Outline of submissions of the Human Rights and Equal Opportunity Commission intervening before the High Court in Miriuwung Case

IN THE HIGH COURT OF AUSTRALIA
PERTH OFFICE OF THE REGISTRY
On appeal from The Federal Court of Australia

No. P59 of 2000

BETWEEN:

THE STATE OF WESTERN AUSTRALIA
Appellant

AND:

BEN WARD AND OTHERS ON BEHALF OF THE
MIRIUWUNG AND GAJERRONG PEOPLE AND OTHERS
Respondents

No. P62 of 2000

BETWEEN:

THE ATTORNEY GENERAL OF THE
NORTHERN TERRITORY
Appellant

AND:

BEN WARD AND OTHERS ON BEHALF OF THE
MIRIUWUNG AND GAJERRONG PEOPLE AND OTHERS
Respondents

No. P63 of 2000

BETWEEN:

CECIL NINGARMARA AND OTHERS
Appellants

AND:

THE ATTORNEY GENERAL OF THE
NORTHERN TERRITORY AND OTHERS
Respondents

No. P67 of 2000

BETWEEN:

BEN WARD AND OTHERS ON BEHALF OF THE
MIRIUWUNG AND GAJERRONG PEOPLE AND OTHERS
Appellants

AND:

CROSSWALK PTY LTD AND BAINES RIVER CATTLE CO. PTY LTD
AND OTHERS
Respondents

 

Submissions in support of application for leave to intervene and submissions on the appeal.

TABLE OF CONTENTS

I. CONSIDERATION OF WHETHER NOTICE SHOULD BE GIVEN TO ATTORNEYS GENERAL IN COMPLIANCE WITH s 78B OF THE JUDICIARY ACT 1903

II. WHY LEAVE TO INTERVENE SHOULD BE GRANTED

III. STATEMENT OF ARGUMENT: THE ERRORS COMPLAINED OF IN THE FULL COURT

IV. THE PRINCIPLES AND RULES OF LAW RELIED UPON

A. International treaties and the interpretation of Statutes
B. International treaties and the development of the common law
C. International law and the Constitution
D. Relevant human rights norms

1. Equality before the law and racial non-discrimination
2. Rights of minorities
3. Relationship between principles of equality before the law and rights of minorities
4. Freedom of religion

V. HOW THE PRINCIPLES AND RULES OF LAW APPLY TO THE FACTS

A. Introduction
B. The "bundle of rights" approach and partial extinguishment
C. The Full Court's approach to pastoral leases
D. The Full Court's approach to mining leases
E. The Full Court's approach to the right to maintain, protect and prevent the misuse of cultural knowledge as an aspect of native title


I. CONSIDERATION OF WHETHER NOTICE SHOULD BE GIVEN TO ATTORNEYS GENERAL IN COMPLIANCE WITH s 78B OF THE JUDICIARY ACT 1903 (CTH)

1. By Notice of a Constitutional Matter filed herewith, the Human Rights and Equal Opportunity Commission ("the Commission") has given notice that the above proceedings potentially involve a matter arising under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903 (Cth).

II. WHY LEAVE TO INTERVENE SHOULD BE GRANTED

2. By Notice of Motion filed 8 December 2000, the Commission seeks leave to intervene at the hearing of these appeals pursuant to para 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and para 20(1)(e) of the Racial Discrimination Act 1975 (Cth) ("RDA"). The issues raised by the appeals include the conceptualisation of native title, principles in relation to extinguishment and the construction of the Native Title Act 1993 (Cth) ("NTA"). These issues directly concern the human rights of Aboriginal and Torres Strait Islander people.

3. As set out in the affidavit of William Jonas filed 8 December 2000, the Commission, its Aboriginal and Torres Strait Islander Social Justice Commissioner and its Race Discrimination Commissioner have statutory functions in relation to human rights, the human rights of Aboriginal persons and Torres Strait Islanders, and racial discrimination.

4. The Commission submits that the appeals involve issues of general principle and public importance which may affect, to a significant extent, persons other than the parties who are before it.[1] The Commission further submits that it has:

(a) a legitimate concern in making submissions in relation to the human rights of Aboriginal persons[2] ;

(b) an interest in the subject of litigation greater than a mere desire to have the law declared in particular terms[3] ;

(c) an ability to make submissions which the Court might consider that it "should have to assist it to reach a correct determination"[4];

(d) special knowledge and expertise relevant to the issues the subject of the appeals; and

(e) an ability to make submissions which differ from those of the parties and are likely to "assist the Court in a way in which the Court would not otherwise have been assisted"[5].

5. No practical considerations militate against the granting of leave because:

(a) all parties, interveners and applicants for leave to intervene have received adequate notice of the Commission's intention to seek leave to intervene;

(b) all parties, interveners and applicants for leave to intervene have received adequate notice of the outline of submissions proposed to be made by the Commission in the event that leave to intervene is granted; and

(c) the scope of the Commission's proposed intervention is strictly limited to issues not addressed in the submissions of parties to the appeals.

III. STATEMENT OF ARGUMENT: THE ERRORS COMPLAINED OF IN THE FULL COURT

6. The Commission seeks leave to challenge as erroneous in law the following findings of Justices Beaumont and von Doussa in the Full Court in relation to the conceptualisation of the common law of native title in the statutory framework of the NTA:

(a) the common law applies to protect only the physical enjoyment of rights and interests that are of a kind that can be exercised on the land, and does not protect purely religious or spiritual relationships with land[6] ;

(b) the rights and interests which make up native title are aptly described as a "bundle of rights"[7] ;

(c) it is possible for only some of these rights to be extinguished by the creation of inconsistent rights by laws or executive acts; where this occurs, there is partial extinguishment[8];

(d) in a particular case, a bundle of rights that was so extensive as to be in the nature of a proprietary interest may by partial extinguishment be so reduced that the rights which remain no longer have the character of a proprietary interest[9];

(e) a succession of different grants may have a cumulative effect such that native title rights and interests which survive one grant that brought about partial extinguishment may later be extinguished by another grant[10] ; and

(f) the "right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the determination area" is a personal right and not a right which can be the subject of a native title determination[11] (para 666).

7. By reference to relevant international human rights norms, the Commission supports as correct in law the following findings of Justice North in the Full Court relation to the conceptualisation of native title:

(a) extinguishment will only occur where there is "a fundamental, total or absolute" inconsistency reflecting the intention of the Crown to remove all connection of the Aboriginal people from the land in question. Where there is a lesser degree of inconsistency, native title is not extinguished, rather curtailed or impaired[12] ;

(b) as a characterisation of the relationship between Aboriginal people and land, the notion that native title is a right to the land itself conforms more closely to the traditional Aboriginal law than the notion that native title consists of a bundle of rights[13] ;

(c) the proper question to ask when seeking to ascertain whether native title has been extinguished is whether the Crown has shown a clear and plain intention to abolish the underlying connection with the land[14] ; and

(d) there cannot be "partial extinguishment" of native title by the restriction or even abolition of some or even all of the rights or interests dependent upon the existence of native title.[15]

8. The Commission submits that in enunciating the common law of native title within the statutory framework of the NTA[16] :

(a) the NTA, relevantly section 223, may and therefore must be construed consistently with relevant international human rights norms;

(b) in so far as the NTA picks up, refers to or presupposes the common law, that common law is no less developmental, nuanced or responsive to the full range of factors influencing the common law from time to time than it is in the areas of tort and contract. Those factors include international human rights norms.

