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by Garth Nettheim
The preamble to the Native Title Act 1993 (Cth) ('the NTA') includes this statement:
"A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character."
The special procedure provided by the NTA begins with the lodging of an application with the Registrar of the National Native Title Tribunal (NNTT). If the application complies with the formal requirements of s62 "the Registrar must accept it, unless he or she is of the opinion: (a) that the application is frivolous or vexatious; or (b) that prima facie the claim cannot be made out" s63(1). If the Registrar is of such opinion the Registrar must refer the application to a presidential member (s63(2)). If the presidential member is of the same opinion the applicant is to be notified and given an opportunity to satisfy, the presidential member to the contrary; if not so satisfied, the presidential member must direct the Registrar not to accept the application (s63(3)).
Acceptance of a claim by the Registrar is, thus, a threshold which has to be crossed before a native title claimant gains access to the special procedure provided by the NTA - notification of the claim, efforts by the NNTT to mediate agreement with any opposing parties and failing agreement, determination by the Federal Court. Without access to that special procedure, claimants would need to initiate full judicial proceedings in an appropriate court. A number of native title claims (apart from the Murray Island claim: Mabo v Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1) were lodged with courts prior to commencement of the NTA; some of these claims, or aspects of them, have since been referred to the NNTT. An example is The Wik Peoples v Queensland and Others: see 3(67) AboriginalLB 17. One critical issue in the Wik claim that has been argued before Drummond J in the Federal Court is the question whether native title is extinguished by grant of a pastoral lease: see 3(70) AboriginalLB 12.
The Waanyi People chose to work through the NTA in respect of their claim, lodged in June 1994, for a native title deterntination over land in the Lawn Hill area in Queensland. The Registrar formed the opinion that prima facie the claim could not be made out and referred the application, on 16 August, to the NNTT President who, on 18 August, notified the applicant that he was of the same opinion. The reason lay in evidence of the extinguishment of native title by the grant of pastoral leases.
On 15 September 1994 Justice French, President of the NNTT, gave his Reasons for Ruling in Relation to Criteria for Acceptance of a Native Title Determination Application. The Reasons spanned 33 pages. It was based on written submissions and oral argument from the applicants, Queensland and the mining companies.
This experience was incorporated in revised Procedures for Applications for Native Title Determinations and Compensation issued by the NNTT in September 1994, amending those originally issued on 16 May 1994. Attached to the revised procedures as Appendix A were "Tribunal Guidelines In Relation To Claims Over Freehold Land and Certain Leaseholds".
The Guidelines include the following:
4. An application for a determination that native title exists over land which includes land which is or has been subject to a lease held from the Crown will not ordinarily be accepted by the Registrar if.
(a) the lease confers or conferred exclusive possession on the lessee for the term of the lease; or
(b) the rights and interests comprising the native title which is claimed are wider than any reservation in favour of Aboriginal or Torres Strait Islander people contained in the lease.
5. An application for determination of native title over land which includes land which is or has been subject to a lease held from the Crown may be accepted by the Registrar if the applicant can show that it has an arguable case for the proposition that:
(a) the leasehold interest is invalid to the extent that it purports to be inconsistent with a native title claim; and
(b) the leasehold interest has not been validated by s14 of the Native Title Act 1993 and native title extinguished pursuant to s15 of that Act; and
(c) the leasehold interest has not been validated and native title extinguished by equivalent provisions of a State or Territory law.
6. An application may be accepted by the Registrar over land which is or has been the subject of a lease from the Crown where the native title rights and interests claimed are not wider than the rights or privileges which may be exercised by Aboriginal or Torres Strait Islander people or others by virtue of a reservation in the lease whether created by statute or otherwise.
After Justice French, President of the NNTT, agreed with the Registrar's opinion, he invited submissions from the applicants and also from the State of Queensland and mining companies concerned with a proposed lead zinc mining operation. The process involved "extensive written submissions and thousands of pages of supporting documents". On 14 February 1995, French J delivered his Reasons for Ruling on Acceptance of a Native Title Determination Application. (In the Matter of the Native Title Act 1993 and In the Matter of the Waanyi Peoples Native Title Determination Application (QN94/9), NNTT, Perth, 14 February 1995.) The Reasons are 71 pages long. The Ruling itself was brief: "I direct the Registrar not to accept the Application".
In the first of his Reasons, French J summarised the submissions on the issue whether the Waanyi might be able to establish native title and concluded that he was "satisfied overall that the applicants have demonstrated the existence or availability of evidence which may be capable of justifying a finding that, if not extinguished by prior legislative or executive act, native title exists on the land the subject of the application" (p22).
