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Murdoch University Electronic Journal of Law |
| Author: | Sarah Pritchard Faculty of Law, University of New South Wales |
| Issue: | Volume 2, Number 1 (April 1995) |
In a decision handed down on 16 March 1995, the High Court of Australia upheld
the historic Native Title Act 1993 (Cth). The decision of the Full Court
in The State of Western Australia v. The Commonwealth; The Wororra Peoples
and anor v. The State of Western Australia; Teddy Biljabu and ors v. The
State of Western Australia struck down the legislative response of Western
Australia to the Court's 1992 decision in Mabo v. Queensland [No 2]
((1992) 175 CLR 1) and confirmed and developed the Court's decisions in Mabo
v. Queensland [No 1] ((1988) 161 CLR 186) and Mabo v. Queensland [No 2].
Background
In Mabo v. Queensland [No 1] ((1988) 166 CLR 186) the High Court of Australia
held that the enactment by the Commonwealth Parliament of the Racial
Discrimination Act 1975 (Cth) limits the effect of an exercise of legislative
or executive power by a State or Territory to extinguish native title. A
majority of the Court held a bare legislative extinguishment of native
title to be inconsistent with the Racial Discrimination Act and for that
reason inoperative under s.109 of the Constitution.
In its landmark decision in Mabo v Queensland [No. 2] ((1992) 175 CLR 1), the
High Court rejected the doctrine that Australia was terra nullius at the
time of European colonisation and held that the common law of Australia
recognises a form of native title. The decision, handed down on 3 June
1992, signified a major development in Australian law. On 27 October 1992
the Commonwealth Government announced a process of consultation with State
and Territory governments, Aboriginal and Torres Strait Islander
organisations and industry to discuss the implications of, and appropriate
responses to the High Court's decision. The State of Western Australia
contains large tracts of unalienated Crown land which might be claimed to
be subject to native title. According to the judgement of Mason CJ,
Brennan J, Deane J, Toohey J, Gaudron J and McHugh J in the present case,
more than 52% of the land in Western Australia remains unalienated (at
19). During the ensuing debate, it became apparent that the Government of
Western Australia would not support emerging proposals for a national
legislative response to Mabo [No.2].
In 1993 the Parliament of Western Australia enacted the Land (Titles and Traditional
Usage) Act 1993 (W.A.). Unlike the Queensland Coast Declaratory Act 1985
(Q.), held by the High Court in Mabo [No. 1] to be inoperative, the
Western Australian legislation sought not simply to extinguish native
title but to confer statutory rights in substitution thereof. The Land
(Titles and Traditional Usage) Act purported to extinguish common law
native title in Western Australia and replace it with statutory
"rights of traditional usage". The W.A. Act commenced operation
on 2 December 1993. The Commonwealth's Native Title Act 1993 (Cth)
received Royal Assent on 24 December 1993. Its operative provisions commenced
on 1 January 1994.
The Native Title Act seeks to provide for the recognition and protection of
native title as recognised by the common law of Australia (ss.3 and 10).
It validates past acts by the Commonwealth which might otherwise have been
invalid because of the existence of native title (s.14). It enables States
and Territories to validate past acts attributable to them (s.19). It
provides rights to compensation for the effects of validation of past acts
on the rights of native title holders (ss.17, 20 and 51). The Act establishes
federal processes, including a Native Title Tribunal (Part 6), for the
determination of native title rights and of compensation for acts affecting
native title. The Act also provides for the recognition of procedures
established under State or Territory laws consistent with criteria
prescribed in the Native Title Act (s.251). Finally, the Act establishes a
regime for the protection of native title rights in future dealings
affecting native title land and waters ("future acts") (ss.21-44).
In the case of future acts other than low impact future acts, native title
holders are entitled to the same procedural rights as the holders of
freehold title (s.23(6) and 253). For certain future acts, relating
amongst other things to mining proposals, the Act recognises an additional
right of native title holders and claimants to negotiate, not a right to
veto (ss.26-44).
