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High Court of Australia
P45/1993 (6 November 1994)
by Stella Tarrant
The Plaintiffs in Biljabu and Others v The State of Western Australia ('the High Court action') are members of Martu, an Aboriginal people whose traditional country is in the eastern Pilbara region of WA. The land includes Karlamilyi (Rudall River) National Park. The High Court action, commenced on 24 December 1993, seeks a declaration that the WA Government's legislative response to Mabo v Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1 - the Land (Titles and Traditional Usage) Act 1993 ('the WA Act') - is invalid. At the time of writing the WA Government had not filed a defence. [See Stop press p.l0] The matter is expected to be heard by the High Court in September 1994.[1]
The High Court action is one part of Martu's native title litigation. Before looking at the High Court action, a brief look at the progress of their other action, for a declaration of native title in the Supreme Court of WA, provides a context for viewing the High Court action and illustrates the approach of the WA Government to native title litigation.
Martu commenced an action in the Supreme Court of WA on 10 September 1993 seeking, primarily, a declaration that they hold native title at common law to their traditional land. On 20 September 1993 the State of WA filed an appearance and applied for an order that the action be struck out because the letter of notice of proposed litigation against the Crown (sent pursuant to s6 of the Crown Suits Act 1947 (WA)) was inadequate. This was despite the fact that between 1991 and 1993 the Government of WA participated in a formal negotiating process with Martu for land tenure involving the establishment of a Ministerial Taskforce, numerous meetings with and correspondence to and from the Premier and other Ministers on the one hand and the first Plaintiff and other Martu on the other. The negotiations concerned the land the subject of the native title claim and involved a moratorium on mining on the land which was expressly terminated[2] by the current Government in March 1993.[3]
The Crown's strike out application was heard in November and dismissed in December 1993 on the basis that notice was sufficient. No defence has been filed by the State Government. It would appear the extremely technical approach to the Plaintiffs' claim with respect to s6 of the Crown Suits Act, resulting in significant delay, is a general strategy of the Government with respect to native title claims. The same strike out application has been made in other native title litigation.
The WA Act was passed on 2 December 1993. It purports to validate all grants of title to land made in WA between 31 October 1975 and 2 December 1993 (s5); to extinguish all native title in WA existing immediately before the commencement of the Act and to create substitute 'rights of traditional usage' (s7); and to create a regime for the definition and management of those rights. Key aspects of this substituted regime are explained below. In the High Court Action the Plaintiffs seek a declaration that the WA Act is, in its entirety, invalid on two independent bases, both founded on s109 of the Commonwealth Constitution:
Section 10 of the RDA makes racial equality in laws mandatory. It makes unlawful the taking away of a human right from a person (or group of people) of one race while leaving that right unaffected in relation to another or other races. The human rights protected by slO include those articulated in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination ('the Convention') which include the right to equality before the law and to own and inherit property. Section 10 demands racial equality but does not spell out the details of that mandate.
The Plaintiffs contend that the WA Act is inconsistent with s10 in that it denies native title holders the right to equality before the law and the right to be immune from arbitrary deprivation of property. The Plaintiffs' case reflects the two major aspects of the WA Act: the extinguishment of native title on the one hand and the creation of substitute rights of traditional usage and a regime for dealing with those rights ('the statutory rights') on the other.
First, ss5 and 7 of the WA Act together purport to extinguish all native title in WA while at the same time s5 affirms or validates all other kinds of interest in land. The Plaintiffs say the sections are inconsistent with sl0 of the RDA in that they:
1. provide no means of ascertaining the existence and extent of the claims of particular Aboriginal groups to native title prior to extinguishment of that title;
2. provide no means, nor requirement, to obtain the consent of native title holders to the extinguishment of native title;
3. extinguish native title for no specific public purpose connected with the land subject to that title;
4. extinguish native title for no legitimate purpose; and
5. (section 7) provides no compensation for extinguishment of native title.
The Plaintiffs say ss5 and 7 are not severable and so the WA Act is invalid in its entirety.
