Indigenous Law Bulletin
by Margaret Donaldson and Yvette Park
This article is an overview of the analysis contained in the Native Title Report 2002 by the Aboriginal and Torres Strait Islander Social Justice Commissioner (‘the Commissioner’). The report examines the principles of non-discrimination as they have emerged out of the Miriuwung Gajerrong decision and their function in native title law.
The Racial Discrimination Act 1975 (Cth) (‘RDA’) has played an important role in the recognition and development of native title. In the first Mabo decision, the Queensland Coast Islands Declaratory Act 1985 (Qld) was found to be invalid because its operation deprived only Torres Strait Islanders of their property rights and was inconsistent with the RDA. In the second Mabo decision, the overturning of terra nullius was based on an understanding of equality which gave equal respect and recognition to Indigenous forms of social organisation and culture.
The High Court decision in Western Australia v Ward (‘Miriuwung Gajerrong’) provides the most comprehensive analysis to date of the interaction between the RDA and the Native Title Act 1993 (Cth) (‘NTA’). The Court clarified how the principles of non-discrimination apply to protect native title, a proprietary interest which is inherent to a particular racial group. Ironically, the purpose of the High Court’s consideration of these principles was to determine whether the validation provisions of the NTA would apply – a set of provisions aimed at reversing the operation of the RDA in order to validate discriminatory past acts.
As is clear from the Miriuwung Gajerrong decision, the NTA substantially excludes native title from the protection of the RDA. However, there are areas in which the RDA continues to be relevant. These include:
The focus of this article is the operation of the RDA in relation to the first dot point above, determining a ‘past act’ under the validation provisions of the NTA. These provisions relegate the RDA to the task of signaller, to lead the process through which native title will be either extinguished or impaired.
As indicated, the Miriuwung Gajerrong decision provides a detailed analysis of the way in which the RDA operates in relation to acts which affect native title. ‘Acts’ may include legislative amendments or the grant of other interests in land, and must have taken effect between 1975 and 1996 to attract the operation of the RDA and the validation provisions. The purpose of the Court’s analysis is to determine whether the ‘act’ is invalid as a result of the RDA. If so the validation provisions operate to validate this act. If not, the validation provisions do not apply. Once validated the acts are deemed to either extinguish native title, completely or partially, or to apply the non-extinguishment principle. The non-extinguishment principle provides for the suspension of inconsistent native title rights until the validated act ceases. Upon cessation, native title rights will have full effect.
In establishing if an act is invalid under the RDA the High Court found that s10 was the most appropriate section for determining whether an act affecting native title was discriminatory. Section 10 states:
If, by reason of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin enjoy a right to a more limited extent than persons of another race, colour, or national or ethnic origin, then notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
Importantly, s10 is not just concerned with the intention or purpose of legislation but with the practical operation and effect of legislation. The Court found that s10 is engaged where there is unequal enjoyment of rights between racial groups. This approach is supported by international standards of non-discrimination and applied by the Court in Miriuwung Gajerrong.
Article 1(1) of the International Convention on the Elimination of all Forms of Racial Discrimination (‘ICERD’) defines racial discrimination as:
Any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any field of public life.
Following the Court’s articulation of the basis of discrimination, the process for determining whether an act is invalid under the RDA requires a comparison of rights. Native title is understood by the Court in this context to be comparable to a property right, including land and chattels. Consequently, it is entitled to the protection of Article 5 of the ICERD, which specifically protects the right to own property alone and in association with others, a right to inherit, and a right to be immune from the arbitrary deprivation of property (implied in other rights and specifically referred to in article 17(2) of the Universal Declaration of Human Rights). Therefore, the comparison must be made between the effects of an act on the enjoyment of property rights (native title rights) held by Indigenous people, against the effect of that act on the enjoyment of other property rights.
The Court presented three categories in which a comparison of rights can be made:
Discrimination under s10 of the RDA occurs only in the second and third categories. Importantly, a discriminatory act will be invalid only if it confers a detriment on a particular racial group which is not conferred on others or not conferred to the same extent — the third category. A discriminatory act will not be invalid if the discrimination results from the unequal conferral of a benefit — the second category.