9. The result in substance of applying such method is to exclude a statutory or common law view of native title which exposes it to the degree of piece-meal and accreting partial destruction as the majority of the Full Court held. In particular, the Commission submits that the High Court should, in conformity with norms in international human rights treaties to which Australia is party:

(a) confine the concept of extinguishment in order to ensure the greatest achievable recognition of native title rights and interests arising from the unique relationship of indigenous peoples with their country;

(b) accordingly, reject the governing conceptualisation of native title as a "bundle of rights", hence the possibility of partial extinguishment of only some of these rights in relation to a particular area;

(c) where unavoidable, prefer the placement of a qualification upon, or the suspension of, the exercise of particular native title rights and interests, and thus keep to an absolute minimum the extinguishment of rights and interests which have been established by the evidence;

(d) strive to accommodate indigenous as well as non-indigenous rights and interests in land, and avoid privileging non-indigenous over indigenous rights and interests;

(e) reject the submission of the Commonwealth that proof of native title requires establishing the maintenance of a continuing physical connection since settlement, and that a spiritual connection is insufficient to ground a determination of native title[17] ; and

(f) endeavour to accommodate indigenous perspectives on law and country, and protect, to the extent possible, religious or spiritual relationships with land as capable of being the subject of a native title determination.

IV. THE PRINCIPLES AND RULES OF LAW RELIED UPON

A. INTERNATIONAL TREATIES AND THE INTERPRETATION OF STATUTES

10. It is a long-established presumption that a statute is to be interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations and established rules of international law[18]. If the Legislature intends to effect inconsistency "it must express its intention with irresistible clearness to induce a Court to believe that it entertained it."[19] More recently, the High Court has apparently limited the operation of the presumption to cases of ambiguity. Where there is ambiguity, the Court has held, courts should favour a construction of a statute which accords with the obligations of Australia under an international treaty.[20] This is because, the Court has said, a common sense approach suggests that Parliament intended to legislate in accordance with its international obligations.[21] In more recent cases, the Court has indicated that a narrow conception of ambiguity is to be rejected.[22]

11. The better approach, the Commission submits, is not to limit the operation of the presumption to cases of ambiguity. Rather, wherever the language of the statute is susceptible of a construction which is consistent with the terms of the relevant international instrument and the obligations which it imposes on Australia, that construction must prevail.[23] That is, where the text is susceptible of a construction consistent with the terms of the international instrument and general international law, then the Court must strain to adopt that construction.

12. Such an approach is analogous with the presumption in favour of the validity of a statute. Where the language of a statute is not so intractable as to be incapable of being consistent with the presumption that Parliament did not intend to pass beyond Constitutional bounds, then the presumption in favour of validity must prevail. This approach accords in turn with section 15A of the Acts Interpretation Act 1901 (Cth).[24]

13. The presumption which the Commission contends ought be preferred is not only consistent with older authority, long-established in Australia and elsewhere.[25] It also avoids, to the extent that the text of the statute allows, conflict between domestic statutes and international treaty obligations which Australia, in accordance with the principle of pacta sunt servanda, is required to perform in good faith.[26] The extent to which Australia will be responsible in international law for violations of obligations owed under international treaties and customary law is thus minimised.[27]

14. Where a provision of an international human rights instrument is transposed into a statute, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty.[28] The same presumption applies where Parliament has transposed only part of an international instrument, or where the relevant domestic statute follows quite closely the language of the international treaty.[29] In Australia, treaties are interpreted in accordance with articles 31 and 32 of the Vienna Convention on the Law of Treaties.[30] Reliance may be placed on articles 31 and 32 in order to come to an interpretation that is likely to be the same or similar to that which would be construed by an international court or tribunal.[31] In construing the provisions of an international human rights instrument, Australian courts give weight to the views of specialist international courts and bodies such as the International Court of Justice, the European Court of Human Rights[32] and the human rights treaty bodies established to supervise implementation by States parties of their obligations under the provisions of particular human rights treaties.[33]

15. The enumerated principles are especially relevant to the construction of the NTA, sub-section 7(2) of which provides that ambiguous terms should be construed consistently with the RDA. The RDA in turn makes provision for giving effect to the International Convention on the Elimination of All Forms of Racial Discrimination ("CERD"), which treaty is set out in its entirety in the Schedule of the Act. The strong presumption which arises, the Commission submits, is that the NTA ought be construed in conformity with the provisions of CERD and the interpretative jurisprudence of relevant international bodies in relation to its provisions. Unless explicitly stated to the contrary, Parliament ought be presumed to desire Australia to act in conformity with international law.

16. The same interpretative principles apply more generally to require the construction of particular statutory provisions said to have extinguishing and other effects upon native title rights and interests consistently with international human rights principles.

B. INTERNATIONAL TREATIES AND THE DEVELOPMENT OF THE COMMON LAW

17. In more recent times, the function of the courts in developing the common law has been freely acknowledged.[34] It is now beyond dispute that in appropriate cases, judges carry out their function by developing and refining the common law.[35] In the development of the common law (and equity and administrative law), international law is a legitimate and important influence, especially when international law declares the existence of universal human rights.[36] Where the common law is uncertain, the Court should prefer an answer in conformity with international norms.[37] It would be incongruous that Australia should adhere to international human rights treaties such as the International Covenant on Civil and Political Rights ("ICCPR") if Australian courts did not, in some fashion, recognise the entitlements contained therein.[38] In particular, Australia's accession in 1991 to the First Optional Protocol to the ICCPR has brought to bear upon the development of the common law the powerful influence of the Covenant and the international standards it imports.[39] To like effect, Australia's ratification in 1975 of CERD and recognition in 1993 of that Convention's individual complaints procedure.[40]

18. The Commission accepts that the common law of native title is not developed in order to satisfy the obligations of international treaties.[41] It submits, however, that in the development of the common law of native title, the Court ought strive to the extent possible to ensure conformity between the common law and the onerous obligations which Australia has assumed by becoming a party to multilateral human rights treaties. On such an approach, the relationship between international and domestic law is viewed as complementary rather than conflictual or parasitic.[42]

19. To make such a submission is merely to recognise that values of justice and human rights (especially equality before the law) are just as much aspirations of the contemporary Australian legal system as they are of the international legal regime.[43] In Mabo v Queensland (No 2), in holding that an unjust and discriminatory doctrine which refused to recognise the rights and interests in land of the indigenous inhabitants could have no place in the contemporary law of this country, Brennan J confirmed that the expectations of the international community in this regard accord with the contemporary values of the Australian people. His Honour held that it would be contrary both to international standards and to fundamental values of the common law to entrench a discriminatory rule, which because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denied them a right to occupy their traditional lands.[44]

20. The Commission submits that the singularity of the common law lies in the ability of the courts to mould the law to correspond with the contemporary values of society. This is not to say that responsibility for keeping the common law consonant with contemporary values means that changes in the common law are made whenever a judge thinks change desirable. Clearly, the law must be kept in logical order and form, for an aspect of justice is consistency in decisions affecting like cases and discrimination between unlike cases on bases that can be logically explained.[45] The Commission submits that the development of the common law of native title in conformity with Australia's international human rights obligations would both achieve the objective of keeping the law in logical order and form, and accord with the contemporary values of the Australian people.

