Aboriginal Law Bulletin
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by Richard H Bartlett
On ABC television on the evening the High Court decision was handed down, the Premier of Western Australia refused to accept that the Land (Titles and Traditional Usage) Act 1993 (WA) (the WA Act) had either been declared invalid or that it was racist. Indeed he tried to suggest that the WA Act had not been declared in breach of the Commonwealth Racial Discrimination Act 1975 (the RDA). The Premier insisted on characterising the decision as about intrusion on the State land management powers. Such is not the proper characterisation. The decision was about racism and the RDA. The High Court ruled that, in the words of the Order, "the whole of the 1993 WA Act ... is inconsistent with the provisions of section 10 of the Racial Discrimination Act and therefore invalid". The refusal of the Premier to recognise the verdict perpetuates the racist denial of the legitimacy of the rights of Aboriginal people to their residual traditional lands.
The Premier has, of course, continually distorted the impact of native title in WA, most crassly by the laughable suggestion that suburban backyards throughout the State were under threat. The Government launched an advertising campaign in support of its own legislation which described it as a "fair solution for all Western Australians". The mining industry concurrently conducted a campaign which urged the restoration of the "principle of equality under the State laws which applied pre-Mabo". Both campaigns sought to distort the meaning of equality. There has been no preparedness to recognise that any substance should be accorded to a surviving relationship to traditional land originating prior to British sovereignty. Non-Aboriginal rights to land in Western Australia have, of course, received great deference in the land and resource regime in the State.
The Premier's response to the recognition of native title by the High Court was to seek the elimination of its protection. He has repeatedly sought the repeal or limitation of the RDA. (See -R Bartlett: "Resource Development and the Native Title Legislation", (1994) 1 Australian Journal of Natural Resource Law.) On the day the WA Act was struck down the Premier declared that he would "fight politically to have the [Federal Government's Native Title legislation] changed". The important question that must be considered in the context of the High Court decision is the degree of protection that is conferred upon native title.
In the High Court it was argued that s10 of the RDA demanded genuine equality before the law in the respect accorded to the traditional Aboriginal relationship to land. The fundamental premise was that, whatever its content, native title was not inferior nor subordinate in status to other interests. It possessed a unique or sui generis tenor arising from its unique source and, although no other interest was truly analogous, it was not an inferior or subordinate interest. In the absence of a determination of the unique tenor of native title, the interest it must properly be compared with was the least conditioned Crown estate: the freehold in fee simple.
It was urged that the regime substituted by the WA Act provided for the subordination of the traditional Aboriginal relationship to land, provided inadequate and inferior consideration, protection, and compensation, and diminished its content in ways which denied equality before the law as guaranteed by section 10 of the RDA. The argument focused upon the "critical elements" of subordination to other interests and the inferior consideration and protection, and declared that the WA Act constituted "a deliberate and complicated sham which denies equality before the law" (Transcript p663). It was argued that the RDA demanded enhanced protection to that which the common law provided to the traditional Aboriginal relationship to land, and it was accordingly contrary to the RDA to perpetuate the common law regime as it prevailed until 1975 (Transcript p631).
The High Court did not consider it necessary to consider all of the arguments. It readily concluded that the WA Act violated section 10 of the RDA. In the Court's view it sufficed to consider the arguments relating to the extinguishment and impairment of native title. The Court declared that the RDA "does not alter the characteristics of native title", but conferred on holders of native title security of enjoyment in that property to the same extent as the titleholders of other races. "The Racial Discrimination Act is superimposed on the common law and it enhances the enjoyment of those human rights". In the result the Court declared that the substituted "rights of traditional usage", as qualified by the WA Act, "fell short of the rights and entitlements conferred by native title the enjoyment of which is protected by section 10(1) of the RDA. The shortfall is substantial". In reaching that conclusion the Court rejected the subordination of native title or the "priority" (p3l) of other interests expressly declared in ss8,17 (general laws) and 20 of the WA Act.
The Court focussed on the operation of the Land Act, Mining Act, Petroleum Act and Public Works Act in comparing the degree of security of enjoyment of holders of rights of traditional usage and of the holders of other interests. Such a comparison was handed up to the Court and it was urged that the protection of the substituted rights was inferior and illusory. The High Court agreed:
"In comparison with the holders of title, whose estates or interests in land granted by the Crown cannot be destroyed by executive action except, generally speaking, by resumption under statutory authority, s7 rights (subordinated rights of traditional usage) possessed by Aboriginal people ... can be extinguished or impaired simply by exercise of the legislative power to dispose of the land ... ... the restrictions (in the WA Act) are transparently insubstantial in comparison with the restrictions which protect the security of the holders of other forms of title." (P33.)
"The protection of s7 rights under the Mining Act is as much at the discretion of the Minister for Mines as the protection of s7 rights under the Land act is at the discretion of the Minister for Lands ... ... the protection ... is significantly less than the protection against a similar liability given by the Mining Act to the holders of "title" to private land or an "occupier" of Crown land." (P41.)
"The holders of s7 rights ... have lesser rights than the holders of title to private land..." (P42.)
The provisions for resumption of land subject to "rights of traditional usage" denied "the same protection against compulsory acquisition as the protection by way of notice, the right to object and the right to proper consideration of objections which the law and judicial review accord to the holders of other forms of title." (P45.)
