests,
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. [23]
5.34 The High Court held that the Western Australian Act was invalid
for inconsistency with the RDA (s.10) and the NTA. Moreover, the Court
found that the Native Title Act 1993 (except s.12) was authorised
by s.51(xxvi) of the Constitution (the races power) and was thus valid.
This unanimous decision of the High Court has been described as a resounding
confirmation of the broad application of the case's two parent decisions,
Mabo (No1) and Mabo (No2). [24]
5.35 Importantly, Professor Richard Bartlett, counsel for the Martu,
has concluded that the judgment in Western Australia v The Commonwealth
stood for the proposition that native title was not extinguished except
to the extent that inconsistent parcel-by-parcel land grants or appropriations
were made:
Significantly, and consistently with almost all other common law authority,
the Court made clear that the onus of showing extinguishment lies upon
the Crown. [25]
The issue of the extinguishing effects of pastoral leases was again raised
for determination in The Wik Peoples v Queensland & Ors.
Wik
5.36 While the Commonwealth had considered that native title was extinguished
over land that was the subject of pastoral leases, and this understanding
was expressed in the Commentary to the Native Title Act 1993,
the Keating Government consistently maintained that final determination
of the matter would be left to the courts.
5.37 The Wik case, which was to assume very considerable significance,
had been commenced in the Federal Court on 30 June 1993 (prior to the
introduction of the Native Title Bill 1993). The Wik Peoples made a claim
for native title to land on Cape York Peninsula in Queensland. The Thayorre
People joined the action, claiming native title rights to an area partly
overlapping the Wik claim. Following the commencement of the Native Title
Act on 1 January 1994, Justice Drummond adjourned part of the proceedings
in the Federal Court to allow the Wik to begin separate proceedings in
the National Native Title Tribunal. However, Justice Drummond reserved
a number of questions concerning (inter alia) pastoral leases for
consideration by the Federal Court. Justice Drummond handed down judgment
on those matters on 29 January 1996.
5.38 Of the three leases considered by Justice Drummond, two were issued
in 1915 and 1919 under the Land Act 1910 (Qld); these are known
as `the Michellton leases'. The other lease, `the Holroyd lease', was
issued in 1974 under the Land Act 1962-1974 (Qld). None of these
leases contained an express reservation in favour of Aboriginal access
to the leased land for any purpose.
5.39 On appeal in the Waanyi matter, a majority of the Full Court
of the Federal Court held on 1 November 1995 that it was beyond argument
that one of the Lawn Hill leases in North Queensland extinguished native
title. On 29 January 1996, relying on the Full Federal Court's Waanyi
judgment, Justice Drummond held in Wik that the three leases granted
exclusive possession to the lessee and thus extinguished native title.
5.40 Crucially, however, on 8 February 1996 (and only some ten days following
Justice Drummond's judgment), the High Court handed down its decision
in the Waanyi appeal from the Federal Court decision (on which
Justice Drummond had relied). In the Waanyi appeal, the High Court
held that it was arguable (though not necessarily certain) that native
title had survived a Queensland pastoral lease, even though such a lease
lacked a reservation in favour of Aboriginal access. Of course, this raised
uncertainty as to the conclusions reached by Drummond J about the pastoral
leases in Wik.
5.41 On 15 April 1996, following the election of the Howard Government
in March, the High Court agreed to hear an appeal from Justice Drummond's
Wik decision. The High Court appeal was heard on 11, 12, and 13
June 1996.
5.42 On 23 December 1996, the High Court handed down its judgment in
The Wik Peoples v The State of Queensland & Ors and The
Thayorre People v The State of Queensland & Ors. By a 4:3 majority,
the High Court held that certain pastoral leases in Queensland did not
grant exclusive possession to pastoralists; therefore native title may
have survived the grant of the lease. Importantly, the majority Justices
regarded pastoral leases as a creation of Australian statute and held
that the rights and obligations that accompany them do not derive from
the common law principles relating to leasehold estates. [26]
5.43 The Attorney-General's Legal Practice issued Current Advice about
this matter on 23 January 1997. The advice stated:
The judgments in the Wik decision provide a further elaboration
of the general principles governing the extinguishment of native title.
In particular, the Court confirmed that native title could be extinguished
by the grant of rights or interests in relation to land which are inconsistent
with the continued existence of native title in relation to that land.
...
The majority judgments conclude that the extent to which native title
has been extinguished (if at all) by the grant of a pastoral lease must
be determined by comparing the rights granted to the lessee (under the
lease and the relevant legislation) with the particular native title
rights and interests in each case. Native title rights and interests
will be extinguished to the extent that they are inconsistent with the
rights of the lessee.
