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by Garth Nettheim
In Mabo v Queensland (No 1)[1] the High Court of Australia, by a 4:3 majority, held that the Racial Discrimination Act 1975 (Cth), s10, constituted a federal 'safety net' against State or Territory legislation which would otherwise extinguish native title. The proposition was affirmed in Mabo v Queensland (No 2).[2]
But in Mabo (No 2) Brennan J suggested that State land rights legislation providing for grant of statutory title to Aboriginal or Torres Strait Islander people would not attract the operation of that federal 'safety net' to save 'native title' to the land from possible extinguishment. The suggestion was that State land rights legislation would fall within the 'special measures' exception in the Racial Discrimination Act 1975 (Cth) s8(1).
Brennan J's comments have caused some concern to Aboriginal and Torres Strait Islander people who have been working within the framework of State and Territory land rights legislation. The comments deserve consideration on two points:
(1) Would a grant of statutory title constitute a 'special measure' within the meaning of the Racial Discrimination Act 1975 (Cth) s8?
(2) Would statutory title extinguish any 'native title' that might otherwise exist, in terms of the majority judgments in Mabo (No 2)?
(3) A third question also arises as to the extent and adequacy, generally, of the federal 'safety net'.
In 1965 the United Nations General Assembly adopted the International Convention on the Elimination of All Forms of Racial Discrimination. Like all treaties, it imposes obligations in international law only on States Parties, that is, on nations whose governments choose to ratify it. Australia ratified the Convention in 1975. Thereupon it accepted obligations to do various things within Australia to deal with racial discrimination. To meet this obligation it enacted the Racial Discrimination Act 1975 (Cth).
The Convention defines 'racial discrimination' in Article 1(1) but Article 1(4) allows for a State Party to take 'special measures'. Echoing this, the Act in s8(1) says:
‘This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article l of the Convention applies except measures in relation to which sub-section 10(1) applies by virtue of sub-section 10(3).’
Article 1(4) of the Convention says:
‘Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’
The Racial Discrimination Act then goes on to declare various acts unlawful and to set up machinery for complaints and conciliation and, in the last resort, court action. Section 9 makes it unlawful in general terms 'for a person to do any act' involving racial discrimination which has the 'purpose or effect' of 'nullifying or impairing' the enjoyment of any human right or fundamental freedom in any field of public life. Sections 11-15 make it unlawful to apply racial discrimination in specific contexts, public or private:
Not surprisingly, under Commonwealth, State and Territory anti-discrimination legislation, complaints about discrimination against Aboriginal and Torres Strait Islander people are disproportionately high. Several of the major court decisions have been based on Aboriginal and Islander cases:
Koowarta v Bjelke-Petersen[3]: the plaintiff had persuaded the Aboriginal Land Fund Commission to buy the Archer River pastoral leasehold on behalf of the Winychanam people. But the Queensland Minister for Lands had an absolute discretion under the Land Act 1962 (Qld) whether to approve transfer of a leasehold, and he refused his approval on the basis of a Cabinet policy not to favour any further acquisition of large areas of land by Aboriginal people. Eventually Koowarta went to Court claiming breach of ss9 and 12 of the Racial Discrimination Act 1975 (Cth). Queensland demurred and also sought a declaration that the Commonwealth Parliament had no constitutional power to pass the Act but the High Court, by a 4:3 majority, held that the Commonwealth Act was valid on the basis of Constitution sSl(xxix), the 'external affairs' power.[4] In consequence, the Queensland actions, if proved at trial, would be unlawful.[5]
Gerhardy v Brown [6]: what was at issue in this case was State action - indeed legislation - not to deny Aboriginal land rights but to grant them. The Pitjantjatjara Land Rights Act 1981 (SA) vested the Pitjantjatjara lands in Anangu Pitjantjatjara. Section 19(1) of the Act made it an offence for a non-Pitjantjatjara to be on Pitjantjatjara land without a permit. Brown, who was on the lands without a permit, was prosecuted and claimed in his defence that s19(1) of the State Act was against the Commonwealth Act because it discriminated on racial grounds in the enjoyment of freedom of movement within the scope of s9 of the Racial Discrimination Act.
