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High Court of Australia, 16 March 1995
by Garth Nettheim
It was the Government of Western Australia that expressed the greatest degree of alarm over the decision of the High Court of Australia in Mabo v Queensland (No.2) (1992) 175 CLR I handed down on 3 June 1992. That decision confirmed that the rights of indigenous peoples in relation to land that pre-dated the acquisition of British sovereignty over Australia ("native title") survived that assertion of sovereignty and might still survive today, provided:
(a) that the people concerned still maintained traditional ties to the land, and
(b) that their native title had not been "extinguished" by actions of governments such as grants of inconsistent interests over the land to others.
The latter proviso endorsed the entire history of post-colonisation land grants. As Brennan J put it, the dispossession of the Aboriginal peoples "underwrote the development of the nation" [1992] HCA 23; (1992) 175 CLR 1: 69. Aboriginal lawyers noted at the time that the recognition of native title had come some two centuries too late, especially in the long-settled parts of the country, and was likely to benefit very few people, located mainly in the remote and infertile regions of Australia. Generally speaking, backyards were not in peril. And, if the 1992 High Court decision stood alone, State and Territory governments would have been entitled to continue disregarding native title when granting interests over land, because the High Court also decided, by majority, that extinguishment of native title gives rise to no entitlement to compensation.
The High Court decision did not, however, stand alone. The effect of the Racial Discrimination Act 1975 (Cth) (the RDA) meant that, after its commencement on 31 October 1975, any government dealing with rights to land derived from indigenous law, on terms less favourable than would be provided for dealings with rights to land derived from Australian law, would be invalid or, at least, ineffective. The High Court so decided in the Mabo (No.1) decision (1988) 166 CLR 186 in response to the Bjelke-Petersen government's attempt to kill off the Mabo litigation by extinguishing any native title, retrospectively, and without compensation.
It was the impact of the Mabo (No.2) decision coupled with the RDA that led to calls from State and Territory governments and industry groups for the Commonwealth Parliament to legislate to resolve uncertainty about the validity of interests in land granted since 1975. The Commonwealth set out to do that in its Native Title Act 1993 (Cth) (the NTA). But that Act not only validated - and authorised States and Territories to validate - invalid "past acts" (subject to compensation). It also provided additional federal underpinning to native title. It established special processes to determine native title and/or compensation with a heavy emphasis on mediated agreements. And it provided in respect of "future acts" (notably grants of mining interests) that the holders of native title should have the same protections as the holders of freehold title, together with an additional "right to negotiate" - this was not a veto as it could be overridden by a tribunal (federal or State/Territory) or, in the last resort, by a Minister (federal or State/Territory).
The scheme for the NTA went through various modifications during the course of 1993, culminating in significant amendments during the course of the Senate debate, which was the longest such debate in Australian history.
But well before that, the government of Western Australia had made clear its concern about the impact of native title.
Its concern with the recognition of native title had two bases. One was that WA had larger areas than other States and Territories of "unalienated Crown land" which might be subject to unextinguished native title. Unlike other mainland jurisdictions, WA had failed in the early 1980s to enact proposals for land rights legislation to acknowledge traditional ownership under Aboriginal law. The other basis was that, more than other States and Territories, WA largely identified its economic progress with mining. The mining industry, for the most part, preferred not to have to deal with native title holders in gaining access to minerals.
The Court Government of WA made it clear that it was implacably opposed to the Keating Government's planned federal legislation. And debate in the Parliament of WA was abridged to allow enactment of the State's own response to Mabo (No.2) before enactment of the Commonwealth legislation. The Land (Titles and Traditional Usage) Act 1993 (WA) (the WA Act) commenced operation on 2 December 1993. The NTA received the Royal Assent on 24 December 1993 and commenced operation on 1 January 1994. Other States and Territories have proceeded to enact legislation which is complementary to the NTA.
Putting it briefly, the WA Act extinguished native title throughout the State, and substituted statutory "rights of traditional usage" which would be, in effect, subordinate to all other interests. It offered limited compensation for some effects on native title and for some future effects on statutory rights. (See 3(65) AboriginalLB 7.) The WA Government continued to grant interests over land to miners and others with no regard to the NTA.
For its part, the NTA, as enacted, applied to any legislation enacted since I July 1993 (while the cut-off date between "past acts" and "future acts" was, for nonlegislative action, 1 January 1994). The definition of "native title" in s223 was also extended to cover any "statutory rights and interests" to which native title might have been "compulsorily converted".
Uncertainty, therefore, continued in the West.
The "showdown" when it came involved three separate actions in the High Court which were combined for hearing in September 1994. (See 3(69) AboriginalLB 8.) Two were actions challenging the validity of the WA Act brought by two sets of claimants to native title, one group represented by the Kimberley Land Council, the other by the Aboriginal Legal Service of Western Australia (Inc). The third action was brought by Western Australia (joined late in the day by South Australia) against the Commonwealth, and challenged the application and the validity of the NTA.
