The implications of statutory extinguishment: Some questions and answers
- What is the Racial Discrimination Act?
- What is native title?
- What is a pastoral lease?
- What did the Wik decision say?
- What is statutory extinguishment?
- Does the NTA say anything about extinguishment of native title on pastoral leases?
- Would Commonwealth legislation to extinguish native title be inconsistent with the RDA?
- Would such legislation breach Australia’s international human rights obligations?
- Can the Commonwealth override the RDA?
- If legislation which extinguishes native title is found to be based on a valid exercise of the Commonwealth’s power, are there other legal problems which the Commonwealth could face?
- Why would compensation payouts be necessary in such a case?
- Do states and territories have a similar constitutional obligation to provide compensation on just terms?
- Why can’t the state and territories currently legislate to extinguish native title?
- Could the Commonwealth allow the states and territories to pass legislation which overrides native title?
- What is ‘effective’ extinguishment?
- Could such an option be discriminatory?
The response to the High Court’s Wik decision has given rise to intense discussions about the Racial Discrimination Act 1975 (RDA), the Australian Constitution and the future of native title, among other things.
The issues are complex and their significance is far reaching.
The Australian Human Rights Commission administers the RDA. Its functions under s 20(1) of the RDA include promoting an understanding and acceptance of the Act and compliance with its provisions. Its functions under ss 11(1) and 46C(1) of the Human Rights and Equal Opportunity Commission Act 1986 include promoting the public discussion of human rights in Australia, specifically in relation to Aboriginal persons and Torres Strait Islanders.
In light of our statutory obligations and in response to many requests for information on this important issue, the Commission has produced this question and answer document. We attempt to provide some accessible background information on some of the key issues raised in the current discussion and their relationship to each other.
The Racial Discrimination Act (RDA) is a federal anti-discrimination statute passed in 1975. The Act makes discrimination on the basis of race, colour, descent or national or ethnic origin unlawful and is designed to protect the rights of all Australians. The Act binds state and federal governments.
In the Mabo decision, the High Court held that the common law of Australia recognises a form of native title to land. The Court rejected the doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement. Pre-existing rights to land survived colonisation and still survive today in certain circumstances.
The High Court did not discover a new form of title. It recognised property rights which Aboriginal and Torres Strait Islander people have always possessed.
Native title exists in accordance with the laws and customs of Indigenous people:
- where they have maintained their connection with the land and/or waters; and
- where their title has not been ‘extinguished’ by legislation or any action of a government which shows a clear and plain intention inconsistent with the continued exercise of native title rights. The High Court did not comprehensively outline all such circumstances in which native title is extinguished.
The Native Title Act 1993 (NTA) effectively came into operation on 1 January 1994, and incorporates the common law native title rights which were recognised in the Mabo case in 1992.
A pastoral lease generally allows the use of Crown land for pastoral and other related purposes. Pastoral purposes include raising livestock, establishing fences, bores and accommodation. A pastoralist’s rights and obligations are set out in the lease and relevant statute, which may differ from state to state. For instance, in Western Australia, a pastoralist does not have general rights to soil and timber on the leased land, but can use these resources for roads, buildings and other improvements on the land, consistent with the pastoral purposes of the lease. In Queensland, a pastoralist is subject to rights granted under mining, petroleum and forestry legislation, and the Government has the power to allow non-pastoralists to enter the land. A pastoral lease may also be subject to statutory access rights of Aboriginal people.
In Wik, a majority of the High Court held that the granting of a pastoral lease did not necessarily extinguish all native title rights, because:
- the statutes creating pastoral leases in Queensland did not reveal an intention to extinguish native title;
- pastoral leases did not give exclusive possession to pastoralists;
- native title rights could continue at the same time that the land was subject to a pastoral lease - that is, there was no necessary inconsistency.