The major complicating element in this part of the application had been evidence that when non-Aboriginal people first moved into the area in the 1860's and until the 1890's, any native title in relation to the claim area was held by the Injilarija people who had ceased to exist by the 1890's, whereafter the Waanyi people had moved east onto the area. CRA and Queensland submitted that there was no evidence of any succession to the native title under Injilarija law. They also submitted that the Waanyi people themselves had been physically separated from the claim area and had lost their connection with it. On this later point French J said:
I accept the applicants' submission that the area under claim cannot be viewed in isolation. It would be sufficient for the applicant to establish that the claimed land lies within a wider area with which they have the requisite connection. The common law concept of native title is constrained by limitations, particularly by way of extinguishment, which prevent its application to the full range of what Aboriginal people might regard as their traditional country. It is an artifact of non-Aboriginal law, albeit it derives content from the traditional laws and customs of Aboriginal people. It will be more likely than not the case in applications for native title determinations that they will relate to tracts of land which are well within the limits of traditional country according to Aboriginal law and customs. (Emphasis supplied.) (P21.)
The key issue was the question whether, on the 247 hectares claimed, a prism facie claim could not be made out because of extinguishment of native title.
French J examined the differing analyses offered by the High Court majority Judges in Mabo (No.2) in support of the proposition that grants of leasehold interests extinguish native title.
The rationale for this conclusion in the judgment of Brennan J is that if a lease be granted by the Crown, the Crown acquires the reversion and its radical title expands to full beneficial ownership on the expiry of the lease. On that rationale, little turns upon the terms or conditions of the lease. The acquisition of the reversion operates to extinguish the native title. This could explain his Honour's view (at 72-73) that the inclusion in a lease of reservation clauses in favour of Aboriginal people does not avoid the extinguishing effect.
... The question arises why the suns of the possessory rights and the acquisition of the reversion left noo room for native title when on his Honour's general proposition it is the acquisition of the reversion that suffices to achieve that outcome. His Honour's remarks on the point were obiter. There was a question about the statutory validity of the sardine factory lease which was not resolved and ultimately no determination was made by the Court as to its effect. (Pp25-26.)
After considering the different approach of Deane and Gaudron JJ in Mabo (No.2), French J said:
In my respectful opinion, their Honours can be read and should be read as allowing that a qualification, in favour of indigenous people, on the right of exclusive possession may negative the intention to extinguish native title that might otherwise be imputed to the grant. That approach is consistent with the proposition that the grant of a leasehold interest, without any such reservation, is inconsistent with the continuance of native title because it involves the unqualified right to turn indigenous people and others off the land. What is required is an examination of the substantive operation of leasehold grants in relation to the native title rights and interests which they may be said to affect. This does not involve the universal attachment to leasehold grants of an intention to extinguish by appropriation of a reversion and thereby full beneficial ownership in the Crown. Dawson J did not accept that native title survived the acquisition of sovereignty by the Crown. His Honour's observations on the effect of leasehold interests and their extinguishing operation (at 158) are subsumed by that broader position which supported his dissent. Toohey J expressed no view on the effect of leasehold grants and there was no relevant claim for relief. (At 197.)
The President continued:
A case by case approach which requires consideration of the substantive operation of leasehold grants is supported by the views of the Full Court of the Federal Court in Pareroultja v Tickner [1993] FCA 465; (1993) 117 ALR 206. There, Lockhart J, with whom O'Loughlin and Whitlam JJ agreed, said:
“... the extent to which native title over land may co-exist with leasehold tenure is not a question fully explored in Mabo (No.2). Much may depend on the nature and extent of the leasehold estate (eg. a monthly tenancy or lease for 99 years) and inconsistency, if any, between native title and the lessor's reversionary interest." (at 214.)
Thus, a lease for a very short term or a monthly tenancy could so qualify the right of exclusive possession in a temporal sense as to be inconsistent with an intention to permanently interfere with the enjoyment of native title rights and interests.
