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Native Title Report 2002: Extinguishment of Native Title

Chapter
2: Extinguishment of Native Title

Extinguishment

Limited compensation
for the deprivation of native title rights

Conclusion


The two recent High
Court decisions in Miriuwung Gajerrong [1]
and Wilson v Anderson [2] have clarified
some important issues regarding the extinguishment of native title under
the Native Title Act 1993 (Cwlth) (‘NTA’) and its relationship
with extinguishment under the common law. They also provide some important
insights into the meaning of discrimination as it responds to the specific
issues raised by the recognition of native title, a proprietary interest
which is inherent to a particular racial group. This section of the Report
seeks to delineate the Court’s decision on these issues in order
to participate in and progress a long-standing debate concerning native
title.

The central issue
in this debate is whether the extinguishment of native title as it occurs
under Australian law is racially discriminatory. It is an important debate
about the ethical underpinnings of a legal regime which for the first
time gives recognition to the inherent rights of Indigenous people.

In respect of the
original NTA, there appeared to be little doubt, both internationally
and domestically, that the legislature had put in place an equitable system
that had the overall consent of Indigenous people. The Committee on the
Elimination of Racial Discrimination (‘CERD’) accepted in 1993
that the original NTA was compatible with Australia’s obligations
under the International Convention on the Elimination of All Forms
of Racial Discrimination
[3] (‘ICERD’)
although this finding was contested by various Aboriginal activists. In
1995 the High Court in Western Australia v Commonwealth [4]
Native Title Act Case’) declared the original NTA to
be either a special measure under s8 of the Racial Discrimination Act
1975
(Cwlth) (‘RDA’) or ‘a law which, though it makes
racial distinctions is not racially discriminatory’. [5]

In 1998 the debate
was enlivened by the introduction into Parliament of substantial amendments
to the NTA which provided for the statutory extinguishment of native title.
In particular, the introduction of the confirmation provisions, which
provided for the extinguishment or partial extinguishment of native title
by the creation of non-native title tenures and classes of tenures, was
criticised as a breach of the international and domestic law on racial
equality. The extension of the validation provisions, which reversed the
effect of the RDA in order to validate discriminatory laws which affected
only native title, was also the subject of widespread criticism both in
and out of Parliament.

The prolongation
of this debate to the present is partly due to the fact that there is
no commonly accepted mechanism for arbitrating it. The attempt, in March
1999, by CERD to provide an authoritative decision to the effect that
the amended NTA was discriminatory [6] and failed to
meet Australia’s obligations under ICERD, was immediately condemned
by the Commonwealth Government as unbalanced and ‘blatantly political’.
[7] The criticisms of the NTA by the Human Rights Committee
in 2000 following CERD’s observations were met with similar hostility.

Despite this opposition,
CERD’s 1999 decision did trigger a further examination of the issue
in 2000 when the Parliamentary Joint Committee on Native Title and the
Aboriginal and Torres Strait Islander Land Fund (‘PJC’) conducted
an Inquiry into CERD’s findings. [8] I noted in
my Native Title Report 2000 that the dialogue generated by this
Inquiry was important in elevating the overall level of understanding
within the community of the meaning of equality in relation to Indigenous
people and native title. [9] I also noted that positions
did not change as a result of this dialogue and the debate continued to
be waged along political party lines. Indeed the PJC provided two opposing
reports consistent with this division.

The rejection by
the Government of the CERD findings was also a rejection of the authority
of CERD to finally determine the issue. Australia has made it abundantly
clear, in the native title arena and in respect of other human rights
issues, that it does not consider itself morally bound by the decisions
and observations of United Nations’ human rights committees. Yet
there is no effective mechanism for the settlement of this debate at a
domestic level. While the High Court considered it briefly in the context
of the constitutional challenge of the NTA by Western Australia in the
Native Title Act Case the question whether the extinguishment of
native title, as it occurs through the NTA, is a breach of the RDA is
effectively removed from judicial scrutiny as explained by the High Court
in that case:

[E]ven if the Native
Title Act
contains provisions inconsistent with the Racial Discrimination
Act
, both Acts emanate from the same legislature and must be construed
so as to avoid absurdity and to give to each of the provisions a scope
for operation. The general provisions of the Racial Discrimination
Act
must yield to the provisions of the Native Title Act
in order to allow those provisions a scope for operation. But it is
only to that extent that, having regard to s7(1), the Native Title
Act
could be construed as affecting the operation of the Racial
Discrimination Act
. [10]

Section 7(1) of the
NTA [11], contrary to its suggestion, does not subject
the NTA to judicial review on the basis of discrimination.

Another factor which
has postponed the resolution of the debate as to whether the extinguishment
of native title as it occurs under Australian law is discriminatory, is
that there has been a high level of uncertainty around the two important
components essential to its determination: first the interpretation that
the High Court would give to the extinguishment provisions of the NTA
and its relationship with extinguishment at common law; and second the
meaning of discrimination as it applies to native title. The High Court,
in Miriuwung Gajerrong and Wilson v Anderson
has thrown judicial light on both these issues. This chapter considers
the developments that have emerged in determining the extinguishment of
native title. Chapter 3 considers the developments in relation to the
notion of discrimination contained within the RDA and its application
to native title. With both these concepts clarified, chapter 3 concludes
there is no doubt that the extinguishment of native title, as it occurs
under Australian law, is racially discriminatory both domestically and
at international law. Once this fact is confronted the government should
move to put native title on a firm footing of equality. Chapter 5 suggests
various approaches to this exercise and ways in which the law could be
amended.

Extinguishment

The High Court decisions
in Miriuwung Gajerrong and Wilson v Anderson
give clear direction on how the extinguishment of native title occurs
first through the statutory framework of the NTA, including the State
and Territory laws authorised by the NTA, and second through laws or executive
acts which create rights in non-native title parties which are inconsistent
with the continuance of native title rights. These two levels are not
independent but work together in determining the full extent of extinguishment
under Australian law.

Mechanisms
of Extinguishment: An Overview [12]

The High Court has
made it very clear in both Miriuwung Gajerrong and Wilson v Anderson
that the NTA is the primary source for determining the extent to which
the law recognises and extinguishes native title. The legislative control
over the protection and extinguishment occurs through section 10 of the
NTA which states that native title is recognised and protected in accordance
with the NTA, and section 11(1) which proscribes extinguishment that is
contrary to the NTA.

The chief mechanism
by which the NTA effects both the protection of native title and its extinguishment
is through prescribing what State and Territory laws are valid and the
conditions and effect of their validity. As the High Court said in the
Native Title Act Case:

A law protecting
native title from extinguishment must either exclude the application
of State and Territory laws or prescribe the areas within which those
laws may operate. The Commonwealth has chosen to prescribe the areas
within which those laws may operate. The Commonwealth has chosen to
prescribe the areas available to control by other laws by prescribing
what State and Territory laws are valid or invalid and, if valid, the
conditions of validity. … The use of the term [valid], its derivatives
or its opposite…so far as those respective terms relate to a State
law, must be taken to mean having, or not having, (as the case may be)
full force and effect upon the regime of protection of native title
otherwise prescribed by the [NTA]. In other words, those terms are not
used in reference to the power to make or to the making of a State or
Territory law but in reference to the effect which a State law, when
validly made, might have in creating an exception to the blanket protection
of native title by s11(1). In using the terms ‘valid’ and
‘invalid’ the [NTA] marks out the areas relating to native
title regulated exclusively by the Commonwealth regime. [13]

The NTA ‘marks
out’ through two sets of provisions, the confirmation provisions
and the validation provisions, an extensive area in which the creation
of tenures by legislative and executive acts, prior to 1996, [14]
will have full force and effect so as to extinguish native title. While
s11(1) ensures that the extinguishment of native title is not inconsistent
with the NTA, the NTA only specifies non-extinguishment in relation to
future acts and some categories of acts affected by the RDA. [15]
The NTA, through the validation and confirmation provisions, stipulates
that the effect of creating specified tenures or classes of tenures is
to extinguish native title either completely or partially. It leaves it
to the State and Territory governments to enact legislation under the
authority of the NTA which extinguishes native title in respect of these
tenures. In addition the NTA permits the extinguishment of native title
where, at common law, such an effect is found to occur. I note in chapter
5 of this Report that the process of amending the NTA to make it consistent
with human rights principles must address these tiers of extinguishment
inherent in the structure of the legislation. Annexure 3 to this Report
sets out, in plain English, how the validation and confirmation provisions
of the NTA operate to prescribe what State and Territory legislation is
given a complete, a partial or a non-extinguishing effect. [16]

The High Court’s
approach to extinguishment has been directed by the distinction, contained
in the NTA, between complete extinguishment of all native title rights
and interests and partial inconsistency in which native title is extinguished
to the extent of any inconsistency. The High Court saw this statutory
distinction as mandating an approach to extinguishment in which native
title rights were to be identified as a collection of specific rights
and interests. [17] Once identified in this way, extinguishment
of specific rights or the totality of the rights occurs ‘by laws
enacted by or with the authority of, the legislature or by the act of
the executive of powers conferred upon it’. [18]
The High Court in Wilson v Anderson agreed with Justice
Brennan’s threefold categorisation of laws that had an extinguishing
effect.

