Australian Indigenous Law Reporter
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Reporter |
|
Federal Court of Australia (Sackville J)
31 March 2006
Native title — application seeking determination of compensation claim for extinguishment of native title over Town of Yulara (Application Area) — whether native title rights and interests extinguished by construction of public works (‘compensation acts’) — whether applicants established native title rights and interests existed over Application Area at time compensation acts occurred — whether evidence indicated pleaded laws and customs were those of Western Desert Bloc — consideration of discriminatory effect of Crown grants — particular native title interests not established — application dismissed — Native Title Act 1993 (Cth) — Validation (Native Title) Act (NT) — s 10(1) Racial Discrimination Act 1975 (Cth).
The Applicants, on behalf of the members of a ‘compensation claim group’ comprising almost exclusively Yankunytjatjara or Pitjantjatjara people, sought a determination of compensation as the result of extinguishment of native title over land under the Native Title Act 1993 (Cth) (NTA).
The land in respect of which compensation was claimed (‘the Application Area’) was the Town of Yulara in the Northern Territory. The Application Area incorporated the popular Yulara Tourist Village and Connellan Airport, which made it an integral point of access to accommodation and other services for tourists who visit Ayers Rock (Uluru) and the Olgas (Kata Tjurta).
The applicants submitted that members of the compensation claim group held native title rights and interests in the Application Area as defined in s 223(1) of the NTA, over the Application Area under the traditional laws and customs of the Western Desert bloc.
According to the applicants, native title existed from the time the Crown asserted sovereignty over the eastern Western Desert in 1824, until the remaining native title rights and interests were extinguished by certain ‘compensation acts’ that occurred over the period 1979 to 1992. Subsequently, the applicants submitted that, because their rights and interests were extinguished by the ‘compensation acts’, the Northern Territory was liable under the NTA to pay the group compensation.
It was agreed that prior to 1979, only two pastoral leases granted over the land in the late nineteenth century could have extinguished any pre-existing native title rights and interests over the Application Area. But it was agreed that the pastoral leases left most native title rights and interests unaffected.
The applicants claimed the ‘compensation acts’ which extinguished native title included grants of freehold and leasehold estates over some lots on the Application Area and the construction of public works, namely Connellan Airport, certain roads and a series of water bores.
The applicants submitted that the native title rights and interests were not necessarily extinguished at the time the compensation acts took place, but that extinguishment was a result of the operation of provisions of the NTA and corresponding provisions of the Validation (Native Title) Act (NT).
According to the applicants, native title over the Application Area was finally extinguished on 10 March 1994, the date the Validation Act came into force. The selection of this date meant that if the applicants’ arguments were accepted, members of the compensation claim group would be entitled to compensation for the value of improvements that were erected on the land before 1994, including Connellan Airport.
The respondents, the Northern Territory and the Commonwealth submitted that based on the evidence, the applicants had not established that members of the compensation claim group held traditional native title rights or interests in the Application Area at the times the compensation acts occurred.
The respondents argued that based on the case actually pleaded in the Points of Claim and to which the applicants expressly adhered in final submissions, the applicants failed to establish that members of the compensation claim group acknowledged and observed the particular laws and customs pleaded in the Points of Claim.
The respondents submitted that the laws and customs pleaded by the applicants were not shown to be the traditional laws and customs of the Western Desert bloc for the purposes of s 223(1) of the NTA. Accordingly, the applicants had not made out an essential element of their claim to compensation.
1. The applicants had not shown that the Indigenous witnesses, or members of the compensation claim group, acknowledged and observed the laws and customs of the Western Desert bloc as pleaded in the Points of Claim: [408], [409], [440].
2. This finding did not necessarily imply that none of the Indigenous witnesses could make out a case that he or she was ngurraritja (traditional owner) for sites in the Uluru-Kata Tjurta area under laws and customs currently observed by people of the Western Desert. The finding is that the applicants did not establish the adherence to the particular laws and customs that they chose to plead and to rely on when presenting their case: [450].
3. Any laws and customs relating to rights and interest in land that may have been acknowledged and observed by the Aboriginal witnesses were not the traditional laws and customs observed and acknowledged by people of the Western Desert at sovereignty, within the meaning of s 223(1) of the NTA. In particular, the traditional laws and customs of the Western Desert bloc followed a principle of patrilineal descent, which was largely absent from the practices described in the evidence: [452], [460], [461], [497]–[507].
4. Had the applicants succeeded on the threshold question, all the native title rights and interests of members of the compensation claim group would not have been validly extinguished prior to the compensation acts taking place, although some interests would have been extinguished by the pastoral leases granted in the nineteenth century.
5. The executive power of the Northern Territory Government to construct public works does not extend to a capacity to construct public works that extinguish native title rights. The Northern Territory (Self-Government) Act 1978 (Cth) and regulations must be read down, consistently with the Racial Discrimination Act 1975 (Cth), to avert that discriminatory possibility: [731]–[733].
6. The registration of fee simple grants over the Application Area under the Real Property Act 1886 (SA) did not, through the Act’s indefeasibility provisions, extinguish subsisting native title rights. Registration of a fee simple grant denied native title holders security of title equal to that enjoyed by holders of other interests. Section 10(1) of the Racial Discrimination Act 1975 (Cth) prevented the registration of grants under the Real Property Act from extinguishing any surviving native title rights in the Application Area: [697]–[705].
7. On the assumption that the applicants succeeded on the threshold question, the rejection of the Commonwealth’s arguments of total extinguishment before the NTA came into force meant that at least some members of the compensation claim group would have been entitled to compensation: [783], [784], [790].
8. However, contrary to the applicants’ submissions, any such entitlement would have arisen at the time major construction works on the Application Area commenced. Therefore any compensation granted would not have included the value of any buildings or works subsequently completed on the Application Area: [785].
9. These conclusions did not mean none of the applicants or members of the compensation claim group could have established the existence of native title rights and interests over the Yulara Block before the compensation acts occurred, had their case been conducted differently. However, the court must consider the actual case presented by the Applicants. The court was not entitled to consider an alternative or different case that the applicants might conceivably have advanced, perhaps on behalf of a smaller group of people: [791].
10. The applicants did not establish that the Territory was liable to pay compensation to any member of the compensation claim group. The application was therefore dismissed: [793].
[Because he found that as a group the applicants had not established their claim, as pleaded, to be native title holders for the Application Area, Sackville J was not required to deal with the effect of the compensation acts on subsisting native title rights and interests. He decided, however, to do so:]
…
572. The question of extinguishment of native title rights and interests in respect of the Application Area arises only if the applicants establish that members of the compensation claim group had such rights and interests at the date or dates on which the compensation acts occurred. I have found that the applicants have not established that members of the compensation claim group had rights and interests in the Application Area under the traditional laws and customs of the Western Desert, as pleaded in the Points of Claim. Therefore the effect of the compensation acts on subsisting native title rights and interests is not an issue that need be examined in the present proceedings.
573. Nonetheless, the issue has been argued at some length before me. For that reason and in case the matter goes further, it is appropriate to address the novel questions that have been addressed by the parties. First, however, it is necessary to outline the transactions and actions that affected the Application Area from the date the Town of Yulara was proclaimed.
