Nettheim, Garth --- "Pareroultja and Others v Tickner and Others" [1993] AboriginalLawB 51; (1993) 3(64) Aboriginal Law Bulletin 29

• Pareroultja And Others V Tickner And Others

---

Pareroultja and Others v Tickner and Others

Federal Court of Australia

Lockhart, O'Loughlin and Whitlam JJ.

[1993] FCA 465; (1993) 117 ALR 206 (1993) 42 FCR 32

Sydney, 20 September 1993, Unreported.

by Garth Nettheim

In one of the most significant judicial decisions to follow the High Court's decision in Mabo v Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1, the full Federal Court has held that the grant of statutory title to a Land Trust under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) is not inconsistent with the continuance of 'native title' so as to extinguish it, and is not in breach of the Racial Discrimination Act 1975 (Cth).

The applicants claimed to be traditional owners of land to the north-east of Uluru. So did the second respondents. In the Lake Amadeus land claim, the Aboriginal Land Commissioner found that both the applicants and the second respondents were "traditional Aboriginal owners" of the land under the Land Rights Act and recommended a grant to a Land Trust. The first respondent, the Minister for Aboriginal and Torres Strait Islander Affairs was preparing to recommend to the Governor-General a grant of the land under the Act. The applicants opposed the making of the grant on the basis that it would be "an unlawful extinction, impairment, interference with or reduction of their native title to the land".

Lockhart J (with whom O'Loughlin and Whitlam JJ agreed) first analysed the scheme of the Land Rights Act, in the course of which he restated his own description of the Act in Attorney-General (NT) v Hand, Minister for Aboriginal Affairs (1989) 25 FCR 345:

"The Land Rights Act is beneficial legislation, recognizing the importance of traditional land to the Aboriginal people and their spiritual affinity with it. It is an Act designed to return to the Aboriginal people so much of their traditional land as Australian society can make available to them. The Act recognizes the tension between the religious affinity of Aboriginal people to their traditional lands and the demands of a modern western society, between an ancient people and a cosmopolitan society. It is an attempt to do justice to the Aboriginal people consistent with the good government and progress of Australia for all its people".

After considering the nature of 'native title' in light of the judgment in Mabo v Queensland (No.2) Lockhart J concluded that a grant of land to which there is native title to a Land Trust under the Land Rights Act does not extinguish the native title and is not inconsistent with the continued existence of native title. The purpose of the Land Rights Act is to further the interests of traditional owners and is not inconsistent with their interests. The use by the Lands Rights Act of Land Trusts and Land Councils "is essentially a modern adaptation of traditional Aboriginal decision-making processes through their communities", and the terms of the Act make it clear that a grant of land in fee simple to a Land Trust "does not prevent Aboriginals having the benefit of native title from continued occupancy, use or possession of their land to the extent that it is in conformity with Aboriginal tradition governing the rights of the relevant Aboriginals with respect to the land Lockhart J went on to state "The grant of land to a Land Trust does not extinguish native title; it protects it".

"...When one examines the Land Rights Act and the rights that it confers upon persons who have the benefit of a land grant, it is apparent that, although the rights and obligations enjoyed or suffered by Aboriginal people entitled to the benefit of native title will vary as between clans or groups and areas of land, it is the interests of the relevant Aboriginal people that are necessarily taken into account by the exercise of the various mechanisms established by the Land Rights Act for their benefit".

After reference to a number of statements in the judgments in Mabo (No.2) instancing grants of interests which would not extinguish native title, Lockhart J said: "Land is granted to Land Trusts under the Land Rights Act to preserve native title and Aboriginal interests and is not inconsistent with the continued enjoyment of native title."

His Honour rejected an argument that the Land Rights Act should be construed as inapplicable to land subject to native title.

He also rejected an argument that the Racial Discrimination Act operated to prevent the making of grants of land under the Land Rights Act in respect of land to which there attached a valid and subsisting native title.

“In my opinion, it is inconceivable that when Parliament enacted the Land Rights Act, a later Act, it intended that its operation. or effect should be constrained by the earlier Racial Discrimination Act. The Land Rights Act is an Act of Parliament dealing comprehensively with the particular subject matter reflected by its long title, namely, the grant of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals and for other purposes. A comprehensive code or scheme was enacted to achieve this end.”

Justice Lockhart found it unnecessary to deal with arguments that there was any particular inconsistency between the Racial Discrimination Act and the Land Rights Act but did deal with an argument raised by the respondents, namely, that if the Land Rights Act were to be read subject to the Racial Discrimination Act, then the Land Rights Act constitutes a 'special measure' within Article 1(4) of.the International Convention on the Elimination of All Forms of Racial Discrimination so as to exempt the Act from constituting discrimination within the Racial Discrimination Act s8(1). After considering Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, Lockhart J concluded that the Land Rights Act is such a 'special measure', being;

"a measure taken for the sole purpose of securing adequate advancement of Aboriginal Australians, requiring their protection in order to ensure that they enjoy and exercise human rights and fundamental freedoms with non-Aboriginal Australians".

Accordingly, even if the Land Rights Act had been subject to the Racial Discrimination Act (which it was not), and even if it had been contrary to that Act (which it was not) it would still have survived as a 'special measure'.

Accordingly, the grant of the land to a Land Trust under the Land Rights Act without the consent of some native title holders was not unlawful. (The applicants propose to seek special leave to appeal to the High Court of Australia).