Editors --- "State Of Western Australia v. Commonwealth - Case Summary" [1996] AUIndigLawRpr 31; (1996) 1(1) Australian Indigenous Law Reporter 14

State Of Western Australia v. Commonwealth;

Wororra Peoples And Another v. State Of Western Australia;

Biljabu And Others v. State Of Western Australia

High Court of Australia (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ)

6-9, 12-15 September 1994, 16 March 1995, Canberra

Aborigines and Torres Strait Islanders -- Land rights -- Native title -- Commonwealth to recognise and protect native title -- State Act governing native title -- Validity of laws -- Inconsistency of State law -- (WA) Land (Titles and Traditional Usage) Act 1993 -- (CTH) Native Title Act 1993 -- (CTH) Racial Discrimination Act 1975 -- Commonwealth Constitution ss. 51(xxvi), 51(xxix), 107, 109.

Constitutional law -- State -- Colonial settlement -- Exercise of sovereign power -- Native title -- Survival of -- Extinguishment of.

Constitutional law -- Native title -- State Act governing native title -- Commonwealth Act to recognise and protect native title -- Commonwealth Racial Discrimination Act -- Inconsistency of State Act -- (WA) Land (Titles and Traditional Usage) Act 1993 -- (CTH) Native Title Act 1993 -- (CTH) Racial Discrimination Act 1975 -- Commonwealth Constitution s. 109.

Constitutional law -- Native title -- Validity of Commonwealth Native Title Act -- Consideration of scheme of Act -- Whether a law within races power -- Meaning of "special" in races power -- Requirement that a law be "deemed necessary" -- (CTH) Racial Discrimination Act 1975 -- Commonwealth Constitution
s. 51(xxvi).

Constitutional law -- Native title -- Validity of Commonwealth Native Title Act -- Whether provisions of Act purport to render State laws invalid -- Validity of administrative machinery -- Compensation provision --Whether States singled out for arbitrary financial burden -- Commonwealth Constitution s. 107 -- (CTH) Native Title Act (1993) s. 11.

Constitutional law -- Native title -- Validity of Commonwealth Native Title Act -- Implied limits on Commonwealth legislative power -- Whether Act discriminates against State -- Differential effect of the Act upon a State -- Whether Act is an impermissible interference with the capacity of the State to function as such -- Commonwealth Constitution -- (CTH) Native Title Act (1993).

Constitutional law -- Native title -- Amendments by Senate -- Want of conformity with Constitution s. 53 -- Justiciability of questions arising under s. 53 -- Commonwealth Constitution s. 53 -- (CTH) Native Title Act (1993).

Constitutional law -- Native title -- Validity of Commonwealth Native Title Act s. 12 -- Investing common law with force of law of Commonwealth -- Separation of powers -- Commonwealth Constitution ss. 51(xxvi), 51(xxix), 109 -- (CTH) Native Title Act (1993) s. 12.

Words and phrases -- "valid" -- "special" -- "necessary".

Background

In Mabo v. Queensland [No. 1] the High Court held that the enactment by the Commonwealth Parliament of the Racial Discrimination Act 1975 (Cth) limits the effect of an exercise of legislative or executive power by a State or Territory to extinguish native title. A bare legislative extinguishment of native title was held to be inconsistent with the Racial Discrimination Act and for that reason inoperative under s. 109 of the Constitution.

In 1992 in Mabo v. Queensland [No. 2], the High Court rejected the view that Australia was terra nullius at the time of European colonisation. The common law of Australia recognised a form of native title to which the radical title of the Crown was subject. Native title may be extinguished only by legislation or the alienation of land by the Crown or by the appropriation of the land by the Crown in a manner inconsistent with the continuation of native title.

On 27 October 1992, the Commonwealth Government announced a process of consultation with State and Territory governments, Aboriginal and Torres Strait Islander organisations and industry to discuss the implications of, and appropriate responses to, the High Court's decision.