Where there is no inconsistency between the rights and interests of native title holders and those of pastoral lease holders, the two sets of rights may co-exist. Where the rights are inconsistent, the Wik decision clearly states that native title rights are subordinate to those of the pastoral lease holder.
The Wik decision has led to calls from some quarters for legislation which extinguishes native title on pastoral leases.
Generally this term refers to the use of legislation to take away all the property rights of native title holders.
When the NTA was enacted in 1993, it was unclear whether the grant of a pastoral lease extinguished native title. It was agreed that legislation should not pre-empt the common law and that the issue should be settled by the courts. At that time the Wik litigation was already on foot.
The express terms of the NTA do not exclude pastoral lease land from the scope of its provisions.
- If extinguishment of native title was clear on such lands, then the NTA would have excluded claims on these areas.
- The NTA explicitly provides for the renewal, re-grant or extension of pastoral and agricultural leases without reference to native title holders. Some National Party politicians crossed the floor to vote with the previous government to ensure that this clause was passed. If native title was extinguished by the grant of a pastoral lease, there would be no need to give legislative permission for the renewal, re-grant or extension of these leases.
Section 10 of the RDA provides for equality before the law for people of all races.
Enacting legislation to extinguish native title would detrimentally affect the property rights of one group of Australians. It involves a distinction that is based on race, in that the property interests sought to be extinguished are only held by Indigenous peoples. It would thus be inconsistent with provisions of the RDA. Such action would impair the rights of Indigenous people to own property and would result in the deprivation of their property.
It could be argued that such legislation would contravene Australia’s international obligations under the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). One hundred and forty eight nations are parties to CERD, including most of Australia’s significant trading partners. This reflects the near-universal acceptance of the Convention, which requires observance of human rights and fundamental freedoms without regard to race, and reflects the readiness of nations to comply with its provisions.
If the international obligations embodied in the RDA are breached, Australia could be open to international scrutiny if a "complaint" were pursued in the international arena to United Nations’ treaty committees (the CERD Committee or the Human Rights Committee).
The principle of parliamentary sovereignty means that the Commonwealth Parliament may pass subsequent legislation which overrides previous legislation. According to this principle, an amendment to the NTA (or indeed any other legislation) which is clearly inconsistent with the RDA overrides the latter. Such legislation would be inconsistent with the principles of the RDA but would not necessarily be invalid for this reason alone. There is no domestic remedy against the Commonwealth for legislating inconsistently with the RDA, although "remedies" may be pursued at the international level.
Despite this, statutory extinguishment does not have the appeal of certainty and simplicity. There are a number of constitutional arguments which may be raised in the High Court by Indigenous people to challenge Commonwealth legislation which extinguishes native title. These arguments relate to the external affairs power, the races power and any implied guarantee of equality before the law under the Commonwealth Constitution. Such litigation may mean continuing uncertainty.
If legislation which extinguishes native title is found to be based on a valid exercise of the Commonwealth’s power, are there other legal problems which the Commonwealth could face?
Potential legal problems are best summarised in the Government’s discussion paper, Towards a more workable Native Title Act (May 1996), at page 12 (emphasis added):
"The Government’s advice is that if native title has survived the valid grant of a pastoral lease, then its blanket extinguishment by the Commonwealth would probably be regarded as inconsistent with the principles of the RDA. In addition such extinguishment would, in all likelihood, involve an acquisition of property rights and thus require the Commonwealth to provide just terms compensation. Failure to do so could lead to the legislation being held to be invalid. Even if the Commonwealth legislation provided for just terms compensation (and it could be of a substantial amount), there are a number of other legal arguments available to indigenous interests. The ensuing litigation would pre-empt the certainty sought by the proponents of the legislative extinguishment option, possibly for a long period."
Section 51(xxxi) of the Commonwealth Constitution provides that the Commonwealth Parliament has the power to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws". This means that the Commonwealth is subject to a constitutional obligation to provide compensation on just terms for any compulsory acquisition of property, although the landowners cannot prevent such an acquisition.