With respect to the observations of Brennan J it is not clear that the grant of a Crown leasehold interest of vacant Crown land necessarily involves an intention to acquire full beneficial ownership upon the expiry of the lease. The analogy with private leasehold grants may be imperfect. There, the lessor grants a leasehold estate out of a greater estate which may equate to full beneficial ownership. There is no particular reason that the grant by the Crown of a leasehold estate under statute or otherwise must be taken to imply an intention to acquire the full beneficial ownership of the land upon the expiry of the lease. This is so where the lease would otherwise be consistent (wholly or partially) with native title rights and interests. To assume an intention to acquire full beneficial ownership in all cases of leasehold grants, does not sit easily with the stringent requirement that, having regard to the serious consequences of extinguishment upon indigenous peoples, it should only be inferred where a plain and clear intention to effect extinguishment can be imputed to the legislature or the executive as the case may be. In my opinion, the decision of the High Court in Mabo (No.2) establishes a principle that generally speaking the grant of a leasehold interest conferring rights of exclusive possession upon the lessee unqualified by any right of access in favour of Aboriginal people is inconsistent with the continuance of native title rights and interests. That general proposition is subject to the terms and conditions of particular leases which, for one reason or another, may negative the characterisation of the grant as intending extinguishment. Thus, the short term of a lease or wide rights of general public access may defeat a contention that it has extinguished native title. However where native title is extinguished the common law position seems to be that it cannot be revived by the common law." (Pp 27-28.)
Accordingly, the tenure history of the claim area needed close examination to decide whether native title had been extinguished.
Firstly, however, French J considered an argument that Queensland lacked the Constitutional power to grant pastoral leases other than on terms that allow coexistence of native title.This point has also been argued in the Wik claim. (See generally Henry Reynolds, "Mabo and Pastoral Leases" (1992) 2(52) AboriginalLB 2; Henry Reynolds, "The Mabo Judgment in the Light of Imperial Land Policy" (1993)16 IJNSW LJ 27; Dr H. A. Amankwah, "Mabo: Extinguishment of Native Title and Pastoral Leases Revisited" [1993] AboriginalLawB 32; (1993) 3(63) AboriginalLB 13.)
French J embarked on a survey of the constitutional history of Queensland and the relevant Imperial and Colonial Statutes to see whether the argued limitations on colonial land grant powers could be read into the proviso to the New South Wales Constitution Act 1855 (Imp), the New South Wales Constitution Act 1855 (NSW), the Order in Council 1859 which provided for the constitution of the Colony of Queensland, and the Constitution Act 1867 (Qld). The proviso read:
Provided, that nothing herein contained shall affect or be construed to affect any Contract or to prevent the Fulfilment of any Promise or Engagement made by or on behalf of Her Majesty with respect to any Lands situate in the said Colony, in Cases where such Contracts, Promises or Engagements shall have been lawfully made before the Time at which this Act shall take effect within the said Colony, nor to disturb or in any way interfere with or prejudice any vested or other Rights which have accrued or belong to the licensed Occupants or Lessees of any Crown lands within or without the settled Districts, under and by virtue of the Provisions of any of the Acts of Parliament so repealed as aforesaid, or of any Order or Orders of her Majesty in Council issued in pursuance thereof.
The President stated his conclusion on this argument:
In my opinion the applicants' case fails at this threshold as a matter of statutory construction. There is no need to approach the construction of the proviso other than by consideration of the ordinary meaning of its words. Nor is there any need to go beyond the words themselves to the mass of extrinsic material invoked by the parties in support of their respective constructions. Section 2 of the New South Wales Constitution Act 1855 (Imp) was concerned to vest in the legislature of the colony the entire management and control of the waste lands of the Crown. The operation of the section conferred that power. It did not constitute an exercise of the power thus conferred. The proviso is concerned with the effect of that which is "herein contained" in s2. That is, the vesting of the power over waste lands of the Crown in the colonial legislature. By the proviso that vesting was not to be construed to affect any contract, prevent the fulfilment of promises or engagements or disturb accrued rights. The language is negative in form. It does not make positive statements about the nature' of the contracts, promises or engagement or the accrued rights with which it is concerned. In particular, it does not elevate their juristic character to that of statutory rights. Contractual obligations remain contractual. Legally unenforceable promises, remain legally unenforceable. Accrued rights do not take on any new character by virtue of this provision. Whatever force the contracts, promises, engagements or accrued rights had, they derived from the general law. The proviso acts simply to ensure that they are not taken to be affected by the enactment of the New South Wales Constitution Act 1855.