The State of Western Australia contains large tracts of unalienated Crown land which may be claimed to be subject to native title. In 1993 the Parliament of Western Australia enacted the Land (Titles and Traditional Usage) Act 1993 (WA) (the `WA Act '). The WA Act purported to extinguish common law native title in Western Australia and replace it with statutory "rights of traditional usage".

The WA Act commenced operation on 2 December 1993. The Native Title Act 1993 (Cth) received Royal Assent on 24 December 1993 and its operative provisions commenced on 1 January 1994.

The Commonwealth Native Title Act

The Commonwealth Native Title Act provides for the recognition and protection of native title as recognised by the common law of Australia. It validates past acts by the Commonwealth which might otherwise have been invalid because of the existence of native title. It enables States and Territories to validate past acts attributable to them. It provides rights to compensation for the effects of validation of past acts on the rights of native title holders. The Act establishes federal processes, including a National Native Title Tribunal, for the determination of native title rights and of compensation for acts affecting native title. It also provides for the recognition of procedures established under State or Territory laws consistent with criteria prescribed in the Native Title Act. The Act further establishes a regime for the protection of native title rights in future dealings affecting native title land and waters ("future acts"). In the case of future acts other than low impact future acts, native title holders are entitled to the same procedural rights as the holders of freehold title. For certain future acts, relating amongst other things to mining proposals, the Act recognises an additional right of native title holders and claimants to negotiate, not a right to veto.

The WA Act

The WA Act contains prospective and retrospective provisions. Section 7, the key prospective provision, purports to extinguish native title to land that existed before its commencement and to replace the rights and entitlements that were the incidents of native title with statutory rights of traditional usage. Rights of traditional usage, or s. 7 rights, replace the rights and entitlements that were incidents of native title "unless this Act provides otherwise". Pursuant to s. 23, s. 7 rights are extinguished by, inter alia, legislative or executive action clearly and plainly intended to extinguish the rights or inconsistent with the continued existence of the rights. Pursuant to s. 17, executive action resulting in the extinguishment, suspension or impairment of s. 7 rights may be taken under the "general laws" of the State. These general laws include those amended by Schedule 1 to the WA Act, amongst others the Mining Act 1978 (WA), Land Act 1933 (WA), Petroleum Act 1967 (WA) and Public Works Act 1902 (WA).

Section 7(1) of the Land Act authorises the Governor to dispose of Crown lands, which include land subject to s. 7 rights. By reason of s. 23 of the WA Act, a simple exercise of the executive power of disposal under the Land Act can extinguish or impair s. 7 rights. The regime established under the Mining Act precludes the exercise of s. 7 rights when inconsistent with rights conferred by a mining tenement. Unless expressly reserved, s. 7 rights are extinguished by the grant of a mining lease. Amendments to the Petroleum Act follow the same pattern as the amendments to the Mining Act, except that the Minister for Mines is required to give notice to the Commissioner for Aboriginal Planning of applications for approval to carry out operations, other than exploration, on Crown land. The giving of notice sets in train objection and consultation procedures. In relation to s. 7 rights, power to "disapply" the objection and consultation procedures is inserted in the Act. Amendments to the Public Works Act by the WA Act establish a procedure for the taking of "prescribed land". This is defined to include Crown land, reserves and pastoral leases under the Land Act, and land held for the benefit and use of Aboriginal people. The procedure for taking "prescribed land" under the Public Works Act differs from the procedure for taking land owned or occupied by persons having an estate amounting to "title" in that land. In addition to the power to extinguish s. 7 rights by taking "prescribed land", s. 7 rights can be extinguished or suspended where the Minister administering the WA Act considers such extinguishment or suspension "to be necessary for any purpose for which land could be taken or resumed compulsorily under any written law".

The key retrospective provision of the WA Act is s. 5. Section 5 seeks to confirm retrospectively the validity of titles granted in the period between the commencement of the Racial Discrimination Act (31 October 1975) and the commencement of Parts 2 and 3 of the WA Act (2 December 1993). Section 5 excludes the application of s. 7 to rights and entitlements extinguished or impaired by the making of grants of title during that period.

