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by Alceo Turello
The issue of compensation looms large in considerations of the implications of the Mabo decision.1
The view of the majority in the case wa that, subject to the operation of the Racial Discrimination Act 1975 (Cth), the extinguishment of native title by inconsistent grant was not wrongful and did not give rise to compensatory damages.2
It is argued in this paper that extinguishment of native title is nevertheles subject to the constitutional requirement that the Commonwealth only acquire property on just terms. Further, the logic underlying both the existence and the extinguishment of native title as described by the court in Mabo ensures that the Constitution actually provides to the holder of native title a broader range of entitlement to just terms than it does to the holder of non native or conventional title.
Section 51(xxxi) of the Constitution provides for the Parliament to make laws with respect to the –
"acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."
Dixon J. in Bank of NSW v The Commonwealth (the 'Banks case') stated the dual purpose of this provision:
"It provides the Commonwealth Parliament with a legislative power of acquiring property: at the same time, as a condition upon the exercise of the power, it provides the individual or the State affected with a protection against governmental interferences with his [sic] property rights without just recompense. In both aspects consistency with the principles upon which constitutional provisions are interpreted and applied demands that the paragraph should be given as full and flexible operation as will cover the objects it was designed to effect."3
For native title to receive the protection of s51(xxxi), native title needs to be property and extinguishment of native title needs to amount to an acquisition.
There is nothing tentative about past judicial opinion on the scope of placitum (xxxi) as it applies to notions of property whether or not conventionally recognised at common law. The provision is part of a constitution which provides ‘a charter for the government, institutions and freedoms of a people’4, and it functions as a "very great constitutional safeguard."5 As a constitutional guarantee it has to be liberally construed.6
Typical of judicial description of the character and scope of the section is the statement by Rich J. in Minister of State for the Army v Dalziel:
"What we are concerned with is not a private document creating rights inter partes, but a Constitution containing a provision of a fundamental character designed to protect citizens from being deprived of their property by the Sovereign State except upon just terms. The meaning of property in such a connection must be determined upon general principles of jurisprudence, not by the artificial refinements of any particular legal system or by reference to Shepherd's Touchstone. The language used is perfectly general. It says the acquisition of property. It is not restricted to acquisition by particular methods or of particular types of interests or to particular types of property.:"7
Dixon J. in the Banks case reiterated this theme:
"I take Minister of State for the Army v Dalziel to mean that s5l (xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property."8
Such resounding statements from the High Court as to the scope of the provision and the very broad concepts of property which it embraces would suggest that only by the most perverse process of logic could native title escape being included as a property interest subject to the constitutional requirement of just compensation if by a Commonwealth statutory provision it is acquired by the Commonwealth or another. Any judicial statements in Mabo which can be taken to support this conclusion are more muted than those quoted above. Nevertheless Deane and Gaudron JJ. were able to say that, "Our conclusion that rights under common law native title are true legal rights which are recognised and protected by the law, would, we think, have the consequence that any legislative extinguishment of those rights would constitute an appropriation of property, to the benefit of the underlying estate, for the purposes of 51 (xxxi)."9 Brennan J. also seems to suggest, if indirectly, that native title would attract the protection of s5l(xxxi) when he states that native title:
"...being recognised by the common law, (though not as common law tenure), may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual."10
In any case given the existence of strong judicial precedent that in keeping with the status of the placitum as a declared constitutional guarantee, property is to be interpreted very broadly, it is difficult to envisage any future rulings which would deny that native title is embraced by s5l(xxxi).
It has been suggested that there is an argument that merely extinguishing property rights does not amount to an acquisition.11
This question arose in the Dams case,12 where Tasmania argued that the provisions of the Commonwealth's World Heritage Properties Conservation Act 1983, which effectively prevented any development of a wilderness area in south western Tasmania, amounted to an acquisition of property by the Commonwealth and that consequently Tasmania was entitled to compensation under s5l(xxxi) of the Constitution. The issue essentially was whether a comprehensive regulatory regime imposed by the Commonwealth which in effect rendered nugatory or extinguished any property rights was in reality an 'acquisition' by the regulator.