There were two early decisions of the Western Australian Supreme Court which suggested that the proviso operated as a limitation on power - Steere v Minister for Lands (1904) 6 WAR 177 and Moore v R (1907) 9 WAR 235. On appeal from the latter decision the High Court partially overruled Steere and expressly left the power question open - Moore and Scroope v State of Western Australia [1907] HCA 56; (1907) 5 CLR 326 at 340. However in Williams v AttornevGeneral (NSW) [1913] HCA 33; (1913) 16 CLR 404 at 455, Isaacs J described the purview of s20 of the 1842 as "to enable the Crown notwithstanding the prohibitive vigour of the enactment to sell lands on other terms if so promised to settlers or intending settlers previously."
It may be that the proviso can be seen as a limitation on power in the narrow sense that, while s2 vests global power in the legislature, it does not disempower the Crown from giving effect to existing promises, contracts and engagements without legislative sanction.
His Honour continued his analysis of the effect of the proviso:
Assuming it permissible to refer to extrinsic material in aid of the construction of the proviso, the history of gubernatorial promises in relation to the grant of land reinforces the conclusion that the proviso was not a limitation on power. So far as the promises were concerned, they were unenforceable except possibly in equity where grantees had acted in reliance upon them and expended money upon the land. It would be extraordinary that a class of executive promises, generally unenforceable, should be elevated to a fetter on legislative power without clear words to that effect.
It was submitted by the State that the provisos in a form similar to that in the 1855 Constitution, were used to avoid the unintended extinguishment of contracts, promises or engagements in existence before the enactment of repealing legislation - McMillan and Co. v Dent [1907] 1 Ch.107 at 123-124 with reference to the Copyright Act 1842. Whatever the scope of the contracts, promises and engagements referred to in the proviso, it is known that they extended to many thousands of gubernatorial promises to grant land made prior to the enactment of the Sale of Waste Lands Act 1842. It is improbable in the absence of clear words that it was intended that the proviso deprived the legislature of the power to make laws with respect to the disposal of land the subject of laud sometimes unsurveyed and with uncertain boundaries because it had been the subject of a gubernatorial promise.
There is nothing in the form of cl.17 of the 1859 Order in Council which would change the content of the proviso as incorporated in it by reference to the 1855 statute. And it follows from the conclusion that the proviso imposes no limitation on power that no question of an entrenchment of a limitation on power can arise. Even if the proviso were to be so construed under cl.17, it is subject to cl.22 which confers on the legislature:
"... full power and authority, from time to time, to make laws altering or repealing all or any of the provisions of this Order in Council, in the same manner as any other laws for the good government of the colony except so much of the same as incorporates the enactments of the fourteenth year of Her Majesty, Chapter Fifty Nine and of the sixth year of Her Majesty Chapter Seventy Six, relating to the giving and withholding of Her Majesty's assent to bills, and the reservation of bills for the signification of Her Majesty's pleasure, and the instructions to be conveyed to Governors for their guidance in relation to the matters aforesaid and the disallowance of bills by Her Majesty..." The further proviso which followed subjected changes to the Constitution of the Legislative Council to a requirement that they be reserved for her Majesty's pleasure. There is nothing to suggest that, if the proviso in cl.17 did constitute a limitation, cl.17 could not in turn be amended." (Pp 38-40.)
French J did go on to consider some 16 instruments (dispatches, etc.) which were claimed to constitute such protected "contracts, promises or engagements" with regard to native title. He concluded:
The materials relied upon indicate a concern on the part of Imperial authorities for the welfare of Aboriginal people in the colonies. That concern, as expressed by Earl Grey, extended to a desire that there be inserted in pastoral leases provisions protecting rights of access to Aboriginal people. It was not, however, translated into a legally binding instruction. The Order in Council of 1849 authorised the insertion of reservations in leases but as a matter of discretion on the part of the Colonial Governors. As to the characterisation of the various expressions in these despatches as a contract, promise or engagement, that characterisation is, in my opinion, untenable. There are opinions, observations and statements of what is necesssary to be done in order to protect the interests of Aboriginal people. There is however, in my opinion, nothing that amounts to a contract, promise or engagement within the ordinary meaning of those words. In my opinion there was no limitation on the power of the Queensland legislature to grant leases without reservations in favour of the Aboriginal inhabitants of the country the subject of the grant. Nor was there any limitation derived from the terms of the Order in Council 1859 of the Constitution Act 1867 on its power to extinguish native title." (P49.)
There being, then, no constitutional bar to Queensland granting interests which might extinguish native title, the first question was whether there had been such extinguishment.