Questions reserved

Constitutional challenges to the WA Act were filed in the High Court for the Wororra and Yawuru peoples and others and for Teddy Biljabu and others on behalf of the Martu people. The State of Western Australia filed a challenge to the Native Title Act. The Chief Justice heard submissions in all three matters and reserved questions for the opinion of the Full Court. Questions for determination included: whether native title in Western Australia survived the establishment of the Colony; whether native title in Western Australia was extinguished by the WA Act; whether the WA Act is invalid for inconsistency with the Racial Discrimination Act ; whether the WA Act is invalid for inconsistency with the Native Title Act ; whether the Native Title Act could be supported by powers conferred by s. 51(xxvi) (races power) or s. 51(xxix) (external affairs power) of the Constitution; whether in its impact on Western Australia the Native Title Act exceeds the limits of Commonwealth legislative power implicit in the federal structure of the Constitution.

Held (per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (Dawson J concurring)):

The Establishment of Western Australia: Was Native Title Extinguished?

(1) In determining whether the acquisition of the several parts of Australia by the British Crown extinguished the antecedent title of the Aboriginal inhabitants, it is presumed that no extinguishment was intended.

Mabo v. Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1, followed.

(2) To rebut the presumption, it is necessary to show at least that the Crown has manifested clearly and plainly an intention to extinguish all native title. It may be that stricter proof is required.

Mabo v. Queensland [No. 1] (1988) 166 CLR 186; Mabo v. Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1; re Southern Rhodesia [1919] AC 211, referred to.

(3) History reveals that those involved in the establishment of the British Colony of Western Australia knew that there were Aborigines who, by their law and customs, were entitled to possession of land within the territory to be acquired by the Crown and settled as a Colony.

(4) The facts revealed by the history of the establishment of Western Australia show only that it was intended to exercise the sovereign power of the Crown to grant land to immigrant settlers. No inference that the British Crown intended a general extinguishment of native title can be drawn.

(5) Once it is realised that the common law theory which underlies the acquisition of sovereignty in "settled" colonies at the time of settlement of Western Australia regarded the territory of a colony inhabited by indigenous people to be "desert uninhabited", an inference that the British Crown intended general extinguishment cannot be drawn. Extinguishment would have been an unnecessary step to take. The Crown's colonial policy was capable of being implemented without a general extinguishment of native title.

(6) There is no difference in point of law relating to native title between the establishment of the Colony of Western Australia and the establishment of the Colony of New South Wales.

Mabo v. Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1, referred to.

(7) Two consequences follow. First, since the establishment of the Colony, native title has been extinguished only parcel by parcel. Native title has been extinguished by the valid exercise of power either to grant interests in some of those parcels or to appropriate others of them for the use of the Crown inconsistently with the continuing right of the Aborigines to enjoy native title.

(8) Second, at the time the WA Act commenced operation, native title existed in Western Australia in respect of land where the continuing right of Aborigines to enjoy their native title was inconsistent neither with the grant of an interest nor with a valid appropriation of the land for the use of the Crown.

The WA Act and its Operation: Consistency with the Racial Discrimination Act

(9) Section 10(1) of the Racial Discrimination Act has a two-fold operation. First, it protects the enjoyment of traditional interests in land recognised by the common law by providing immunity from arbitrary deprivation of property. Second, if a State law provides that property held by members of the community generally may not be expropriated except for prescribed purposes or on prescribed conditions (including the payment of compensation), a State law which purports to authorise expropriation of property characteristically held by "the persons of a particular race" for purposes additional to those generally justifying expropriation or on less stringent conditions (including lesser compensation) is inconsistent with s. 10(1).

This two-fold operation ensures that Aborigines who are holders of native title have the same security of enjoyment of their traditional rights over or in respect of land as others who are holders of title granted by the Crown and that a State law which purports to diminish that security of enjoyment is, by virtue of s. 109 of the Constitution, invalid.

Mabo v. Queensland [No. 1] (1988) 166 CLR 186, followed.