The High Court took a rather literal view of 'discrimination' and was prepared to accept Brown's argument that the access provision and, (possibly, the whole Pitjantjatjara Land Rights Act) amounted to racial discrimination within the scope of the Act.[7] But they held that it was saved because it was a 'special measure' within s8(l) of the Act and Article 1(4) of the Convention.
One other point to note is that a number of the judges said that s9 of the Racial Discrimination Act does not apply to legislation, and slO is the only section which does.[8]
Mabo (No 1): the point was restated in the 1988 Mabo decision.[9] That case involved the attempt by the Bjelke-Petersen government to abort the principal Mabo action by passing a special Act, the Queensland Coast Islands Declaratory Act 1985, retroactively declaring that any Torres Strait Islander land rights had been extinguished on annexation in 1879. The High Court, by a 4:3 majority, held that the State Act was ineffective because of slO of the Racial Discrimination Act. That section does not make action unlawful or invalidate legislation. What it does say is that if, by reason of a Commonwealth, State or Territory law, persons of a particular race, etc., do not enjoy a right that is enjoyed by others, or enjoy it to a more limited extent, then, by virtue of slO, those persons shall enjoy such right to the same extent as the others. The High Court majority held that the State Act arbitrarily deprived the Islanders of their rights of property and inheritance derived from Meriam law while leaving intact rights of property and inheritance of people deriving from Queensland law - therefore, it was ineffective.[10] It was this case that led to the recognition of the Racial Discrimination Act, and slO in particular, as a federal 'safety net' for Aboriginal and Islander land rights, a point re-emphasised in Mabo (No 2)[11]
Mabo (No 2): but in Mabo (1992) Brennan J said something to suggest that that 'safety net' would not be available to override State action that could be described as a 'special measure under s8(l) of the Act and Article 1(4) of the Convention.
His remarks were made at the very end of his judgment when he was explaining why he proposed not to grant a declaration sought by the plaintiffs that it would be unlawful for the Queensland government to grant DOGIT[12] title in respect of Murray Island:
The language is tentative. Deane and Gaudron JJ agreed that the particular declaration asked for should be refused but did not refer to the special measures issue:
'This declaration is founded on the decision in Mabo v Queensland (1988) 166 CLR 186 ...
The plaintiffs now seek to deny the power of the Governor in Council to grant a deed of grant in trust because, if effective, the alienation of the Murray Islands to a trustee - albeit the trustee would be the Island Council constituted under the Community Services (Torres Strait) Act - would extinguish native title including the native title claimed by the individual plaintiffs. Under the relevant provisions of the Land Act, the Island Council as trustee would have power to lease land inconsistently with native title.
There are two reasons why the declaration sought by the plaintiffs should be refused. First, there is no evidence that the Governor in Council intends to grant a deed of grant in trust in respect of land in the Murray Islands and the Solicitor-General denied that there were "the slightest indications" that the Governor in Council would do so. Secondly, s10 of the Racial Discrimination Act may not have an effect on the granting of a deed of grant in trust similar to the effect which slO had upon the Queensland Coast Islands Declaratory Act 1985. It will not have a nullifying effect if the action taken under the relevant State laws constitutes a special measure falling within s8(l) of the Racial Discrimination Act and thereby escapes the operation of s10 (Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70). Whether the granting of a deed of grant in trust would constitute a special measure is a question which cannot be answered without an examination of all the relevant circumstances; it involves findings of fact. In the absence of findings which determine whether a deed of grant in trust would constitute a special measure, no declaration that the granting of such a deed would be "unlawful" can be made. There is no need to determine whether s9 of the Racial Discrimination Act is inconsistent with the relevant provisions of the Land Act 1962, for there is nothing to show that those provisions will be used to affect interests which the plaintiffs seek to protect."[13]
The language is tentative. Deane and Gaudron JJ agreed that the particular declaration asked for should be refused but did not refer to the special measures issue:
"In our view, it has not been shown that such a declaration is warranted. For one thing, the material before the court does not establish that there exists any intention to make such a grant. For another, the effect of this judgment is that any such deed of grant would, if it had the effect of extinguishing the rights of the Murray Islanders under common law native title, be wrongful unless it was clearly and unambiguously authorised by a valid enactment of the Queensland Parliament. There is no basis upon which the court could properly conclude that the Queensland Government is likely, in the absence of such clear and unambiguous legislative authorisation, to infringe the rights of the Murray Islanders by such an inconsistent deed of grant. If such clear and unambiguous legislation was purportedly enacted, it would be necessary to examine its operation to determine whether it was invalid by reason of inconsistency with the Racial Discrimination Act 1975."[14]
As noted, s9 of the Act makes unlawful acts by a person, and slO deals with legislation so as to deprive it of effect. The actual issue of a DOGIT title would, if it amounted to racial discrimination, fall within s9 rather than slO, though the legislation authorising it could fall within slO. Whether or not either section would be infringed by grant of statutory title extinguishing native title, neither section applies if it is a special measure within s8(1) defined in Article 1(4) of the Convention.