The Aboriginal challenges to the WA Act relied largely on the RDA and the NTA as Commonwealth Acts prevailing over inconsistent State legislation by virtue of s109 of the Constitution. The State challenge to the NTA argued, firstly, that it had no application to WA on the ground that, if native title had ever existed in that State, it had been extinguished on settlement of the colony or at some stage afterwards. Secondly, it was argued that the NTA was not a law which fell within Commonwealth power because it was really a law about land management and related matters in the States. It was also claimed to infringe implied prohibitions in the Constitution because it impaired the capacity of the States to govern, and because it specifically discriminated against WA. It was also argued that it was invalid by reference to the Commonwealths earlier legislation, the RDA, and that it offended the RDA by discriminating against nonindigenous West Australians. And it was argued that Senate amendments to the Bill for the NTA offended s53 of the Constitution, which provides that the Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.
Also challenged was the validity of s12 of the NTA which provides that "the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth". The High Court in a unanimous decision held that this was the only provision of the NTA which was invalid. However, it was "wholly severable", and its invalidity did not affect the rest of the Act. All other challenged provisions of the NTA were valid exercises of Commonwealth legislative power under s5l(xxvi) of the Constitution and did not offend Constitutional prohibitions. Whether or not the NTA was passed in accordance with s53 of the Constitution, it would not be invalid for non-compliance.
The seven justices held that the WA Act was invalid for inconsistency with the RDA s10 and the NTA. (See Richard Bartlett's article in this issue, page 8). Western Australia was ordered to pay the plaintiffs' costs.
Dawson J gave a brief separate judgment. He referred to his dissent in Mabo (No.2) to the effect that some act of recognition by the Crown was necessary for native title to have survived the acquisition of British sovereignty over the colony of NSW.
He also referred to his position in Mabo (No.1) (shared by Mason CJ) that the proceedings in that case provided an inadequate evidentiary basis for the conclusion reached by the majority judges. Wilson J, the third member of the minority in Mabo (No.1), had held that the effect of the 1985 Queensland legislation was consistent with the principle of equality under the law as to the right to own property and did not offend the RDA. In the WA challenge Dawson J said that, given the later decision in Mabo (No.2), he "would, if ... called upon to choose between the view expressed by the majority in Mabo (No.1) and that expressed by Wilson J, prefer the view of Wilson J" (p108). He went on:
"However, notwithstanding my own views, from which I do not resile, I think that I ought now to follow the decisions of the majority in Mabo (No.1) and Mabo (No.2). The issues which were determined by those cases are of fundamental importance and deal with questions of title to land. It is desirable that the law now follow a consistent course in order to achieve maximum certainty with the least possible disruption. No good purpose is to be achieved by my continuing to follow a line of reasoning which has been rejected." (p 108.)
As to the differing approaches adopted by the majority judges in Mabo (No.2),
Dawson J said:
"Whilst more than one course was pursued in the majority judgments, the reasons for judgment of Brennan J, with whom Mason CJ and McHugh J agreed, departed least from what I regarded as established law and, for my present purposes, may be accepted as containing the basic principles for which Mabo (No.2) now stands as authority." (P106.)
Proceeding then on the basis that the two earlier cases were correctly decided, Dawson J expressed his general agreement with the majority decision in the litigation before the Court, subject to a possible qualification that he was "unable to see any need for a presumption that the Crown, in exerting sovereignty, did not intend to extinguish native title:' (p109.)
Subject to that possible qualification of Dawson J, it is significant that the High Court spoke with a single voice in the joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ, with which Dawson was prepared to agree. This was the full Court's first opportunity to consider native title issues since the Mabo (No.2) decision itself, and its first opportunity to consider the NTA.
Bartlett's article (page 8, this issue) refers to the Court's rejection of WA's argument that there had been a blanket extinguishment of native title at the time of the establishment of the colony and that the NTA was therefore inapplicable in Western Australia. After surveying the historical material, the Court concluded:
Once it is realised that the common law theory which underlay the acquisition of sovereignty in "settled" colonies at the time of settlement of Western Australia regarded the territory of a colony inhabited by indigenous people to be "desert uninhabited", an inference that the British Crown intended a general extinguishment of native title cannot be drawn. Extinguishment wouldhave been seen to be an unnecessary step to take. The Crown's colonial policy was capable of being implemented without a general
extinguishment of native title.
Therefore the presumption remains that native title in Western Australia was not extinguished in the course of acquiring that Colony ...
... There is no difference in point of law relating to native title between the establishment of the Colony of Western Australia and the establishment of the Colony of New South Wales. (P22.)