However, the various tests formulated by each of the majority judges
seem to require quite a high threshold to be satisfied before the rights
of the lessee will be regarded as necessarily inconsistent with
native title rights and interests such that the latter are extinguished
or impaired. The majority appears to adopt an approach under which native
title rights are not automatically extinguished simply because of the
potential for an inconsistency between the lessee's rights and
those held by the native title holders. In other words, the fact
that the rights under the lease could potentially be exercised adversely
to native title rights may not in itself mean that the native title
rights are extinguished. (emphasis added) [27]
5.44 Notably, the Wik decision was consistent with WA v The
Commonwealth in addressing the question whether native title is extinguished
or impaired by the grant of inconsistent rights itself, irrespective
of whether and how the grantee exercises those rights. Most of
the majority High Court judges stated that the focus should be on the
nature of the rights granted rather than on the actual use of the land
or the activities of the grantee:
This is consistent with the view expressed by the Court in Western
Australia v The Commonwealth (The Native Title Act Case)
(1995) 183 CLR 373, at 475-476 that, while other persons may interfere
with the exercise of the rights of native title holders, only governments
have power to extinguish or impair such rights. [28]
5.45 Prior to Wik, the extent to which pastoral leases extinguished
native title was quite uncertain. Despite the confidence of the Commonwealth,
the High Court in Mabo (No2) had not handed down a decision that settled
this matter. The Wik judgment also did not clearly resolve the
general issue: in Wik the High Court held that native title was
not necessarily extinguished on the Queensland pastoral leases. Nevertheless,
Father Frank Brennan [29] has pointed out that
Wik provided authority for two new propositions of law:
- pastoral leases do not necessarily grant the pastoralist a right of
exclusive possession; and
- pastoral leases and other statutorily based grants of rights to land
once they have expired do not necessarily result in the Crown's attainment
of the reversionary interest which includes full beneficial ownership
and control exclusive of native title.
That these propositions were `new' can be determined by comparing them
with the position adopted by Justice Brennan in his Mabo (No2) judgment:
If a lease be granted, the lessee acquires possession and the Crown
acquires the reversion expectant on the expiry of the term. The Crown's
title is thus expanded from the mere radical title and, on the expiry
of the term, becomes a plenum dominium. [30]
(While Justice Brennan maintained this opinion in Wik, his view
did not prevail.)
5.46 Importantly from the perspective of extinguishment, Father Brennan
commented that the new propositions gave native title far greater scope
for survival than did the judgments in Mabo (No2). [31]
The Ten Point Plan
5.47 In May 1997 the Attorney-General's Department published an assessment
of the implications of the Wik decision. It acknowledged that the
decision made clear that the lessee's rights are circumscribed by the
terms of the statute and the lease:
5.48 The assessment concluded that there was considerable uncertainty
as to the practical effects of coexistence and the operation of the Native
Title Act:
The rights of a pastoral lessee must be determined by reference to
the terms of the lease and statute under which it was granted. However,
such rights are not generally set out in any detail in either the lease
instrument or the relevant statute. Similarly, any co-existing native
title rights are undefined. This makes it extremely difficult to
ascertain what activities are authorised by a lease and what incidents
of native title must yield. (emphasis added) [33]
5.49 The Howard Government released its (amended) Wik 10 Point Plan on
8 May 1997. Points 2 and 4 are relevant to the question of extinguishment.
Point 2 concerns confirmation of extinguishment of native title on `exclusive'
tenures:
States and Territories would be able to confirm that `exclusive' tenures
such as freehold, residential, commercial and public works in existence
on or before 1 January 1994 extinguish native title. Agricultural leases
would also be covered to the extent that it can reasonably be said that
by reason of the grant or the nature of the permitted use of the land,
exclusive possession must have been intended. Any current or former
pastoral lease conferring exclusive possession would also be included.
And Point 4 stated:
As provided in the Wik decision, native title rights over current or
former pastoral leases and any agricultural leases not covered under
2 above would be permanently extinguished to the extent that those rights
are inconsistent with those of the pastoralist.
All activities pursuant to, or incidental to, `primary production'
would be allowed on pastoral leases including farmstay tourism, even
if native title exists, provided the dominant purpose of the use of
the land is primary production. However, future government action such
as the upgrading of title to perpetual or `exclusive' leases or freehold,
would necessitate the acquisition of any native title rights proven
to exist and the application of the regime described in 7 below (except
where this is unnecessary because the pastoralist has an existing legally
enforceable right to upgrade).
The Native Title Amendment Bill
5.50 The Native Title Amendment Bill (No2) 1997 was reintroduced into
the House of Representatives on Friday 3 July 1998, incorporating amendments.
