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Native Title Report 2002: Summary of the Validation & Confirmation of Extinguishment Provisions in the NTA

Annexure
3: Summary of the Validation and Confirmation of Extinguishment Provisions
in the Native Title Act 1993

In the High Court’s
formulation of native title in Mabo (No 2), [1]
delivered on 3 June 1992, it was made clear that in the past, governments
could validly grant interests in land that would extinguish native title.
These grants could be made without payment of compensation to native title
holders. [2] At least that was as far as the common
law was concerned. The Court did not need to consider the effect of the
Racial Discrimination Act 1975 (Cwlth) (‘RDA’) on laws
and grants after the RDA came into force on 31 October 1975. Laws and
grants after that date may have been invalid if, for example, the grant
extinguished native title in a discriminatory way. The effect of invalidity
would have been quite dramatic: in some cases the holders of government-issued
titles would not own the land they thought they owned.

In theory, the Government
could have left these issues for the courts to decide on a case-by-case
basis or, at the other extreme, legislated for blanket validation of all
past government acts to do with land. The purpose of validation is to
correct the legal effect of invalidity by reversing it in legislation.
Another possible approach, although cumbersome and time-consuming, would
have been to list all the laws and grants of interests in land made prior
to the Mabo (No 2) decision, and explicitly validate them.
Instead, the Labor government of the day decided to focus on the potentially
invalid acts, defined in a general way, and leave any unresolved questions
about the effect of valid acts on native title to the courts to resolve.
The Native Title Act 1993 (Cwlth) (‘NTA’), gave effect
to this broad policy approach and came into force on 1 January 1994. At
a political level, this allowed the Government to calm anxiety about potentially
invalid grants, but not resolve all outstanding legal questions against
Indigenous interests. One of the critical outstanding legal questions
was whether any native title rights survived on pastoral leases that covered
approximately 40% of the Australian land mass. That question was resolved
in favour of Indigenous interests in the Wik decision, delivered
on 23 December 1996. [3] The High Court deciding that
the grant of a pastoral lease did not necessarily extinguish all native
title rights.

Following the Wik
decision, the new Liberal-National Party coalition government, extended
the validation provisions to the date of the Wik decision, arguing
that the original NTA had been passed on the mistaken assumption that
pastoral leases extinguished native title. [4] It also
added a fairly comprehensive codification of what past government actions
extinguish native title. [5] This new approach represented
a reversal of the policy of leaving most unresolved questions to the courts
to decide and, in effect, moved the government response closer to the
blanket validation approach.

This history resulted
in the present complexity of the provisions in the NTA that try to address
historical legal uncertainties arising from Australia’s belated recognition
of native title. The provisions are organised into three divisions:

1 The Past Act
Validation Regime mainly dealing with invalid acts before the commencement
of the NTA on 1 January 1994; [6]

2 The Intermediate
Period Act Validation Regime, mainly dealing with invalid acts between
the commencement of the NTA and the Wik decision on 23 December
1996; [7] and

3 The Statutory
Extinguishment (Confirmation of Extinguishment) provisions dealing mainly
with valid acts prior to the Wik decision on 23 December 1996. [8]

Note: the word ‘regime’
is used to indicate that the validation provisions try to deal comprehensively
with the whole range of different government acts that might have different
effects on native title from non-extinguishment to partial extinguishment
to complete extinguishments. The Confirmation of Extinguishment provisions
focus exclusively on partial or complete extinguishment.

This could be represented
as follows: [9]

Figure
1: Validation Timeline

Figure 1: Validation Timeline

The significance of the Valid
/ Invalid Distinction and the RDA

Only invalid acts
are drawn into the validation regimes to be codified into non-extinguishing,
partially extinguishing or completely extinguishing acts. [10]
Although it is widely acknowledged that the only reason a government act
may have been invalid is a breach of the RDA, the RDA is not specifically
mentioned in any of the relevant definitions of ‘past acts’
or ‘intermediate period acts’. This is no doubt an example of
cautionary drafting just in case there is some other, yet to be formulated,
legal argument that would result in invalidity apart from the RDA. But,
for practical purposes, to find the scope of the validation regimes, breaches
of the RDA must be considered. [11]

The relevant provision
of the RDA states that if a particular race does not enjoy certain rights
because of a particular law, the RDA will override that law so that the
persons of the affected race will enjoy those rights to the extent that
other races enjoy them. [12] The wording of this key
provision has a number of consequences in relation to the extinguishment
of native title under a law. [13]

The first is that
laws that extinguish native title are not necessarily discriminatory if
other peoples property rights are also extinguished to the same extent.
It also means that some laws which have a discriminatory effect on native
title rights will not become invalid, but will simply be supplemented
by the RDA to bring them up to a non-discriminatory standard. An example
of this is a law that allows for the extinguishment of land titles but
only provides compensation for non-native title interests. The RDA has
the effect of adding a right of compensation for native title holders.
But the extinguishment of native title is still valid.