-- Prospective Extinguishment and Impairment of Native Title: Section 7 Rights

(10) The Land Act 1933: The protection conferred on the holders of s. 7 rights under the Land Act is inconsistent with the protection conferred by the Racial Discrimination Act on the holders of native title and by the general law on the holders of other forms of title. By subjecting s. 7 rights to the qualification "unless this Act provides otherwise", the holders of s. 7 rights suffer a diminution in their human rights inconsistent with s. 10 of the Racial Discrimination Act.

(11) The Mining Act 1978: The protection of Aboriginal holders of s. 7 rights against liability to having their rights suspended or extinguished is significantly less than the protection against a similar liability given by the Mining Act to the holders of "title" to private land or an "occupier" of Crown land.

(12) The Petroleum Act 1967: The holders of s. 7 rights in respect of Crown land have lesser rights than the holders of title to private land.

(13) The Public Works Act 1902: Section 26 of the WA Act and the Public Works Act (as modified by the WA Act) deny to the Aboriginal holders of native title the same protection against compulsory acquisition as the protection by way of notice, the right to object and the right to proper consideration of objection which the law and judicial review accord to the holders of other forms of title.

(14) The rights of traditional usage created by s. 7 and qualified by subsequent sections of the WA Act fall substantially short of the rights and entitlements conferred by native title. No compensation is payable for the extinguishment of native title effected by the enactment of s. 7(1).

(15) A review of the WA Act reveals the comparative insecurity of s. 7 rights. The prospective operation of the WA Act, based on s. 7, is destroyed by the inconsistency between the qualification of s. 7 rights effected by the various provisions of the WA Act and s. 10(1) of the Racial Discrimination Act.

-- Retrospective Extinguishment and Impairment of Native Title: Section 5 of the WA Act

(16) The retrospective operation of the WA Act based on s. 5 is not inconsistent with the Racial Discrimination Act in equating the compensation payable to native title holders to the compensation payable to holders of other forms of title. However, the validity (for the purposes of s. 109 of the Constitution) of the retrospective extinguishment or impairment of native title by s. 5 is not established merely by the conferring of a present right to compensation.

(17) Section 5 of the WA Act is not invalid, in the sense that it is beyond legislative power, but it is ineffective and without legal operation.

(18) On one hypothesis, s. 5 did not have the effect of extinguishing or impairing native title because of prior valid extinguishment or impairment by State law. Section 5, by its own terms, had no legal effect on native title.

(19) On a second hypothesis, the acts purporting to extinguish or impair native title were authorised by laws inconsistent with the Racial Discrimination Act at the time when the acts were done. By reason of s. 109 of the Constitution, s. 5 is denied any effect upon the native title which those acts purported, but purported ineffectively, to extinguish or impair.

The Native Title Act: Its Constitutional Character

(20) As a result of the survival of native title upon the establishment of the Colony of Western Australia and the failure of the WA Act in its purpose of extinguishing native title, native title survived, or was capable of surviving, in Western Australia as at 1 January 1994, the date of commencement of operation of the substantive provisions of the Native Title Act.

(21) Three aspects of the Native Title Act are of central importance to its constitutional character: the recognition and protection of native title, the giving of full force and effect to past acts which might not otherwise have been effective to extinguish or impair native title, and the giving of full force and effect to future acts which might not otherwise be effective to extinguish or impair native title.

(22) The races power in s. 51(xxvi) of the Constitution, unlike the aliens and corporations powers, is not expressed to be a power to make laws simply with respect to persons of a designated character. It must be "deemed necessary" that "special laws" be made for "the people of any race".

(23) The removal of the common law general defeasibility of native title by the Native Title Act is sufficient to demonstrate that the Parliament could properly have deemed that Act to be "necessary" under s. 51(xxvi) of the Constitution.

Koowarta v. Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, referred to.