Such laws or acts
may be of three kinds: (i) laws or acts which simply extinguish native
title; (ii) laws or acts which create rights in third parties in respect
of a parcel of land subject to native title; and (iii) laws or acts
by which the Crown acquires full beneficial ownership of land previously
subject to native title. [19]

In relation to (i)
above, an example of laws or acts which simply extinguish native title
are the scheduled interests which the NTA prescribes to have an extinguishing
effect. [20] Extinguishment in category (ii) occurs
wherever the continued existence of one or more or all native title rights
is inconsistent with the legal rights and interests created by executive
or legislative acts. [21] This is referred to as the
inconsistency of incidents test. [22] It is applied
to determine the partial extinguishment of native title resulting from
legislative or executive acts including those specified under the NTA
as previous non-exclusive possession acts (non-exclusive agricultural
and pastoral leases), and those not specified but otherwise valid acts.
In these cases, native title is extinguished to the extent of its inconsistency
with non-native title rights. The criteria for extinguishment under the
inconsistency test are discussed below.

The non-extinguishment
principle, in which native title continues to exist even though it has
no effect in relation to inconsistent acts, [23] only
arises where the NTA deems this to occur. The High Court were adamant
in Miriuwung Gajerrong that there is no place in the inconsistency
of incidents test for the suspension of native title rights in favour
of non-Indigenous rights. The High Court explained it as follows:

Two rights are
inconsistent or they are not. If they are inconsistent, there will be
extinguishment to the extent of the inconsistency; if they are not there
will not be extinguishment. Absent particular statutory provision to
the contrary, questions of suspension of one set of rights in favour
of another do not arise. [24]

However, the Court
did countenance the situation where native title rights were not inconsistent
with the rights created under the grant of non-Indigenous tenures yet
the ‘doing of any activity in giving effect to them’ [25]
conflicted with the native title rights in question. In this event the
rights under the non-Indigenous tenure, and the doing of any activity
in giving effect to them, prevailed over the native title rights and interests
but did not extinguish them.

These then are the
mechanisms by which the NTA controls the extent to which native title
is protected from or exposed to extinguishment and impairment. From a
human rights perspective I have serious concerns with the operation and
effect of these mechanisms. First, the criteria for determining the relationship
between Indigenous and non-Indigenous interests on the same land fail
to provide for the co-existence of these interests. Second, the NTA prescribes
the extinguishment of native title in respect of an extensive range of
tenures. Third, the NTA fails to limit the extinguishment of native title
resulting from the creation of tenures other than those specified in the
NTA, even though mechanisms are available to control this at a legislative
level. Fourth, the NTA fails to proscribe the extinguishment of native
title that, under the test of extinguishment, took place prior to the
recognition of native title itself. Finally, the NTA fails to provide
for compensation for the extinguishment of native title in the majority
of cases.

Criteria
for Extinguishment not Co-existence

The test which the
High Court adopted in Miriuwung Gajerrong to determine whether
laws or acts which create rights in third parties extinguish native title,
either completely or partially, requires a comparison to be made between
the legal nature and incidents of the rights created by statutory or executive
acts and the native title rights arising out of traditional law and custom.
Where there is an inconsistency between these two sets of rights then
native title is either completely extinguished or extinguished to the
extent of the inconsistency.

Underlying the inconsistency
test is a hard and driving logic: a logic strongly identifiable with the
legal process generally in its pursuit of a clear demarcation between
conflicting rights leading to a final determination of disputes, one way
or the other. That is, either the rights compared are consistent or they
are inconsistent. If consistent, native title continues. If inconsistent,
native title is extinguished.

Glaringly absent
from this logic is the possibility of co-existence, where rights are negotiated
and mediated to enable a diversity of interests (at least more than one)
to be pursued over the same land. The idea that the law could assist to
build relationships rather than separate interests was not explored. Yet,
before the High Court for their consideration was a range of legal options
which could underpin a co-existence approach. The Court’s development
of its own approach to extinguishment brought into consideration these
alternative approaches. It is to this development that I now turn.

Identifying
Rights

Justice North, in
his dissenting judgment in the Full Federal Court’s decision in Western
Australia v Ward & o’rs
, [26] postulated
native title as an underlying right to the land on which other rights
to undertake particular activities or exercise control depended. [27]
From this holistic concept of native title based on the traditional and
unique relationship between Indigenous people and the land, inconsistency,
and thus extinguishment, would only occur where the rights created by
statute were inconsistent with this underlying right. Inconsistency, at
the level of pendant rights only, would not result in extinguishment but
rather their suspension for the duration of the inconsistency. When this
inconsistency ceased, usually because of the expiry or cessation of the
non-Indigenous right, native title would revive. [28]
This approach allows for the co-existence of Indigenous and non-Indigenous
rights, while at the same time prioritising non-Indigenous rights to enable
their unimpeded exercise.

The notion that native
title might be suspended rather than extinguished was rejected by the
High Court. Their full reasons are as follows.

First, it is an
approach which proceeds from a false premise, that there can be degrees
of inconsistency of rights, only some of which can be described as ‘total’,
‘fundamental’ or ‘absolute’. Two rights are inconsistent
or they are not. If they are inconsistent, there will be extinguishment
to the extent of the inconsistency; if they are not there will be no
extinguishment. Absent particular statutory provision to the contrary,
questions of suspension of one set of rights in favour of another do
not arise. Secondly, it is a mistake to assume that what the NTA refers
to as ‘native title rights and interests’ is necessarily a
single set of rights relating to land that is analogous to a fee simple.
It is essential to identify and compare the two sets of rights: one
deriving from traditional law and custom, the other deriving from the
exercise of the new sovereign authority that came with settlement. It
is true that the NTA (in par (b)(ii) of s23G(1)) and the State Validation
Act (in par (b)(ii) of s12M(1)) speak of the ‘suspension’
of inconsistent native title rights and interests in certain circumstances.
However, this statutory outcome is postulated upon an inconsistent grant
of rights and interests which, apart from the NTA and the State Validation
Act, would not extinguish the native title rights and interests. An
example would be a post-1975 grant which, by operation of the RDA, was
ineffective to extinguish native title rights and interests. [29]

The difference between
the High Court and Justice North in formulating the inconsistency test
is not, as the Court suggested, Justice North’s ‘false premise’
that there can be degrees of inconsistency but rather their respective
conceptualisations of native title against which an inconsistency with
non-Indigenous rights is measured. Where native title is conceived as
a deeper relationship to land, then inconsistency must be found to occur
at this level for extinguishment to logically follow. Where it is conceived
as a bundle of rights, with no underlying or unifying dimension, then
inconsistency and thus extinguishment must occur at this more fragmented
level.

Justice North’s
conceptualisation of native title was not the only one available to the
High Court to support a relationship between Indigenous and non-Indigenous
interests in land based on co-existence. The trial judge in the Miriuwung Gajerrong
case, Justice Lee, proposed that the fact of occupation by a community
at the time of the assertion of sovereignty founds a native title claim.
Determining extinguishment did not require the breakdown of this community
title into its constituent parts, but rather occurred where there was
an assertion by the Crown, through legislation or executive act, to exercise
permanent adverse dominion over the land.

The High Court contends
that the correctness of its ‘bundle of rights’ approach is mandated
by the NTA, ‘particularly in the distinction now drawn in s23A …
between complete extinguishment and extinguishment “to the extent
of any inconsistency”’. [30] Yet it is difficult
to see exactly how the regime of extinguishment under the confirmation
provisions of the NTA mandates the Court’s conceptualisation of native
title and its extinguishment outside of the NTA. What the Court’s
contention does indicate is that its construction of native title is,
to a large degree, driven by the logic of extinguishment rather than the
other way round. That is, if native title can be partially extinguished
then, it is reasoned, native title must be of a fragmentary nature. In
contrast, Justice North’s conception of native title, as an underlying
relationship to land, determines the test he postulates for extinguishment.
From a human rights perspective it makes more sense, and is certainly
more logical, to base a test for the extinguishment of native title on
an understanding of the nature and origins of the title rather than to
formulate a concept of native title derived from the test postulated in
the NTA for its extinguishment. This is particularly so where the concept
of native title formulated ensures its fragility and susceptibility to
ongoing extinguishment.