…
[The Commonwealth submitted that the Northern Territory Government had the authority to validly extinguish native title without compensation by undertaking public works such as the Connellan Airport. The Commonwealth said that neither the Racial Discrimination Act 1975 (Cth) nor s 50(1) of the Northern Territory (Self-Government) Act 1978 (Cth) (which prevents the Legislative Assembly from making laws with respect to the acquisition of property on other than just terms) diminished the executive capacity of the Territory Government in this respect. Sackville J rejected this argument:]
715. There is a good deal of common ground among the parties. First, the respondents accept the applicants’ contention that the Self-Government Act (an enactment of the Commonwealth Parliament) must be read consistently with the RD Act (an earlier enactment of the Commonwealth Parliament). This concession reflects the principle of construction stated by Gaudron J in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1, at 17:
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.
716. Secondly, s 10(1) of the RD Act continues to speak in respect of Territory laws after the Self-Government Act came into force. This is because s 57 of the Self-Government Act excludes from the power of alteration conferred on the Territory any Commonwealth enactment in force immediately before the commencement of the Self-Government Act: Ward (HC), at [130]–[133].
717. Thirdly, the parties agree that acts done by the Executive of the Territory before the NTA came into force could extinguish native title rights and interests over land. Extinguishment would occur if the acts were validly done pursuant to statutory authority and involved an assertion of powers over the land inconsistent with the continued existence of some or all of the surviving native title rights and interests: Ward (HC), at [26], [151], [214].
718. Fourthly, the executive power of the Territory extends to the construction of an airport and other public works on Crown land. The applicants identify the source of authority as reg 4(1) of the Self-Government Regulations, insofar as it confers authority on Ministers to carry out ‘public works’. I do not understand the respondents to dissent from this view.
719. Fifthly, all parties accept that the construction of Connellan Airport on what was then Crown land, if done pursuant to statutory authority, involved an assertion by the Territory of rights in respect of land, or powers over land, inconsistent with any then existing native title rights and interests. Assuming the acts undertaken by the Minister were valid, the construction of Connellan Airport resulted in the Territory taking ‘full title or plenum dominium’ to the land (Ward (HC), at [151]), thereby extinguishing all native title rights and interests over that land.
720. Sixthly, the parties accept that, for the same reason, the construction of the bores and the Lasseter Highway would have had the same extinguishing effect on any surviving native title rights and interests over the areas of land on which those Public Works were constructed.
721. The present case does not involve an inconsistency, or alleged inconsistency, between s 10(1) of the RD Act and a law of the Territory. The applicants’ contention is that although the Territory has executive power under the Self-Government Regulations to construct public works, that power does not include the construction of public works that would extinguish native title rights and interests. They say that if the power did extend that far, the Self-Government Regulations would effectively authorise the imposition of a discriminatory burden on the holders of native title rights and interests. A purported conferral of power of this breadth would be inconsistent with s 10(1) of the RD Act and so the Self-Government Regulations must be read down so as not to include such a power.
722. The executive power of the Territory flows from ss 31 and 35 of the Self-Government Act and from sub-regs 4(1) and (5) of the Self-Government Regulations promulgated pursuant to the regulation-making power conferred by s 35. The matters in respect of which the Territory has executive power include ‘land’ and ‘public works’. As the parties agree, in the absence of any issue arising by reason of Commonwealth legislation such as the RD Act, the executive power of the Territory extends to the construction of ‘public works’ on Crown land. There is no dispute that the construction of Connellan Airport, the bores and Roads on the Application Area constitute ‘public works’ for the purposes of reg 4(1) of the Self-Government Regulations.
723. The executive power of the Territory is, however, subject to two limitations relevant to the present case, although in practice their effect may be co-extensive.
724. First, as the respondents accept, the Self-Government Act must be read so as to operate consistently with the RD Act, an earlier enactment of the Commonwealth Parliament. Thus the Self-Government Act cannot be read as authorising the exercise by the Territory of legislative or executive powers that would impair the security of enjoyment of native title rights and interests to a greater extent than other forms of title. To do otherwise would be to allow the Self-Government Act to operate in a manner inconsistent with s 10(1) of the RD Act.
725. Secondly, reg 4(4) of the Self-Government Regulations specifically states that the matters specified in reg 4(1) as the subjects of executive authority are to be construed as subject to the provisions not only of the Self-Government Act, but of any other Act in force in the Territory. This includes the RD Act. The express intent of reg 4(4) is that any matters identified in subreg (1) are not to be read as inconsistent with the provisions of other Commonwealth enactments. It follows, for example, that reg 4(1), insofar as it authorises a Territory Minister to undertake ‘public works’, cannot be read as authorising activities that would be inconsistent with s 10(1) of the RD Act.
726. But for s 10(1) of the RD Act, the construction of the Public Works on the Application Area would have extinguished surviving native title rights and interests. The Public Works would have been carried out by or on behalf of the Territory Ministers pursuant to the authority conferred by reg 4(1) of the Self-Government Regulations. As I have noted, it is common ground that the construction of the Public Works involved an assertion of rights or powers over the areas on which the Public Works were constructed that was inconsistent with then existing native title rights and interests. The consequence is that those rights and interests would have been extinguished without the native title holders having any entitlement to compensation. This result reflects the vulnerability of native title under the general law to extinguishment by legislation or by the lawful actions of the executive.
727. Unlike the legislation considered in Ward (HC) in relation to the Keep River National Park, reg 4(1) of the Self-Government Regulations is not confined to authorising activities on Crown land, much less unleased Crown lands. The Ministerial power to carry out public works is not, in terms, confined to any particular type of landholding. Even so, but for s 10(1) of the RD Act, reg 4(1), on its proper construction, would have had the practical operation and effect, prior to the enactment of the NTA, of discriminating against native title holders.
728. To see why this is so, it is necessary to consider the scope of the general powers conferred by ss 31 and 35 of the Self-Government Act and reg 4(1) of the Self-Government Regulations. In particular, it is necessary to consider whether these provisions would have been construed to authorise the construction of public works on freehold or leasehold land in the Territory, regardless of the consent of the freeholder or leaseholder and without providing adequate compensation for any interference with their property rights. The answer to this question depends upon the application of well-established principles of statutory construction.
729. In one of its earliest decisions, the High Court applied a longstanding rule of construction that statutes ‘are not to be construed as interfering with vested interests unless that intention is manifest’: Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363, at 373, per Griffith CJ. In that case, the High Court held that a person who had a mere possessory interest in land, having entered as a trespasser, nonetheless had a statutory right to compensation upon the land being resumed. The principle stated in Clissold v Perry has subsequently been applied in many cases. As Professors Pearce and Geddes point out (Statutory Interpretation in Australia (5th ed, 2001), at [515]–[517]), the principle has two aspects. Legislation is presumed not to authorise the acquisition of property rights without adequate compensation; and legislation is presumed not to interfere with vested property rights.
730. The latter proposition is illustrated by Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28; (1969) 121 CLR 177. The High Court held there that the Mining Act 1906 (NSW) should be construed, in the circumstances of the case, not to interfere with a landowner’s right to carry on mining operations on his own land. Barwick CJ (at 181) applied
the fundamental principle that if Parliament intends to derogate from the common law right of the citizen it should make its law in that respect plain ... The courts are not entitled, and ought not, to eke out a derogation of such private rights by implications not rendered necessary by the words used by Parliament but merely considered to be consistent with the policy which the courts conclude or suppose the Parliament intended to implement.