The Bill passed the House on Friday 3 July and the Senate on Wednesday
8 July 1998.
5.51 In order to achieve Points 2 and 4 of the 10 Point Plan, Item 9
of Schedule 1 of the 1997 Amendment Bill inserted Division 2B into Part
2 of the Act. The Explanatory Memorandum advised that this Division confirms
the effect on native title of various types of Commonwealth acts done
on or before 23 December 1996 (date of the Wik decision) and seeks
to reflect the Government's understanding of the common law of native
title after the Wik decision. That Division also permits the States
and Territories to confirm the effect of acts they had done on or before
23 December 1996. [34]
5.52 Notably, the Bill specifically defined the word extinguish
in relation to native title to mean permanent extinguishment. The Explanatory
Memorandum [35] advised that this means that
there is no possibility of revival of the native title at some time after
the extinguishment occurs, even if the extinguishing act ceases to exist.
While acknowledging that some of the Justices in Wik specifically
left open the question whether native title is permanently extinguished,
the Explanatory Memorandum notes that in Larrakia People v Northern
Territory of Australia and Oilnet (NT) Pty Ltd [36]
O'Loughlin J stated:
My conclusion is that once native title has been extinguished, the
issue has come to an end and there can be no revival of that title under
the common law. [37]
5.53 The Explanatory Memorandum advised that the Government's policy
was to provide that extinguishment is permanent. Accordingly, the Act
now provides at s.23A:
(1) In summary, this Division provides that certain acts attributable
to the Commonwealth that were done on or before 23 December 1996 will
have completely or partially extinguished native title.
(2) If the acts were previous exclusive possession acts
(involving the grant or vesting of things such as freehold estates or
leases that conferred exclusive possession, or the construction or establishment
of public works), the acts will have completely extinguished native
title.
(3) If the acts were previous non-exclusive possession acts (involving
grants of non-exclusive agricultural leases or non-exclusive pastoral
leases), they will have extinguished native title to the extent of any
inconsistency.
(4) This Division also allows States and Territories to legislate,
in respect of certain acts attributable to them, to extinguish native
title in the same way as is done under this Division for Commonwealth
acts.
And the word extinguish is now defined at s.237A of the
Act to mean permanent extinguishment.
Effect of the Amendment Act
5.54 Up until the passing of the Native Title Amendment Bill (No2) 1997
on 8 July 1998, native title appeared to have been extinguished in the
following circumstances:
- when native title ceased to be asserted;
- where native title holders lost connection with their country;
- in circumstances where native title holders surrendered their rights
(by s.21 agreement, for example); and
- by the grant of exclusive possession land titles.
5.55 Importantly, native title, where extinguished, is now permanently
extinguished pursuant to the Native Title Act 1993 as amended
by the Native Title Amendment Act 1998. Further, pursuant to the
amended Native Title Act 1993, native title is now confirmed
to have been extinguished by Acts pursuant to Schedule 1 of the amended
Act.
5.56 Since the passing of the Native Title Amendment Act 1998
on 8 July 1998, native title has been extinguished in additional
ways:
- intermediate period (1 January 1994 to 23 December 1996) exclusive
possession grants validated either by the Commonwealth or the States/Territories;
- to the extent of the inconsistency, by intermediate period non-exclusive
possession acts; and
- newly defined exclusive possession acts (such as memorials and stock
routes).
5.57 Nevertheless, since the passing of the Amendment Act, the scope
for the recognition of native title has been widened with the judgment
in Mary Yarmirr & Ors v Northern Territory of Australia [38]
(`The Croker Island case'). In this case, Olney J made the first determination
of native title in relation to an area of sea and seabed.
Summary
5.58 In summary:
- In Mabo (No2) the High Court held that native title survived the Crown's
acquisition of sovereignty and radical title; this acquisition of sovereignty
exposed native title to extinguishment by a valid exercise of sovereign
power inconsistent with the continued right to enjoy native title.
- The Native Title Act 1993, which commenced operation on 1 January
1994, was designed to recognise native title rights, to provide for
the validation of past acts which may have been invalid and to provide
a regime under which native title rights are protected or affected.
- In Waanyi the High Court overturned the ruling of the Federal
Court and the NNTT, finding that the NNTT had incorrectly administered
the s.63 prima facie acceptance test. The Court held that the
NNTT must accept an application if, on its face, the claim is arguable,
or `fairly arguable'. Moreover, the Court held that it was at least
arguable, that a 1904 pastoral lease did not extinguish native title,
even though it lacked a reservation in favour of Aboriginal access.
- In Western Australia v The Commonwealth the High Court held
that the Land (Titles and Traditional Usage) Act 1993 (WA) was
invalid for inconsistency with the RDA (s.10) and the NTA.