C. INTERNATIONAL LAW AND THE CONSTITUTION

21. It next arises to consider whether any underlying principle can be derived from the express provisions and structure of the Constitution as to the relevance of international law as a limitation upon the exercise of legislative and executive power, and hence for the interpretation of statutes and development of the common law. One may start with covering clause 5, which subjects the courts, judges and people of every State and of every part of the Commonwealth to the Constitution.

22. The text and structure of the Constitution show that the Commonwealth was brought into existence as a nation with a capacity to conduct relations with other nations and take its place in the international community of nations.[46] Section 61 vests the executive power of the Commonwealth in the Queen, exercisable by the Governor General as the Queen's representative, and extending to the execution and maintenance of the Constitution and laws of the Commonwealth. The execution and maintenance of the Constitution extends to matters deriving from the existence of the Commonwealth as a nation, including the acquisition of rights and obligations upon the international plane.[47] It is beyond dispute that the executive power in s 61 includes the treaty-making power.[48]

23. Next, s 62 establishes the Federal Executive Council "to advise the Governor General in the government of the Commonwealth". Section 62 combines with s 64 for the executive power of the Commonwealth to be exercised on the initiative and advice of the Federal Executive Council, whose members shall be Ministers of State, and to limit to three months the period in which a Minister may hold office without being or becoming a senator or member of the House of Representatives.[49] Section 64 supplies democratic legitimacy, as Ministers of State, being Members of Parliament, are accountable for their conduct, including the outcome of their advice to the Governor General, to their respective Houses of Parliament, and as a Government to the confidence of the popular House.

24. In other words, ss 62 and 64 combine to provide for a system of responsible government.[50] On the one hand, leaving aside the most exceptional circumstances, the Crown acts on the advice of its Ministers and, on the other hand, the Ministers are responsible to the Parliament for the actions of the Crown. The Parliament is, in the long run, in a position to control the Executive Government.[51] That the Crown acts on the advice of its Ministers may be a convention, however it is a vital element in the concept of responsible government which is accepted undeniably.[52] That Ministers are responsible to the Houses of Parliament generally may also be a convention, but it is fundamental in a democracy and accepted without demur.[53] By reason of s 1, Parliament itself comprises the Queen acting through the Governor General (s 2), as well as the Houses. Thus, the repository of the executive (treaty-making) power is also part of the Legislature, advised in both roles by certain leading members of one or other of the elected Houses.

25. Nor can it be disputed that the Constitution bespeaks an underlying commitment to the rule of law.[54] While the occasion has yet to arise for consideration of all that may follow from Dixon J's statement in The Communist Party Case that the rule of law forms an assumption in accordance with which the Constitution is framed[55] , it is tolerably clear that government under the Constitution requires lawful conduct by all organs of government. The text and structure of the Constitution make clear that the nation was set up by, under and with an instrument that requires lawful conduct. Covering clause 5 and s 71 combine to institutionalise the rule of law, which includes an expectation that all organs of government will act and have acted lawfully. The Constitution makes no allowance for any organ of government to behave unlawfully. Hence, the heavy onus on those asserting unlawful breach of constitutional limits on legislative competence. The Executive is bound to work under laws made by the Parliament. And the separation of judicial power guards against unlawfulness in the exercise of legislative and executive power.

26. The Commission submits that it is but a small and logically compelling step to say that lawfulness is supplied not only by national law, but also by international law. International law is not an oxymoron. So long as the capacity of the Commonwealth Parliament to legislate contrary to the requirements of international law is fully recognised and conceded, the High Court should continue to expect (that is, unless disallowed by explicit contrary words) that the Commonwealth has exercised its legislative powers in accordance with that law. To interpret the Constitution as intended to set up a nation which could be an outlaw in the international community of nations by reason of mere incidental implication would violate the underlying value of a nation committed to the rule of law.

27. As has been reasoned above, as an aspect of responsible government, the Constitution presupposes lawful conduct in the exercise of legislative and executive power. In the interpretation of a statute, the Constitution requires the courts to have, as far as the words of the statute permit, the Executive acting lawfully and the Legislature not requiring or permitting unlawful conduct. Where a conflict can be avoided, it must be avoided. Concretely, the Commission submits, this requires the interpretation of a statute, where textually possible, in conformity with relevant international as well as binding domestic law.

28. The common law, as well, must of necessity conform with the Constitution.[56] It is settled that the development of the common law in Australia cannot run counter to constitutional imperatives. Again, for the reasons set out in the preceding paragraphs, the Commission submits that the common law must be applied and developed, to the extent possible, to have the Executive acting lawfully and the Legislature not requiring or permitting unlawful conduct.

D. RELEVANT HUMAN RIGHTS NORMS

29. The international human rights norms which bear upon the issues before the Court and to which, the Commission submits, the Court ought have regard in the application of the enumerated principles of statutory interpretation and in the development of the common law are the guarantees of equality before the law and racial non-discrimination, the rights of minorities, and freedom of religion.

1. Equality before the law and racial non-discrimination

30. Article 26 of the ICCPR guarantees the equality of all persons before the law and the equal protection of the law. This guarantee is not infringed if the criteria for a differentiation are reasonable and objective, and the aim is to achieve a purpose which is legitimate under the Covenant. Moreover, the principle of equality sometimes requires measures of positive discrimination or affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant.[57]

31. Article 2 of CERD contains a general obligation to pursue the elimination of racial discrimination. Article 5(d) of CERD specifies obligations to prohibit and to eliminate racial discrimination and to guarantee the right of everyone without distinction as to race, color, or national or ethnic origin, to equality before the law, including in the enjoyment of inter alia (v) the right to own property alone as well as in association with others; and (vii) the right to freedom of religion.

32. The international legal approach to equality is one of substantive rather than formal equality.[58] Concretely, the Committee on the Elimination of Racial Discrimination has confirmed that in their application to indigenous peoples, the Convention's obligations require States inter alia to:

(a) recognise and respect indigenous distinct culture, history and language and way of life as an enrichment of the State's cultural identity and to promote its preservation;

(b) ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity;

(c) provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;

(d) ensure that no decisions directly relating to the rights and interests of indigenous peoples are taken without their informed consent;

(e) ensure that indigenous communities can exercise their rights to practise and revitalise their cultural traditions and customs, to preserve and practise their languages; and

(f) recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands and territories and resources and, where they have been deprived of their lands and territories traditionally used or otherwise inhabited or used without their free and informed consent, to take steps to return these land and territories. Only where this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.[59]

33. It is noteworthy that the UN Charter itself provides the legal foundation for the prohibition of racial discrimination.[60] There exists widespread support for the view that the prohibition of racial discrimination has not only attained the status of customary international law, but is one of the least controversial examples of the class of jus cogens.[61] Jus cogens or peremptory norms of international law are overriding principles of international law, distinguished by their indelibility and non-derogability.[62] They apply to all States and cannot be set aside by treaty or by dissent.