See, too, at 182 per Menzies J.
731. In the light of this rule of construction, the Self-Government Act and the Self-Government Regulations cannot be interpreted as empowering a Territory Minister to undertake public works on freehold or leasehold land (held by persons other than the Crown or its instrumentalities) without consent and without affording adequate compensation. If a Minister purported to authorise such works to be undertaken, his or her conduct would be inconsistent with the rights of the freeholder or leaseholder and would fall outside the executive powers of the Territory. If works were carried out on the freehold or leasehold land without permission, they could not extinguish or impair the title of the freeholder or leaseholder in the absence of specific legislation making provision to that effect. (Such legislation, if enacted by the Legislative Assembly, might also raise issues of compatibility with s 50(1) of the Self-Government Act.)
732. If this reasoning is correct, the Self-Government Act and the Self-Government Regulations would have the practical operation and effect of discriminating against native title holders. In the absence of s 10(1) of the RD Act, those provisions would authorise Territory Ministers to undertake public works on Crown land, including land in respect of which Aboriginal people hold native title rights and interests. If the works were inconsistent with the continued existence of native title rights and interests, those rights and interests would be extinguished and no compensation (leaving the NTA to one side) would be payable in respect of the extinguishment. But the Self-Government Act and the Self-Government Regulations, construed in the manner I have explained, would not authorise the Territory Ministers to undertake public works that could extinguish or interfere with other titles, such as freehold or leasehold estates carrying the right to exclusive possession.
733. As I have explained, the Self-Government Act and the Self-Government Regulations must be read consistently with s 10(1) of the RD Act. They therefore cannot be construed as authorising actions that would have a greater impact on native title rights and interests than on other forms of title. Such a construction would result in native title holders not having the same security of enjoyment of their rights as other title holders. Accordingly, the Self-Government Act and the Self-Government Regulations cannot be construed as authorising the construction of public works in circumstances that would extinguish native title rights and interests without adequate compensation.
734. The applicants submit that once the conclusion is reached that the construction of the Public Works was undertaken on the Application Area without lawful authority, the act of construction can be properly described as having been ‘invalid to any extent’ for the purposes of the definition of ‘past act’ in s 228 of the NTA. The applicants acknowledge that ordinarily one would not describe a Public Work as being either valid or invalid. Nonetheless, so they argue, if the construction of a Public Work was unauthorised, it cannot have had ‘full force and effect’ (see the definition of ‘valid’ in s 253 of the NTA), in the sense that it could not have extinguished the interests of the native title holders over the land on which the Public Work was constructed. On that approach, the construction of the Public Works on the Application Area without lawful authority was invalid and required validation under s 14 of the NTA or equivalent State or Territory legislation.
735. The respondents do not challenge the applicants’ approach on this issue. I think it is correct. I would add that the NTA plainly contemplates that a ‘past act’ can consist of the construction or establishment of a ‘public work’ (a term that itself is broadly defined): s 229(4) (which includes the construction or establishment of certain public works within the definition of ‘category A past act’). An ‘act’ includes ‘the exercise of any executive power of the Crown ... whether or not under legislation’ (s 226(2)(e)) and ‘an act having any effect at common law or in equity’: s 226(2)(f). An act can only be a ‘past act’ if it is one that ‘apart from [the NTA] was invalid to any extent’: s 228(2). Section 14 of the NTA provides for the validation of a ‘past act’ attributable to the Commonwealth. Clearly enough, the statutory scheme contemplates that a past act consisting of the construction or establishment of public works can be invalid ‘to any extent’ and thus require validation under s 14 of the NTA or equivalent State or Territory legislation.
736. It follows, to the extent that this reasoning is correct and applies to the construction of the Public Works, that the construction of each of the Public Works on the Application Area was an invalid act when done. However, since the construction in each case constituted a ‘past act’ attributable to the Territory, s 4 of the Validation Act has the effect that the act ‘is valid and is taken always to have been valid’.
737. Thus far, I have not distinguished between the construction or creation of the Roads and other Public Works. The Commonwealth says, if I understand its position correctly, that even if the above reasoning is broadly correct, some of the Roads were lawfully constructed or reserved under Territory law and these acts validly extinguished any native title rights and interests over the affected land prior to the enactment of the NTA.
738. I must confess that I found the Commonwealth’s arguments on this point somewhat elusive. Its submissions canvass at some length the operation of the Control of Roads Act. However, it appears to be common ground that the procedure for the dedication or opening of a road under the Control of Roads Act was not followed in relation to any of the Roads. Indeed the evidence is that the procedure is not normally followed in the Territory when it is proposed to construct a new road.
739. Reference was also made to s 99 of the Planning Act, which provides, relevantly, that upon registration of a survey plan for a subdivision, land marked as a ‘public road’ vests in the Territory for public road purposes. Survey plans relating to various lots within the Application Area were registered with the Registrar-General from time to time between 1983 and 1992. It appears that registration of the plans was effected in accordance with the procedure contemplated by s 99 of the Planning Act. In each case, however, subject to one minor exception, construction of the Road commenced and indeed was completed before registration of the applicable survey plan. It is therefore difficult to see the relevance of s 99 of the Planning Act to the present case. (I should add that CL 256, which was granted over Lot 104 on 17 November 1983, predated the construction of the Schedule 1 Roads on Lot 104.)
740. The Commonwealth seems to argue that the construction of, or perhaps the intention to construct, the Roads, even if not authorised by any Territory statute, may have constituted a valid dedication of the Roads at common law. The Commonwealth also argues that s 10(1) of the RD Act does not affect the operation of common law principles. This is said to be so because the provision is concerned only with the ‘laws’ of a State or Territory, in the sense of statute law. But the construction of a road in the Territory by the Executive Government, if not otherwise authorised by statute, is an exercise of the powers conferred by ss 31 and 35 of the Self-Government Act and reg 4(1) of the Self-Government Regulations. The analysis I have put forward in relation to Public Works seems to me applicable to the construction of the Roads on the Application Area.
…
[The Commonwealth also argued that the Real Property Act 1886 (SA) conferred an indefeasible title on the recipient of a Crown grant of fee simple and that the Racial Discrimination Act 1975 (Cth) did not prevent this from validly extinguishing native title in the area covered by such a grant. Sackville J rejected this contention:]
675. As I have noted, the Commonwealth (without the support of the Territory) invokes the principle of indefeasibility of title under the Real Property Act. The Commonwealth relies on the indefeasibility principle to support the proposition that even though the original grants in fee simple over Crown land within the Application Area were invalid when made (as the Commonwealth accepts), registration of the fee simple estates under the Real Property Act extinguished any surviving native title rights and interests over each of the lots concerned. Thus, so the Commonwealth argues, native title rights and interests were validly extinguished before the NTA came into force and the applicants are not entitled to any compensation under the NTA for the loss of their rights and interests.