Shortly after the enactment of the W.A. Act, constitutional challenges were
filed in the High Court of Australia by the Kimberley Land Council for the
Wororra and Yawuru peoples and others (No M147 of 1993) and by the Aboriginal
Legal Service of Western Australia for Teddy Biljabu and others on behalf
of the Martu people (No P45 of 1993). The State of Western Australia filed
a challenge to the Native Title Act (No P4 of 1994). The Chief Justice
heard submissions in all three matters and reserved questions for the
opinion of the Full Court. In September 1994, the Full Court heard
argument together in the three proceedings. The State of Western Australia
was the plaintiff in proceedings against the Commonwealth. In these
proceedings, Western Australia challenged the validity of the Native Title
Act 1993 (Cth).The State of Western Australia was the defendant in
proceedings brought by representatives of the Wororra and Yawuru peoples
and by representatives of the Martu peoples. In these two proceedings, the
validity of the Land (Titles and Traditional Usage) Act 1993 (WA) was
challenged.
Overview of the submissions
As of 1 July 1993, native title can be extinguished by Commonwealth, State or
Territory legislation only in accordance with conditions prescribed by the
Native Title Act (s.11(2)). In its submissions, Western Australia conceded
that the W.A. Act failed to satisfy those conditions and was inconsistent
with the Native Title Act. However, the operation in Western Australia of
both the W.A. Act and the Native Title Act depends on the existence of
land subject to native title in that State. If there were no native title
land, there could be neither native title holders in whom statutory rights
of traditional usage created by the W.A. Act could vest nor native title
land upon which the Native Title Act might fasten. Accordingly, Western
Australia's primary submission was that native title came to an end upon
the establishment of the Colony of Western Australia; or alternatively,
that native title in Western Australia was wholly and irrevocably
extinguished by the W.A. Act.
In its submissions, the Commonwealth argued that native title survived the establishment
of the Colony of Western Australia. The Commonwealth also supported the
submission of other parties, representing the Woorarra, Yawuru and Martu
peoples, that the W.A. Act was inconsistent with the Racial Discrimination
Act 1975 (Cth) and, by reason of s.109 of the Constitution, without valid
operation. According to this submission, the W.A. Act discriminated
against the Aborigines in comparison with the holders of other forms of
title.
Western Australia submitted that, however these issues be decided, the Native
Title Act was invalid as beyond the legislative powers of the Commonwealth.
To support the Native Title Act, the Commonwealth relied upon the powers
conferred by s.51 (xxvi) (the races power) and s.51 (xxix) (the external
affairs power) of the Constitution. Western Australia submitted that even
if prima facie supportable by either of those powers, the Native Title Act
exceeds the limits on Commonwealth legislative power implicit in the
federal structure of the Constitution.
The establishment of Western Australia: Was native title extinguished?
The Full Court first considered whether native title was extinguished by the
establishment of the Colony of Western Australia. It was Western Australia's
submission that the British Crown intended a general extinguishment of
native title to land within the colonial boundaries of Western Australia.
Such intention was manifested in Governor Stirling's Commission of 4 March
1831 and the accompanying instructions.
The majority of the Court, Mason CJ, Brennan J, Deane J, Toohey J, Gaudron J
and McHugh J, found the facts to show "only that it was intended to exercise
the sovereign power of the Crown to grant land to immigrant settlers."
At the time of settlement of Western Australia, the common law theory
which underlay the acquisition of sovereignty in "settled" colonies regarded
the territory of colonies inhabited by indigenous people to be "desert
uninhabited". An inference that the British Crown intended a general
extinguishment of native title could not be drawn:
"Extinguishment would have been an unnecessary step to take. The Crown's colonial
policy was capable of being implemented without a general extinguishment
of native title." (at 22)
Two consequences followed from this: First, since the establishment of the Colony,
native title has been extinguished only parcel by parcel. Native title has
been extinguished by the valid exercise of power either to grant interests
in some of those parcels or to appropriate others of them for the use of
the Crown inconsistently with the continuing right of the Aborigines to
enjoy native title. Second, at the time the W.A. Act commenced operation,
native title existed in Western Australia in respect of land where the
continuing right of Aborigines to enjoy their native title was
inconsistent neither with the grant of an interest nor with a valid
appropriation of the land for the use of the Crown.