2. Rights of minorities

34. Article 27 of the ICCPR provides that persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with the members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. The jurisprudence of the UN Human Rights Committee in relation to article 27 accepts that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples.[63] The protection of article 27 extends to traditional activities such as fishing and hunting and the right to live in reserves protected by law. The enjoyment of article 27 rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.[64]

35. In the case of indigenous peoples, the UN Human Rights Committee has confirmed that the "right to enjoy one's own culture in community" can not be determined in abstract, but must be placed in context.[65] The Committee has found the expropriation of an indigenous Band's territories for the purpose of granting leases for forestry and for oil and gas exploration to threaten the way of life and culture of the Band, and hence to constitute a violation of article 27.[66] The Committee has confirmed that the rights protected by article 27 include the right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong.[67] For example, the use and control of fisheries can be an essential element of the culture of an indigenous minority.[68] The protection of article 27 is not confined to traditional means of livelihood.[69]

36. The Commission notes support for the view that respect for the rights of minorities is required by peremptory norms of international law.[70]

3. Relationship between principles of equality before the law and rights of minorities

37. In international jurisprudence, particular regimes for the preservation of the characteristics and traditions of minorities are as accepted consistent with, and sometimes required to achieve factual or substantive equality. According to the Permanent Court of International Justice, "there would be no true equality between a majority and a minority if the latter were deprived of its institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority".[71] The purpose of particular measures for the protection of minorities is to maintain basic characteristics which distinguish minorities from the majority of the population, and hence institute factual equality between members of the minority group and other individuals.

38. The recognition and protection of the distinct rights of indigenous peoples is also implicit in the concept of equality. As noted above at para 32, the Committee on the Elimination of Racial Discrimination has recognised as aspects of the principle of equality the obligations of States to ensure that no decisions directly relating to the rights and interests of indigenous peoples are taken without their informed consent, as well as to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands and territories and resources.

4. Freedom of religion

39. Article 18 of the ICCPR contains a guarantee of thought, conscience and religion. In its General Comment on article 18, the UN Human Rights Committee has adopted a broad interpretation of freedom of thought, conscience or religion, encompassing freedom of theistic, non-theistic and atheistic beliefs and freedom not to subscribe to any of these beliefs. The Committee has made clear that the protection of article 18 is not confined to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.[72] A UN Special Rapporteur on Religious Intolerance has described religion as "an explanation of the meaning of life and how to live accordingly".[73] Pursuant to State reporting procedures, both the Committee on the Elimination of Racial Discrimination and the Human Rights Committee seek information concerning the protection of the religions of indigenous peoples.[74]

V. HOW THE PRINCIPLES AND RULES OF LAW APPLY TO THE FACTS

A. INTRODUCTION

40. The Commission submits that protection of the unique, subtle and highly particular nature of native title is a reasonable and proportionate means to achieve substantive equality[75] , required as a matter of international obligation to safeguard the characteristics of indigenous minorities. Australia's international human rights obligations require the conceptualisation of laws relating to native title not as prima facie discriminatory special measures, but as measures necessary to ensure the protection of distinct indigenous identities and safeguard the particular relationship of indigenous peoples with their land. The guarantee of freedom of religion, in conjunction with the prohibition of discrimination, is jeopardised where the common law is so developed, and the NTA so interpreted, as to deny the distinctive religious or spiritual relationship of indigenous peoples with country as incapable of being the subject of a native title determination.[76]

41. The Commission submits that given the choice, the High Court must prefer an interpretation of the NTA and of statutory regimes conferring rights on non-indigenous persons, and a development of the common law consistent with the enumerated human rights standards, and hence maximises the recognition of native title and its protection against extinguishment. In order to give effect to the guarantee of equality, the rights of indigenous minorities, and freedom of religion, the Court should resist approaches which would effectively destroy rather than recognise and protect native title.

42. In particular, the privileging of general property rights over native title rights and interests will run foul of the guarantee of equality. Favouring property rights of kinds held by non-indigenous people over those held only by indigenous people, by treating the impairment of an aspect of native title as the partial extinguishment of native title, is prima facie inconsistent with Australia's obligations in relation to equality and the rights of indigenous minorities. These obligations require that the common law presumption against extinguishment of a proprietary interest be extended to the recognition and protection of native title which has been proven to exist in accordance with indigenous law and customs.

43. For the same reasons, in order to give effect to human rights principles, back door or de facto extinguishment which, according to the Commonwealth's submissions, is not true extinguishment, rather the evidentiary impossibility of establishing the fact of native title, should be rejected.[77]

B. THE "BUNDLE OF RIGHTS" APPROACH AND PARTIAL EXTINGUISHMENT

44. The Commission submits that in the governing conceptualisation of native title, the so-called "bundle of rights" approach should be rejected and the notion of a suspension or qualification of rights embraced. The exposure of native title so readily to extinguishment, piece by piece, runs counter to human rights norms in international treaties to which Australia is a party and which the High Court can use in enunciating the common law of native title in the statutory framework of the NTA. Human rights norms require the conceptualisation of native title in a manner which promotes its resilience, rather than its fragility and susceptibility to extinction forever in the eyes of the law.[78]

45. Moreover, an approach grounded in human rights norms requires a contextualised approach and the admission of the perspectives of indigenous people in the characterisation of native title.[79] On a human rights approach, it is more correct to describe native title rights and interests as "primarily a spiritual affair rather than a bundle of rights"[80] . To conceive of native title rights and interests as distinct, enumerable, severable, and capable of compartmentalisation and fragmentation is to deny the possibility of a unifying factor fundamental to those rights such as the underlying connection to land.[81]

46. However anodyne the Hohfeldian bundle of rights metaphor may be in other areas of discourse about ownership and title[82] , it is clear from the divergence of outcome as between the majority in the Full Court and Justices Lee and North at first instance and dissenting in the Full Court respectively that it has a greatly detrimental effect upon claimants to native title. On the approach of the majority, pro tanto or partial extinguishment, irrevocable in nature and cumulating towards an eventual complete extinguishment is the fate of native title in the light of legislatively sanctioned adverse rights being granted or exercised.[83] The holistic approach of Justices Lee and North, by contrast, allows room for the regulation, control, curtailment, restriction, suspension and postponement, rather than extinguishment of native title.