This constitutional provision reflects the importance our legal system has attached to the protection of property rights against government interference without just compensation.
Legislation which extinguishes native title would raise the potential for compensation payments to those Indigenous peoples who could establish native title. Determining the entitlement of native title holders to compensation may be difficult and could give rise to continuing uncertainty.
Do states and territories have a similar constitutional obligation to provide compensation on just terms?
There is no constitutional obligation on state governments to provide compensation for the acquisition of property (although there is debate about whether there is an obligation on territories to provide such compensation).
If the states tried to pass legislation which extinguished native title on pastoral leases, this would contravene section 10 of the RDA. In combination with section 109 of the Constitution (which makes state legislation which is inconsistent with federal legislation invalid to the extent of the inconsistency), the state laws would be invalid.
In the past, this section has rendered invalid attempts by state governments to extinguish native title rights. For instance, in Mabo v Queensland (No 1), the High Court held that the Queensland Coast Islands Declaratory Act 1985 was invalid because it was inconsistent with the RDA. The Queensland Act purported to retrospectively abolish any rights and interests that the Meriam people may have had to the Murray Islands under native title. It thus discriminated on the basis of race in relation to the human rights to own and not to be arbitrarily deprived of property, and to enjoy equality before the law. The state law was inconsistent with the RDA, and inoperative by virtue of section 109 of the Constitution.
This conclusion was relied upon by the High Court when upholding challenges based on the RDA to the validity of the Western Australian Land (Titles and Traditional Usage) Act 1993 in Western Australia v Commonwealth. This Act purported to extinguish native title in WA, substituting "rights of traditional usage" as a form of statutory title, subordinate to most other interests.
Unilateral action by the states or territories would also constitute an "impermissible future act" under the Native Title Act, and would be invalid on this basis.
Could the Commonwealth allow the states and territories to pass legislation which overrides native title?
The only way that the states and territories could effect a valid extinguishment of native title is if the Commonwealth legislated to suspend the operation of the RDA and NTA for the purposes of the relevant state and territory legislation. However, it could be argued that such legislative action by the Commonwealth would be a law with respect to the acquisition of property and would therefore require the payment of compensation on ‘just terms’: Magennis v Commonwealth (1949) 80 CLR 382.
One set of the options that has been canvassed includes the following:
- increasing the scope of activities which may be conducted under pastoral leases;
- giving access rights only to those native title claimants who can meet a test of ‘actual physical connection’ to pastoral lease land;
- removing the statutory ‘right to negotiate’ from pastoral lease land;
- validating potentially invalid mining titles which have been issued over pastoral land since the commencement of the NTA without following the Act’s procedures.
It could be argued that such an option would combine to remove native title rights on pastoral lease land, that is, produce effective extinguishment if not actual extinguishment. This in turn could trigger the consequences as regards the RDA, the Constitution and Australia’s international obligations which are discussed above.
Allowing the expansion of interests in land held by pastoralists at the expense of the pre-existing property rights of native title holders, while not countenancing any such expansion of one group’s rights to the detriment of another group in any other case, could be an act of racial discrimination.
The NTA contains a ‘future acts regime’ which is specifically designed to ensure that grants of interests in land are made in a non-discriminatory way, by ensuring that procedural protections are provided to native title holders whose property rights may be affected by such grants. This regime came into effect on 1 January 1994. Any validation of grants of interests in land since that date which have ignored the requirements of the NTA, may impair native title holders’ property rights, and thus may be discriminatory.
ATSIC, A plain English guide to the Wik case, January 1997.
Commonwealth of Australia, Towards a more workable Native Title Act: An Outline of proposed amendments, May 1996.
Mabo v Queensland (No 1) (1988) 166 CLR 186.
Magennis v Commonwealth (1949) 80 CLR 382.
Western Australia v Commonwealth (1995) 128 ALR 1.
Wik v Queensland (1997) 141 ALR 129.