Second, the regime which creates and makes provision for dealing with the statutory rights is, the Plaintiffs contend, inconsistent with s10 of the RDA because it purports to provide protection of those rights which is both inferior to that with respect to other kinds of interests in land and inferior to that which existed for native title prior to the enactment of the WA Act. The Plaintiffs identify 54 particulars of inferiority in these ways. In summary, the substitute regime of rights is inferior because:
1. The statutory rights are made subordinate to all other interests in or relating to land including non-proprietory rights such as licences and permits (s20). Native title is not so subordinate.
2. The statutory rights are made subject to general laws (eg., wildlife conservation and fisheries legislation) (s17) with no right to compensation in the event that rights are thereby extinguished (s22). Those who hold the statutory rights are in this regard, therefore, in exactly the same position as those who do not hold such rights.
3. The statutory rights may be exercised under the authority of the WA Act (s8(1)). Unlike the case of other interests in land, no register or other protective mechanism for notification of Aboriginal interests to third parties is created.
4. With some expansion, the ways in which the statutory rights may be extinguished reflect extinguishment of native title at common law. Extinguishment occurs (s23 of the WA Act) by:(i) any legislative or executive action which is' clearly and plainly' intended to extinguish the rights or is inconsistent with their exercise;
(ii) the grant of freehold or leasehold title, including pastoral leases;
(iii) the grant of a mining lease; or
(iv) a number of other means including abandonment or surrender.
Thus the WA Act affirms, with respect to statutory rights, the unique vulnerability of native title to extinguishment at common law, for example by providing for extinguishment by the mere grant of an inconsistent interest in land in the absence of compulsory acquisition and by the grant of a mining lease. Such executive action is incapable of extinguishing other kinds of interest in land and so the provision for such extinguishment with respect to Aboriginal interests is racially discriminatory. This aspect of the Plaintiffs' argument is based on the important proposition that the racial equality demanded by slO of the RDA affects common law as well as the permitted scope of State and Commonwealth statute law. When it was enacted in 1975 it overrode any racist aspects of the common law related to native title.[4] These aspects of the common law were, therefore, rendered ineffective long before any statutes were enacted regarding native title.
5. The WA Act sets up a scheme, similar in each case, for the dealing with, or extinguishment of, statutory rights under mining, land, petroleum, pearling and public works legislation (Schedule 1). The scheme with respect to the grant of a mining lease provides an example (see Part I of Schedule 1 of the WA Act):(i) An applicant for a mining lease (though not an exploration or prospecting licence) must notify the State Government's Commissioner for Aboriginal Planning ('the Commissioner') of the application within 14 days. The Commissioner must, if she/he thinks an Aboriginal group may be affected, notify the group (or represeNTAtives of the group she/he chooses) in whatever way she/he thinks fit within 14 days.
(ii) An Aboriginal group may object to the granting of the mining lease by lodging an objection with the Mining Registrar. (Unlike other interests in land, objection to the Warden's Court is precluded.) Where an objection is lodged and the Minister responsible for the WA Act ('the consulting Minister') considers the group has a bona fide claim, that Minister must 'consult' with the Aboriginal group in a way, and through represeNTAtives, she/he chooses.
(iii) After a maximum of 3 months, the consulting Minister must recommend to the Minister for Mines that she/he grant or refuse the mining lease. Judicial review of the consulting Minister's decision is precluded. The Minister for Mines may act on or against the recommendation and no mechanism for review or adjudication of dispute is created. Subject to a provision relating to public interest the Minister for Mines cannot refuse the granting of a mining lease if the application is based on an existing exploration or prospecting lease.
(iv) The Minister for Mines may shorten the 3 month consultation or disapply any aspect of the scheme.
Thus the WA Act provides a scheme for dealing with Aboriginal rights which coNTAins significant Ministerial and bureaucratic discretion not present in processes for dealing with other interests in land, in which Aboriginal interests may be extinguished (forever) pursuant to relatively scanty governmeNTAl processes not commensurate with the scope and profundity of the interest being extinguished and in which there is denial of judicial review.
6. The WA Act provides limitation periods for claims of compensation for extinguishment of native title or statutory rights as follows: 18 months for extinguishment of native title by validation of past grants under s5 (s28) and 12 months for extinguishment of statutory rights (s29). Such limitation periods fail to take account of the nature of the interest extinguished - i.e., the nature of Aboriginal connection with land - and of the special circumstances of the rights holders.
7. Part IV of the WA Act provides for compensation for extinguishment of Aboriginal interests which need not be fair and just.