These conceptualisations
introduce some difficult questions for judges, for example how to choose
the most appropriate non-native title property rights for the purposes
of comparison with native title rights to see whether they have been treated
equally or not. It may also be difficult to distinguish between those
laws that can effectively be supplemented by the RDA to bring them up
to standard, and those laws that simply do not have the mechanisms within
them to make this kind of supplementation effective.

The clearest example
of a law that cannot be supplemented by the RDA to bring it up to non-discriminatory
standard, is a law that specifically targets native title rights and attempts
to extinguish them or alter them in some way. The Queensland Coast
Islands Declaratory Act 1985
, which sought to outlaw native title
claims, [14] and the Western Australian Land (Titles
and Traditional Usage) Act 1993
, which sought to replace native title
with traditional usage rights, are two examples of this. [15]

The end result of
these distinctions is that extinguishment of native title by legislation
or acts done under legislation do not necessarily lead to invalidity.
Further questions need to be asked and relevant comparisons need to be
made before invalidity can be conclusively established. Thus it is probably
true to say that the number of invalid acts is probably smaller than may
have been originally imagined.

How do Validated Acts Affect
Native Title?

Despite the uncertain
scope of invalid acts, the validation regimes provide a reasonably comprehensive
codification of what the legal effect of validation is on particular kinds
of acts. This codification was based on legal opinion at the time, usually
extrapolating from the reasoning of the Mabo (No 2) and Wik
decisions, but it was also based on negotiations between the various interested
parties during the political process leading to the original NTA and the
1998 amendments. From the perspective of the effect on native title, the
codification in the Past Act Validation Regime could be represented broadly
as follows:

  Examples Relevant
Definition in the NTA
Complete
extinguishment
[16]

• Freehold
• commercial lease
• agricultural lease
• pastoral lease
• public works

Category A
Past Act [17]
Category B Past Act that is totally
inconsistent with any continuing
native title rights. [18]

 

Partial
extinguishment
[19]
Other
leases (not included above or below)
Category
B Past Act that is inconsistent with some but not all native title
rights. [20]
Non-extinguishment
[21]
Mineral
exploration and mining leases
Category
C Past Act [22]
Category D Past Act [23]

One curiosity in
this initial codification was the inclusion of pastoral leases in the
category of acts that completely extinguish native title. [24]
Subsequently, the High Court came to a different conclusion in the Wik
decision. This means that there is a technical anomaly in relation to
the survival of residual native title rights on pastoral leases. If the
pastoral lease was invalid because of native title, the validation process
extinguishes all native title. However, if the pastoral lease remains
valid despite native title, the residual native title rights survive.

This assessment in
1993 about pastoral leases was less beneficial to Indigenous interests
than the subsequent Wik decision. Other assessments have proven
to be more beneficial in the light of subsequent judicial decisions. One
is having a catch-all category (Category D) to which the non-extinguishment
principle applies. [25] This means that all those acts
which are not specifically identified in other categories will fall into
category D. The non-extinguishment principle preserves native title to
the maximum extent possible while allowing the exercise of competing rights
granted under statute. [26] The other beneficial aspect
is the list of exceptions to extinguishment. As would be expected, these
included land granted to Indigenous people under land rights and other
legislation designed to benefit Indigenous people. Another exception is
known as ‘Crown to Crown grants’, that is land transferred from
one arm of the government to another arm of the government, whether it
be another department or a separate statutory authority. [27]
Land in this category was dubbed ‘fake freehold’ by Indigenous
interests who saw it as allowing governments to illegitimately extinguish
native title even though no third party interest would be affected.