Of the four judges who considered the question, three - Justices Mason, Brennan and Murphy - considered that there was no acquisition of property in such circumstances and that therefore Tasmania was not entitled to claim just terms under the acquisitions power. Typical of the reasoning of the judges who did not regard comprehensive regulation as amounting to acquisition was that of Mason J. who said that what was important was:
... that neither the Commonwealth nor anyone else acquires by virtue of the legislation a proprietary interest of any kind in the property. The power of the Minister to refuse consent under the section is merely the power of veto. He cannot positively authorise the doing of acts upon the property. As the State remains in all respects the owner, the consent of the Minister does not overcome or override an absence of consent by the State in its capacity as owner."13
The situation described by Mason J. cannot be applied to the situation which arises on the extinguishment of native title. On there being a grant by the Crown of property rights which are inconsistent with the continued enjoyment of native title, extinguishment occurs and then,
"..the Crown's radical title expands to a full beneficial title, for then there is no other proprietor than the Crown."14
There is clearly an acquisition of a proprietary right by the Crown.
A similar idea is conveyed by the expression used by Deane and Gaudron JJ. that on legislative extinguishment of native title there is an appropriation of property to the benefit of the underlying estate.15
In the Dams case the State 'remained in all respects the owner of the regulated land. Thus it would be expected that the grant of a lease by the Tasmanian Government over land subject to Commonwealth regulation would in no way affect Tasmania's reversionary rights on expiry of the lease term. Yet the extinguishment of native title results in permanent loss of ownership to traditional owners. On the grant of a lease of traditional land by the Crown,
"the lessee acquires possession and the Crown acquires the reversion expectant on expiry of the term. The Crown's title is thus expanded from the mere radical title and, on the expiry of the term becomes aa plenum dominium."16
It is perhaps useful here to emphasise that there is nothing inherently significant about the use of the word 'extinguishment' to describe the mechanics by which the Crown acquires a beneficial interest in land. This was in fact the subject of comment by Toohey J who stated:
"..to say that, with the acquisition of sovereignty, the Crown has the power to extinguish traditional title does not is necessarily mean that such a power is any different from that with respect to other interests in land. The Crown has the power, subject to constitutional, statutory or common law restrictions to terminate any subject's title to property by compulsorily acquiring it."17
It serves nothing then to suggest that in extinguishing native title the Crown is not acquiring any proprietary rights which it did not in any case possess as radical title holder. If this were the case the same logic would apply equally to non-native title and the constitutional provision would have no operation in respect of land acquisitions.
The holder of native title may in fact be in a happier position with respect to the protection of s5l(xxxi) than the holder of conventional title when the Commonwealth chooses to regulate land use.
It was made clear in Mabo that the exercise of a power to extinguish native title must reveal a dear and plain intention to do so.18 However, such a clear and plain intention is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title.19 As an example, Brennan J. instanced a law which reserves or authorises the reservation of land for the occupation of indigenous inhabitants. Such a law works no extinguishment.
On this reasoning it would also seem that there is nothing inconsistent with the enjoyment of native title, if such native title exists, in the regulation of Crown land along the lines of the World Heritage Properties Conservation Act 1983 (Cth), since the object of the legislation is to preserve the land in its natural state. There would be no reason why an indigenous people with no desire to develop or alter the environment in any way could not continue to enjoy a traditional lifestyle on such land. In such cases there would be no extinguishment of native title and therefore no compensation would be necessary.
However there may be situations where regulation of land use by the Commonwealth may be inconsistent with native title. An example of such a law was provided by Deane J. in the Dams case20, who postulated a law prohibiting any presence upon land within a radius of one kilometre of any point of the boundary of a particular defence establishment i.e., a law which effectively creates a buffer zone for the benefit of the establishment.
In such a case, because such a buffer zone is inconsistent with continued enjoyment of native title, extinguishment occurs, the Crown's radical title expands to encompass the beneficial title to the land with the ensuing result of an acquisition to the Commonwealth requiring just terms.
However a similar regulation affecting a conventional title holder would not, it would seem, invoke the protection of s5l(xx)d). The issues were argued in the Dams case.
Brennan J. in considering the effect for purposes of s51(xxxi) of the total regulation by the Commonwealth of land to which it has no title, made reference to the difficulties experienced in the United States where the Fifth Amendment directs that property should not be 'taken' without just compensation. The Supreme Court in the United States construed the provision as one "designed to bar government from forcing some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole."ss Justice Brennan noted that:
"If this court were to construe s51(xxxi) so that its limitation applies to laws which regulate or restrict the use of and enjoyment of proprietary rights but which did not provide for the acquisitions of such rights, it would be necessary to identify a touchstone for applying the limitation to some regulatory laws and not to others." 23
He went on to note the difficulties which had been experienced by American courts in developing such a formula before ruling, like Justices Mason (see above) and Murphy24 that no proprietary rights had been acquired by the Commonwealth from Tasmania and that consequently just terms were not necessary.