The suggestion by Brennan J is that grant of DOGIT title (or, presumably, title under the Aboriginal Land Act 1991 (Qld) or Torres Strait Islander Land Act 1991 (Qld)), is a special measure "taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms ...". As noted, the High Court took exactly this view of the Pitjantjatjara Land Rights Act 1981 (SA) in Gerhardy v Brown?[15]
With respect, I suggest that there is a crucial difference. In 1981 the proposition generally accepted by lawyers was that the sole legal basis for continued Pitjantjatjara occupancy of their lands was the status of those lands as Crown land reserved for Aboriginal occupation. The decision of Blackburn J in the Gove Land Rights Case[16] was widely accepted as indicating that Aboriginal people had no lands rights except for those granted by governments. In Gerhardy v Brown Deane J, in particular, strongly emphasised this factor.[17] So an Act vesting ownership under South Australian law was seen as a special measure helping to secure equal enjoyment or exercise of human rights or fundamental freedoms. The principal holdings in the 1992 Mabo case itself turn this situation on its head. If Aboriginal people already hold native title, how can it be a special measure to extinguish that and to substitute some form of statutory title?
Consider what the High Court said in Gerhardy v Brown in treating the provisions of the Pitjantjatjara Land Rights Act 1981 (SA) as a special measure. Gibbs CJ said: "The legislature has no doubt acted on the view that to enable the Pitjantjatjaras to live on the land in accordance with their traditions and customs and to maintain their relationship to the land ... it is necessary not only that they should own the land but also that they should have full control of access to it".[18] This approach scarcely applies if Aboriginal people already own their land.
In Gerhardy v Brown Brennan J himself saw four indicia of a special measure:
"A special measure (1) confers a benefit on some or all members of a class (2) the membership of which is based on race, colour, descent or national or ethnic origin (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms."[19]
On the third point he insisted that the "wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement"[20] His fourth point was that a special measure needs also to be 'necessary'. On this analysis, to thrust a form of statutory title on an indigenous people who already have 'native title' in their own terms and who, like the Murray Islanders do not want the statutory title, could hardly be regarded as a special measure.
If this is correct, then, since the 1992 Mabo decision, it would be very difficult to argue that the grant of statutory title in respect of land which is already subject to native title would be a special measure. The consequence is that the Racial Discrimination Act 1975 (Cth) could apply.
This leads to a second question: whether, special measures or not, the grant of statutory titles would extinguish native title, quite apart from the possible salvaging effect of the Racial Discrimination Act 1975 (Cth).
In Mabo (No. 2) most of the judges said that there is a presumption that Parliament does not intend to extinguish native title or to authorise its extinguishment unless the intention to do so is 'clear and plain'. The intention of legislatures in enacting land rights legislation[21] has been clearly to confer land rights and not, I suggest, to extinguish them in the case of those peoples who might be able to claim native title. Of course legislative and executive action may be so inconsistent with the continuance of native title that extineuishment is necessarily inferred.