This required consideration of the tenure history. A grazing licence had been granted to F.H. Hann in 1881 under the Pastoral Leases Act 1869 (Qld). French J's conclusion:
The question whether and to what extent the licence grant would have extinguished or impaired native title depends upon the question whether the rights conferred by the licence were inconsistent with the enjoyment of native title rights and interests. Having regard to the general principles affecting the extinguishment of native title rights and interests as outlined earlier, it cannot be said that the grant of a licence was so completely inconsistent with native title rights and interests as to do more than temporarily impair their enjoyment. To the extent that the grant of such a licence interfered with the rights and interests of native title holders it was, in my opinion, an interference of a temporary and limited nature and not such as to indicate an intention to permanently extinguish those rights of interests." (P 54.)
But in 1883 the Register showed that grant of a lease was authorised by the Executive Council. It appeared that no lease document was ever issued to Mr Hann, but His Honour interpreted the legislation such that the action of the Executive Council was sufficient to cause the grant of the lease to take effect.
Hann in 1883 transferred his interest to the Bank of New South Wales. The lease was for 21 years and in 1904 the Bank secured a 5 year extension. In 1907 the Bank surrendered to the Crown an area, part of which was gazetted as a Camping and Water Reserve. This area was the land subject to the application for determination of native title.
Ironically, although the Pastoral Leases Act 1869 (Qld) did not require the inclusion in leases of any reservation in favour of Aboriginal people, the leases that were issued at that time all contained such a reservation and a provision for forfeiture of the lease if the lessee:
... shall wilfully deprive or attempt to deprive the Aboriginal or other Inhabitants of Our Said Colony, or any of them, of the privileges hereby reserved to them...
The reservation was in these terms:
... AND WE DO FURTHER RESERVE to the Aboriginal Inhabitants of Our said Colony such free access to the said Run or parcel of Land hereby demised, or any part thereof, and to the trees and water thereon, as will enable them to procure the animals, birds, fish and other food on which they subsist...
French J considered that a lease subject to such a reservation would have been valid. What, then, was the effect of a lease without such a reservation?
The question then arises whether the grant of the lease would have extinguished native title and to what extent. The interest granted was properly described as a lease. Its statutory designation and the terms and conditions defined by the Act mark it as such. It conferred a right of exclusive possession unqualified by any reservation in favour of Aboriginal people. Whatever the sentiments of Earl Grey and his contemporaries in relation to the rights of Aboriginal people in this respect, they were not translated into mandatory reservations required in every case of the grant of a pastoral lease. The intention of the legislature in providing for the grant and that of the Executive in making it are not to be judged by the sentiments which may have been held by those responsible for the drafting of the Act or the granting of the lease. They are to be judged by whether and to what extent the rights conferred by the lease were inconsistent with those of the native title holders, if any. Having concluded as I do that the Executive Council effected the grant of a leasehold interest conferring a right of exclusive possession for a significant period of time, I am bound by the judgments in Mabo (No.2), discussed earlier, to conclude that any subsisting native title was extinguished. (Pp 64-65.)
The later extension of the 1883 lease and the 1904 lease issued under the Land Acts 1897 and 1902 contained no reservations in favour of Aboriginal people.
Justice French found it unnecessary to make any decision as to the effect of s144 B of the Native Title (Queensland) Act 1993 added in 1994 which "to remove any doubt" provides generally that pastoral leases extinguish native title.
The outcome was that the fortuitous circumstance that a lease, which would have contained a reservation, was never issued in 1883 led to the conclusion that native title had been extinguished.
Furthermore, it had been extinguished for all time, notwithstanding that in 1907 the land subject to the claim' had once again become "Crown land".
In concluding, French J drew attention to the fact that "The applicants are entitled to appeal to the Federal Court against this decision". He went on to add the following "Postscript":
Under the extinguishment principles enunciated in Mabo (No.2) the survival of native title on land which may today be vacant Crown land depends upon accidents of historical land tenure. The experience of the Tribunal thus far indicates a very substantial history of leasehold and like dealings with land since colonisation commenced. The process of determining whether or not native title exists, where its existence is contested, is likely in a significant number of cases to involve consideration of complex historical property dealings and defunct property statutes. States, territories and significant mining interests are vigorous in their pursuit of extinguishing events against native title claims. Challenges to acceptance of native title claims rely in large part upon such arguments. The process must seem perverse to those who maintain their association with their country and upon whom indigenous tradition confers responsibility for that country. The operation of past grants of interests to irrevocably extinguish native title, regardless of the current use of the land, reflects a significant moral shortcoming in the principles by which native title is recognised. (P 71.)
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