Justice Deane on the other hand, while conceding that,
... it is, as a matter of ordinary language, impossible to say that there has been any acquisition of property if all that is involved is a restriction of what can be done upon it ..."36
went on to note26 that there were situations where the effect of prohibition or regulation was to confer on the Commonwealth or another an identifiable and measurable advantage and that in such a situation an acquisition for purposes of s5l(xxxi) is involved. Such an example would be the buffer zone for a defence installation described above. For Deane J. there would accrue to the Commonwealth the benefit of the buffer zone being the benefit of use of the land in its unoccupied state, "notwithstanding that neither the owner nor the Commonwealth, possessed any right to go upon or actively use the land affected" 27 and that therefore just terms were required.
If the approach of Deane J. was followed, then in many cases comprehensive regulation of land the subject of conventional title would be an acquisition and require just terms. It would seem however that the view of the other three judges, that no acquisition occurs in such circumstances, may prevail.
Nevertheless, comprehensive regulation by the Commonwealth of land the subject of native title which provides for use of land inconsistent with the enjoyment of native title results in extinguishment. All property rights attendant on that native title are lost and the Crown's radical title enlarges on the beneficial interest. Consequently, there is an acquisition of property by the Crown and just terms are required.
Native title, like conventional title, is subject to the protection of s51(xx)i) of the Constitution. It is a property right28 which is acquired by the Crown when native title is extinguished by legislative action. Where legislative action leading to extinguishment is taken by the Commonwealth, then just terms for the acquisition are required. This would seem to require compensation according to the market value of the land29, and would include compensation where government regulation prevents the use and enjoyment of native title.
An intriguing question left at large and beyond the scope of this paper is the issue of retrospective compensation arising from the application of s51(xx)i). If just terms have not been provided in the past, is the legislation leading to extinguishment invalid? Or is it still open to the Commonwealth to provide just terms?30 The Mabo decision has ensured that there are interesting times ahead.
1. Mabo and Others v The Stale of Queensland (No.2.) (1992) 175 CLR l. (Mabo. No.2').
2. Ibid., per Mason CJ and McHugh J at 15.
3. Bank of NSW vThe Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 349.
4. Pererill v Health Insurance Commission[1991] FCA 505; (1991) 104 ALR 449 at 454 per Burchett J.
5. Trade Practices Commission v Tooth & Co 14 2 (1979) CLR 397 at 403 per Barwick J.
6. See eg., Minister of State fo the Army v Dalziel (1944) 69 CLR 261 at 276 per Latham J.
7. Minister of State for the Army v Dalziel [1944] HCA 4; (1943-44) 68 CLR 261 at 284-5.
8. Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 349-50.
9. Mabo No.2 at 111 per Dome and Gaudron JJ.
10. Ibid., 61.
11. Brysland, Gordon, "Rewriting History 2 - The Wider Significance of Mabo v Queensland", Alternative Law Journal, 17 (4) August 1992, pp.162-65.
12. Commonwealth v Tasmania (1983)158 CLR 1. ('Dams Case').
13. Ibid., at 146.
14. Mabo No.2 at 60 per Brennan J.
15. Ibid., at 111.
16. Ibid., at 68.
17. Ibid., at 1934.
18. Ibid., at 64.
19. Ibid.
20. Dams Case at 283-84.
21. Ibid., at 247.
22. Armstrong v United States [1960] USSC 113; 364 US 40 (1960) at 49.
23. Dams Case at 247-48.
24. Ibid., at 181.82.
25. Ibid., at 283.
26. Ibid.
27. Ibid., at 284.
28. Nelugaloo Ply Ltd v Commonwealth (1948)75CLR 49 at, 571-72
29. See also Mabo v Queensland (1988) 166 CLR 186 – ‘Mabo No.1’ - where the reasoning seems critically to turn on treating native title as property.
30. See Minister of State for the Army v Dalziel (1944) 69 CLR 261 at 290-91.
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