Two of the major propositions on which the Plaintiffs' assertions regarding the RDA are based are as follows. Firstly, the RDA requires genuine or factual, not formal, equality. Formal equality can shroud injustice.[5] Genuine equality incorporates the notion of justice and the proposition that equality requires those in the same circumstances to be treated the same and those in relevantly different circumstances to be treated differently. In other words, genuine equality, rather than being a project of eliminating difference, requires uniqueness to be preserved. Native title and freehold are the same in that they are the strongest interests in land, both recognised originally at common law and later in statute, which arise from indigenous and non-indigenous society respectively. The titles are different insofar as they represent different factual relationships to land; for example, native title comprises an holistic relationship of an entire society to land, while freehold title is, quintessentially, an individual's title.
Further, if achieving genuine equality requires the identification and preservation of relevant difference, the project of identifying what is relevant is crucial. In doing this, consideration must be given to the significance of the interest in question to the racial group involved. If something is 'different' it is always different from something else. To make the standard of comparison simply what is already the norm does not promote justice, but entrenches the value system which is already dominant. The WA Act is, on a fundameNTAl level, concerned with the elimination of difference; 'difference' perceived from a point of view external to the racial group targeted. Paragraph 4 of the Preamble to the WA Act states:
If Aboriginal people are entitled to rights in relation to land which were not granted by the Crown and are not derived from rights granted by the Crown, it is desirable in the interests of all the people of Western Australia, both Aboriginal and non- Aboriginal, that those rights be recognized by and derived from the written laws of Western Australia.
In determining what is unlawful discrimination and what is not, the question to be answered is not merely, "Is it 'desirable' that Aboriginal rights are altered so as to be 'recognized by and derived from' the written laws of the State?" The first, threshold, question must be, "From which point of view is that question to be asked?" For the purposes of s10 of the RDA the determination of what is a relevant difference must take account of the culture and interests of the racial group whose rights are affected.
A second major proposition on which the Plaintiffs' case is based concerns the sources of law and principle which should be relied on to determine the content of the mandate coNTAined in s10 of the RDA to ensure racial equality. Section 10 is not exhaustive of how Aboriginal or other racial groups must be treated but simply sets a standard of genuine racial equality. Furthermore, since it is genuine, and not formal, equality which is required, the section is not concerned merely with maiNTAining and applying existing, domestic legal norms which may speak of equality, but with ensuring actual justice. Therefore, to determine the content of the mandate, a court must look at the various norms - domestic, legal and otherwise - which point to what true equality is. Thus, other sources of law are, in this context, peculiarly relevant. The need for reference to sources of law in addition to domestic law is supported by the fact that the scheme of the RDA is to incorporate into itself the provisions of the Convention. With respect to equality for Indigenous people in relation to land, international law authorities and the jurisprudence of other British-colonised countries, particularly North America, are directly relevant to determining the content of the standard of racial equality required by s10.
The Plaintiffs contend that ss5 and 7 of the WA Act are invalid by virtue of s109 of the Constitution because they are inconsistent with the provisions of the Native Title Act 1993 (Cth), particularly ss10 and 11 of the latter. The NTA does not invoke a general mandate of racial equality as does the RDA. Except for the provisions validating or providing for the validation of past grants, the NTA is expressed to be in compliance with that mandate with respect to native title (s7). Section 10 of the NTA provides that native title “is recognised, and protected, in accordance with this Act [NTA]”. Section 11 of the NTA provides that native title “is not able to be extinguished contrary to this Act [NTA]”.
Section 7 of the WA Act purports to extinguish native title in a way contrary to the NTA in that:
1. Although s7 of the WA Act was passed before the NTA, it is a 'future act' within the meaning of s233 of the NTA.[6]
2. Section 7 is an 'impermissible future act' because:(i) it does not apply in the same way to native title holders as it would if they instead held freehold title; and
(ii) its effect on the native title in relation to the land causes native title holders to be at a more disadvaNTAgeous position at law than they would be if they instead held freehold title (ss233 and 236 of the NTA).
3. An 'impermissible future act' is made expressly invalid by s22 of the NTA.
Section 5 of the WA Act purports to allow the extinguishment of native title by way of validation of past grants of title. This purported extinguishment is contrary to the terms of the NTA in that:
1. Section 19 of the NTA provides that a law of a State may provide for the validation of past grants if the State law coNTAins provisions to the same effect as s15 of the NTA.