A further basis for
the High Court’s conceptualisation of native title as a bundle of
rights stems from its interpretation of the requirements of s223 of the
NTA that ‘requires the fragmentation of an integrated view of the
ordering of affairs into rights and interests which are considered apart
from the duties and obligations which go with them’. [31]
In chapter 5 of this report I discuss in greater detail the way in which
the Australian legal system gives recognition to traditional Indigenous
laws and customs and suggest alternative approaches consistent with Australia’s
human rights obligations. The Court recognises that the way in which an
essentially spiritual connection is translated into legal rights and interests
under the NTA perverts the Indigenous ‘ordering of affairs’.
Yet the majority Judges felt constrained to support this process rather
than take a course different to that laid down by the NTA.

Comparing
Rights

A consequence of,
and indeed reason for, translating the Indigenous relationship with land
into a bundle of rights is that it makes possible the otherwise difficult
exercise of comparing unique Indigenous interests with non-Indigenous
interests. Once Indigenous and non-Indigenous interests are put into the
language of legal rights, one set emanating from the traditional laws
and customs, the other from the Crown, the logic of extinguishment can
be applied to determine whether a comparison of these rights draws any
inconsistency.

A basis for inconsistency
when the two sets of rights are compared is the assertion of control over
the land by the new sovereign. This imposition is viewed as an all-encompassing
one which doesn’t need to be particularized as to the degree of control
or object of control and would rule out control residing in any other
entity.

The High Court has
considered, in the Miriuwung Gajerrong decision, the issue
of sovereignty and its relation with native title rights:

An important reason
to conclude that, before the NTA, native title was inherently fragile
is to be found in this core concept of a right to be asked permission
and to speak for country. The assertion of sovereignty marked the imposition
of a new source of authority over the land. Upon that authority being
exercised, by the creation or assertion of rights to control access
to land, the right to be asked for permission to use or have access
to the land was inevitably confined, if not excluded. But because native
title is more that the right to be asked for permission to use or have
access (important though that right inevitably is) there are other rights
and interests which must be considered, including rights and interests
in the use of the land. [32]

The extinguishment
of native title rights to control or make decisions results not only from
an analysis of the nature of native title, but from an assumption that
the control exercised by non-Indigenous interests is singular, total and
all-encompassing. On this assumption a comparison of rights inevitably
draws an inconsistency between non-Indigenous and Indigenous control and
authority over the same land. Table No 1,
below, indicates the tenures in Miriuwung Gajerrong that partially
extinguished native title. In all of those cases native title rights to
control or make decisions or speak for country were extinguished.

As indicated, there
were other possibilities and other assumptions before the High Court about
the effect of the new authority on native title. [33]
These allowed for co-existence of rights based on a notion of native title
as a system of laws which, although unique, were internally strong and
coherent. The majority in the High Court were unwilling to change not
only their assumptions about the nature of native title but also, and
perhaps more importantly, the nature of the power asserted by the colonising
state.

The native title
right to be asked permission to speak for country, and to control access
to country, when compared to the rights created by many non-Indigenous
tenures was found to be inconsistent with and thus extinguished by those
rights.

A noticeable and,
from a human rights perspective, alarming aspect of the exercise of comparing
rights as it was applied in Miriuwung Gajerrong was that the
characterisation of native title rights that best survived this test were
ones which:

  • were expressed
    at a high level of specificity; [34]
  • were limited to
    the conduct of activities on the land rather than the control of activities
    on the land; [35] and
  • confined those
    activities to traditional activities rather than contemporary activities.

Thus, for example,
a right to dig for ochre was better able to survive the grant of a mineral
lease on the same land than a right to utilise the resources of the land.
Similarly a right to hunt and gather was better able to survive the grant
of a pastoral lease than a right to control access to the land or make
decisions about the use of the land. To find its place in the gaps and
crevices of non-Indigenous interests, native title must be small, flexible
and harmless. [36]

These characteristics
of native title rights, particularly its specification as an activity
on the land, contrast markedly with the legal rights in land found to
emanate from the Crown. In fact the Court in Miriuwung Gajerrong
was insistent that these latter rights were not to be identified by reference
to the use that was made of the land after the grant was made but from
an analysis of the legal effect of particular grants by or pursuant to
the particular statute under consideration. [37] Indeed
the High Court pointed out that the error in the majority’s decision
in the Full Federal Court, particularly in relation to its analysis of
the Ord River Project, was to identify the non-Indigenous rights by reference
to the uses made of the land rather than the legal rights which authorised
those uses. The way rights were exercised was clearly distinguished from
the rights themselves and to determine these one went to the statute which
created those rights.

Approaching native
title rights in a similar way would require the Court to consider more
closely the traditional laws and customs as the source of rights and distinguish
these from the exercise of rights or conduct of activities on country.
This would direct the Court back to the underlying relationship that Indigenous
people have with the land, an essentially spiritual affair, as distinct
from the exercise of rights stemming from this relationship; a distinction
similar to the position postulated by Justice North in the Full Federal
Court. Where there is an inconsistency stemming from the laws themselves,
between the underlying relationship that Indigenous people have with the
land and the statutory relationship non-Indigenous people have with the
land, then and only then, would extinguishment occur. Where there is inconsistency
only in the exercise of rights, the non-extinguishment principle would
apply in the way Justice North envisaged and consistent with the High
Court’s approach to this principle outlined above. Such an approach
makes room for the continued existence of native title while at the same
time ensuring that non-Indigenous people can continue utilising the land
as they are authorised by statute to do: that is, co-existence.

Finding
inconsistency

As indicated, inconsistency
is the driving logic of extinguishment. Its seeming simplicity has already
been disturbed by the possibility, discussed above, that the pre-packaging
of native title rights has ensured their reduction and extinguishment.

Further difficulties
arise in determining the ‘extent of the inconsistency’. The
High Court appears to prefer an approach in which the entire native title
right is extinguished wherever an inconsistency occurs. The rights most
likely to be extinguished in this process are controlling rights, such
as the rights to control access, to make decisions, and speak for country.

The more general
the terms in which the findings are made as to the subsistence of native
title, the more difficult the giving of specificity to findings of extinguishment,
particularly where, as the NTA postulates, there may be partial extinguishment.
[38]

An alternative approach,
more sympathetic to co-existence, would allow so much of the native title
right that is inconsistent with the rights under the grant to be excised
from the native title right so as to eliminate the inconsistency, but
not extinguish the native title right completely. This would allow generic
native title rights to subsist except to the extent they are inconsistent
with other statutory rights. Thus, for example, a native title right to
speak for country could continue to exist albeit qualified by other rights
in the same area. The extent of the inconsistency between the native title
right to speak for country and rights under a pastoral lease may allow
some residual decision-making powers in native title holders to remain,
such as those suggested by Justice Kirby in Miriuwung Gajerrong
including the right to protect the country from degradation and to care
for it spiritually. [39] Justice Kirby expressed his
disappointment that his view on this point, expressed in Yarmirr,
[40] that exclusive native title rights could retain
a characteristic of exclusivity while being qualified by other public
rights in the same area, was not supported. [41]

His Honour’s
approach appears consistent with sections 225 (b), (c), and (d) of the
NTA which require a court to make a determination of ‘the nature
and extent of native title’ and ‘the nature and extent of other
interests’ in the determination area and ‘the relationship between’
the two. Yet the majority of the High Court in Miriuwung Gajerrong
do not feel compelled by these provisions to adopt a similar approach
to inconsistency.

Finding
extinguishment

The result of characterising
native title in the language of legal rights, comparing them to statutory
rights and finding inconsistency, is the extinguishment of native title.
A question which arose in applying this test in both the Miriuwung Gajerrong
and the Wilson v Anderson decisions was whether the inconsistency
of incidents test was different to and not as rigorous as the test applied
by courts to determine whether general property rights have been appropriated
by a statute. A legislative intention to abrogate general property rights
will not be inferred unless there is a clear and plain intention to do
so. [42]

In both these decisions
the High Court said that the clear and plain intention test was apt to
be misleading when applied to native title insofar as it was thought to
require a subjective intention on the part of those creating the tenures.
[43] This was particularly so since native title was
not recognised at the time the property laws under consideration in the
Miriuwung Gajerrong and the Wilson v Anderson
decisions were formulated.