So far, no distinction
has been made between past acts and intermediate period acts. While the
codification of extinguishing effects in the two regimes is broadly similar,
it should be noted that the scope of invalid acts subject to the intermediate
period acts regime is somewhat narrower than the past acts regime, and
there are some differences in the codification of extinguishing effects
that would be significant in a particular case. [28]
For example, the Intermediate Period Acts Validation Regime does not apply
to acts that took place on unallocated Crown land [29]
and, following Wik, it provides that non-exclusive pastoral leases
did not completely extinguish native title. [30]

An invalid act that
is validated under either of the two validation regimes, and as a consequence
completely or partially extinguishes native title, entitles the relevant
native title holders to compensation. [31] The principles
for calculating compensation vary. Depending on how the extinguishing
act is characterised, the principle could be ‘just terms’ [32]
or equating the lost native title rights with freehold title [33]
or some other principle. [34]

Statutory Extinguishment of
Certain Valid Acts

As explained above,
the 1998 amendments to the NTA saw a move beyond concern with invalid
acts to the much bigger project of codifying the extinguishing effect
of most valid government acts prior to the Wik decision. The title
of the new provisions, “confirmation of past extinguishment”,
indicates a government intention not to legislate beyond existing legal
principles. Inevitably, however, the codification involved finely balanced
assessments and extrapolation from the few Court decisions then available,
principally Mabo (No 2), Wik and the Fejo [35]
decisions. This extrapolation from existing decisions became one of the
most contentious aspects of the 1998 amendments.

The Government apparently
adopted the view that the Wik decision had introduced a new distinction
into Australian law: a lease granted under a statute that did not grant
exclusive possession and, therefore, did not extinguish all native title
rights, as opposed to a lease granted under statute that did grant exclusive
possession and did extinguish all native title rights. Thus in the confirmation
of extinguishment provisions there is a broad distinction made between
‘previous exclusive possession acts’ and ‘previous non-exclusive
possession acts’. [36]

Some of the acts
included in the definition of ‘previous exclusive possession acts’
were consistent with existent legal authority such as the extinguishing
effect of a grant of a freehold estate (from the Fejo decision)
and the extinguishing effect of the construction of public works (from
the Mabo (No 2) decision). [37] Others
were drawn from the previous codification embodied in the past act validation
regime and included commercial leases, exclusive agricultural leases,
exclusive pastoral leases, and residential leases. [38]

But the list went
further. It included:

  • an exhaustive
    list of leases from all major States and Territories that were said
    to grant exclusive possession. [39] The list was
    compiled by negotiation between Commonwealth and State officials. None
    had been subject to any judicial consideration of their effect on native
    title. The government officials based their assessment principally on
    an extrapolation from the Wik decision.

  • community purpose
    leases; [40]

  • the vesting of
    exclusive possession of land to a person under legislation, whether
    exclusive possession is expressor implied; [41] and

  • a definition of
    public work that extended the area of the public work to include any
    adjacent area that was necessary or incidental to the construction of
    the public work. [42]

As with the validation
regime, there are some important exceptions made to these extinguishing
acts, including beneficial land grants to indigenous people and the ‘Crown
to Crown grants’. [43] A further exclusion from
the definition of exclusive possession acts is areas established as parks
for the preservation of the natural environment. [44]

Compensation to native
title holders is limited to those cases where it could be demonstrated
that the native title rights involved would not have been extinguished
apart from the NTA, that is when assessments made in extrapolating from
the Wik decision prove to be incorrect. [45]

The second major
category in the confirmation of past extinguishment provisions, “previous
non-exclusive possession acts”, concerned those agricultural and
pastoral leases, like the lease in the Wik decision, that did not
grant exclusive possession. [46] These provisions appear
to be an attempt to codify the Wik decision. However, at the time
these provisions were formulated there was a major dispute between Indigenous
interests and the Commonwealth Government about the meaning of the Wik
decision. The government was convinced that, according to Wik,
native title rights that were inconsistent with the rights granted to
the pastoralists under the lease would have been permanently extinguished
leaving only some residual native title rights (the partial extinguishment
view). Indigenous interests argued that the question of permanent extinguishment
had not been resolved in Wik and that it was still open to view
the inconsistent native title rights as being merely suspended for the
duration of the pastoral lease (the suspension view). The final form of
the relevant provisions, negotiated between the Government and Senator
Harradine, seemed to suggest that this issue was left open for the courts
to decide in future cases. [47] But in the Miriuwung
Gajerrong
decision the High Court seemed to interpret the provisions
as a codification of the partial extinguishment view. [48]
Thus, whatever the intention of the drafters of the relevant provisions,
the effect of a “previous non-exclusive possession act” is to
permanently extinguish inconsistent native title rights.