676. Dr Perry, who argued this aspect of the case for the Commonwealth, pointed out that upon registration of an estate or interest under the Real Property Act, the registered proprietor becomes entitled:
677. Dr Perry relied on authorities that establish that a registered proprietor under the Real Property Act of an estate or interest in land acquires an indefeasible title to that estate or interest notwithstanding that the dealing pursuant to which registration was obtained was void: Breskvar v Wall (1971) 126 CLR 376 at 385–386, per Barwick CJ; Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472, at [52], per McHugh ACJ, Hayne and Heydon JJ. Dr Perry submitted that the fact the grant of the fee simple estate or lease (in the case of CL 256) was invalid by reason of the operation of s 10(1) of the RD Act does not prevent the grantee obtaining an indefeasible title upon the estate or interest being brought under the Real Property Act, just as a person registering a forged transfer obtains an indefeasible title to the registered estate provided he or she acts without fraud: Frazer v Walker [1967] AC 589; Breskvar v Wall, at 385–386, per Barwick CJ.
678. Dr Perry anticipated and sought to rebut two possible counter-arguments. She submitted that native title rights and interests cannot constitute an exception to the indefeasibility provisions of the Real Property Act. She argued that the legislation evinces no intention to recognise any such exception. Similarly, the so called in personam exception to indefeasibility cannot avail the holders of native title, since that principle only protects claims founded upon the conduct of the registered proprietor himself or herself.
679. Dr Perry also anticipated an argument that the indefeasibility provisions of the Real Property Act, if they operate as she contended, discriminate against native title holders for the purposes of s 10(1) of the RD Act and therefore cannot validly extinguish native title rights and interests. She submitted that the indefeasibility provisions do not operate in a discriminatory manner, since under the Real Property Act a registered estate or interest prevails over all unregistered interests, save for those protected by the statutory exceptions to indefeasibility. Moreover, so she argued, the holders of native title can lodge a caveat under s 191 of the Real Property Act to protect their interests against the registration of an inconsistent estate or interest in the same way as any other holder of an unregistered interest.
…
683. The Commonwealth’s submissions seem to be based, or at least to derive support from, what was in substance the dissenting judgment of Callinan J in Ward (HC) (with which McHugh J agreed). In that case, Callinan J addressed (at [864]–[876]) the effect of registration of Crown leases under the Transfer of Land Act 1893 (WA) (‘TL Act’). The TL Act implemented the Torrens system of title registration in Western Australia and was similar in structure to the Real Property Act. In Western Australia, however, it has been possible to register Crown leases under the TL Act since 1909: Ward (HC) at [865].
690. Although I have had the benefit of detailed written submissions on many issues, I was not taken to all the provisions in the Real Property Act that seem to me to bear on the relationship between the RD Act and the indefeasibility sections of the Real Property Act. In my view, the provisions discussed below must be taken into account.
691. Part IV provided a procedure whereby land alienated by the Crown in fee before the Real Property Act came into force (1886) could be brought under the Real Property Act: s 27. All land alienated in fee after that date became ‘immediately on alienation’ subject to the provisions of the Real Property Act: s 25.
692. The only grants of tenure in the present case which pre-dated the RD Act were the two pastoral leases, PL 456 (1882) and PL 1804 (1896). The first of these pre-dated the enactment of the Real Property Act. The second did not involve a grant in fee, but the grant of a leasehold estate. Therefore neither grant brought the Application Area under the Real Property Act.
693. At the times fee simple Crown grants were made over lots within the Application areas, s 39 of the Real Property Act provided that any person having or claiming an estate or interest in any land ‘sought to be brought under the provisions of this Act’ could lodge a caveat with the Registrar-General forbidding the bringing of such land under the provisions of the Act. Assuming that native title rights and interests can be regarded as estates or interests in land, it would seem that s 39 would not have authorised a native title holder to lodge a caveat to prevent an initial grant of Crown land in fee simple. By s 25, such a grant would have had the immediate effect of bringing the land concerned under the Real Property Act and would have attracted the protection of the indefeasibility provisions to the registered estate.
694. It is necessary, however, to note the express exceptions to indefeasibility under the Real Property Act. Section 69 provided for exceptions in the case of fraud (s 69(I)) and in the case of a certificate or other instrument of title obtained by forgery or from a person under legal disability, subject to protecting the title of a registered proprietor who had taken bona fide and for valuable consideration s 69(II).
695. Of greater significance for present purposes are the following statutory exceptions to indefeasibility of title:
696. There may be a question as to whether the holders of native title rights and interests can be described as ‘persons adversely in actual occupation of, and rightfully entitled to, such land’. If the answer is yes, then native title holders are not adversely affected by the indefeasibility provisions of the Real Property Act upon registration of a fee simple estate granted by the Crown. Whether native title rights and interests fall within the exception to indefeasibility in s 69(VI) would seem to depend on the precise native title rights and interests in existence at the time the particular land was brought under the Real Property Act. Given the observations in the joint judgment in Ward (HC) at [317], it is unlikely that native title holders who had lost the right to control access to the land (for example because pastoral leases had been granted over the land) could come within s 69(VI) of the Real Property Act. If this is correct (as I think it is), the interests of native title holders who did not have the right to control access to the land were not protected by s 69(VI) of the Real Property Act.
697. The effect of the statutory exceptions to indefeasibility was that a wide range of unregistered interests in land received protection from what otherwise would be the indefeasible title conferred on the first registered proprietor of the fee simple estate, by virtue of s 69 of the Real Property Act. The following interests were protected from s 69 of the Real Property Act: the interest of any person in adverse possession of the land (or part of it); an ‘omitted’ easement (which expression encompasses an easement which is simply not on the register: Dobbie v Davidson (1991) 23 NSWLR 625, at 627; Williams v State Transit Authority of NSW [2004] NSWCA 179; (2004) 60 NSWLR 286 at [105]–[109], per Mason P); the interest of a proprietor of land included in a certificate of title by wrong description; public rights of way and easements enjoyed by the public; and a short-term lease held under an unregistered instrument or agreement.
698. At the times the fee simple estates were granted over lots within the Application Area and were brought under the Real Property Act, no holders of any unregistered interest could have lodged a caveat to prevent the Crown grants. Thus neither native title holders nor the holders (if any) of other interests over the Crown land could have lodged a caveat for this purpose. But the consequences flowing from this inability varied as between native title holders and the holders of other unregistered interests.
699. Since native title holders were unable to lodge a caveat but were not protected from the indefeasibility provisions of the Real Property Act, on the Commonwealth’s approach their interests would have been extinguished upon the registration of the grant in fee simple. This would be so notwithstanding that the Crown grant of the fee simple estate might have been void or ‘invalid’ by reason of the operation of s 10(1) of the RD Act. On the other hand, unregistered interests protected by the statutory exceptions as to indefeasibility would not have been extinguished upon registration of the Crown grant in fee simple.
700. It is true that not all unregistered non-native title rights and interests would necessarily have been protected by the statutory exceptions to infeasibility when the first Crown grant in fee simple was made. It is also true that a native title right to control access to the relevant land may have been protected from the consequences of indefeasibility by s 69(VI) of the Real Property Act. However, it is not easy in practice to envisage what native title rights and interests, apart from a right to control access, would have been protected from extinguishment, where the grant of a fee simple estate in Crown land was registered under the Real Property Act. It must be remembered that pastoral leases covered vast tracts of the Territory, especially if account is taken of pastoral leases which (like those in the present case) were long ago surrendered or forfeited. Those leases almost invariably would have extinguished the native title right to control access to land (a right that otherwise might have been protected by s 69(VI) of the Real Property Act). If the Crown land concerned was then the subject of a grant in fee simple, which was registered under the Real Property Act, any surviving native title rights and interests (assuming the Commonwealth’s argument to be correct) would have been wholly extinguished.