Ensuring the test
for extinguishment of native title is an objective test is not a concern
from a human rights perspective. As Justice Kirby pointed out in Miriuwung Gajerrong
the application of the inconsistency of incidents test is not, as such,
in conflict with the requirement of a clear and plain intention to abrogate
property rights, that being an objective test of whether the legislation
has the effect of depriving Indigenous people of these rights. [44]
What is of concern is if the presumption that a property right will not
be extinguished, unless such an intention is manifest in the legislation,
is more readily concluded for native title than it is for general property
rights. This concern is expressed by Justice Kirby in Wilson v Anderson.
[45] The test that requires that a clear and plain
intention be evinced from legislation that is established to take away
the basic human rights to own property and be immune from arbitrary dispossession
of property should apply equally to protect the rights of Indigenous Australians
as it does to protect the rights of non-Indigenous Australians.

The readiness with
which the Court inferred either the complete or the partial extinguishment
of native title from the creation of rights in third parties in Miriuwung Gajerrong
can be ascertained from a consideration of the Court’s application
of the inconsistency test in respect of particular tenures. The case studies
following indicate that the threshold at which the inconsistency of incidents
test results in a finding of extinguishment of native title is lower than
the threshold at which an appropriation of property is found to occur
for general property rights.

It will also be seen
in the case studies that, in determining whether native title was extinguished,
the Court took into account the effect of the validation and confirmation
provisions of the NTA and the way in which these provisions complemented
and augmented the inconsistency test. As indicated, the legislative control
over recognition and extinguishment of native title occurs through section
10 of the NTA which states that native title is recognised and protected
in accordance with the NTA, and section 11(1) which proscribes extinguishment
that is contrary to the NTA. The chief mechanism by which the NTA effects
both the protection of native title and its extinguishment is through
prescribing what State and Territory laws are valid and the conditions
and effect of their validity. The way in which the confirmation and validation
provisions prescribe the extinguishment of native title is set out in
a Summary of the validation and confirmation of extinguishment provisions
in the Native Title Act 1993
provided as part of a set of resources
produced by this Report. [46]

The case studies
provide an illustration of the operation of both the inconsistency test
and the NTA in determining either the complete or partial extinguishment
of native title in relation to particular tenures.

Complete
Extinguishment

Complete extinguishment
of native title by laws or acts which create rights in third parties occurs
where the continued enjoyment of all native title rights is inconsistent
with the legal rights and interests created by executive or legislative
acts. Chief Justice Gleeson’s decision in Wilson v Anderson
provided a guide to when this might occur: where the law or act creates
a right of exclusive possession in third parties in respect of a parcel
of land the subject of native title. [47]

As can be seen from
Table No 1, below, complete extinguishment
occurred in Miriuwung Gajerrong in relation to seventy percent
(seven from ten) of the tenures or executive acts considered. A striking
example of the application of the inconsistency test to find complete
extinguishment of native title is in relation to nature reserves. It is
striking because nature reserves are not the type of interest one would
think inconsistent with, let alone destructive of, Indigenous interests.
And striking because it reflects the complete failure of the law to protect
Indigenous interests in places where they might not only co-exist with
non-Indigenous interests but flourish together. [48]

Extinguishing
native title on nature reserves

1 Identifying
Rights

The creation
of the nature reserves in Western Australia included in the claim
area of the Miriuwung Gajerrong people occurs through a twofold
process: reservation and vesting. The inconsistency test requires
identification of the rights created by legislation and executive
acts in both steps of this process.

The process
of reserving land for the purpose of creating a nature reserve occurs
under the Wildlife Conservation Act 1950 (WA) (‘Wildlife
Conservation Act’) and the Land Act 1933 (WA) (‘Land
Act’). The Wildlife Conservation Act provides that ‘nature
reserve means land reserved to Her Majesty, or disposed of, under
the Land Act or any other Act, for the conservation of flora or
fauna’. Under the Land Act a reserve could be created for the
‘conservation of…indigenous flora and fauna’. By
s23(1) of the Land Act a person of Aboriginal descent is authorized
to take sufficient flora and fauna for food for himself and family.

Under s33 of
the Land Act, the Governor, by Order of Council, may direct that
a reserve vests in a body or person to be held in trust for the
identified purposes. [49] The effect of such
an order is to vest the legal estate of the land in the person or
body named, to be held by that person or body as trustee of a public
charitable trust. [50]

2 Comparing
rights, finding inconsistency

The High Court
found that, by designating land as a reserve, the executive was
asserting the right to say how the land could be used. This was
inconsistent with the continued exercise by native title holders
to decide how the land could be used or could not be used. [51]
In addition the creation of a nature reserve was found to be inconsistent
with a native title right to hunt or gather over land. [52]

The vesting
of a reserve under s33 Land Act, which vests the legal estate in
fee simple to the land in that body or person and obliges the body
or person to hold the land on trust for the stated purposes, is
inconsistent with the continued existence of any native title rights
and interests in the land.

3 Finding
Extinguishment

Before concluding
that the result of the above inconsistency was the complete extinguishment
of native title, the Court considered the operation of the NTA.

As indicated,
the mechanism by which the NTA achieves both the protection of native
title and its extinguishment is through prescribing what State and
Territory laws are valid and the conditions and effect of their
validity.

The only basis
for the invalidity of a law which impacts on native title is that
it is discriminatory under s10 of the RDA (which took effect from
31 October 1975). The grant of an interest in land is discriminatory
if it fails to confer on native title holders a benefit enjoyed
by other titleholders, or if it imposes on native title holders
a detriment that is not imposed on any other titleholders. Only
the latter discriminatory effect will render the grant invalid.
[53] The validation provisions of the NTA validate
acts otherwise invalid as a result of the RDA and prescribe the
effect that such discriminatory acts will have on native title.
The confirmation provisions specify particular tenures that either
extinguish or partially extinguish native title if the tenure is
valid or validated by the validation provisions of the NTA. [54]

In determining
whether the NTA protects native title from the extinguishing effect
of the vesting provisions of the Land Act involving the establishment
of a nature reserve, the following questions need to be answered:

(a) Is the
vesting of a nature reserve under the Land Act valid either because
(i) it occurred before the RDA, (ii) the RDA does not render it
invalid or (iii) the RDA does render it invalid and the validation
provisions of the NTA validate this otherwise invalid act?

(b) If the
vesting is valid, do the confirmation provisions of the NTA prescribe
the effect of the act on native title?

In relation
to (a) the vesting of a nature reserve, both before and after 1975,
is valid. Before 1975 the RDA has no effect. Where the vesting took
place after 1975 (as it did in three instances in Miriuwung Gajerrong)
the vesting was not invalid by the operation of the RDA even though
it was discriminatory. That is because the nature of the discrimination
was not such as to render the act invalid. Rather, the discrimination
was the failure to confer a right to compensation to native title
holders for the appropriation of their property in the same way
provided to non-Indigenous title holders. The RDA operated to extend
this benefit to native title holders rather than invalidate the
vesting itself.

In relation
to (b) the confirmation provisions do not provide for the effect
of vesting involving the establishment of a nature reserve on native
title. The confirmation provisions prescribe the effect of a ‘previous
exclusive possession act’ is to extinguish native title completely
and the effect of a previous non-exclusive possession act is to
extinguish native title to the extent of any inconsistency. Section
23B(9A) provides that a vesting which involves the establishment
of an area, such as a national, State or Territory park, for the
purpose of preserving the natural environment of the area is not
a previous exclusive possession act.

Thus while
the NTA does not explicitly require the extinguishment of native
title on nature reserves, it fails to protect native title where
this occurs through the application of the inconsistency test. Native
title is thus extinguished. [55] The failure
of the NTA to proscribe the extinguishment of native title outside
of the NTA is a concern from a human rights perspective and is discussed
further at pages 65-69 of this Report.

The extinguishment
of native title by the creation of a nature reserve illustrates
the effect of applying a test which only considers the legal rights
created, rather than the existing relationships and the possibility
of their co-existence.

Partial
Extinguishment

As indicated above,
the main effect of partial extinguishment on native title is to extinguish
native title rights to control access to land, speak for country, or make
decisions in relation to the land.

An example of the
way in which the High Court determines the partial extinguishment of native
title rights to control access to the land was demonstrated in Miriuwung Gajerrong
in relation to the grant of a mining lease under the Mining Act 1978
(WA) (‘WA Mining Act’). The extinguishment of native title rights
by a mining lease does not occur under the confirmation provisions of
the NTA. However the NTA fails to protect native title from the effect
of the inconsistency test as it is applied by the common law.

Extinguishing
native title rights by the grant of a mining lease

1 Identifying
rights

Section 85
of the WA Mining Act confers upon the lessee of a mining lease a
right of exclusive possession for ‘mining purposes’. The
High Court found that the grant of exclusive possession for mining
purposes was directed at preventing others from carrying out mining
activities, and it was not intended to exclude others from all parts
of the lease. [56] The term ‘mining purposes’
was held to be broad and encompassed all rights necessary for its
meaningful exercise. [57] A grant of a mining
lease entitled the grantee to access the land for mining purposes.