In the case Brennan J said:
A clear and plain intention to extinguish native title 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. A fortiori, a law which reserves or authorises the reservation of land from sale for the purpose of permitting indigenous inhabitants and their descendants to enjoy their native title works no extinguishment.[22]
Native title was not extinguished by the creation of reserves nor by the mere appointment of trustees to control a reserve where no grant of title was made. To reserve land from sale is to protect native title from being extinguished by alienation under a power of sale. To appoint trustees to control a reserve does not confer on the trustees a power to interfere with the rights and interests in land possessed by indigenous inhabitants under a native title.[23]
It seems highly unlikely that a grant of statutory title would be regarded as so inconsistent with the continuance of native title as to amount to extinguishment. What Queensland attempted to do in the Queensland Coast Islands Declaratory Act 1985 (Qld) was a totally different situation.
However it would be worth close scrutiny of land rights legislation in order to suggest to governments the amendment of any provisions which might seem to cut across the laws and traditions of a particular people. The Murray Islanders in Mabo, for example, were concerned about the power of the Island Council as trustee of a DOGIT title to grant leases that might be contrary to individual and family title.
But whether or not the statutory forms of title might extinguish native title, we need to consider what safeguards there are to prevent action that might show a clear and plain intention to extinguish it.
As far as it goes, it provides some protection, and is the only safeguard available. It worked in Mabo (No 1), though only by a 4:3 majority. In regard to legislation, s10 will bite' if it takes away or impairs rights of one group while leaving the rights of other groups intact, and three of the seven justices had difficulty in characterising the 1985 Queensland Act as doing that. In regard to non-legislative action, s9 (and other sections) can render certain actions unlawful, as in Koowarta, but the processes of establishing all of this - including intention to discriminate on grounds of race - can be time-consuming and cumbersome as the subsequent fate of the Koowarta proceedings indicated.
More to the point, there is nothing to prevent a Commonwealth Parliament from repealing or amending the Racial Discrimination Act![24]
Protection for statutory title, provided by land rights legislation, is not much stronger. Queensland law requires, for a valid resumption of Aboriginal or Torres Strait Islander land, an Act of Parliament expressly providing for resumption and for payment of just compensation. But that requirement too is at the mercy of a later Parliament. The best safeguard is to entrench such a requirement, either in ordinary legislation or in a Constitution at State or Territory level.
It would also be valuable to put such a provision in the Commonwealth Constitution, as was done in Canada's Constitution in 1982. It is extraordinarily difficult to amend the Commonwealth Constitution but if the Committee on Aboriginal Reconciliation does its educational job well, something might be possible by the time of the Centenary of Federation in 2001. But the Commonwealth could also pass an ordinary act to provide fuller and more specific protection. Frank Brennan says:
There is no reason why the Commonwealti could not legislate to provide security of existing Aboriginal land holdings in State jurisdictions. A Commonwealth law could provide that Aboriginal land in the State: was not to be resumed by either the State of the Commonwealth government unless there was first a report made to the Commonwealth Parliament outlining the case for resumption by compulsory acquisition for unavoidable public purposes. There could be a legislative device to vest the land automatically in an Aboriginal land trust should either House of Parliament not agree to the resumption within a fixed period of time. ... In any event, the Commonwealth Parliament needs tc legislate to preclude the possibility of resumption of Aboriginal land by executive action of the Commonwealth Government without approval by Parliament.[25]
Other forms of Commonwealth legislative backstop have been suggested from time to time which would avoid the pitfalls of concepts such as discrimination and special measures.
Of the three questions considered, my tentative conclusions are as follows:
(1) With all respect to Brennan J, there is no substance to his tentative suggestion that a grant of title under Aboriginal land rights legislation would constitute a 'special measure' within the meaning of the Racial Discrimination Act 1975 (Cth) s8(1). I am fortified in this view by Brennan J's own earlier analysis of what constitutes a 'special measure.
(2) It is difficult to characterise most Australian land rights legislation as showing a 'clear and plaid intention to extinguish native title, if only for the reason that there was a widespread assumption that there was no such thing. Most land rights legislation was clearly designed to confer title - and even to acknowledge native title in Australian law - not to extinguish it. However, the terms of particular Acts need careful analysis to ascertain whether their effect is so inconsistent with native title as to extinguish it.