(24) The "special" quality of a law (as that term is used in s. 51 (xxvi)) must be ascertained by reference to its differential operation upon the people of a particular race, not by reference to the circumstances which led the Parliament to deem it necessary to enact the law. A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race. The law may be special even when it confers a benefit generally, providing the benefit is of special significance or importance to the people of a particular race.

Commonwealth v. Tasmania [1983] HCA 21; (1983) 158 CLR 1, followed.

(25) The Native Title Act is "special" in that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title a benefit protective of native title. Whether it was "necessary" to enact the law was a matter for Parliament to decide and, in the light of Mabo [No. 2], there are no grounds on which the Court could review Parliament's decision, assuming it had power to do so.

(26) The Native Title Act is thus supported by the races power (subject to relevant constitutional implications) and it is unnecessary to consider whether it is also supported by the external affairs power.

Validity of Impugned Key Provisions of the Native Title Act

-- Implied Constitutional Limitations: Control of the Legislative Powers of the State

(27) The impugned provisions of the Native Title Act are not invalid in that they purport to control the legislative powers of the State or purport directly to render State laws invalid, contrary to s. 107 of the Constitution.

(28) As a law of the Commonwealth protecting native title from extinguishment, s. 11(1) is valid as a law supported by the races power (s. 51(xxvi) of the Constitution). It is within the powers of Parliament to prescribe the areas within which other laws may operate to affect the regime of protection prima facie prescribed by s. 11(1).

(29) 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 available. Thus, notwithstanding the prima facie protection of native title from extinguishing acts in s. 11(1), ss. 11(2) and 19 define the boundaries of areas within which States and Territories may operate to validate past acts.

(30) Sections 22, 23, 26, 28 and 43 prescribe criteria to be satisfied by State or Territory laws operating within the area relating to future acts left to them by the Native Title Act. These provisions are, for the most part, merely regulatory. The provisions prescribing the procedure to be followed and the conditions to be satisfied simply define the scope of certain exceptions to the general protection of native title declared by s. 11(1). They do not purport to impose upon a State Parliament or other "Government party" any positive obligation or duty to do anything or to follow particular procedures.

(31) Section 211 of the Native Title Act addresses usufructuary rights and interests such as hunting, fishing and gathering which are the incidents of native title. The effect of s. 211 is not to control the exercise of State legislative power but to exclude laws made in the exercise of that power (inter alia) from affecting the freedom of native title holders to enjoy the usufructuary rights referred to in s. 211.

(32) Sections 20 and 23 do not simply create exceptions to the protection cast over native title by s. 11(1) but impose upon States and Territories an obligation to pay compensation to native title holders for the extinguishment or impairment of native title, either through validation of past acts or permissible future acts attributable to them. These provisions do not single out the States for the imposition of an arbitrary financial burden. The compensation provisions apply to each of the polities -- Commonwealth, States and Territories -- which may exercise their legislative or executive powers as to effect a divestiture of native title in accordance with the provisions of the Act.

-- Impermissible Discrimination against Western Australia and Impermissible Impairment of the Ability of Western Australia to Function as a State

(33) To exercise the races power (s. 51(xxvi)) to make a law which protects native title from extinguishment or impairment it is necessary to control the exercise by other repositories of the power to extinguish or impair native title. As extinguishment or impairment can be effected at common law only by or pursuant to a law enacted by a competent legislature, the races power must extend to the support of a law which excludes, wholly or in part, a State law from operating to affect native title. The power cannot be limited by an implication which exempts the States from the application of such a law without denying what is at the heart of s. 51(xxvi) so far as it may be exercised for the benefit of the people of the indigenous races of Australia. The Native Title Act, being supported by that provision, cannot be held to discriminate impermissibly in its application to the State of Western Australia or in its application to the States and Territories as a whole.

(34) The differential effect of the Native Title Act on Western Australia arises because history and geography have combined in creating in Western Australia a greater area and proportion of land which might be subject to native title than the area or proportion of such land in other parts of the Commonwealth. Although of practical importance, that difference does not indicate impermissible discrimination in the application of the Native Title Act.