2 Comparing
Rights; Finding Inconsistency

The native
title right to control access to the land was found to be inconsistent
with the right to access under the grant of a mining tenement. Deciding
inconsistency in relation to other native title rights was not possible
without a greater particularisation of the rights claimed. The Court
also raised the issue of inconsistency, not at the level of rights
but at the level of the exercise of rights.

The holder
of a mining lease having a right to exclude for the specified
purpose… may exercise that right in a way which would prevent
the exercise of some relevant native title right or interest for
so long as the holder of the mining lease carries on that activity.
Just as the erection by a pastoral lease holder of some shed or
other structure on the land may prevent native title holders gathering
certain foods in that place, so too the use of land for mining
purposes may prevent the exercise of native title rights and interests
on some parts (even in some cases, perhaps the whole) of the leased
area. This is not to say, however that the grant of a mining lease
is necessarily inconsistent with all native title. But due to
the generality of the determination respecting the content of
native title being asserted, it is not possible, subject to one
exception to accurately determine the native title rights that
had been extinguished or to identify those that remain. [58]

The right identified
as inconsistent with the grant of a mining lease was the native
title right to control access to the land.

3 Finding
extinguishment

As noted in
relation to vesting under the Land Act, it is necessary to consider
whether the extinguishment resulting from the above inconsistency
is contrary to the NTA.

In determining
whether the NTA protects native title from the extinguishing effect
of the grant of a mining lease, the following questions need to
be answered:

(a) Is the
grant of the mining lease valid either because (i) it occurred
before the RDA, (ii) it occurred after the enactment of the RDA
but the RDA does not render it invalid or (iii) the RDA does render
it invalid and the validation provisions of the NTA validate this
otherwise invalid act?

(b) If the
mining lease is valid, do the confirmation provisions of the NTA
prescribe the effect of the grant on native title?

In relation
to (a), if the mining lease were granted before 1975, the grant
would be valid and the extinguishment effective. There is nothing
in the NTA to ameliorate this effect. Unsurprisingly the grants
considered in Miriuwung Gajerrong took place after 1975.
Thus the effect of the RDA needs to be considered. As previously
indicated the grant of an interest in land is discriminatory if
it fails to confer on native title holders a benefit enjoyed by
other titleholders or if it confers on native title holders a detriment
that is not conferred to any other titleholders. It is only in relation
to the latter that the RDA renders the grant invalid. And it is
only in relation to invalid acts that the NTA operates to validate
the grant and prescribe the effect of a validated grant on native
title holders. Thus it is necessary to compare the effect that the
WA Mining Act has on native title compared with other forms of title.

In this regard
where a mining lease is granted on private land or on Crown land
the subject of a pastoral lease the owner or occupier of such land
is entitled to compensation and other procedural rights. [59]
While native title holders do not satisfy the definition of ‘owner’
there was some doubt as to whether they satisfied the definition
of occupier under the WA Mining Act. [60] If
native titleholders cannot satisfy the definition of ‘occupier’,
the RDA is engaged because native titleholders have not been conferred
a benefit enjoyed by others under the WA Mining Act. The effect
of the RDA would be to extend the benefit conferred on other titleholders
to native title holders. The effect would not be to invalidate the
grant.

Consequently,
native title holders do not get the benefit of the non-extinguishment
principle that would flow from the validation of otherwise invalid
mining leases under the validation provisions of the NTA. [61]
Instead, the extinguishing effect of the grant of a mining lease
upon the native title right to control access remains. Nor, in response
to (b) above, do the confirmation provisions of the NTA change this
outcome for native title holders.

Non-extinguishment

As discussed above
[62] the non-extinguishment principle, in which native
title continues to exist even though it has no effect in relation to inconsistent
acts, only arises where the native title rights are not inconsistent with
the rights created under the grant of non-Indigenous tenures and where
the doing of any activity in giving effect to the rights created by statute
or executive act conflicts with the native title rights in question. In
such a case the rights under the non-Indigenous tenure, and the doing
of any activity in giving effect to them, prevail over the native title
rights and interests but do not extinguish them.

The application of
the non-extinguishment principle was demonstrated in Miriuwung Gajerrong
in relation to pastoral leases in Western Australia. The Court found that
many native title rights to use the land the subject of the pastoral lease
would continue unaffected by the lease. These include the native title
right to hunt or gather traditional food on the land. On the other hand
the native title right to burn off the land was probably inconsistent
with the rights under the lease and would be extinguished rather than
suspended for the duration of the inconsistency. However where the leaseholder,
in the exercise of rights under the lease, conducted activities that were
inconsistent with the native title rights, such as the erection of a shed
or fence, the doing of these activities would prevail over the native
title rights.

Once applied, the
inconsistency of incidents test is likely to either reduce the rights
that native title holders can exercise on commonly held land to traditional
activities or extinguish native title completely. The native title rights
most vulnerable to extinguishment are ones which claim control over resources,
control of access or use of the land and decision-making power in relation
to the land. [63] The result of such extinguishment
is that outcomes that native title can deliver to Indigenous people are
significantly reduced. The hope that native title would deliver economic
and political outcomes from the exercise of these rights is unlikely to
be realised. The NTA has not only failed to address this process, it has
contributed to it. This will be discussed in the following sections.

NTA Prescribes
Complete and Partial Extinguishment of Native Title

The extent to which
native title is extinguished is within the statutory control of the Commonwealth.
The High Court has made it clear that the NTA now directs the native title
processes of extinguishment and recognition through s10 and s11 of the
NTA. It is clear from the case studies that the NTA fails to give native
title adequate protection from extinguishment. The NTA, through the validation
and confirmation provisions, marks out a vast area in which State and
Territory laws will have full effect to completely or partially extinguish
native title. These provisions not only fail to address past extinguishment
of native title, they substantiate it in a vast number of cases. The following
tables and commentary outline the effect that these provisions have on
native title in relation to particular tenures considered in the Miriuwung Gajerrong
and Wilson v Anderson decisions.

The confirmation
provisions

The confirmation
provisions were inserted into the NTA by the 1998 amendments. The title
of the new provisions, ‘confirmation of past extinguishment’,
indicates a government intention to codify existing legal principles established
in the few High Court decisions then available, principally Mabo (No
2)
, Wik [64] and the Fejo [65]
decisions. This extrapolation from existing decisions became one of the
most contentious aspects of the 1998 amendments. The 1998, 1999 and 2000
Native Title Reports criticize this process as confirming the discriminatory
effect of State laws on native title.

The confirmation
provisions operate to give full effect to either specific tenures or categories
of tenures resulting in the extinguishment of native title, where there
is a grant of exclusive possession, or the partial extinguishment of native
title where there is no grant of exclusive possession. A summary of the
operation of these provisions is contained in Annexure 3 of this Report.

The Wilson v Anderson
decision illustrates the immense impact that the confirmation provisions
can have upon Indigenous aspirations for legal recognition of their traditional
interests. Chapter 4 of this Report provides a detailed account of the
human cost of the confirmation provisions to Indigenous people. In relation
to the impact of these provisions for the Eulahaly – Dixon people,
the grant of a lease under the Western Lands Act 1901 (NSW) completely
extinguished their native title. As set out in chapter 4 many other claimant
groups can extrapolate from this decision a similar fate to their applications
for native title.

The confirmation
provisions also operated in the Miriuwung Gajerrong and Wilson v Anderson
decisions to ensure extinguishment and partial extinguishment resulting
from the creation of many tenures as set out in Table No 1.

Table
No 1: Tenures specified in the confirmation provisions that the High Court
has found, in both the Miriuwung Gajerrong and Wilson v Anderson
decisions, to have an extinguishing effect on native title

Tenure Complete
Extinguishment / Partial Extinguishment / Non-extinguishment
Basis
for Extinguishment
Western
Australia
Pastoral
Lease
Partial
Extinguishment; loss of right to control access to, or the use to
be made of, the land; further findings required by Federal Court.
Land
Act 1898
(WA); Land Act 1933 (WA); NTA ss23F & 23G;
Titles (Validation) and Native Title (Effect) Act 1995 (WA),
(‘State Validation Act’), s12M.
Resumption
under Public Works Act 1902 (WA)
Complete
Extinguishment
Public
Works Act
(s18); lands vest in Crown for an estate in fee simple
in possession for the public work. [66]

Post RDA (1975)
vesting

Complete Extinguishment

Previous exclusive
possession act (‘PEPA’) vesting not invalid under RDA
because other interests equally effected but RDA operates to extend
compensation.