A law falling within the second category above is discriminatory because it fails to confer the benefit of compensation in an equal way. The RDA does not invalidate such an act but simply operates to confer the benefit equally. The act would be valid and its effect on native title would remain. However, the RDA would concurrently extend compensation to native title holders for the extinguishment or impairment of their property rights. The validation provisions of the NTA would not apply because the law extinguishing native title remains valid.
An example of an act falling within this second category in the Miriuwung Gajerrong case was the grant of a mining lease. Under the Mining Act 1978 (WA) interests other than native title interests were affected. The legislation provided that occupiers and owners of land affected by the grant of a mining lease were entitled to compensation. The Court found that the act fell within the second category and though discriminatory, remained valid. Thus the extinguishing effect of the grant of a mining lease on native title also remained valid. The RDA operates to ensure native title interests would be compensated to the same extent as other interests. In such a case, s51(1) of the NTA operates to ensure that compensation for extinguishment of native title is payable on just terms.
The validation provisions of the NTA did not apply because the grant of a mining lease was not found to be invalid. If the validation provisions had applied, the grant of a mining lease would be a category C act and, rather than cause extinguishment, the non-extinguishment principle would have applied. In the Native Title Report 2002, the Commissioner argues that the NTA should not allow these anomalies to occur but should simply prescribe the non-extinguishment principle in relation to a range of tenures including the grant of a mining lease.
A law falling within the third category above is discriminatory because it confers a detriment in an unequal way. The act is therefore invalid. The validation provisions of the NTA operate to validate these otherwise invalid acts. Once validated the NTA prescribes its effect on native title.
An example of an act falling within this third category in the Miriuwung Gajerrong case was the creation of a reserve after 1975. This act affected only native title interests and as a result of the operation of the RDA was invalid. The validation provisions of the NTA then operated to validate the act and prescribe its effect on native title. The creation of a reserve was found to be a category D past act to which the non-extinguishment principle applies.
The validation provisions are not the only provisions within the NTA that determine the effect of acts on native title. The confirmation provisions also determine the effect of certain valid acts occurring prior to 1996, including acts validated by the validation provisions. The confirmation provisions were included in the NTA in the 1998 amendments. The purpose of these provisions is to confirm the extinguishment or partial extinguishment of native title by specified acts and categories of acts. The point to note for the purposes of this article is that any overlap between the validation and confirmation provisions is resolved in favour of the confirmation provisions. This resolution has significant implications for native title as the more severe regime of extinguishment under the confirmation provisions will prevail over the effects of the validation provisions. An example discussed in Miriuwung Gajerrong is the grant of a mining lease defined by s245(1) of the NTA. Where the grant takes place after 1975 the RDA would operate to invalidate the grant. Under the validation provisions the non-extinguishment principle would apply. However, the effect on native title is taken over by extinguishment under the confirmation provisions which provide for the complete extinguishment of native title.
The Court’s reasoning in the Miriuwung Gajerrong decision provides an insightful and valuable analysis of the RDA and principles of discrimination. This analysis also reveals the extent to which the operation of the NTA diminishes the capacity of the RDA to protect native title interests. Despite this, the role of the RDA within discrete areas of the native title system may still provide some opportunity for the development of a more non-discriminatory approach within the native title system.
Margaret Donaldson is the Director of the Native Title Unit, Human Rights and Equal Opportunity Commission. Yvette Park is a Policy Officer within the Native Title Unit, Human Rights and Equal Opportunity Commission.
 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report (2002)
 Mabo v State of Queensland [No 1] (1988) 166 CLR 186.
 Mabo v State of Queensland [No 2]  HCA 23; (1992) 175 CLR 1.
 Western Australia v Ward (2002) 191 ALR 1 (‘Miriuwung Gajerrong’).
 NTA Div 2
 Interests in land, referred to as an act under the NTA are extensive and defined in s226 of the NTA.
 NTA s15, s22B.
 Ibid s238.
 Miriuwung Gajerrong,, above n 3,  -  (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
 Ibid .
 Ibid .
 Ibid  - .
 Ibid  - .
 Ibid .
 Above n 1, 134.
 Miriuwung Gajerrong,, above n 3, -.
 NTA Part 2 Division 2B.
 Miriuwung Gajerrong, above n 3, .
 Under the confirmation provisions, the grant of a mining lease is a category C past act and the non-extinguishment principle applies.
 NTA s23B(2)(c)(vii).