Accordingly, the
confirmation of extinguishment provisions could be summarised as follows:

  Examples Relevant
Definition in the NTA
Complete
extinguishment
[49]

• Leases
listed in Schedule 1
• freehold
• commercial leases
• exclusive agricultural leases
• exclusive pastoral leases
• residential leases
• community purpose leases
• public works and some adjacent land
• other exclusive possession interests

Previous
exclusive possession act [50]
Partial
extinguishment
[51]

• Non-exclusive
pastoral leases [52]
• Non-exclusive agricultural leases [53]

Previous
non-exclusive possession act [54]

Implementation by States and
Territories

As outlined above,
it is difficult, if not impossible, for the States to pass legislation
effecting the extinguishment of native title without breaching the RDA.
Accordingly, they must rely upon the NTA, a Commonwealth Act passed after
the commencement of the RDA, to override the RDA. Both in relation to
the validation regimes and the confirmation of extinguishment provisions,
the NTA authorises the enactment of such legislation provided that it
is drafted to the same effect as the Commonwealth provisions. In relation
to validation and confirmation of extinguishment, the NTA makes a distinction
between acts attributable to the Commonwealth and acts attributable to
the States and Territories. [55] The provisions relating
to Commonwealth acts take effect immediately; however, the validation
of acts attributable to States and Territories and the confirmation of
the extinguishing effects of State and Territory acts is only effected
when particular States and Territories pass their own legislation in line
with the requirements set out in the NTA. Typically, these requirements
are that the key provisions are to the same effect as the provisions applicable
to Commonwealth acts. [56] Most States and Territories
have passed such legislation. [57]

Conclusion

The belated recognition
of native title rights in Australia means that most government acts affecting
native title have already taken place over the 200 years of colonial settlement
prior to the Mabo (No 2) decision. Initially, the Government
decided to focus on validating any invalid grants of land, but a subsequent
Government expanded this approach to include a codification of all those
government acts in the past that extinguished native title. This resulted
in a complex, difficult to summarise, set of provisions in the NTA specifying
the effect on native title of various past government acts. To find out
the effect of any particular act, a checklist of enquiries has to be made
to see which provisions of the NTA, if any, are engaged.

Assuming the relevant
subsidiary legislation has been enacted by the particular State or Territory
responsible for the act, the checklist of enquiries is as follows:

1 Did the act have
a racially discriminatory effect on native title rights?

2 If so, is the
consequence that the act is invalid by virtue of the RDA?

3 If it is an invalid
act, does it fall within the past act regime or the intermediate period
act regime?

4 Under either
validation regime, is the act covered by any exception. If not, is it
a Category A, B, C or D act? This categorisation will indicate whether
the effect of the act on native title rights is to completely extinguish
them, partial extinguish them or not extinguish them.

5 If the act is
not invalid, and is not covered by any relevant exception, does it fall
within the definition of a “previous exclusive possession act”
or “previous non-exclusive possession act” in the confirmation
of extinguishment provisions. The consequences are total extinguishment
or partial extinguishment respectively.

6 If the act does
not fall within the validation regimes or the confirmation of extinguishment
provisions, the effect of the act on native title rights would have
to be decided by the courts on general principles.

This could be represented
as follows:

Figure
2: The scheme of the validation / statutory extinguishment regime

Figure 2: The scheme of the validation / statutory extinguishment regime

Further reading

Australian Government
Solicitor Commentary on the Native Title Act 1993, Canberra.

Richard Bartlett
Native Title in Australia, Butterworths, Sydney, 2000, chapters
13-17.

Commonwealth of Australia
Native Title Amendment Bill 1997 Explanatory Memorandum, parts
2 and 3.

The Laws of Australia
Volume 1 Aborigines and Torres Strait Islanders; 1.3 Land Law; Chapter
3 Native Title Legislation, Part B; the Scheme of Native Title Legislation,
para. 95-117, Law Book Company, Sydney.


1
Mabo and or’s v Queensland (No 2)Mabo No 2’)
(1992) 175 CLR 1.

2
Mabo (No 2), op.cit., per Mason CJ and McHugh J at 15.

3
Wik Peoples v Queensland & o’rs (1996) 187 CLR 1.

4
Native Title Amendment Bill 1997 Explanatory Memorandum, chapter
4; House of Representatives Second Reading Speech, 4 September 1997 at
p 7886-7888. Native Title Act 1993 (Cwlth) (‘NTA’), Part
2 Division 2A.