701. The Commonwealth’s position is that s 69 of the Real Property Act has the effect of extinguishing native title rights and interests over Crown land which has been the subject of a fee simple grant, even if the grant itself was void or ‘invalid’. If this is so, the practical operation and effect of the Real Property Act, in my view, would be to deny the holders of native title rights and interests security and enjoyment of their title to the same extent as the holders of other forms of title ultimately derived from the Crown have security and enjoyment of their title. This remains the case even allowing for the possibility that a native title right to control access to the land may be protected by the exception to indefeasibility contained in s 69(VI) of the Real Property Act. Unlike many forms of title under the general law, native title rights and interests (with perhaps one exception) were liable to extinguishment in consequence of s 69 of the Real Property Act by the registration of a grant in fee simple of Crown land. As I have explained, the authorities establish that the inherent vulnerability of native title rights and interests to extinguishment is not a factor to take into account in determining whether laws discriminate against native title and so are inconsistent with s 10(1) of the RD Act.
702. Given that the Real Property Act, as the Commonwealth accepts, must be construed consistently with s 10(1) of the RD Act, s 69 of the Real Property Act in my opinion cannot be read as extinguishing native title rights and interests that were in existence over Crown land at the time of registration of the first grant in fee simple. I would therefore reject the Commonwealth’s argument based on indefeasibility of title under the Real Property Act.
703. It will be seen that I have rejected the Commonwealth’s argument on grounds that perhaps go beyond those developed by the applicants. Their principal contention is that s 69 of the Real Property Act cannot take the matter any further along the extinguishment route than the initial fee simple grants made under the CL Act 1931 and the CL Act 1992. They say that as the Crown grants were invalid because s 10(1) of the RD Act limits the scope of the powers under Territory law to make Crown grants, any purported ‘validation’ of the Crown grants by the Real Property Act can be no more effective.
704. The Commonwealth’s submissions suggest that the issue cannot be resolved so neatly. On its argument, the comparison required by s 10(1) of the RD Act is between the treatment accorded by the Real Property Act to unregistered native title rights and interests and the treatment accorded to unregistered interests under the general law. I accept that this is the appropriate comparison, subject to one important qualification. In my view, the comparison does not require a general analysis of the operation of the indefeasibility provisions of the Real Property Act. Rather, what is required is an examination of their specific application to a fee simple grant of Crown land. That is the point at which the Real Property Act affects native title rights and interests that would otherwise subsist over the land.
705. In my opinion, s 10(1) of the RD Act requires the effect of the indefeasibility provisions of the Real Property Act to be considered in relation to fee simple grants of Crown land, not in relation to transactions that may take place after the land has been brought under the Real Property Act. This, in turn, requires a comparison between the effect of the indefeasibility provisions on unregistered native title rights and interests over Crown land and their effect on unregistered interests acquired in accordance with the general law. For the reasons I have given, the indefeasibility provisions of the Real Property Act, if they are intended to work in the way suggested by the Commonwealth, would have a discriminatory impact on unregistered native title rights and interests over Crown land and the Territory. It follows that if the original fee simple grants over lots within the Application Area were invalid when made, registration of the grants under the Real Property Act did not extinguish any surviving native title rights and interests over the lots concerned. The Real Property Act, to the extent that it otherwise would have had this effect, was inconsistent with s 10(1) of the RD Act.
…
[The compensation arguments based on the NTA turned to a significant extent on when extinguishment was held to have occurred. This required detailed consideration of the Act’s provisions and their relationship with each other:]
741. It follows from what I have said that the construction of the Public Works on the Application Area was invalid and therefore did not, independently of the NTA and the Validation Act, extinguish any native title rights and interests then subsisting over the land. As I have noted, it was common ground that the fee simple grants over Crown land within the Application Area and the grant of CL 256 also did not, independently of the NTA and the Validation Act, extinguish native title rights and interests over the land. The grants and the construction of the Public Works were validated by s 4 of the Validation Act.
742. This conclusion gives rise to three further questions:
743. If the compensation acts were previous exclusive possession acts for the purposes of the Validation Act, the next question is whether the extinguishing effect of, and compensation entitlements flowing from, an act which is both a ‘category A past act’ for the purposes of Part 3 of the Validation Act (cf NTA, s 15) and a ‘previous exclusive possession act’ for the purposes of Part 3B of the Validation Act (cf NTA, ss 23B, 23C) are to be determined by:
The applicants say that the former is the case, while the respondents contend that Part 3B of the Validation Act and Div 2B of Part 2 of the NTA govern issues of extinguishment and compensation.
744. It will be recalled that the applicants say that by adopting the substance of the definition of ‘previous exclusive possession act’ in s 23B(2) of the NTA, the Validation Act has failed, apparently inadvertently, to include acts validated not by the NTA, but by the Validation Act itself. This is said to have come about because the definition in Schedule 1 to the Validation Act provides that an act is a ‘previous exclusive possession act’ if (inter alia) it is ‘valid (including because of Division 2 or 2A of Part 2 of the Commonwealth Act)’. It is the addition of the bolded words, so the applicants argue, that creates the difficulty.
745. In my view it is quite clear that the definition in the Validation Act is intended to embrace acts validated by the operation of Part 2 of that Act. The contrary view would create significant gaps in what is plainly intended to be an integrated legislative scheme.
746. The short textual answer to the applicants’ submission is that the words in parentheses in the definition are words of inclusion and are not intended to limit the ordinary meaning of the word ‘valid’. There is no difficulty, in my opinion, in regarding that word as apt to embrace acts validated by legislation, including Territory legislation. In any event, past acts attributable to the Territory (rather than to the Commonwealth) can properly be described as valid ‘because of Division 2 or 2A of Part 2 of the Commonwealth Act’. It is true that the validation provisions of the Validation Act are an exercise of the Territory’s legislative power. But s 19(1) of the NTA does not merely authorise the enactment of the validation provisions but specifically contemplates their enactment. The Territory laws are part of what is clearly envisaged to be a co-ordinated legislative package, the terms of which are effectively dictated by the NTA.
747. In the present case, the compensation acts are attributable to the Territory. The extinguishing effects of those acts are determined by Parts 2, 3 and 3B of the Validation Act. Any entitlements to compensation in respect of those acts arise under s 20 or s 23J of the NTA. It is convenient, however, to address the question primarily by reference to the provisions of Divs 2 and 2B of the NTA, rather than their counterparts in the Validation Act.
748. If the applicants’ construction argument relating to the definition of ‘previous exclusive possession act’ in the Validation Act is put to one side, I do not understand there to be any dispute that the various compensation acts satisfy that definition. The freehold and leasehold grants in respect of the Application Area satisfy the definition because:
749. Similarly, the Public Works (that is, Connellan Airport, the Lasseter Highway, the Roads and the bores) satisfy the definition because:
750. As I have noted, prior to the 1998 amendments, the NTA did not affect an act that was valid when done and which was effective at the time it was done to extinguish or impair native title. In Mabo (No 2), the High Court recognised that in Australia native title to land survived the Crown’s acquisition of sovereignty (at 69, per Brennan J). From the outset, however, the High Court accepted that native title rights and interests:
are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession. They can also be terminated by other inconsistent dealings with the land by the Crown.