47. The Commission submits that it is contrary to the guarantee of equality and prohibition of discrimination on the grounds of race, religion, language and ethnic origin where the law regards that which is the sum of the relationship in the nature of title between indigenous people and the land as more readily destroyed by a paramount grant than the nearest full equivalent title (an estate in fee simple) of non indigenous persons. There is manifest discrimination in the proposition that the creation of a right or interest in a non-indigenous person for a shorter time should cause otherwise longer lasting native title rights and interests of indigenous people to be destroyed forever.

48. For example, the Commonwealth's argument in relation to inconsistent leasehold grants is presented in absolute terms which make no distinction between leases for terms outlasting many generations and leases for a limited purpose and a brief term, such as for several months for a construction purpose.[84] An argument which takes no account of substantive differences departs from what the Commonwealth otherwise argues ought be a "case by case", facts-based approach to the NTA.[85]

49. Constitutional jurisprudence requires a very thoroughgoing elimination of practical enjoyment of the ownership of land before an acquisition of property is held to have occurred for the purposes of s 51(xxxi) of the Constitution. In relation to s 51 (xxxi), there are numerous situations in which a diminution of rights or restriction of use will not amount to an acquisition of property.[86] To establish an acquisition, it must be shown that the relevant person has been denied the substance and reality of its proprietary interest or everything that made it worth having.[87] There are many measures which in one way or another impair an owner's exercise of his or her proprietary rights which involve no acquisition such as pl (xxxi) speaks of.[88]

50. In general property law, an example of the temporary displacement of rights dependent on underlying freehold title which does not destroy the underlying title can be seen in planning legislation. Such legislation does not have the effect of extinguishing the underlying freehold title. Instead, for the period of restrictions upon the rights of the freehold title holder to use and enjoy the land in specific ways, the rights affected are suspended, but the freehold title remains in existence.

51. Another example in general law is the effect of statutes giving the Crown or a statutory authority control over waterways. Again, the rights of the holder of the freehold are overridden, but not extinguished.[89] From a human rights perspective, there can be no justification for a discriminatory distinction between the continuation of freehold title in such circumstances and the continuation of native title in circumstances involving no "fundamental, total or absolute" inconsistency reflecting the intention of the Crown to remove all connection of the Aboriginal people from the land in question.[90]

52. Similarly in general property law, the notion of suspension of rights and interests is well accepted, reflecting an idea which lies at the foundation of the doctrine of estates.[91] It would again be contrary to the prohibition of discrimination to decline to extend the concept of suspension of rights to the law of native title.

53. On an ordinary approach to statutory interpretation, courts require very plain words to reveal a legislative intention to abrogate rights of private property.[92] Courts are particularly astute to impose a strict construction where the interference with property rights is expropriation. If there is any doubt as to the way in which language should be construed, it should be construed in favour of the party who is to be dispropriated rather than otherwise.[93]

54. The effect of the foregoing aspects of law in Australia applying to land generally (that is, land not held under native title by indigenous people) is that such title or ownership is not treated as extinguished (or expropriated, or acquired, or destroyed) unless that is, effectively, the only possibility.[94] The effect of the decision of the majority in the Full Court is to depart from the principle of "full respect" and to discriminate markedly between native title and other title in the adoption of a bundle of rights approach and the rejection of the possibility of suspension or qualification of native title rights and interests. The effect of the majority's decision is to disregard the different character of native title rights, which ought not be seen for these purposes as merely a bundle of severable rights, but rather as communal rights which derive from the distinct underlying religious or spiritual relationship of indigenous peoples with their country.

55. This case does not present for decision the difficult question of private acts purportedly pursuant to statutory authority, where the legislation has not itself extinguished native title but the private acts achieve the same practical result by denying the current probanda of native title. When such a case is presented for decision, important considerations will include the difference between indirect and direct achievement of a result and fundamental legal policy such as the equity of the statute[95] , in particular section 223 of the NTA. From an international legal perspective, issues of State responsibility and accountability arise where there are human rights violations, which include indirect as well as direct discrimination, irrespective of whether the perpetrator is a State or private actor.[96]

C. THE FULL COURT'S APPROACH TO PASTORAL LEASES

56. The application of the majority's approach to extinguishment in relation to pastoral leases in Western Australia which became enclosed or improved has a "potentially dramatic impact" having regard to the magnitude of the areas which can be treated as enclosed or which have been enclosed in the past and the comparatively inconsequential character of the works which can constitute enclosure.[97] It falls for the High Court to consider whether the particular outcomes of the principles applied by the majority in the Full Court "weigh in favour of a somewhat less draconian limitation on the ability of the common law to recognise and protect native title rights and interests".[98] The Commission submits that given the choice, the High Court must prefer interpretations of the relevant Western Australian statutes and regulations which are consistent with the guarantee of equality and the rights of minorities, and hence a less draconian approach to the recognition and protection of native title in land subject to pastoral leases.

57. In concrete, the High Court should uphold the finding of Justices Lee and North that enclosure of and improvements to pastoral leases in Western Australia[99] were not such as to confer a right of possession exclusive of Aboriginal people, and to the extent of any inconsistency between the rights of pastoral leaseholders and native title rights and interests, did not extinguish but had the effect of suspending native title rights and interests.

D. THE FULL COURT'S APPROACH TO MINING LEASES

58. Similarly, the majority's conclusions in relation to the extinguishing effect of statutory provisions vesting ownership of minerals and petroleum in the Crown and of various mining leases on native title rights and interests are also of considerable impact.[100] Again, the Commission submits that in order to give effect to the guarantee of equality and the rights of indigenous minorities, in the interpretation of relevant Western Australian statutes, to the extent that they are malleable, courts should resist approaches which would destroy rather than recognise and protect native title.

59. As demonstrated in the High Court's decision in Yanner v Eaton in relation to non-exclusive governmental rights of control over fauna[101] , in the acceptance by the majority in the Full Court below of non-exclusive governmental rights over water, and in the approach of Justices Lee and North, there is room for argument about the non-exclusive vesting of minerals and petroleum in the Crown pursuant to s 3 of the Constitution Act (WA), s 117 of the Mining Act 1904 (WA), s 9 of the Petroleum Act 1936 (WA) and s 3 of the Minerals Acquisition Ordinance 1953 (NT).

60. Similarly, as the decisions of Justice Lee at first instance and Justice North in the Full Court show, there is room for argument that the mining leases granted pursuant to the scheme of the Mining Act 1978 (WA) and Mining Regulations 1981 (WA) did not extinguish native title. Where there is any doubt, the Court should strive to reach a finding that the rights of native title holders and the rights of holders of mining leases can be exercised concurrently. Where such a finding is unavailable, the Court should construe the grant of a right to mine as equivalent to a regime of strict regulation which, to the extent of any inconsistency, impairs or suspends native title for the duration of the mining operation.[102]

E. THE FULL COURT'S APPROACH TO THE RIGHT TO MAINTAIN, PROTECT AND PREVENT THE MISUSE OF CULTURAL KNOWLEDGE AS AN ASPECT OF NATIVE TITLE

61. Finally, the Commission submits that in conformity with the guarantee of equality, the rights of indigenous minorities, and freedom of religion, the "right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the determination area" ought be held to be a right which can be the subject of a native title determination. That is, the Court should reject the approach of the majority that the common law applies to protect only the physical enjoyment of rights and interests that are of a kind that can be exercised on the land, and does not protect purely religious or spiritual relationships with land.[103]

62. The approach of Justices Lee and North, it is submitted, is consistent with the High Court's previous recognition of the nature of Aboriginal connection with land as primarily a spiritual affair.[104] As the Court has held, the spiritual, social and cultural connection with the land is an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law.[105] The majority's curtailment of native title rights concerning cultural knowledge could foreclose correlative developments in the realm of copyright law, intellectual property and indigenous rights.[106] Such curtailment is contrary to human rights norms which require adequate recognition and protection of native title in order to safeguard the distinct identities of indigenous peoples and hence achieve substantive racial equality.