Vesting
of Reserves
Complete
Extinguishment
Vesting
of legal estate in Crown, Land Act s33; NTA ss23B(2)(c), 23B(3), &
s23B(9A).
Post
RDA (1975) vesting
Complete
Extinguishment
RDA
not invalidate vesting, therefore validation provisions do not apply.
Rights
in Water and Irrigation
Act 1914 (WA)
:
Vesting
of control of waters in
Crown, s4
Partial
Extinguishment – loss of right of exclusive possession over waters
[67]
 

Vesting in
buffer and expansion
areas under s3(2) where
fit definition of ‘Works’

Complete
Extinguishment
Insufficient
evidence that land fits definition of ‘works’ under Water
and Irrigation Act 1914
(WA).
Special
Lease
Complete
Extinguishment
Land
Act s116; NTA s23B(2)(c)(iv); Special lease for grazing amounts to
exclusive pastoral lease under NTA.
Lease
of Reserves: Leases to Ivanhoe 1977 and 1992 (grazing)
Complete
Extinguishment
S32
Land Act
RDA apply but not ‘relevant interest’ under State Validation
Act.
Subsequent lease extinguish, as exclusive pastoral lease, s23B(2)(c)(iv)
NTA.
Pre
RDA (1975) lease
Complete
Extinguishment
 

Commercial
leases to Harmon and Osborn 1990

Complete Extinguishment

Post RDA; category
A past act.

Northern
Territory
Pastoral
leases (NT)
Partial
Extinguishment; loss of native title right to control access and to
make decisions about the land
Non-exclusive
pastoral lease a previous non-exclusive possession act; NTA Div 2B.
New
South Wales
Perpetual
grazing lease under NSW Western Lands Act 1901

Complete Extinguishment

Exclusive
possession pastoral lease; NTA, Div 2B.
The
validation provisions

The validation provisions
of the NTA validate acts otherwise invalid as a result of the RDA and
prescribe the effect that such discriminatory acts will have on native
title. Annexure 3 sets out the regime that the NTA substitutes for invalidation
under the RDA.

Table No 2
indicates the inadequacy of the protection of native title provided by
the validation provisions of the NTA, by reference to specific tenures
considered by the High Court in the Miriuwung Gajerrong and
Wilson v Anderson decisions. It should be noted that,
without the NTA, the RDA would have rendered each of these tenures invalid.
Instead the NTA not only validates these tenures but ensures native title
is either impaired or extinguished.

Table
No 2: Tenures validated by the validation provisions of the NTA showing
the effect that these provisions have on the extinguishment, partial extinguishment
or non-extinguishment of native title

Tenure

Complete
Extinguishment / Partial Extinguishment / Non-extinguishment

Basis
for Extinguishment

Western
Australia

Where reserve
created after 1975 and no prior pastoral lease

Non-Extinguishment

Land Regulations
1882
(WA) regs 29-34, Land Act 1898 (WA), Part III (ss39-46);
Land Act 1933 (WA), Part III (ss29-37); NTA s19 NTA; State
Validation Act s5; Category D past act.

Rights in
Water and Irrigation Act 1914
By-laws after RDA

Non-Extinguishment

Category D
past act.

Lease of Reserves:
Commercial leases to Harmon and Osborn 1990

Complete Extinguishment

Post RDA; category
A past act.

Northern
Territory

Keep River
National Park

Non-Extinguishment

Granted after
1975; Category D past act – NTA; not category B because Crown
to Crown grant within s230(d)(i) NTA; special purpose and crown
perpetual leases would otherwise extinguish native title completely.

Table No 2
shows the effect of the validation provisions where the creation of a
tenure would otherwise be invalid under the RDA. However, as explained
in the Summary of the validation and confirmation of extinguishment
provisions in the Native Title Act 1993
, Annexure 3, not all tenures
created after 1975 are invalid under the RDA. The NTA does not address
those tenures. The result is that the extinguishment which is effected
by the creation of these tenures is not ameliorated by the regime put
in place under the validation provisions. A striking example of this is
demonstrated in the case study of the grant of a mining lease under the
WA Mining Act. Because other titleholders affected by the creation of
a mine were provided compensation, the RDA operates to extend that compensation
to native title holders. Yet the extinguishing effect remains. Under the
validation provisions however, a mining lease is a category C past act
and enjoys the protection of the non-extinguishment principle. There is
no reason why the non-extinguishment principle cannot be statutorily prescribed
in relation to the grant of all mining leases, not just those rendered
invalid by the RDA and validated by the NTA.

Interaction
of the validation and confirmation provisions

In respect of certain
tenures granted after 1975, both the confirmation and validation provisions
may apply. In such cases the NTA operates so that the harsher regime of
extinguishment under the confirmation provisions prevails over the more
lenient regime under the validation provisions. [68]
An example discussed in Miriuwung Gajerrong is the grant of
a mining lease defined by s245(1) NTA. [69] Where the
grant takes place after 1975 the RDA would have operated to invalidate
the grant. Under the validation provisions the lease is a category C past
act and the non-extinguishment principle applies. However, this effect
is taken over by the extinguishing effect of s23B(2)(c)(vii) of the confirmation
provisions which provide for the complete extinguishment of native title.

The above analysis
shows that the NTA fails to give native title adequate protection from
extinguishment to ensure Indigenous people can enjoy their cultural rights
and their property rights to the same extent as non-Indigenous people.
Rather the approach has been to guarantee the extinguishment of native
title, regardless of whether such extinguishment is discriminatory.

NTA Fails
to Proscribe Extinguishment Resulting from the Application of General
Principles

The NTA marks out
a vast area in which State and Territory laws and the tenures they create
will have full effect to completely or partially extinguish native title.
Table No 1 and Table No 2
demonstrate the impact of this on the native title claims in the Miriuwung Gajerrong
and Wilson v Anderson decisions. Similar mechanisms to
those in the NTA which give State and Territory laws full effect can also
proscribe discriminatory State and Territory laws that operate by their
own force to either extinguish or impair the enjoyment of native title.
Yet the NTA fails to take responsibility for common law extinguishment
so as to limit the extinguishment of native title resulting from the creation
of tenures other than those specified in the NTA. The effect of this on
the native title claim of the Miriuwung and Gajerrong people is illustrated
in Table No 3.

Table
No 3: Tenures in Miriuwung Gajerrong which at common law extinguish
native title and which the NTA fails to protect against

Tenure

Complete
Extinguishment / Partial Extinguishment / Non-extinguishment

Basis
for Extinguishment

Western
Australia

Reserves: Act
of reservation on its own

Partial extinguishment;
loss of right to be asked permission to use or have access to the
land

Land Regulations
1882
(WA) regs 29-34, Land Act 1898 (WA), Part III (ss39-46);
Land Act 1933 (WA), Part III (ss29-37); common law

Resumptions Non-Extinguishment Land
Act, s109; common law
Vesting
under Land Act for the purposes of creating a nature reserve
Complete
Extinguishment
Vesting
not amount to a PEPA but nonetheless valid and effective
Designating
reserve for public purpose
Partial
Extinguishment of right to decide how land can be used and right to
control access
Common
law, creating a reserve neither a PEPA or previous non-exclusive possession
act

By-laws before
RDA under Part IV Rights in Water and Irrigation Act 1914
(WA) – prohibiting removal of flora and fauna

Partial Extinguishment
of native title rights to hunt fauna or gather flora on making of
laws

Inconsistency
of incidents test

Mining
leases
Partial
Extinguishment; loss of right to be asked permission to use or have
access to area of lease; need further identification of native title
rights to determine extent of extinguishment
Common
law; mining lease grant right of exclusive possession for mining purposes;
not category C act because no invalidity by RDA; in any case right
to control access already extinguished by pastoral leases
Argyle
Mining Lease
Need
further identification of native title rights to determine extent
of inconsistency with lease right to exclusive possession for mining
purpose

Prior extinguishment
over area because of vesting of reserve 31165

Permit
to occupy
Complete
Extinguishment
Land
Act s16

Mining Act
1904
(WA)

Partial Extinguishment;
loss of native title right to minerals or petroleum

Property
in minerals vested in Crown; ochre not a mineral under WA Mining Act

Fishing

Partial extinguishment;
loss of exclusive right to fish or control access to waters

Inconsistent
with public right to fish

The case study on
the effect of the creation of nature reserves in Western Australia on
native title, at pages 56-57 above, demonstrates the layers of extinguishment
that occur when the government fails to proscribe extinguishment under
the NTA.