Mabo (No 2) at 110, per Deane and Gaudron JJ; Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 (‘Fejo’), at [42]–[48].
751. The position was summarised by the High Court in the Native Title Act Case as follows (at 452–453):
Under the common law, as stated in Mabo [No 2], Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown. The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown’s (or a statutory authority’s) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title.
752. Nonetheless, as the Court also pointed out in the Native Title Act Case (at 453), native title was substantially protected against extinguishment on and after 31 October 1975 by the operation of the RD Act. This is so because the RD Act, as a paramount Commonwealth law, renders inconsistent State and Territory laws inoperative or requires them to be read down, including laws and other acts which discriminate, albeit unintentionally, against native title holders: Native Title Act Case, at 454.
753. The point of Div 2 of Part 2 of the NTA when enacted, so far as acts attributable to a State or Territory were concerned, was to permit the State or Territories to enact laws in the future:
‘to give full force and effect to earlier acts which purported to extinguish or impair native title but which were ineffective at the time when the acts were done’.
Native Title Act Case, at 454. To this end, s 19 of the NTA, when read with what is now s 7(3), removed any invalidating inconsistency between a future State or Territory law that validated past acts attributable to the State or Territory, on the one hand, and the RD Act or any other law of the Commonwealth, on the other: Native Title Act Case, at 455.
754. In Wik Peoples v Queensland (1996) 187 CLR 1 (‘Wik’), a majority of the High Court held that certain pastoral leases in Queensland did not confer a right to exclusive possession on the lessees and thus did not necessarily extinguish all incidents of native title. The decision in Wik was thought by many to be inconsistent with the assumptions underlying the NTA. In particular, the recitals to the NTA recorded that the High Court in Mabo (No 2) had:
held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates. (Emphasis added.)
755. On 8 May 1997 the Government announced a ‘10 Point Plan’ as its response to Wik. The Native Title Amendment Bill 1997 (‘NTA Bill 1997’), which was introduced into the House of Representatives on 4 September 1997, was designed to implement the 10 Point Plan.
756. The NTA Bill 1997 was passed by the House of Representatives on 29 October 1997. The Senate subsequently passed the Bill but amended it extensively. The Bill was reintroduced into the House on 9 March 1998. Many of the Senate’s amendments were accepted by the House of Representatives and the NTA Bill 1997 was amended to incorporate these changes. It was this version of the NTA Bill 1997 to which the 1997 Explanatory Memorandum was directed.
757. I note in passing that at the time the 1997 Explanatory Memorandum was circulated (9 March 1998), litigation was under way to challenge the apparently clear proposition that the grant of a freehold estate in land necessarily extinguished all native title rights and interests in that land. The challenge had failed in the Federal Court on 27 February 1998 (Fejo v Northern Territory (1998) 152 ALR 477), but in early March 1998 an appeal from this decision was apparently in contemplation. Part of that appeal was ultimately removed to the High Court and the challenge was finally rejected by the High Court on 10 September 1998, shortly before the NTAA came into force.
758. The 1997 Explanatory Memorandum stated (par 5.1) that Div 2B was to be inserted in Part 2 of the NTA in order to achieve points 2 and 4 of the 10 Point Plan. Those points relevantly provided as follows:
Point 2 Confirmation of extinguishment of native title on ‘exclusive’ tenures
States and Territories would be able to confirm that ‘exclusive’ tenures such as freehold, residential, commercial and public works in existence on or before 1 January 1994 extinguish native title. Agricultural leases would also be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended. Any current or former pastoral lease conferring exclusive possession would also be included
...
Point 4 Native title and pastoral leases
As provided in the Wik decision, native title rights over current or former pastoral leases and any agricultural leases not covered under [Point] 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralist.
All activities pursuant to, or incidental to, ‘primary production’ would be allowed on pastoral leases...
759. The 1997 Explanatory Memorandum noted that Div 2B confirmed the effect on native title of various types of Commonwealth acts done before 23 December 1996 and that the legislation attempted to reflect the Government’s understanding of the common law of native title after Wik (par 5.1). It also noted that Div 2B permitted the States and Territories to confirm the effect of acts they had done prior to 23 December 1996. The 1997 Explanatory Memorandum continued as follows:
5.2 Generally speaking, the existing NTA only provides a framework for dealing with native title. The NTA currently says little about whether or where native title may still exist in Australia, and apart from the very limited validation provisions in Division 2 of Part 2, says nothing about whether native title may or may not have been extinguished. The NTA generally leaves these issues to be determined by the common law. This has given rise to significant uncertainty for native title claimants and the holders of other interests in land.
5.3 The purpose of the proposed amendments dealing with confirmation of extinguishment of native title is to limit this uncertainty. The effect will be to confirm that the native title is extinguished on exclusive tenures (such as freehold and residential leases) and extinguished to the extent of any inconsistency on non-exclusive agricultural and pastoral leases. Consistent with the Wik decision, the rationale for such confirmation is that the rights conferred and/or the nature of the use of the land is such that the exclusion of others (including native title holders) must have been presumed when the tenure was granted. The amendments will put the matter beyond doubt.
760. Paragraph 5.28 of the 1997 Explanatory Memorandum addressed the effect of confirmation of extinguishment on the provisions dealing with past acts, as follows:
If native title has been extinguished by a previous exclusive possession act or a previous non-exclusive possession act, the provisions that deal with the effects of past acts... on native title do not apply [subsections 23C(3) and 23G(3) ...]. These provisions [included] existing section 15 of the NTA ... Subsections 23C(3) and 23G(3) ensure that there is no overlap between the provisions that extinguish native title. For example, the non-extinguishment principle applies to the grant by the Commonwealth of freehold validated under Division 2 if it was no longer in existence on 1 January 1994 (see subsection 229(2) and section 232) but by reason of s 23C(1), the native title will now be taken to have been extinguished by that grant. (Emphasis in original.)
761. The example given in the last sentence of par 5.28 refers to s 15(1)(d) of the NTA, which provides that the non-extinguishment principle applies to a category D past act. A category D past act includes the grant of a freehold estate, where the grant was made before 1 January 1994 but the estate did not exist on 1 January 1994: s 229(2)(a), (4). Section 23C(1) provides that a previous exclusive possession act (which includes the grant of a freehold estate validated under Div 2) extinguishes native title and does so from the date the act was done. As par 5.28 implies, the effect of s 23C(3) is to exclude s 15 of the NTA from applying to the previous exclusive possession act notwithstanding that it was also a past act. Thus the non-extinguishment principle does not apply to the category D past act.
762. The 1997 Explanatory Memorandum also addressed the question of compensation for confirmation of extinguishment, as follows
5.41 If native title has already been extinguished otherwise than under the NTA (e.g. in accordance with common law principles that [sic] other legislation has extinguished native title), compensation is not payable under the NTA. However, if Division 2B does extinguish native title to a greater extent than otherwise would have been the case without the NTA, compensation is payable to that extent [subsection 23J(1)]. This ensures that Division 2B does not create a right to compensation for acts where it would not be payable without Division 2B.