5
NTA, Part 2 Division 2B.

6
ibid., Part 2 Division 2.

7
ibid., Part 2 Division 2A.

8
ibid., Part 2 Division 2B.

9
Note: for simplicity some ‘past acts”, like certain lease renewals,
that extend beyond 1994 have been omitted and likewise with ‘intermediate
period acts’: see ss228, 232A.. Also, some ‘future acts’
can occur on or after 1 July 1993: see s 233.

10
NTA, s228(2)(b) (in the definition of ‘past act’) and s232A(2)(c)
(in the definition of ‘intermediate period act’).

11
See for example discussion of this point in Western Australia v Ward
& o’rs
[2002] HCA 28 (8 August 2002) (‘Miriuwung Gajerrong’),
per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [98]-[135].

12
Racial Discrimination Act 1975 (Cwlth), s10(1).

13
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow &
Hayne JJ at [104]-[134].

14
Mabo v Queensland (1988) 166 CLR 186. Also see discussion in Miriuwung
Gajerrong
, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ
at [110]-[112].

15
Western Australia v The Commonwealth (1995) 183 CLR 373.

16
NTA, s15(1)(a) – (c), s19(1).

17
ibid., ss288, 229.

18
ibid., ss15(1)(c), 228, 230.

19
ibid., s15(1)(c).

20
ibid., ss15(1)(c), 228, 230.

21
ibid., ss15(1)(d), 238.

22
ibid., ss228, 231.

23
ibid., ss228, 232.

24
ibid., s229(3)(a) and s248.

25
ibid., ss15(1)(d), 232, 238.

26
ibid., s238.

27
ibid., ss229(3)(d)(i), 230(d)(i).

28
See NTA s22B (the effect of validation of intermediate period acts on
native title) and s232A (the definition of ‘intermediate period act’).

29
ibid., s232A(2)(e).

30
ibid., ss22B, 232B(3)(c), 248A.

31
ibid., ss17, 18, 20, 22D, 22E, 22G.

32
ibid., ss18, 22E, 51(1) – (2).

33
ibid., ss20, 22G, 51(3), 240 (the definition of the similar compensable
interest test). Note: strictly speaking the comparison is to ‘ordinary
title’ which is defined in section 253 to include leased land in
the Australian Capital Territory and the Jervis Bay Territory where residential
blocks are typically leasehold interests.

34
ibid., s51(4).

35
Fejo v Northern Territory (1998) 195 CLR 96.

36
NTA, op cit, ss23B, 23F.

37
ibid., s23B(2)(c)(ii)-(3).

38
ibid., s23B(2)(c)(iii)-(v). Compare s229.

39
ibid., ss23B(2)(c)(i), 249C and Schedule 1.

40
ibid., ss23B(2)(c)(vi).

41
ibid., s23B(3).

42
ibid., s251D.

43
ibid., ss23B(9) and 23B(9C).

44
ibid., s23B(9A).

45
ibid., s23J.

46
ibid., s23F.

47
For example, the relevant paragraph of s23G(1) states:
‘…(b) to the extent that the Act involves the grant of rights
and interests that are inconsistent with native title rights and interests
in relation to the land or waters covered by the lease concerned: (i)
if, apart from this Act, the Act extinguishes native title rights and
interests – the native title rights and interests are extinguished;
and (ii) in any other case – the native title rights and interests
are suspended while the lease concerned, or the lease as renewed, re-made,
re-granted or extended, is in force...’.

48
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow &
Hayne JJ at [4]-[13], [24], [41]-[45], [76], [190]-[195].

49
NTA, s23C.

50
ibid., s23B.

51
ibid., s23G.

52
ibid., s248B

53
ibid., s247B

54
ibid., s23F.

55
See NTA., ss19, 22F, 23E, 23I.

56
ibid., ss19, 22F, 23E, 23I.

57
See for example: Native Title Act 1994 (ACT); Native Title (New
South Wales) Act 1994
(NSW); Validation of Titles and Actions Act
1994
(NT); Native Title (Queensland) Act 1993 (Qld); Native
Title (Queensland) State Provisions Act 1998
(Qld); Native Title
(South Australia) Act 1994
(SA); Native Title (Tasmania) Act 1994
(Tas); Land Titles Validation Act 1994 (Vic); Titles (Validation)
and Native Title (Effect of Past Acts) Act 1995
(WA).

19
March 2003.