63. The adequacy of that recognition and protection requires factually contextualised appreciation of cultural knowledge in relation to the land and waters in question, and in relation to the use of such land and waters, as aspects of native title.[107] In such a context, the analogy with intellectual property suggested in paragraph 4.2 of the Commonwealth's submissions is wrong (and may be contrasted with the Commonwealth's rejection of analogies of native title with common law or equitable estates in land[108] ).


Bret Walker
St James Hall


Sarah Pritchard
Selborne Chambers


1. United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 534.
2. Australian Railways Union v Victorian Railways Commission (1930) 44 CLR 319 at 331 per Dixon J.
3. Kruger v Commonwealth of Australia (1996) 3 Leg Rep 14 per Brennan CJ.
4. Levy v State of Victoria (1997) 189 CLR 579 at 603 per Brennan CJ.
5. Levy v State of Victoria (1997) 189 CLR 579 at 604 per Brennan CJ.
6. State of Western Australia v Ward (2000) 170 ALR 159 at 188 para [104], per Beaumont and von Doussa JJ.
7. Ibid at 189-190 para [109].
8. Ibid.
9. Ibid.
10.Ibid.
11. Ibid at 321 para [666].
12. Ibid at 328 para [684].
13. Ibid at 353 para [784].
14. Ibid.
15. Ibid.
16. In particular s 223 which provides: "Common law rights and interests

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia."