- In The Wik Peoples v The State of Queensland & Ors and
The Thayorre People v The State of Queensland & Ors the High
Court held that certain pastoral leases in Queensland did not grant
exclusive possession to pastoralists and thus native title may have
survived. Further, pastoral leases were said to be a creation of statute
and therefore the rights and obligations that accompany them do not
derive from common law principles relating to leasehold estates.
- On 30 September 1998 the Native Title Amendment Act 1998 commenced
operation. The extent of extinguishment of native title was widened
by this Act and it is now provided that where native title is extinguished,
it is extinguished permanently.
- In Mary Yarmirr & Ors v Northern Territory of Australia &
Ors the Federal Court held that native title could exist in relation
to the sea and seabed.
The Committee's Duty
5.59 Pursuant to s.206(d)(iv) of the Native Title Act 1993 the
Committee has the duty to report on the extent of extinguishment or impairment
of native title rights and interests as a result of the operation of the
Act.
Footnotes
[1] Mabo 2 (1992) 175 CLR 1, p.68.
[2] Mabo 2 (1992) 175 CLR 1, p.69.
[3] Mabo 2 (1992) 175 CLR 1, pp.72,73.
[4] Mabo 2 (1992) 175 CLR 1, p.2.
[5] Mabo 2 (1992) 175 CLR 1, pp.69,70.
[6] Mabo 2 (1992) 175 CLR 1, pp.69,70.
[7] Legal Practice Briefing Attorney-General's
Legal Practice Number 11, 29 April 1994.
[8] Commentary on the Native Title Act 1993
Native Title Act 1993 AGPS 1994, p.C2.
[9] Native Title Amendment Bill 1997 Explanatory
Memorandum, p.24.
[10] Explanatory Memorandum op.cit.,
pp.24,25.
[11] Legal Practice Briefing Attorney-General's
Legal Practice Number 11, 29 April 1994, p.2.
[12] Legal Practice Briefing 29 April
1994, op.cit., p.5.
[13] Legal Practice Briefing 29 April
1994, op.cit., p.5.
[14] Explanatory Memorandum op.cit.,
p.53.
[15] (1996) 185 CLR 1; (1995) 183 CLR 373;
(1996) 187 CLR 1.
[16] Reasons for Ruling in Relation to Criteria
for Acceptance of a Native Title Determination Application National
Native Title Tribunal 15 September 1994, p.32.
[17] Reasons for Ruling on Acceptance of
a Native Title Determination Application National Native Title Tribunal
14 February 1995, p.65.
[18] House of Representatives Hansard, 19 October
1993, p.2093.
[19] North Ganalanja Aboriginal Corporation
v Qld (1995) 61 FCR 1.
[20] North Ganalanja Aboriginal Corporation
v Qld (1996) 185 CLR 595.
[21] Nettheim G `Western Australia v The Commonwealth'
Aboriginal Law Bulletin Vol.3 No.73 April 1995, p.4.
[22] Nettheim G `Western Australia v The Commonwealth'
op.cit., p.5.
[23] Western Australia v The Commonwealth
(1995) 183 CLR pp.422,423.
[24] Cf Howard C The Second Native Title
Case The Samuel Griffith Society 1996.
[25] Bartlett R 'Racism and the WA Government'
Aboriginal Law Bulletin Vol.3 No.73 April 1995, p.9.
[26] Per Toohey J at 174; Gaudron J at 204;
Gummow J at 226; and Kirby J at 266 and 279-280; Legal Practice Briefing
Attorney General's Legal Practice Number 32, 20 May 1997.
[27] Legal Implications of the High Court Decision
in THE WIK PEOPLES V QUEENSLAND Current Advice, The Attorney-General's
Legal Practice, 23 January 1997, p.4.
[28] Legal Implications of the High Court Decision
in THE WIK PEOPLES V QUEENSLAND op.cit., p.5.
[29] Brennan F `The Wik Judgment', a
paper presented to the Social and Political Theory School Seminar at the
Australian National University, 26 March 1997, p.7.
[30] Mabo 2 (1992) 175 CLR 1, p.68.
[31] Brennan F `The Wik Judgment' op.cit.,
p.7.
[32] Legal Practice Briefing 20 May
1997 op.cit.
[33] Legal Practice Briefing 20 May
1997 op.cit.
[34] Explanatory Memorandum op.cit.,
p.53.
[35] Explanatory Memorandum op.cit.,
p.61.
[36] Larrakia People v Northern Territory
of Australia and Oilnet (NT) Pty Ltd (1998) 152 ALR 477.
[37] Note that on appeal in this case, Fejo
v Northern Territory of Australia (1998) 156 ALR 721, the High Court
confirmed extinguishment of native title upon freehold land and held that
once extinguished, native title cannot `revive'.
[38] Mary Yarmirr & Ors v Northern Territory
of Australia (1998) 156 ALR 370.
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