On the question whether the WA Act was inconsistent with the RDA the joint judgment referred to Mabo (No.1) and went on to refine the way in which s10 of the RDA can protect indigenous peoples.
By the operation of s.10(1) of the Racial Discrimination Act, equality of enjoyment of the human rights to own and inherit property is conferred on the "persons of a particular race". The Racial Discrimination Act does not alter the characteristics of native title, but it confers on protected persons rights or immunities which, being recognized by 'the tribunals and all other organs administering justice', allow protected persons security in the enjoyment of their title to property to the same extent'as the holders of titles granted by the Crown are secure in the enjoyment of their titles. 'Property' in the context of the human rights with which we are concerned includes land and chattels as well as interests therein. Where, under the general law, the indigenous 'persons of a particular race' uniquely have a right to own or to inherit property within Australia arising from indigenous law and custom but the security of enjoyment of that property is more limited than the security enjoyed by others who have a right to own or inherit other property, the persons of the particular race are given, by s.10(1), security in the enjoyment of their property 'to the same extent' as persons generally have security in the enjoyment of their property. Security in the right to own property_ carries immunity from arbitrary deprivation of the property. Section 10(1) thus protects the enjoyment of traditional interests in land recognized by the common law. However, it has a further operation. If a law of a State provides that property held by members of the community generally may not be expropriated except for prescribed purposes or on prescribed conditions (including the payment of compensation), a State law which purports to authorize expropriation of property characteristically held by the 'persons of a particular race' for purposes additional to those generally justifying expropriation or on less stringent conditions (including lesser compensation) is inconsistent with s.10(1) of the Racial Discrimination Act. The two-fold operation of s.10(1) ensures that Aborigines who are holders of native title have the same security of enjoyment of their traditional rights over or in respect of land as others who are holders of title granted by the Crown and that a State law which purports to diminish that security of enjoyment is, by virtue of s.109 of the Constitution, inoperative. The security of enjoyment of what the W.A. Act includes in 'title' by the holders thereof is the benchmark by which to determine whether, for the purposes of the Racial Discrimination Act, the Aborigines who hold native title enjoy their human rights in relation to land to a more limited extent than do persons of other races. (Pp27-28.)
What was required, therefore, was a comparison of the position of Aborigines who hold rights under the WA Act with the position of the holders of forms of title other than native title, or with the position of holders of native title unaffected by the WA Act and protected by the RDA. The Court's analysis is indicated by Bartlett (pages 8-9 this issue).
Western Australia's challenge to the validity of the NTA was largely on Constitutional grounds, and the High Court broke no new doctrinal ground in rejecting the arguments, with the single (and insignificant) exception that s12 of the NTA was invalid. Section 11(1), however, was independently effective to protect native title in providing that "Native title is not able to be exthnguished contrary to this Act".
The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilization of all acts which would otherwise defeat native title. By that prima facie sterilization, s.11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title.
Of course, as this Court held in Mabo (No.1), native title was substantially protected against extinguishment by the Racial Discrimination Act on and after 31 October 1975. But the Native Title Act expressly makes 'valid' - a term which is defined to include 'having full force and effect' - certain 'past acts' that affect native title to the exclusion of the protection extended by the Racial Discrimination Act. Although s.7(1) of the Native Title Act provides that nothing in that Act 'affects the operation of the Racial Discrimination Act 1975', s.7(2) declares that s.7(l) 'does not affect the validation of past acts by or in accordance with this Act.' (Pp50-51.)
The joint judgment went on to provide an overview of the scheme of the NTA. "The constitutional character of the Native Title Act may now be exanmined. The Act removes the common law defeasibility of native title, and secures the Aboriginal people and Tones Strait Islanders in the enjoyment of their native title subject to the prescribed exceptions which provide for native title to be extinguished or impaired. There are only three exceptions: the occurrence of a past act that has been validated, an agreement on the part of the native title holders, or the doing of a permissible future act. The Act confers its protection upon native title holders who, ex hypothesi, are members of a particular race. As '[the relationship between the Aboriginal people and the lands which they occupy lies at the heart of traditional Aboriginal culture and traditional Aboriginal life, the significance of security in the enjoyment of native title by the Aboriginal people of Western Australia who hold native title is undoubted." (P60.) The Court discussed analyses in earlier cases of the Constitutional power of the Commonwealth Parliament to make laws with regard to "The people of any race for whom it is deemed necessary to make special laws". (Section 51xxvi.) "Applying these observations, the Native Title Act is 'special' in that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title (the 'people of any race') a benefit protective of their native title. Perhaps the Act confers a benefit on all the people of those races. The special quality of the law thus appears. Whether it was 'necessary' to enact that law was a matter for the Parliament to decide and, in the light of Mabo (No.2), there are no grounds on which this Court could review the Parliament's decision, assuming it had power to do so. Construing s.51(xxvi) of the Constitution in this way, Western Australia's submission that the Native Title Act generally does not answer the constitutional description of a law within s.51(xxvi) must be rejected." (P64.) The WA Government argument was based in part on the existence of the RDA which meant that the NTA could not be "deemed necessary".