(35) The Native Title Act does not constitute an impermissible interference with the capacity of Western Australia to function as a government. Complications of government administration and delay in the making of administrative decisions do not constitute impermissible interference with the capacity of the Government to function as such. For constitutional purposes, the relevant question is not whether State powers are effectively restricted or their exercise made more complex or subjected to delaying procedures by the Commonwealth law. The relevant question is whether the Commonwealth law affects the "existence and nature" of the State body politic.

Melbourne Corporation v. The Commonwealth [1947] HCA 26; (1947) 74 CLR 31, followed.

(36) Practical difficulty in the administration of WA legislation governing land, minerals and the pipeline transportation of petroleum products is attributable to the realisation that land subject to native title is not the unburdened property of the State to use or to dispose of as though it were the unburdened owner. The notion that the waste lands of the Crown could be administered as the "patrimony of the nation" and that the traditional rights of native title holders could be ignored was said to be erroneous in Mabo [No. 2].

(37) The Native Title Act places the burden of paying compensation on just terms on the exercise of an essential State power, but it does so as the incident of the protection of native title. In other words, s. 51(xxvi) confers power to enact a law that entitles the holder of native title to compensation for the extinguishment or impairment of the holder's rights and interests and the State, in common with any other authority which is capable of extinguishing native title, may be required to pay that compensation. Section 51(xxvi) is not impliedly limited so as to preclude the Commonwealth from protecting the holders of native title in this way.

Submission of Invalidity Based on Constitution s. 53

(38) Section 53 of the Constitution is a procedural provision governing the intramural activities of the Parliament. The Court does not interfere in such activities. A failure to comply with the dictates of a procedural provision is non-justiciable and does not give rise to invalidity.

Northern Suburbs Cemetery Reserve Trust v. Commonwealth (1993) 176 CLR 155, followed.

(39) In any event, none of the Senate amendments appear to increase a "charge or burden on the people" in non-conformity with s. 53.

The Operation of s. 7 of the Native Title Act

(40) Section 7(1) of the Native Title Act provides no basis for interpreting that Act as subject to the Racial Discrimination Act. In the first place, it is difficult to detect any inconsistency between the two Acts. Were there any discrepancy in the operation of the two Acts, the Native Title Act could be regarded either as a special measure under s. 8 of the Racial Discrimination Act or as law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the International Convention on the Elimination of All Forms of Racial Discrimination. Further, even if the Racial Discrimination Act contains provisions inconsistent with the Native Title Act, both Acts emanate from the same legislature and must be construed so as to avoid absurdity and to give each provision a scope for operation. The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. It is only to that extent that, having regard to s. 7(1), the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act.

The Validity of s. 12 of the Native Title Act

(41) If s. 12 of the Native Title Act is construed as an attempt to make the common law a law of the Commonwealth, the attempt encounters constitutional obstacles. It is invalid either because it attempts to confer legislative power upon the judicial branch of government or because the common law relating to native title finds no constitutional support in s. 51(xxvi) or s. 51(xxiv).

(42) Section 12 does not in terms enact the common law as a law of the Commonwealth. It simply attempts to engage s. 109 of the Constitution in order to make the common law immune from affection by a valid State law. But it is of the nature of common law and of legislative power that the common law is subject to affection by exercise of legislative power. When s. 109 is engaged, it does not diminish the legislative power of the State which has enacted the inconsistent law. Rather, s. 109 operates only upon State laws that have been made in exercise of the legislative powers of the States confirmed by s. 107. If s. 12 were to result in the withdrawal from Parliaments of the States of an effective legislative power to override the common law, it would have diminished the legislative power confirmed by s. 107 of the Constitution. That it cannot do.

(43) Section 12 is invalid but its invalidity does not affect the invalidity of any other provision of the Native Title Act.

The decision is reported in [1995] HCA 47; (1995) 128 ALR 1; 69 ALJR 309.

See also [1995] AboriginalLawB 25; (1995) 3(73) Aboriginal Law Bulletin 4; (1995) 3(73) Aboriginal Law Bulletin 8.