The High Court, in
both the Miriuwung Gajerrong and Wilson v Anderson
decisions, has clearly indicated that, since the enactment of the NTA,
the common law no longer establishes the principles on which the recognition
and extinguishment of native title is based but rather takes its lead
from the legislation. As discussed earlier, the Court was of the view
that the division between complete and partial extinguishment in s23A
NTA, and the fragmentation of native title into legal rights in s223 NTA,
mandated an approach in which native title was likened to a bundle of
rights each of which could be extinguished separately, to the extent of
the inconsistency.

The implication of
the High Court prioritising the statute in this way is that responsibility
for setting standards in native title clearly rests with the Government
through its legislative arm. On this point, the Government submitted to
the PJC in relation to its inquiry on the findings of CERD that the amended
NTA was discriminatory:

The confirmation
regime provided no divestment of native title rights. The regime represents
a recognition of the historical position that native title had been
extinguished by grants of freehold and leasehold in Australia over the
past 200 years on about 20 per cent of the Australian land mass and
that it was not contrary to the Convention to confirm this historical
position. [70]

In view of the High
Court’s recent decisions, the Government’s response to CERD’s
concern in relation to the confirmation provisions, divesting itself of
responsibility for the historical dispossession of Indigenous people,
can no longer be sustained. It not only ignores the primary role that
the High Court has bestowed on the legislation for the recognition and
extinguishment of native title, it also misunderstands the ethical obligations
of a Government bound by international obligations of equality and non-discrimination.

The NTA
fails to proscribe the extinguishing effect of historic tenures

The general law principles,
as well as the statutory principles determining the extinguishment of
native title, operate over time to increasingly confine the enjoyment
of native title as new interests are created, resumed and recreated over
traditional land. Inevitably native title rights of control, such as the
right to control access and make decisions in relation to the land, will
be the first to be extinguished. In order to salvage some interests in
the land, native title holders must describe their rights in terms of
specific activities on the land, such as a right to hunt or fish or burn
off or perform ceremonies. Subsequent tenures over the same land that
are inconsistent with any remaining native title will operate to extinguish
what relics remain.

In Miriuwung Gajerrong
it was clear that much of the land the subject of the claim had, for varying
periods of time, been subject to the grant of a pastoral leasehold. While
these leaseholds may have been resumed or expired, their extinguishing
effect over native title rights to control access to the land remains.
Where grants are subsequently made over the same land, such as a mining
lease, the extinguishing effect of the new interest is stamped permanently
onto native title, even though the interest itself may be short lived.

The process described
above turns native title into an archaeological site of extinguishment.
The Government’s response to the entrenchment of historical dispossession
through the native title process was put to CERD as follows:

It is necessary
to recognise that past acts, historical acts and the effects of these
cannot be undone … Past acts, however discriminatory, which have
resulted in dispossession of Australia’s Indigenous people cannot
be undone, though of course, present and future policies can remedy
the effects, the current effects, of such acts. [71]

There are two distinct
propositions in this response. First, the government cannot undo the past;
and second, present and future policies can remedy the effects of past
acts. In relation to the first, claiming the simple truism that ‘what
has occurred has occurred’ and ‘the past is the past’ does
not accurately describe the situation. The recognition of native title
in 1992 as a pre-existing right means that, with every native title case,
the court is required to insert into the history of land tenures affecting
the claim area from sovereignty to the date of the claim a new element;
native title. The recognition of native title requires the past to be
retold so that what was done in silence, (without interpretation) is named
appropriation or extinguishment or co-existence. Statements like ‘we
cannot undo the past’ fail to take account of the reinterpretation
of history that the recognition of native title has forced Australia,
governments, courts and citizens alike, to face.

In relation to the
second proposition the statement accepts that, with the new knowledge
of the continuing relationship of Indigenous people to land, current policies
can change the impact of the past for present and future Indigenous people.
The High Court has handed the baton of native title back to the Government
charging it with the responsibility of ensuring native title benefits
Indigenous people. The Commonwealth can limit the extinguishment of native
title just as it has confirmed it in the NTA. These are choices available
to it. The Government, in line with its human rights obligations [72]
could have chosen to proscribe extinguishment by tenures that have either
expired or terminated through legislation ensuring that the native title
process is focused on current and future dealings.

The effect of prohibiting
the extinguishment of native title resulting from historic tenures was
demonstrated to a limited extent by the Titles (Validation) and Native
Title (Effect of Past Acts) Act 1995
(WA). This was the complementary
Western Australian legislation authorized by the confirmation provisions
of the NTA. Rather than fully implement the extinguishing regime permitted
by the NTA, it limited the effect of complete extinguishment from the
creation of leases and scheduled interests identified in the confirmation
provisions (excluding freehold) to those tenures still in force on 23
December 1996.

Another legislative
tool directed at limiting extinguishment from historic tenures (other
than freehold land or reserved land) is s47B of the NTA which excludes
their extinguishing effect where the land is currently vacant Crown land
and the native title claim group occupy the area. It does not, however,
limit extinguishment resulting from historic tenures where there is a
current tenure with which native title might co-exist.

The recognition of
native title has required the courts to reinterpret history as if native
title had existed from sovereignty. It is important that, as a result
of this reinterpretation, native title is made meaningful to Indigenous
and non-Indigenous people co-existing on country. Meaningful to Indigenous
elders recognised as the owners of the land; meaningful to future Indigenous
generations whose elders, grandparents and great grandparents have been
recognised as the original owners of the land; meaningful to miners wishing
to develop land which has significance to Indigenous people; meaningful
to farmers who have historically lived beside Aboriginal people but never
known their common connection.

It is clear from
the decision in Miriuwung Gajerrong that the High Court has
charged the Government with the responsibility of giving native title
new meaning. There are legislative mechanisms available to the Federal
and State governments to limit the accumulation of extinguishment that
increasingly restricts native title. These mechanisms should apply to
all historic tenures affecting native title.

Limited compensation
for the deprivation of native title rights

The arbitrary deprivation
of a property right belonging to a particular race or ethnic group is
a breach of article 5(d) of ICERD. CERD makes it clear in General Recommendation
23 on Indigenous Peoples [73] that ‘where [Indigenous
Peoples] have been deprived of their lands and territories traditionally
used or otherwise inhabited or used without their free and informed consent,
[States are] 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’. [74]

The provision of
compensation for extinguishment under the NTA and by the common law falls
very short of this international standard. In relation to extinguishment
under the confirmation provisions, NTA s23J has the effect of conferring
upon native title holders an entitlement to compensation only where the
statutory extinguishment exceeds the extinguishment that would have occurred
either at common law or where compensation would have been available by
virtue of the RDA. The purpose of this provision was explained by the
High Court in Wilson v Anderson:

[The purpose] is
to limit, so far as possible, the entitlement to compensation to cases
where the ‘act’ is invalid by reason of the RDA and is subsequently
validated by s14 of NTA or s8 of the State Act. However s23J may also
be attracted in respect of a valid ‘act’ which, although satisfying
the definition of ‘previous exclusive possession act’ would
not completely extinguish native title at common law. [75]

In any other case
there is no compensation for the extinguishment of native title by the
confirmation provisions. Nor is there provision for compensation for the
impairment of the exercise of native title rights where the non-extinguishment
provisions apply under the confirmation provisions. [76]

Compensation under
the validation provisions is also limited under s17 NTA to category A
or B past acts. In relation to category C and D past acts, the effect
of which is not to extinguish native title but may be to impair its exercise,
compensation is only paid where, in relation to ordinary title, the act
could not be validly done. [77]

Where complete or
partial extinguishment of native title results from the common law and
not the NTA, there is no provision for compensation to native title holders
under the NTA. Nor is there provision for compensation for the impairment
of the exercise of native title. In some cases, where a tenure is created
after 1975, the RDA may operate to extend to native title holders the
compensation provided under the particular statute to other titleholders.

The presumption that
compensation is provided for the deprivation of property rights is a fundamental
postulate of the legal system. It is provided for in section 51(xxxi)
of the Commonwealth Constitution. The failure to provide this equally
to Indigenous people whose property rights have been appropriated or extinguished
attracted the opprobrium of Justice Kirby in Wilson v Anderson:

[T]here is no reason
why, in respect of indigenous Australians, McHugh J’s dictum in
Marshall v Director-General, Department of Transport should not
be faithfully applied. His Honour there said that legislation empowering
the deprivation of rights that an Australian would otherwise enjoy ‘should
be construed with the presumption that the legislature intended the
claimant to be liberally compensated’. After so many legal injustices
in the past, I cannot accept that presumptions such as this are available
to the settlers and their descendants and successors but not to indigenous
Australians. [78]

The extinguishment
of native title raises many concerns from a human rights perspective.
The additional failure to compensate Indigenous people for this violation
of their rights multiplies this injustice. The Federal Government has
the legislative capacity to redress this injustice both as it occurs through
the failure of the courts to apply a presumption in favour of compensation
for the extinguishment of native title and as it occurs by its own hand.