2. Section 15 of the NTA dictates what the effect of validation of past grants will be on the existing native title. The effect is not a blanket, but a qualified, extinguishment. The past grants of freehold and certain leases extinguish native title, but in other cases, for example, the past grant of a mining lease, native title is not extinguished; the rights it comprises are, in effect, simply suspended for the duration of the grant.
3. Neither s5, nor any other section of the WA Act, coNTAin such provisions. Extinguishment effected by s5, if valid, is blanket extinguishment.
The Plaintiffs' contentions with respect to the NTA are more limited in scope than those with respect to the RDA. The former deal with the purported extinguishment of nativee title and are not concerned (as are the latter contentions) with the details of the substituted regime of statutory rights coNTAined in the WA Act. This is because the NTA deals with native title - what can and cannot be done with it; how it can and cannot be extinguished - and not with substituted statutory titles.[7] The only thing the WA Act does with native title is to extinguish it. Logically, it is only if the High Court could hold that native title had been validly extinguished by the WA Act (i.e., according to the terms of the NTA and the RDA) that any question of consistency or otherwise between the substitute regime of statutory rights and the details of the regime set up by the NTA for dealing with native title arises. The Plaintiffs contend it is impossible to conclude that native title has been extinguished validly by the WA Act.
The Government of WA has commenced its own action in the High Court, (see Stop press] challenging the Constitutional validity of the NTA. At the time of writing, a Writ has been issued but no Statement of Claim filed. The question of validity of the NTA, the subject of the State Government's challenge, affects the second of the Plaintiffs' arguments concerning inconsistency between the WA Act and the NTA. It does not touch the argument concerning the RDA. The question of inconsistency with the RDA is fundameNTAl to the Plaintiffs' argument, and to the position of all Aboriginal people in WA. It has farreaching effects insofar as it is concerned with the development of a standard of racial equality in Australia, rather than (as will be the focus of the issues relating to the NTA) the division of power between the States and Commonwealth concerning land management. It is likely that the State Government will want its matter to be given priority, possibly to be heard before the Plaintiffs' challenge to the NTA. It is important that the Plaintiffs' challenge to the WA Act with respect to the RDA be heard, along with the other matters raised, before or at the same time as the State's action.
Since the time of writing the State Government of WA has filed its statement of claim and defence in Biljabu and Others v The State of Western Australia (8 April). In its defence to the Plaintiff’s action, the Government:
(a) asserts that native title “came to an end” in WA on European settlement;
(b) denies that the WA Act is racially discriminatory
(c) with respect to the NTA, asserts the the Act is beyond the legaslative power of the Commonwealth in that it:(i) discriminates against WA and so is ineffective in the State
(ii) interfers, unconsitutionally, with the functioning of the State as a polity with respect to land management.
The WA Government has also, since the time of writing this article, filed its statement of claim in its own action in the High Court, challenging the constitutiuonal validity of the NTA.
[1] The Wororra and Yawuru peoples of the Kimberley Region of WA have also together commenced an action in the High Court challengmg the consitutional validity of the WA Act.
[2] Termination of the moratorium occurred by publication in State and national press ( see, for example, "Court tipped to allow mining in park" in The Australian, 17 March 1993) with no prior consultation or notice to Martu
[3] In addition to the formal negotiating processes between 1991 and 1993, Martu have vigorously asserted traditional title to the land for at least 15 years including by way of submission to the Seaman Inquiry in 1984 and participation, along with the State Government, in the production of 3 major reports on Martu and the land for the purpose of providing for land tenure and management.
[4] See Bartlett, R., "Inequality before the law in Western Australia: The Land Titles and Traditional Usage) Act", [1993] AboriginalLB 57; 3(65)pg7
[5] Wilson J in Mabo v Queensland (No.1) (1988) 166 CLR 186, p206.
[6] Because it is legislation passed after 1 July 1993 and would, if valid, affect native title.
[7] Section 223(3) of the Native Title Act includes, within the definition of native title, statutory rights created as a result of compulsory conversion of common law native title, but this includes only past and not impermissible future conversions.
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