Amankwah, H. A. --- "Mabo - Extinguishment of Native Title and Pastoral Leases Revisited" [1993] AboriginalLawB 32; (1993) 3(63) Aboriginal Law Bulletin 13

• Mabo-Extinguishment Of Native Title And Pastoral Leases Revisited
• Endnotes:

---

Mabo -

Extinguishment of Native Title and Pastoral Leases Revisited

by Dr H. A. Amankwah

One exception to the holding that traditional title survived the colonisation of Australia by the British is that where the Crown made a grant which was inconsistent with the continuance of traditional title, traditional title was extinguished to the extent of that inconsistency.1 Brennan J put it thus:

Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (eg., authorities to prospect for minerals). 2

Stating the same principle differently Deane and Gaudron JJ said:

... Common law native title, being merely a personal right unsupported by any prior actual or presumed Crown grant of any estate or interest in the land, was susceptible of being extinguished by an unqualified grant by the Crown of an estate in fee or of some lesser estate which was inconsistent with the rights under the common law native title.3

Deane and Gaudron JJ recognised yet another method of extinguishment of traditional title, i.e., that which results from the application of equitable principles - estoppel, laches acquiscence etc. They stated the matter explicitly:

Common law native title could also be effectively extinguished by an inconsistent dealing by the Crown with the land, such as a reservation or dedication for an inconsistent use or purpose, in circumstances where third party rights intervened or where the actual occupation or use of the native title-holders was terminated. In the latter case, an ultimate lack of effective challenge would found either an assumption of acquiescence in the extinguishment of the title or a defence based on laches or some statute of limitations.4

Thus it is clear that a grant in freehold would determine traditional title. However, with respect to leaseholds the matter is not free from doubt. The issue is critical because of its ramifications - both legal and political since about half of the Australian continent is held under leasehold. It may be argued that the 'lesser' 'estate' or 'interests' in the passages quoted above encompass leasehold interests. We concede also that leasehold on which stand dwelling houses and other residential property are as good as freehold because of the incident of renewability on expiry. Pastoral leases however present a different problem.

The granting of pastoral leasess was the strategy the government authorities adopted to regulate squatting outside settlement boundaries by the settlers, an act which was tantamount to illegal occupation of Aboriginal land. Dawson J in his dissenting opinion recognised this problem. He said:

When it became clear that the government could not prevent squatters from grazing their stock outside the Limits of Location, the government acted to regulate their occupation and to assert the rights of the Crown over that land. The government treated these squatters as unauthorised occupants of unalienated Crown land and permitted the land to be occupied only under a licence. For the purposes of regulating the use and occupation of land beyond the Limits of Location, the government divided this land into districts, each of which had a Commissioner and a Border Police Force.5

But as Professor Henry Reynolds argued in a recent paper ,6 Dawson J seriously misinterpreted legal efforts directed at redressing the problem, especially an Order-in-Council dated March 9,1848. Relying on historical records in the Colonial Office, Professor Reynolds said that in order to protect Aboriginal interests, the Colonial Office officials intended "the reservation of leases in pastoral land of the rights of the Natives."7 Due to political agitation in the Australian colonies, however, the 1848 Order-in-Council omitted any specific reference to the matter, the preamble of which read in part:

And whereas it is expedient that all such pastoral leases should contain such conditions, clauses of forfeiture, exceptions, and reservations, as may be necessary for securing the peaceable and effectual occupation of the land comprised in such leases, and for preventing the abuses and inconveniences incident hereto...

For Dawson J therefore to conclude that this afforded no basis for saying that "native rights in the land were recognised or accepted"s must indeed be a gross misinterpretation of legal history. Indeed as Professor Reynolds argues:

However the deliberate imprecision of the Order-in-Council does require comment. It concerned the Colonial Office's Australian specialist Gordon - Gairdner. In a minute to Earl Grey on the draft Order-in-Council received from the Land and Emigration Commission he scrawled: 'The entire extent of the access of the natives must surely be defined.' With an eye to the politics of the situation Grey replied that the Order would 'be sufficient' as long as it was accompanied by an 'explanatory dispatch'. So the true meaning of the measure was to be found less in the Order-in-Council which was a public document published in the New South Wales Government Gazette and more in the dispatch which was only for official eyes. In that correspondence Grey re-emphasised the substance of his original dispatch of 11 February 1848 and re-iterated that there could be 'little doubt that the intention of the Government was ... to give only the exclusive right of pasturage in runs, not the exclusive occupation of the land, as against the Natives using it for ordinary purposes'. (Emphasis added).9

In interpreting legislation it is permissible to resort to its legislative history to ascertain the intention of the law makers. There can be no doubt about the intention of the Imperial government to protect Aboriginal land rights against the settlers' predatory incursions. The policy was obtusely carried forward. In the Imperial Repeal of Colonial Waste Land Act 1855 10 which gave the colonies the power to legislate for the disposal of Crown lands and to repeal, alter or amend any of the Orders-in-Council under the 1846 Waste Land Act a proviso was made for the "preservation and fulfilment of contracts, promises and engagements made by or on behalf of Her Majesty with respect to land".11 Similar constraint was placed on Queensland after its separation from New South Wales in 1859 and was embodied in s30 of the Constitution Act of 1867.

In South Australia the reservation in pastoral leases is even more forthright. A typical example reads:

reserving nevertheless and excepting out of the said demise to Her Majesty ... for and on account of the present Aboriginalinhabitants of the Province and their descendants ... full and free right of ingress, egress and regress into upon and over the said Waste Lands of the Crown ... and in and to the Springs and surface water thereon and to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to if this demise had not been made.12

Although historical evidence is convincing regarding the intention of the Imperial government that the grant of pastoral leases did not extinguish traditional title, other legal evidence would be needed to fully substantiate that fact. That legal evidence is furnished by the common law itself.