Conclusion

Ten years after the
Mabo decision was first handed down, the common law test for extinguishment
is now crystallized in the inconsistency of incidents test. The most Indigenous
people could have asked from the common law was that, where the NTA did
not apply directly to effect extinguishment, the common law would adopt
an approach which favoured non-extinguishment over extinguishment. That
is, an expectation that Indigenous People would be able to enjoy their
property rights to the same extent as that enjoyed by non-Indigenous People.
Instead the High Court took its lead from the NTA as outlined in Miriuwung Gajerrong.
The Court has based its approach on the dual concepts in the NTA of extinguishment
and partial extinguishment. Sections 10 and 11 were also influential in
its decision to emulate the NTA approach to extinguishment.

This decision is
very unsatisfactory to Indigenous people. In addition to entrenching inequality,
the decision provides an unstable and uncertain basis for traditional
owners seeking to utilise the cultural, social and economic values of
their land. Uncertainty about which tenures extinguish native title rights
and to what extent can be added to the other uncertainties infusing the
title; uncertainty about how traditions and customs translate into rights;
uncertainty about the extent to which rights can evolve and change; and
finally uncertainty at the layers of extinguishment that might have occurred
since the assertion of sovereignty.

The only generalisation
and certainty for native title holders is where a particular tenure is
found to extinguish all native title rights, regardless of the nature
of the rights asserted, as in the Wilson v Anderson decision.
This is not the certainty that I am advocating. The human rights principles
of equality and non-discrimination can offer a different type of certainty
for native title holders, that is, that they are able to enjoy their property
with the same protection offered to non-Indigenous title holders.


1
Western Australia v Ward & o’rs [2002] HCA 28 (8 August
2002) (‘Miriuwung Gajerrong’).

2
Wilson v Anderson & o’rs [2002] HCA 29 (8 August
2002) (‘Wilson v Anderson’).

3
660 United Nations Treaty Series 195 (Australia joined 1975).

4
(1995) 183 CLR 373 (‘Native Title Act Case’).

5
ibid., per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ at
483.

6
Committee on the Elimination of Racial Discrimination (‘CERD’),
Decision 2(54) on Australia, UN doc CERD/C/54/Misc.40/Rev.2, 18
March 1999.

7
The Hon A Downer, Minister for Foreign Affairs, Government to review
UN treaty Committees
, Press Release, 30 March 2000. For discussion
on the government’s response to the CERD decision see Aboriginal
and Torres Strait Islander Social Justice Commissioner, Social Justice
Report 2000, Human Rights and Equal Opportunity Commission, Sydney, 2001,
pp79-83; and Aboriginal and Torres Strait Islander Social Justice Commissioner,
Native Title Report 2000, Human Rights and Equal Opportunity Commission,
Sydney, 2001, pp26-27.

8
On 9 December 1999 the Senate referred to the PJC for inquiry and report;
(a) whether the finding of the Committee on the Elimination of Racial
Discrimination (CERD) that the Native Title Amendment Act 1998
is consistent with Australia’s international legal obligations, in
particular, the Convention on the Elimination of All Forms of Racial Discrimination,
is sustainable on the weight of the informed opinion, (b) what amendments
are required to the Act, and what processes of consultation must be followed
in effecting those amendments, to ensure that Australia’s international
obligations are complied with; and (c) whether dialogue with the CERD
on the Act would assist in establishing a better informed basis for amendment
to the Act.

9
Native Title Report 2000, op.cit., pp5-6.

10
Native Title Act Case, op.cit., per Mason CJ, Brennan, Deane, Toohey,
Gaudron & McHugh JJ at para 144 of their Honours’ reasons.

11
‘This Act is intended to be read and construed subject to the provisions
of the Racial Discrimination Act 1975’.

12
See Annexure 3 for Summary of the validation and confirmation of extinguishment
provisions in the Native Title Act 1993
; and Annexure 2 for a table
showing various tenures and their affect on native title, following the
recent High Court decisions.

13
op.cit., per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ
at 469.

14
The exact dates differ depending on whether the act is an exclusive or
non-exclusive possession act, an intermediate period act or a past act.
These are set out in Annexures 3 and 2.

15
Category C and D past acts defined in the validation provisions and s23G
of the confirmation provisions: NTA.

16
The extinguishment of native title is defined in s237A NTA as permanent,
meaning the native title is incapable of revival. Non-extinguishment is
also defined in s238 as the continued existence of native title even though,
where the act affects native title, the rights and interests have no effect
either wholly or to the extent of the inconsistency.

17
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [76].

18
Mabo & o’rs v Queensland (No 2) (1992) 175 CLR 1, per
Brennan J (with whom Mason CJ and McHugh J agreed) at 84.

19
Wilson v Anderson, op.cit., per Gleeson CJ at [4].

20
Sections 23B(c)(i) and s23C.

21
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [76].

22
ibid., at [79].

23
NTA, s238.

24
Per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [82].

25
ibid. at [193].

26
[2000] FCA 191 (3 March 2000).

27
ibid., per North J at [784].

28
For analysis of the Full Federal Court decision see Native Title Report
2000
, op.cit., pp 47 – 84.

29
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [82].

30
ibid., at [76].

31
ibid., at [14].

32
ibid., at [91].

33
See pages 49-50, above.

34
ibid., at [29].

35
ibid., at [52].

36
The human rights implications of describing native title rights as specific
activities is discussed in chapter 1 of this Report, especially pages
26-27.

37
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [143]-[151].

38
ibid., at [82].

39
Miriuwung Gajerrong, op.cit., per Kirby J at [592].

40
Commonwealth v Yarmirr; Yarmirr v Northern Territory [2001]
HCA 56 (11 October 2001).

41
Miriuwung Gajerrong, op.cit., per Kirby J at [594].

42
F Bennion, Statutory Interpretation: a code, (3rd ed), Butterworths,
London, 1997, 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.

43
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [78]; Wilson v Anderson, op.cit., per
Gleeson CJ at [5].

44
Miriuwung Gajerrong, op.cit., per Kirby J at [589].

45
Wilson v Anderson, op.cit., at [140]-[141].

46
Annexure 3.

47
Wilson v Anderson, op.cit., per Gleeson CJ at [11].

48
A further analysis of the inappropriateness of finding extinguishment
of native title on nature reserves is discussed in chapter 4 of this Report.

49
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [235].

50
ibid., at [240].

51
ibid., at [219]-[220]

52
ibid., at [246].

53
See chapter 3 for a full analysis of the effect of the RDA on laws.

54
See Summary of the validation and confirmation of extinguishment provisions
in the Native Title Act 1993
, annexure 3.

55
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [258].

56
ibid., at [308].

57
ibid.

58
ibid.

59
Mining Act 1978 (WA), sections 27-39 & 123-125.

60
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [317]-[319].

61
A mining lease is a category C past act under s239, the effect of which
is to apply the non-extinguishment principle under s15 NTA.

62
Page 48 of this Report.

63
See Table No 1, page 56.

64
Wik Peoples v Queensland & o’rs (1996) 187 CLR 1.

65
Fejo v Northern Territory [1998] HCA 58 (10 September 1998).

66
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [203].

67
ibid., at [263].

68
ibid., at [10].

69
Mining leases which involve the construction of private residences.

70
Commonwealth Attorney-General’s Department, Submission to the
PJC Inquiry: Consistency of the Native Title Amendment Act 1998 with Australia’s
obligations under ICERD
, Submission 24, Part II, p21 at [91].

71
Australian Representative, Transcript of Australia’s Hearing before
the CERD Committee
, March 1999. For unofficial transcript of Australia’s
complete appearance before CERD, see: Foundation for Aboriginal and Islander
Research Action, <www.faira.org.au/cerd/index.html&gt;.

72
Article 2 of ICERD requires states to ‘take effective measures to…
rescind or nullify any laws and regulations which have the effect of creating
or perpetuating racial discrimination wherever it exists’.

73
(1997) in Compilation Of General Comments And General Recommendations
Adopted By Human Rights Treaty Bodies
, UN doc HRI/GEN/1/Rev.5, 26
April 2001, p192.

74
ibid., at paras 4–5.

75
op.cit., per Gaudron, Gummow and Hayne JJ at [51].

76
NTA s23G(1)(b)(ii).

77
NTA s17(2).

78
Wilson v Anderson, op.cit., per Kirby J at [141].

19
March 2003.