In making the comparison between the protection accorded "rights of traditional usage" and other titles the court makes reference to both private land and occupiers of Crown Land. The analysis of the Petroleum Act is entirely concerned with private land. Private land is freehold or leasehold (not pastoral lease) land. The Court accepts that for the purposes of determining the standard of protection to which native title is entitled the standard is that of private land. Such analysis is consistent with the argument that native title is sui generis, and if analogies or comparisons are necessary it is appropriate to refer to freehold in fee simple.
The Court did not expressly consider the operation of the amended provisions of the Pearling Act. Such consideration would have required the court to articulate more explicitly the unique tenor of native title because there are no interests readily analogous to compare to native title in the off-shore. But the Court did strike down those provisions. It would suggest that Fishery Acts and other general legislation such as forest or game legislation may also be challenged insofar as they provide for the subordination and lack of protection for native title in violation of the RDA.
The High Court has set a standard for the protection of native title conferred by the Act that contemplates an analogy to private land. Native title is not, as it is at common law, an inferiorr or subordinate interest.
The standard set by the High Court decision is not only applicable to State legislation. It is also, of course, applicable to the Commonwealth. A critical issue is the degree to which the Commonwealth must comply with the Act in provision for and amendments to the NTA. The High Court was called upon to consider the relationship between the enactments in the context of the State argument that the NTA itself was racist as being contrary to s10 of the RDA. The State relied upon section 7(1) of the NTA, which provides that "Nothing in this Act affects the operation of the Act", to argue that in the event of inconsistency the RDA prevailed.
The High Court rejected any suggestion that the NTA in its present form was inconsistent with the RDA or the International Convention on the Elimination of all Forms of Racial Discrimination. It considered that the NTA met the standard of protection demanded. Amendments of the kind which will no doubt be urged by the Western Australian government seeking lesser protection would violate that standard. The Court explained:
The Native Title Act provides the mechanism for regulating the competing rights and obligations of those who are concerned to exercise, resist, extinguish or impair the rights and interests of the holders of native title. In regulating those competing rights and obligations, the NTA adopts the legal rights and interests of persons holding other forms of title as the benchmarks for the treatment of the holders of native title. (P93.)
The Court went on to explain the relationship between the two Acts:
even if the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both Acts emanate from the same legislature and must be construed so as to avoid absurdity and to give each of the provisions a scope for operation. The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. But it is only to that extent that, having regard to s7(1), the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act (P94.)
The Court thereby declared that the specific provisions of the NTA would prevail over the general provisions of the RDA to allow "scope for operation" of the provisions of the NTA. But the prevailing of those specific provisions is strictly limited to circumstances where an "inconsistency" is determined to exist. It is the finding of "inconsistency" that is the significant interpretative exercise. The Acts will be interpreted so as to give effect to both, and so far ass possible to avoid inconsistency, because section 7(1) requires that the operation of the RDA not be affected by the NTA. It is only after an inconsistency is found, as the Court points out, "that having regard to section 7(1), the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act". Section 7(1) may provide "no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act" (p94), but it does affirm the, requirement that both Acts be construed so as to give effect to both. And in the task of such construction it is appropriate to give a liberal construction to enactments such as the RDA which seek "to preserve and maintain freedom from discrimination" (Gibbs, CJ in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168,182, also see Brennan J in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70,128).
In the result the High Court decision exposed the racist nature of the Western Australian government's campaign to deny native title and struck down its legislative aspect. But the forum has now moved from the State legislature to the Commonwealth. The High Court has affirmed the standard of genuine equality for all and will strive to maintain that standard in the determination of whether any inconsistency exists between the RDA and the NTA. Short of an explicit repeal or disapplication of the RDA any attempt to lower the standard of protection accorded native title will be productive of uncertainty and litigation. Moreover such denial of equality before the law would violate the Commonwealth's obligations under the Convention. It is to be hoped that any amendments to the NTA do not come at the expense of the entitlement of Aboriginal people to equality.
An inordinate amount of the written and oral argument before the High Court was taken up with the State arguments relating to extinguishment and interference with State powers over land management. The High Court rejected them.
The State had argued that Western Australia's history of settlement was unique in the common law world and had extinguished native title throughout the State. The Court responded with an implicit rebuke by commencing the principal judgment by stating that "its judgements have effect ... throughout the Commonwealth". The statement can only be seen as a reference to the suggestion that the principles of Mabo (No.2) did not apply in Western Australia. It stressed the similarity between the settlement of the State and other parts of Australia. Native title was not extinguished except to the extent that inconsistent parcel-by-parcel land grants or appropriations were made. Significantly, and consistently with almost all other common law authority, the Court made clear that the onus of showing extinguishment lies upon the Crown.
The State had emphasised the substantial impact upon its management of land and resources in an effort to curtail the operation of the NTA. The Court pointed out that the power of the Commonwealth to pass laws with respect. "to the people of anyy race" could not be limited "without denying what is at the heart of s5l (xxvi) so far as it may be exercised for the benefit of the people of indigenous races of Australia". The High Court was not prepared to deny or limit the constitutional paramountcy of special laws passed for the benefit of Aboriginal people in order not to interfere with State powers over land management.
The conclusive rejection of the arguments of the State was, of course, underlined by the award, without argument, of costs against the State.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1995/26.html