The relationship of the Native Title Act with the Racial Discrimination Act has two aspects: first, the Native Title Act validates or permits the validation of past acts that were not of full force and effect because of the operation of the Racial Discrimination Act; second, the Native Title Act affords protection to the holders of native title who heretofore have been protected by (and who may continue to be protected under) the Racial Discrimination Act, the regime established by the Native Title Act being more specific and more complex than the regime established by the Racial Discrimination Act.
The Racial Discrimination Act, the only relevant law of the Commonwealth prior to the commencement of the operation of the Native Title Act, did not alter the common law relating to native title. Section 10 of the Racial Discrimination Act added statutory protection to the common law rights of the holders of native title so that the holders of native title were able to enjoy their title equally with the enjoyment of other title by the holders thereof. Thus the Racial Discrimination Act protects native title holders against discriminatory extinction or impairment of native title. The NativeTitle Act on the other hand, protects native title holders against any extinction or impairment of native title subject to the specific and detailed exceptions which that Act prescribes or permits. The constitutional character of the Native Title Act is not to be determined by reference to the regime established by the Racial Discrimination Act, much less by reference to an estimate of whether it was necessary to replace it. In so far as Western Australia's submission rests upon the protection of native title by the W.A. Act, it is sufficient to recall that the W.A. Act purported to extinguish native title, creating administratively defeasible rights in its place. The W.A. Act did not provide such a protection for native title as to make the Native Title Act otiose. (P65.)
Their Honours also had further occasion to consider the relationship between the RDA and the NTA in the course of rejecting an argument that the NTA was itself invalid by reference to the RDA.
Section 7(1) of the Native Title Act reads as follows:
'Nothing in this. Act affects the operation of the Racial Discrimination Act 1975.'
It is difficult to identify the legal purpose which this provision is intended to serve. It does not affect the validation of past acts: s.7(2) expressly so declares.
It is clear that the Native Title Act does not repeal the Racial Discrimination Act either retrospectively or prospectively. The reference to invalidity in the definition of 'past act' contemplates the operation of the Racial Discrimination Act during the relevant period. And the definition of 'future act' speaks of the invalidity of acts (including the enactment of State and Territory laws) 'apart from this Act'. That definition assumes, or at least allows for, the operation of the Racial Discrimination Act where that operation produces the invalidity that falls within the definition. Section 70) att least ensures that the Native Title Act is not construed as impliedly repealing any of the provisions of the Racial Discrimination Act. The latter Act continues to operate on subjects outside the Native Title Act in precisely the same way as it operated before the Native Title Act came into operation ...
Section 70) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act. The Native Title Act prescribes specific rules governing the adjustment of rights and obligations over land subject to native title and s.7(1) cannot be construed as intending to nullify those provisions. It may be that s.7(2) is otiose but that provision is properly to be seen as inserted out of an abundance of caution. It follows that the inconsistency between the W.A. Act and the Racial Discrimination Act either survived the enactment of the Native Title Act or, if the Native Title Act affected the relevant provisions of the Racial Discrimination Act, from the time when that occurred, an inconsistency arose between the W.A. Act and s.11 of the Native Title Act. (Pp93-95.)
Section 5 of the WA Act had been the State's "go-it-alone" attempt to validate grants since 1975 of titles over land that may have been invalid because of the operation of the RDA. It was held to be ineffective. To validate such titles, the State will now need to pass legislation under the authority given by the NTA and in accordance with its terms. Compensation will be payable for any effect on native title, but this offer was conditional on the enactment of State or Territory legislation consistent with the NTA by the end of 1994. WA alone had failed to do so. The Commonwealth has offered to cover 75% of the cost of such compensation in respect of validated "past acts".
The Commonwealth offer does not extend to "future acts" which, for most purposes, cover grants of title since 1 January 1994. Reports suggest that some 10,000 or so leases and the like have been issued in WA since that date. Not all of these would be in respect of land which is subject to native title; but those that are will be invalid if they do not accord with the NTA's requirements for "future acts". The NTA requires that native title land should be subject to the same protections as are provided for freehold land together with the additional "right to negotiate". If Aboriginal people hold native title to land over which mining or other leases have been granted, then those leases may be invalid and the lessees will need to look to the State for compensation. It is possible that the National Native Title Tribunal processes may be used to achieve negotiated agreements between miners and owners.
It is also significant that mining industry spokespeople are beginning to speak in terms of co-operation with native title holders. Whether the WA Government will follow remains to be seen.
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