5.42 As discussed in paragraph 5.3, Division 2B is intended to reflect the common law. Therefore it is not expected that section 23J will need to operate. It is included as a safeguard in the event that a court finds that extinguishment under Division 2B goes further than the common law. (Emphasis in original.)
763. The 1997 Explanatory Memorandum suggests that Div 2B was inserted into Part 2 of the NTA in order to specify the extinguishing effects of all previous exclusive possession acts, regardless of whether such acts were also past acts for the purposes of Div 2. Paragraph 5.28 emphasises that if native title has been extinguished by a previous exclusive possession act, the provisions that deal with the effects of past acts do not apply. More particularly, par 5.28 makes it clear that there is to be no overlap between the provisions that extinguish native title. The example given by par 5.28, to which I have referred, reinforces the point.
764. The language of Div 2B gives effect to the objectives outlined in the 1997 Explanatory Memorandum. Section 15 of the NTA, which provides for the extinguishing effects of pasts acts, does not apply if an act is a previous exclusive possession act attributable to the Commonwealth: NTA, s 23C(3). Whatever the position before the 1998 amendments to the NTA, the extinguishing effect of such an act is determined by s 23C and by no other provision in the NTA. Section 23C(1) provides that an act other than a public work, being a previous exclusive possession act under s 23B(2), extinguishes native title in relation to the land concerned. Section 23C(2) provides that if an act is a previous exclusive possession act under s 23B(7) (which deals with public works), the act also extinguishes native title in relation to the land concerned. Section 23C(1)(b) expressly states that the extinguishment effected by a previous exclusive possession act under s 23B(2) of the NTA ‘is taken to have happened when the act was done’. Similarly, s 23C(2)(b) states that the extinguishment effected by a public work ‘is taken to have happened when the construction or establishment of the public work began’.
765. The fact that Div 2B specifies the consequences for extinguishment of native title by previous exclusive possession acts does not necessarily mean that the native title holders’ entitlement to compensation is created by Div 2B rather than Div 2. In the case of an act attributable to the Commonwealth, s 17(1) (in Div 2) simply provides that if the act is a category A past act, the native title holders are entitled to compensation for the act. However, s 17 has to be read with s 15, which states (relevantly) that a category A past act attributable to the Commonwealth extinguishes the native title concerned. The entitlement to compensation created by s 17(1), although said to be ‘for the act’, assumes that the past act has extinguished native title in accordance with s 15. In other words, s 17 creates an entitlement to compensation because s 15 provides that the past act extinguishes native title.
766. Following the 1998 amendments to the NTA, Div 2B specifies the extinguishing effects on native title of previous exclusive possession acts, including those that are also past acts for the purposes of Div 2. The consequences of a previous exclusive possession act for native title rights and interests are determined by s 23C of the NTA (in Div 2B) and not by s 15 (in Div 2). It follows, in my opinion, that the extinguishment of native title by reason of a previous exclusive possession act takes place ‘under [Div 2B]’ for the purposes of s 23J of the NTA. Thus the entitlement to compensation for the extinguishment arises under s 23J and not s 17 of the NTA.
767. I appreciate that par 5.2 of the 1997 Explanatory Memorandum states that it is not expected that s 23J will need to operate and that it is only included as a ‘safeguard’ in the event that a court finds that Div 2B goes further than the common law. However, I interpret par 5.42 as intended to convey that s 23J will not create any greater entitlement to compensation than the NTA provided before the 1998 amendments, unless Div 2B is found to have extinguished native title to a greater extent.
768. In any event, par 5.42 of 1997 Explanatory Memorandum cannot control the meaning of Div 2B. For reasons I have given, s 23J of the NTA, in my view, creates an entitlement in native title holders to compensation for the extinguishment of native title effected by a previous exclusive possession act. This is so notwithstanding that the previous exclusive possession act is also a past act for the purposes of Div 2.
769. This view receives support from the observations concerning s 23J made by Gaudron, Gummow and Hayne JJ in Wilson v Anderson. Their Honours said this (at [51]):
Sub-section (1) of s 23J 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 at common law. The evident purpose s 23J is to limit, so far as possible, the entitlement to compensation under s 23J, to cases where the ‘act’ is invalid by reason of the Racial Discrimination Act 1975 (Cth) ... and is subsequently validated by s 14 of the NTA or [equivalent State or Territory legislation]. However, s 23J also may 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. That a different result may be reached under Div 2B of Pt 2 of the NTA or Pt 4 of the State Act emphasises the point that it is the statutory criteria provided for by those provisions which are to applied when determining issues of extinguishment.
Their Honours’ observations proceed on the basis that s 23J of the NTA creates an entitlement to compensation in cases where an act is invalid by reason of the RD Act but is subsequently validated by s 14 of the NTA or a State or Territory counterpart. Such an act presumably would be a ‘past act’ as defined in s 228(2) of the NTA as well as a ‘previous exclusive possession act’ as defined in s 23B of the NTA.
770. This construction of Div 2B of the NTA does not leave Div 2 without any work to do. Not all past acts are previous exclusive possession acts for the purposes of Div 2B of the NTA. For example, the grant of an estate is not a previous exclusive possession act if the grant involves the establishment of a national park for the purpose of preserving the natural environment: s 23B(9A). Yet such a grant may vest a right of exclusive possession in the grantee which is capable of extinguishing native title rights and interests: Ward (HC), at [258]. If the grant was invalid under the RD Act by reason of its effect on native title, it could be a past act (s 228(2)) and could be validated by s 14 of the NTA. The effect on native title of the grant would be determined by s 15 of the NTA and the entitlement to compensation would arise under s 17.
771. As Mr Hughston pointed out, this construction of Div 2B accords with what will often be the practical realities and avoids what otherwise would be strange consequences. Previous exclusive possession acts include grants of fee simple estates or leases and the construction of public works. Some of these acts may have been invalid when done by reason of the RD Act (and thus would have been ‘past acts’), but this would not have been known at the time. The practical consequences of these acts usually would have included the de facto loss or impairment of native title rights and interests. It makes sense that any right to compensation in respect of the validation of those acts is to be determined as at the date the acts took place.
772. The contrary view could lead to the statutory entitlement to compensation including compensation for the added value of public works and other improvement to the land after the extinguishing acts took place. For example, in the present case members of the compensation claim group would be entitled to compensation for the value of Connellan Airport, the construction of which was completed in 1981. Presumably, this would be in addition to other heads of compensation for the loss of native title rights and interests over the land on which the Airport was constructed. While it may well be appropriate (as the Commonwealth appears to accept) that native title holders should receive interest if compensation is assessed at the date of statutory extinguishment of their rights and interests, it is difficult to imagine that the compensation regime in the NTA is intended to provide the windfall benefits to claimants that are implicit in the applicants’ arguments.
773. Thus far I have referred to the position under the NTA in respect of previous exclusive possession acts attributable to the Commonwealth. A similar analysis applies to previous exclusive possession acts attributable to the Territory. Section 9H(1) of the Validation Act provides that such an act, other than a public work, extinguishes native title in relation to the land concerned. Section 9H(2) of the Validation Act, which is the analogue to s 23C(1)(b) of the NTA, states that the extinguishment is taken to have happened when the act was done. Section 9J of the Validation Act contains provisions in relation to public works attributable to the Territory corresponding to those in s 23C(2) of the NTA.