(3) The federal 'safety net' provided by slO,. in particular, of the Racial Discrimination Act 1975 (Cth) is all too vulnerable to displacement by subsequent Commonwealth legislation, whether deliberate (in the interests of investment, job creation, exports, etc) or inadvertent. The gains achieved for Australia's most disadvantaged peoples, the indigenous peoples, in the Mabo litigation and through Commonwealth, State and Territory legislation remain vulnerable to the shifts of political will among Australian politicians. The case for at least consolidating those gains (as distinct from adding to them) requires urgent attention, especially in the International Year for the World's Indigenous Peoples, and certainly by the time of the centenary of Federation.
[2] [1992] HCA 23; (1992) 175 CLR 1.
[4] Ibid at 211-221, Stephen J; 222-235, Mason J; 237-242, Murphy J; 253-261, Brennan J; contrary, 187-207 Gibbs CJ; 243, Alckin J; 245-253, Wilson J.
[5] During the proceedings the Bjelke-Petersen Government removed the Archer River property from possible Aboriginal ownership by making it a National Park Trial was still pending at the time of the plaintiff's death.
[6] [1985] HCA 11; (1985) 159 CLR 70.
[7] For critical comment, see Sadurski, "Gerhardy v Brown and The Concept of Discrimination. Reflections on the Landmark Case that Wasn't[1986] SydLawRw 2; , 11 Sydney Law Review 5; Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws - Report No 31, AGPS, Canberra, 1986; McRae, H., Nettheim, G., & Beacroft, L., Aboriginal Legal Issues: Commentary and Materials, Law Book Co Ltd, Sydney, 1991 at 140-143.
[8] [1985] HCA 11; (1985) 159 CLR 70 at 81, 85, Gibbs q, 92-93, Mason J; 120-121, Brennan J.
[9] (1988) 166 CLR 186 at 196-7, Mason CJ; 203, Wilson J; 216, Brennan, Toohey and Gaudron JJ; 242, Dawson J.
[10] (1988) 166 CLR 186, 218-219, Brennan, Toohey and Gaudron JJ; 229-232, Deane J; contrary, or not deciding, 205-206, Wilson J; 242-243, Dawson J;198-199, Mason CJ.
[11] [1992] HCA 23; (1992) 175 CLR 1,15, Mason CJ and McHugh J; 67-68,71, Brennan J; 111-112, Deane and Gaudron JJ; 214216, Toohey J; contra 171-173, Dawson J whose analysis concluded that any native title had notsurvived annexation.
[12] 'DOGIT title' refers to Deeds of Grant in Trust under provisions of the Land Act 1962-1988 (Qld) which, as amended, were the means chosen by the State National Party Government to confer title to larger reserves on Aboriginal and Torres Strait Islander communityy councils. The State ALP Government subsequently secured enactment of the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) to convert DOGIT titles, and to confer titles to other lands. For history and analysis, see Brennan, F., SJ, Land Rights Queensland Style, University of Queensland Press, St Lucia, 1992.
[13] Mabo v Queensland (No.2) [1992] HCA 23; 1992 175 CLR 1, 74. Mason CJ and McHugh J agreed generally with Brennan J.
[14] Ibid., at 119-120. Toohey J did not refer to the special measures issue. Nor did Dawson J.
[15] (1985)159 CLR 70.
[16] Milirrpum u Nabalco Pty Ltd (1971) 17 FLR 141.
[17] (1985) 759 CIR70, at 149-150.
[18] Ibid., at 87.
[19] Ibid., at 133.
[20] Ibid., at 135.
[21] For a recent overview of such legislation, see McRae,H., et. al,.op.cit.
[22] [1992] HCA 23; (1992) 175 CLR 1, 64. See also at 111, Deane and Gaudron B; at 196, Toohey J.
[23] Ibid., at 66.
[24] In March 1993 the Northern Territory Government introduced a Confirmation of Titles to Land (Request) Bill the purpose of which would be to seek Commonwealth legislation to 'roll back' the Racial Discrimination Act 1975 (Cth) to the extent necessary be confirm grants of title since that Act commenced operation and for the future. The Commonwealth would also be asked to assume responsibility for any compensation required for any extinguishment of native title that would be involved. See Nettheim, G., 'The Consent of the Natives. Mabo and Indigenous Political Rights", Sydney Law Review, 1993
[25] Brennan, F., S.J., Sharing the Country, Penguin, 1991 at 151.
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