As to the relationship between the common law and section 223 NTA, cf submissions of the Attorney-General of the Commonwealth, paras 3.23, 4.1.
17. Submissions of the Attorney-General of the Commonwealth, para 2.12; also ground of appeal 2.1 in appeal no P59 of 2000.
18. Leroux v Brown (1852) 12 C.B. 801; The Zollverein (1856) Swab. 96; The Annapolis (1861) Lush. 295; Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309; Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes 7th Ed, 1929, at 127.
19. Murray v Charming Betsy (1804) 2 Cranch 64, 118; also United States v Fisher (1805) 2 Cranch 390.
20. Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.
21. Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J; also Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 534 per Gummow J.
22. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ. Generally A Simpson & G Williams, "International Law and Constitutional Interpretation" (2000) 11 Public Law Review 205 at 208; J Spigelman, "Access to Justice and Human Rights Treaties" (2000) 22 Sydney Law Review 141 at 149.
23. Davies and Jones v Western Australia (1904) 2 CLR 29 at 43 per Griffith CJ; Federal Commissioner of Taxation v Munro; British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1926) 38 CLR 153 at 180 per Isaacs J. Also Maxwell on the Interpretation of Statutes 7th Ed, 1929, at 127.
24. Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 14 per Mason CJ.
25. See authorities cited at footnote 18 above. Also L Brilmayer, "Federalism, State Authority, and the Preemptive Power of International Law" [1994] The Supreme Court Review 295 at 309, 319.
26. Vienna Convention on the Law of Treaties 1969, article 26.
27. From the perspective of the international legal regime, where responsibility arises, a State may not invoke the provisions of its internal law as justification for its failure to perform its treaty obligations: Vienna Convention on the Law of Treaties 1969, article 27.
28. Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230-31 per Brennan CJ.
29. De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 at 675 per Kirby J.
30. Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 535-36 per Gummow J; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231 per Brennan CJ and 251-256 per McHugh J.
31. Sir Anthony Mason, "International Law as a Source of Domestic Law" in B Opeskin & D Rothwell, International Law and Australian Federalism, Melbourne University Press 1997, 210 at 221.
32. For example Dietrich v The Queen (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J; John Fairfax Publications v Doe (1995) 37 NSWLR 81 at 90 per Gleeson CJ.
33. See as examples of references to the jurisprudence of human rights treaty bodies Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 307 per Mason CJ and McHugh J; Johnson v Johnson (2000) 174 ALR 655 at 665 para [38] per Kirby J.
34. Dietrich v The Queen (1992) 177 CLR 292 at 319 per Brennan J.
35. The Hon Murray Gleeson AC, Boyer Lectures 2000: The Rule of Law and The Constitution, ABC Books 2000, at 129; The Hon Michael McHugh, "The Law Making Function of the Judicial Process" (1988) 62 Australian Law Journal 15, 116.
36. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J, at 319-321 per Brennan J, at 360 per Toohey J; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 499 per Mason CJ and Toohey J; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 288-289 per Mason CJ and Deane J. Cf submissions of the Attorney-General of the Commonwealth, paras 3.8, 4.3.
37. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 687-88 per Gleeson CJ, at 699, 709-710 per Kirby P.
38. Dietrich v The Queen (1992) 177 CLR 292 at 321 per Brennan J.
39. Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J.
40. See generally Sir Anthony Mason, "The Influence of International and Transnational Law on Australian Municipal Law" (1996) 7 Public Law Review 20; "The Rights of Indigenous Peoples in Lands Once Part of the Old Dominions of the Crown" (1997) 46 International and Comparative Law Quarterly 812 at 829; "The Role of the Judiciary in Developing Human Rights in Australian Law" in D Kinley (Ed), Human Rights in Australian Law, Federation Press 1998, at 28; also K Walker, "Treaties and the Internationalisation of Australian Law" in C Saunders (Ed), Courts of Final Jurisdiction, Federation Press 1996, at 204.
41. Western Australia v The Commonwealth (The Native Title Act Case) (1995) 183 CLR 373 at 486.
42. See generally K Walker, fn 40, at 231-235.
43. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 30 per Brennan J (with whom Mason CJ and McHugh J agreed).
44. Ibid at 42.
45. Dietrich v The Queen (1992) 177 CLR 292 at 320 per Brennan J.
46. New South Wales v The Commonwealth (1975) 135 CLR 337 at 469 per Mason J.
47. R v Burgess, Ex parte Henry (1936) 55 CLR 608 at 644-45 per Latham CJ.
48. Ibid; also Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 212 per Stephen J, at 237-38 per Murphy J.
49. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 558.
50. New South Wales v The Commonwealth (1975) 135 CLR 337 at 364-365 per Barwick CJ.
51. Ibid at 365.
52. F.A.I. Insurances Limited v Winneke (1982) 151 CLR 342 at 364 per Mason J.
53. P Lane, Lane's Commentary on the Constitution, 2nd Ed 1997, at 56, 447.
54. Sir Anthony Mason, "The Interpretation of a Constitution in a Modern Liberal Democracy" in C Sampford and K Preston, Interpreting Constitutions: Theories Principles and Institutions, The Federation Press 1996, 13 at 29.
55. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 per Dixon J; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 381 per Gummow and Hayne JJ.
56. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566; Levy v Victoria (1997) 189 CLR 579 at 622 per McHugh J; also John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625 at 643-44 paras [66]-[67] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
57. Human Rights Committee, General Comment 18 (1989), paras 10, 13 in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 4 (2000) at 103. See also Committee on the Elimination of Racial Discrimination, General Recommendation XIV (1993), para 2 in Compilation of General Comments and General Recommendations adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 4 (2000) at 143. While the decisions or "views" of the UN human rights treaty bodies are not binding on States, they are significant being those of a Committee composed of experts from a wide range of countries: H Burmester, "Impact of Treaties and International Standards" (1995) 17 Sydney Law Review 127 at 145.
58. W McKean, "The Meaning of Discrimination in International and Municipal Law" (1970) 44 British Yearbook of International Law 178 at 185-186; G Triggs, "Australia's Indigenous Peoples and International Law" (1999) 23 Melbourne University Law Review 372 at 379-381; also Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31(1986) paras 150, 158.
59. Committee on the Elimination of Racial Discrimination, General Recommendation on Indigenous Peoples, UN Doc CERD/C/51/Misc 13/Rev 4 (1997) paras 4-5.
60. Articles 1(3), 55 and 56.
61. I Brownlie, Principles of Public International Law, Clarendon Press Oxford, 4th Ed, at 513; also American Law Institute, Restatement of the Law (3rd): The Foreign Relations Law of the United States, 1987, vol 2, para 702; Triggs, fn 58, at 379-381.
62. Article 53 of the Vienna Convention on the Law of Treaties describes as a peremptory norm of international law "a norm accepted and recognized by the international community of States as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."
63. Sir Anthony Mason, "The Rights of Indigenous Peoples in Lands Once Part of the Old Dominion" (1997) 46 International and Comparative Law Quarterly 812 at 812.
64. Human Rights Committee, General Comment 23 (1994), paras 6.2, 7 in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 4 (2000) at 115.
65. Kitok v Sweden Communication No 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988), paras 9.2, 9.3, 9.8.
66. Lansmann v Finland Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992 (1994), para 9.3.
67. Ominayak v Canada Communication No 167/1984, Report of the Human Rights Committee, UN Doc A/45/40 (1990), para 32.2.
68. Mahuika v New Zealand Communication No 547/1993, UN Doc CCPR/C/70/D/547/1993 (2000), para 9.3.
69. Lansmann v Finland Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992 (1994), para 9.3. In relation to extinguishment, the Human Rights Committee has called on the United States to take steps to ensure that previously recognised aboriginal Native American rights cannot be extinguished: Human Rights Committee, Concluding Observations of the Human Rights Committee: United States of America UN Doc CCPR/C/79/Add 50 (1995), para 302. More recently, the Committee has recommended that Canada abandon the practice of extinguishing inherent aboriginal rights as incompatible with the ICCPR: Human Rights Committee, Concluding Observations of the Human Rights Committee: Canada UN Doc CCPR/C/79/Add 105 (1999), para 8.
70. Arbitration Commission of the Conference of the European Community on Yugoslavia ("the Badinter Commission") Opinion No 2, (1992) 92 International Law Reports 167. The Badinter Commission's five members were presidents of European national constitutional courts. In reports concerning the indigenous peoples of Ecuador, Brazil and Nicaragua, the Inter-American Commission on Human Rights has cited the cultural rights guarantee in article 27 of the ICCPR as contemporary international law: Report on the Human Rights Situation in Ecuador, OEA/Ser L/V/II.96 (1997) at 103-104; Case 7615 (Brazil), OEA/Ser L/V/11.66, Doc 10, Rev 1 (1985), at 24, 31; Report on the Situation of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser L/V/II.62 Doc 10, Rev 3 (1983),OEA/Ser L/V/II.62 (1984) at 76-78.
71. Minority Schools in Albania (1935) PCIJ Ser A/B No 64, p 17; also South West Africa Second Phase, Judgment, [1966] ICJ Rep 6 at 303-4, 305 per Tanaka J; UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Main Types and Causes of Discrimination, UN Sales No 49.XIV.3 (1949), paras 6-7; Special Rapporteur F Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities UN Sales No E.91.XIV.2 (1977), reprinted United Nations Human Rights Study Series No 5 (1991), para 239; also UN Doc E/CN 4/52 (1947), Section V; A Bayefsky, "The Principle of Equality or Non-Discrimination in International Law" (1990) 11 Human Rights Law Journal 1 at 27; Triggs, fn 58, at 379-381.
72. Human Rights Committee, General Comment No 22 (1993) in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 4, 2000, paras 1 & 2. See also T van Boven, Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, UN Doc E/CN 4/Sub 2/1989/32 (1989), para 5; E Odio Benito, Elimination of All Forms of Intolerance and of Discrimination Based on Grounds of Religion or Belief, UN Doc E/CN 4/ Sub 2/1987/26, para 13, reprinted United Nations Human Rights Study Series No 2, UN Sales No E.89.XIV.3 (1989); A Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, UN Doc E/CN 4/Sub 2/200/Rev 1 at 1, UN Sales No 60.XIV.2 (1960) reprinted (1978) 11 New York University Journal of International Law and Policy at 227.
73. Odio Benito, ibid, para 19.
74. Ibid, at 68. As to the characterisation of Aboriginal belief-systems as religions, see M Charlesworth, "Introduction" in M Charlesworth (Ed) Religious Business: Essays on Australian Aboriginal Spirituality, Cambridge University Press 1998 xiii at xv; W E H Stanner, "Some Aspects of Aboriginal Religion" written 1976, reproduced in Charlesworth, ibid, at 1.
75. The decisions in Street v Queensland Bar Association (1989) 168 CLR 461 at 513-514 per Brennan J, 570-71, 573 per Gaudron J and Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478 per Gaudron and McHugh JJ support a non-formalistic, substantive understanding of equality.
76. Such submission goes in effect no further than the existing presumption against the interpretation of a statutory instrument in a manner inconsistent with religious equality and religious freedom. The preservation of religious equality has always been a matter of fundamental concern to the people of Australia and finds its place in the Constitution, s 116: Canterbury Municipal Council v Moslem Alawy Society Ltd [1985] 1 NSWLR 525 at 544 per McHugh JA; also Bennion, Statutory Interpretation, 3rd Ed, section 275.
77. Cf submissions of the Attorney-General of the Commonwealth, para 3.23.
78. K Barnett, "Western Australia v Ward: One Step Forward and Two Steps Back: Native Title and the Bundle of Rights Analysis" (2000) 24 Melbourne University Law Review 462 at 474-477.
79. State of Western Australia v Ward (2000) 170 ALR 159 at 353 para [783], per North J; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, per Brennan J at 358; Yanner v Eaton (1999) 166 ALR 258 at 269-270 paras [37]-[38] per Gleeson CJ, Gaudron, Kirby and Hayne JJ; Delgamuukw v British Colombia [1997] 3 SCR 1010, paras 82, 112, 148-149.
80. R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, per Brennan J at 358; Yanner v Eaton (1999) 166 ALR 258 at 269-270 paras [37]-[38] per Gleeson CJ, Gaudron, Kirby and Hayne JJ.
81. H Wooten, "The Rights and Recognition of Indigenous People-Consequential Land Management Impacts on the Environment, and on the Recognition of Native Title, in G Meyers (Ed), Implementing the Native Title Act: First Steps, Small Steps, National Native Title Tribunal, 1996, 60 at 71. The authoritative UN study on indigenous peoples describes the relationship in the following terms:

[A]ll indigenous communities have, and uphold, a complete code of rules of various kinds which are applicable to the tenure and conservation of land as an important factor in the production process, the foundations of family life and the territorial basis for the existence of peoples as such. The whole range of emotional, cultural, spiritual and religious considerations is present where the relationship with land is concerned… The lands form part of their existence.

Jose Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, UN Doc E/CN 4/Sub 2/1983/21/Add 4. More recently, a UN Rapporteur has identified the following elements unique to indigenous peoples' relationship with their lands:

(i) a profound relationship exists between indigenous peoples and their lands, territories and resources; (ii) this relationship has various social, cultural, spiritual, economic and political dimensions and responsibilities; (iii) the collective dimension of this relationship is significant; and (iv) the intergenerational aspect of such a relationship is also crucial to indigenous peoples' identity, survival and cultural viability.

Erica Irene Daes, Indigenous People and their Relationship to Land: Final Working Paper, UN Doc E/CN 4/Sub 2/2000/25, para 19. The Special Rapporteur concluded that:

Indigenous peoples have a distinctive and profound spiritual and material relationship with their lands and with the air, waters, coastal sea, ice, flora, fauna and other resources. This relationship has various social, cultural, spiritual, economic and political dimensions and responsibilities. …

Aboriginal title by which indigenous land is in many cases held, is often subject to the illegitimate use of State power to extinguish such title, in contrast to the legal protection and rights that, in most countries, protect the land and property of other citizens. This single fact probably accounts for the overwhelming majority of human rights problems affecting indigenous peoples."
paras 117, 122

82. For example Minister of State for the Army v Dalziel (1943-44) 68 CLR 261 at 285 per Rich J.
83. The Commission does not accept that "the principle that native title can be particularly extinguished is well established by this Court": submissions of the Attorney-General of the Commonwealth, para 3.3. In particular, in Mabo (No 2) Brennan J's discussion of partial extinguishment was in a geographical rather than conceptual sense: (1992) 175 CLR 1 at 69. In Wik Peoples v Queensland Toohey J was not concerned with partial extinguishment, rather with the yielding of native title to the extent of inconsistency: 187 CLR 1 at 133.
84. Submissions of the Attorney-General of the Commonwealth, paras 3.11-3.13.
85. For example, submissions of the Attorney-General of the Commonwealth, paras 2.3, 2.14, 3.16.
86. Lane's Commentary on the Australian Constitution (2nd Ed) at 316-318.
87. Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513, at 530, 633-634; Minister of State for the Army v Dalziel (1994) 68 CLR 261 at 286; also Commonwealth of Australia v State of Western Australia (1999) 196 CLR 392 at 433 para [156] per Gummow J, at 480, 485 paras [267], [272] per Hayne J.
88. Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397, per Stephen J at 415.
89. Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317 at 331; also State of Western Australia v Ward (2000) 170 ALR 159 at 348 para [764].
90. State of Western Australia v Ward (2000) 170 ALR 159 at 328, 353 paras [684], [784] per North J.
91. State of Western Australia v Ward (2000) 170 ALR 159 at 358, 360 paras [804], [815] per North J.
92. Bennion, Statutory Interpretation, 3rd Ed, section 278; Clissold v Perry (1904) 1 CLR 363 at 373; Greville v Williams (1906) 4 CLR 64; Wade v New South Wales Rutile Mining Co Pty Ltd (1970) 121 CLR 177 at 181, 182.
93. Methuen-Campbell v Walters [1979] QB 525 at 542; Stile Hall Properties Ltd v Gooch [1980] 1 WLR 62 at 65; Chilton v Telford Development Corpn [1987] 1 WLR 872; also Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 111; Wik Peoples v Queensland (1996) 187 CLR 1 at 155.
94. Compare New Zealand jurisprudence which maintains in relation to extinguishment the equal status of native title with other interests: Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 at 24.
95. See W Gummow, Change and Continuity: Statute, Equity and Federalism, Oxford University Press 1999, at 18-22.
96. For example, article 2(d) CERD; article 2 ICCPR; American Law Institute, Restatement of the Law (3rd): The Foreign Relations Law of the United States, 1987, vol 2, para 702.
97. R S French, "The Evolving Common Law of Native Title", paper delivered at University of Western Australia, 19 September 2000, at 12. On the potentially "dramatic impact" of the majority's approach on the extent to which native title may have survived over current or former pastoral leases in Western Australia, see also D Bennett SG QC, "Native Title and the Constitution", Native Title in the New Millennium Representative Bodies Legal Conference, Melbourne, 16-20 April 2000, at 20.
98. R S French, ibid.
99. Prior to 1933, within the meaning of reservations in favour of Aboriginal peoples pursuant to grants under the Land Regulations 1882 (WA), Land Regulations 1887 (WA) and Land Act 1898 (WA); and after 1933 within the meaning of s 106(2) of the Land Act 1933 (WA).
100. R S French, fn 97 at 12.
101. Yanner v Eaton (1999) 166 ALR 258.
102. Under the NTA mining leases are excluded from the categories of interests which extinguish native title: in relation to past acts ss 13A, 228, 231, 15(1)(d); in relation to future acts s 24MA.
103. State of Western Australia v Ward (2000) 170 ALR 159 at 321 para [666]. Cf submissions of the Attorney-General of the Commonwealth, para 2.12.
104. R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, per Brennan J at 358; Yanner v Eaton (1999) 166 ALR 258 at 269-270 paras [37]-[38] per Gleeson CJ, Gaudron, Kirby and Hayne JJ.
105. Yanner v Eaton (1999) 166 ALR 258 at 269-270 per Gleeson CJ, Gaudron, Kirby and Hayne JJ, at para 72 per Gummow J. Cf submissions of the Attorney-General of the Commonwealth, para 2.13.
106. B Horrigan & S Young, "Western Australia v Ward: Rolling Back Native Title in the Kimberlys" (2000) 14 (9) Australian Property Law Bulletin 85 at 89.
107. Cf submissions of the Attorney-General of the Commonwealth, para 4.1.
108. Submissions of the Attorney-General of the Commonwealth, para 3.8.

Last updated 7 January 2002.