The two essential characteristics of a lease are: exclusive possession and certainty of duration. The law on exclusive possession remained uncertain for a while when it was thought that the determination of the grant of exclusive possession by lessor to lessee was a matter of the intention of the parties.13 Contemporaneously in Australia however the High Court affirmed the exclusive possession test. In Radaich v Smith14 a deed made on 29 May 1954 between G.W.E. Smith and A. Smith (called therein 'the Licensors') and M. Radaich (called 'the Licensee') provided that "the Licensors hereby grant to the Licensee for a term of five years ...the sole and exclusive License [sic] and privilege to supply refreshments to the public admitted to" certain premises on a variety of terms. One term required the licensee "during the continuance of this license [to] pay to the Licensors the annual sum of £286 by equal weekly payments in advance."

Windeyer J said:

What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives. If he was, he is a tenant. And he cannot be other than a tenant, because a legal right of exclusive possession is a tenancy and the creation of such a right is a demise. To say that a man who has, by agreement with a landlord, a right of exclusive possession of land for a term is not a tenant is simply to contradict the first proposition by the second. A right of exclusive possession is secured by the right of a lessee to maintain ejectment and, after his entry, trespass. A reservation to the landlord, either by contract or statute, of a limited right of entry, as for example to view or repair, is, of course, not inconsistent with a grant of exclusive possession. Subject to such reservation, a tenant for a term or from year to year or for a life or lives can exclude his landlord as well as strangers from the demised premises. All this is long-established law... 15

The law made a revolutionary spin commencing from the point of exclusive possession, through that of intention of the parties and back to the exclusive possession silos which is now regarded as the settled position of the law. In Street v Mountford 16 the House of Lords adopted the exclusive possession test and cited with approval Windeyer J's statement of the law in Radaich v Smith.17

A licence does not become a lease because the document creating same employs language and terminology appropriate to the creation of lease, and a lease does not become a licence for the same reason. If a grant or demise of an interest is subject to other people's right to enter the land and put the land to their own particular kind of usage - foraging, fishing, hunting etc - then it is submitted that the grantee does not have exclusive possession and a fortiori the demise is not a lease notwithstanding the employment of terminology consistent with the creation of a lease. Viewed from this angle so called pastoral leases were actually mere licences for pasturage purposes.

In Brennan J's view though, native title could be extinguished by grants of freehold or leases yet it may "not necessarily be extinguished by the grant of lesser interests (e.g. authorities to prospect for minerals)".18 (My emphasis.) We submit that pastoral leases fall within the ambit of 'lesser interests' which could not therefore extinguish native title.

British colonial policy elsewhere in the British Commonwealth supports the view being canvassed. In West Africa communal interests were considered so vital that legislation was drafted in such a way as not to disturb or derogate from them. The Gold Coast (now Ghana) Concessions Ordinance (1939) provided that no concession which violated native right to hunt, cultivate food farms or collect faggots would be certified as valid19

This is not to assert however a consistency in British colonial policy throughout the British Empire. Ambivalence often characterised British colonial policy. Sometimes the British authorities asserted the paramountcy of native interests; at other times they asserted those of the settlers. For example while British colonial policy in West Africa frowned on the inauguration of the plantation system as a means of protecting the land of the natives from ruthless exploitation by foreign capital, in East Africa on the other hand it vigorously encouraged the establishment of plantations in places such as Kenya, Zimbabwe, Tanzania and Malawi. The congenial weather in these places may not be unconnected with this contradiction in British colonial policy.20

To Professor Reynolds' question, therefore, whether "native title survives in land held under pastoral leases" his own assertion:

The Aboriginal interest on all pastoral land held under lease is far older and far more potent than has commonly been realized. It has to be treated very seriously in all the negotiations and litigation which will follow in the wake of the Mabo decision 21

affords an apposite answer.

Endnotes:

1. Mabo and Others v The State of Queensland (No. 2) 11992]

[1992] HCA 23; 175 CLR 1.

2. Ibid., 69.

3. Ibid., 80.

4. Ibid.

5. Ibid.,143.

6. Reynolds, H., James Cook University, Department of Law Seminar paper entitled "Does Native Title Survive in Land Held Under Pastoral Lease in Australia?" October 13,1992, Townsville, Queensland, Australia. See also his "Mabo and Pastoral Leases" (1992) 2 Aboriginal Law Bulletin, No.52, at p.2.

7. Ibid.

8. Mabo (No. 2) op. cit., Note 1 Supra, at 144.

9. "Does Native Title Survive in Land Held Under Pastoral Leases?", op.cit., Note 6 supra.

10. 18 and 19 Vic. C.56.

11. Ibid.

12. Quoted by Blackburn J in Milirrpum v Nabalco (19711 17 FLR 141, 260.

13. Errington v Errington (195211 KB 290; Issue v Hotel de Paris (19601 All ER 348; Mex Shell & BP v Manchester Garages 1197111 All ER 841.

14. (1959)101 CLR 209; 119591 ALR 1253.

15. Ibid. 214;1259 respectively.

16. (19851 AC 809;1198512 WLR 877; (198512 All ER 289.

17. Ibid.827,891,300respectively.

18. See Note 2 supra.

19. S.13(5) and (7).

20. See generally Udo, R K , "Sixty Years of Plantation Agriculture in Southern Nigeria", (1965) 4 Economic

Geography at 356

21. "Mabo and Pastoral Leases", op-cit. Note 6 supra, at 10.