774. It follows from what I have said that any right of the native title holders to compensation ‘for any extinguishment ... of their native title rights and interests’ by an act attributable to the Territory arises under s 23J(1) of the NTA. When s 23J(1) of the NTA is read with ss 9H(2) and 9J(2) of the Validation Act, any such right to compensation arises (or is taken to arise) when the extinguishment is taken to have happened. In the case of acts other than public works, this is the date the act was done; in the case of public works it is the date the construction or establishment of the public work began.
775. One of the arguments advanced by the applicants against the ‘primacy’ of Div 2B of the NTA is that this construction could deprive a native title holder of an accrued right to compensation under s 17 of the NTA. This could occur, so it is said, because the entitlement to compensation for a past act under s 17 arose when the NTA came into force (1994), while the entitlement to compensation under s 23J is taken to have arisen when the relevant act was done. A person whose native title rights and interests came into existence after a past act took place, but before 1994 (for example, a native title holder born between those two dates), might be deprived of an ‘accrued right’ to compensation.
776. This argument appears to assume that a person whose native title rights and interests came into existence after the past act took place has a right to compensation under s 17. I doubt that the assumption is correct. Section 14 of the NTA provides that if a past act is attributable to the Commonwealth, the act is valid and is taken always to have been valid. Section 15 provides that, in the case of a category A past act, the act extinguishes native title. Although s 15 does not expressly state when native title is extinguished, reading ss 14 and 15 together the intent would appear to be that the extinguishment is to be taken as having occurred at the time the validated act took place. After all, that act must be taken ‘always to have been valid’. Since the entitlement to compensation provided by s 17 of the NTA is ‘for the act’, the better view would seem to be that the only persons or groups entitled to compensation are those who held native title rights and interests at the date the past act occurred.
777. In any event, if the effect of inserting Div 2B into the NTA was to deprive some native title holders of an accrued right to compensation, it would be necessary to take s 53(1) of the NTA into account. This subsection provides that if the application of any of the provisions of the NTA would result in a ‘paragraph 51(xxxi) acquisition of property’ otherwise than on just terms, a person is entitled to such compensation as is necessary to ensure that just terms are provided. The loss of an ‘accrued right’ to compensation in respect of the extinguishment of native title rights and interests may well constitute an acquisition of property otherwise than on just terms, attracting the protection s 53(1). It is not necessary to consider that possibility further in the present case.
778. The applicants’ written submissions suggest that s 23E of the NTA, insofar as it authorises the States or Territories to legislate for the acquisition of property otherwise than on just terms, contravenes s 51(xxxi) of the Constitution. The suggestion was not developed in oral argument.
779. Nonetheless, Dr Perry on behalf of the Commonwealth responded to the suggestion. She pointed out that s 23E is analogous to s 19 of the NTA. The latter allows a law of a State or Territory to provide that past acts attributable to the State or Territory are valid and are taken always to have been valid. Section 23E allows a law of a State or Territory to make provision to the same effect as s 23C in respect of previous exclusive possession acts attributable to the State or Territory (that is, to provide that previous exclusive possession acts extinguish native title).
780. In the Native Title Act Case, the High Court upheld the validity of s 19 of the NTA. The Court observed (at 468) that s 11(1) of the NTA protects native title from extinguishment. Section 19 merely:
define[s] the area within which State and Territory laws have a field of operation with respect to native title. Those provisions are exceptions to the general sterilisation of extinguishing acts declared by s 11(1).
Accordingly, so the Court held (at 469) the term ‘valid’ in s 19:
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 Act. 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 s 11(1). In using the terms ‘valid’ and ‘invalid’, the Act marks out the areas relating to native title left to regulation by State and Territory laws or the areas relating to native title regulated exclusively by the Commonwealth regime.
781. A similar analysis applies to s 23E of the NTA. Like s 19, it defines the areas within which State and Territory laws can extinguish native title. It, too, is an exception to the general sterilisation of extinguishing acts declared by s 11(1). Viewed in this way, its constitutional validity is not in doubt.
782. In any event, s 53(1) of the NTA ensures that if the application of any provision in the NTA, including s 23E, would result in an acquisition of property within the meaning of s 51(xxxi) of the Constitution, the person affected is entitled to just terms. Section 53(1) is clearly intended to ensure, in the event of any doubt, that provisions such as s 23E do not fall foul of s 51(xxxi) of the Constitution. If, therefore, the applicants intend to challenge the validity of s 23E of the NTA, that challenge fails.
783. I have addressed the related questions of extinguishment of native title and the entitlement of the compensation claim group to compensation in respect of that extinguishment on the basis of an assumption that is contrary to the findings I have made earlier. The assumption is that the applicants have established that native title rights and interests subsisted over the Application Area in accordance with the traditional laws and customs of the Western Desert bloc, until extinguished by the compensations acts.
784. On that assumption, I reject the Commonwealth’s submission that all surviving native title rights and interests were validly extinguished before the NTA came into force. In particular, having regard to the operation of s 10(1) of the RD Act, I reject the Commonwealth’s contentions that native title rights and interests were validly extinguished before the commencement of the NTA by:
It follows that I do not accept the Commonwealth’s submission that members of the compensation claim group would not be entitled to compensation under the NTA in respect of the extinguishment of native title rights and interests over the Application Area. I do not accept that those interests would have been validly extinguished prior to the commencement of the NTA.
785. On the other hand, I reject the applicants’ submission that any entitlement to compensation under the NTA arose only on 10 March 1994, the date the Validation Act commenced. The applicants’ submission is largely based upon the proposition that a ‘past act’ attributable to the Territory cannot be a ‘previous exclusive possession act’ for the purposes of the NTA and the Validation Act. For the reasons I have given, in my view that proposition is not correct. Accordingly, any right to compensation in respect of the extinguishment of native title rights and interests arises under s 23J of the NTA, not under s 20 of the NTA. On the correct construction of s 23J, when read in conjunction with ss 9H and 9J of the Validation Act, the entitlement to compensation is taken to have arisen at the time the extinguishment acts were done or, in the case of public works, when the construction or establishment of the particular public work began. Accordingly, if the compensation claim group were entitled to compensation for the extinguishment of native rights and interests, the quantum of compensation would be assessed without reference to any improvements on the land the construction of which post-dated the relevant extinguishing acts or events.
786. The answers to the three questions I posed (par 742, above) are as follows:
(i) If there were any native title rights and interests subsisting over the Application Area immediately before the compensation acts occurred, they were extinguished by previous exclusive possession acts attributable to the Territory, as provided for in Part 3B of the Validation Act.
(ii) In the case of previous exclusive possession acts affecting the Application Area, insofar as they consist of the grant of freehold estates or leasehold estates conferring rights to exclusive possession, any extinguishment of native title rights and interests is taken to have occurred at the time the grants were made: Validation Act, s 9H(2). In the case of Public Works constructed on the Application Area, the extinguishment is taken to have happened when the construction or establishment of the Public Works began: Validation Act, s 9J(2).
(iii) Any entitlement to compensation in respect of the extinguishment of native title rights and interests over the Application Area arises under s 23J of the NTA. The entitlement is taken to have arisen on the date or dates the extinguishing acts or events occurred. Thus members of the compensation claim group would not be entitled to compensation in respect of improvements to the land effected after those acts or events occurred.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2006/25.html