The W.A. Act and its operation: Consistency with the Racial Discrimination Act
The Commonwealth and other parties representing the Woorarra, Yawuru and Martu
peoples submitted that the W.A. Act was inconsistent with the Racial Discrimination
Act 1975 (Cth).
(I) Prospective extinguishment and impairment of native title: Section 7 rights
The key prospective provision of the W.A. Act is s.7. Section 7 purports to
extinguish any native title to land that existed before its commencement
(sub-s.(1)(a)) and to replace the rights and entitlements that were the
incidents of native title with statutory rights of traditional usage
(sub-s.(1)(b)). Rights of
traditional usage, or s.7 rights, replace the rights and entitlements that
were incidents of native title "unless this Act provides
otherwise." (sub-s.(2)).
Pursuant to s.23 of the W.A. Act, s.7 rights are extinguished by, inter alia,
legislative or executive action clearly and plainly intended to extinguish
the rights or inconsistent with the continued existence of the rights.
Pursuant to s.17, executive action resulting in the extinguishment,
suspension or impairment of s.7 rights may be taken under the
"general laws" of the State. These general laws include those amended by
Sched. 1 to the W.A. Act, amongst others the Mining Act 1978, Land Act 1933,
Petroleum Act 1967 and Public Works Act 1902.
The Land Act 1933: Section 7(1) of the Land Act authorises the Governor to dispose
of Crown lands which include land subject to s.7 rights. By reason of s.23
of the W.A. Act, a simple exercise of the executive power of disposal
under the Land Act can extinguish or impair s.7 rights. In the present
case, the Court found the protection conferred on the holders of s.7
rights under the Land Act to be inconsistent with the protection conferred
by the Racial Discrimination Act on the holders of native title and by the
general law on the holders of other forms of title:
"By subjecting s.7 rights to the qualification 'unless this Act provides otherwise',
the holders of s.7 rights suffer a diminution in their human rights
inconsistent with s.10 of the Racial Discrimination Act." (at 35)
The Mining Act 1978: The Court found the protection of s.7 rights under the
Mining Act 1978 to be as much at the discretion of the Minister for Mines
as the protection of s.7 rights under the Land Act at the discretion of
the Minister of Lands. The regime established under the Mining Act precludes
the exercise of s.7 rights when inconsistent with rights conferred by a
mining tenement. Section 7 rights are extinguished by the grant of a
mining lease, unless expressly reserved by the lease. The majority stated:
"The protection of Aboriginal holders of s.7 rights against liability to having
their rights suspended or extinguished 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." (at 41)
The Petroleum Act 1967: Amendments to the Petroleum Act 1967 follow the same
pattern as the amendments to the Mining Act 1978, except that the Minister
for Mines is required to give notice to the Commissioner for Aboriginal
Planning of applications for approval to carry out operations, other than
exploration, on Crown land. The giving of notice sets in train objection
and consultation procedures. In
relation to s.7 rights, power to "disapply" the objection and
consultation procedures is inserted in the Act. The Court found the
holders of s.7 rights in respect of Crown land to have lesser rights than
the holders of title to private land. (at 42)
The compulsory taking of land subject to s.7 rights: The Public Works Act 1902:The
Public Works Act 1902 (W.A.) prescribes a procedure to be observed when
State public authorities are authorised to take land for the purpose of
constructing a public work. Amendments to the Public Works Act by the W.A.
Act established a procedure for the taking of "prescribed land."
This is defined to include Crown land, reserves and pastoral leases under
the Land Act and land held for the benefit and use of Aboriginal people.
The procedure for taking "prescribed land" under the Public Works Act
differs from the procedure for taking land owned or occupied by persons
having an estate amounting to "title" in that land in numerous respects.
In addition to this power to extinguish s.7 rights by taking "prescribed land",
s.7 rights can be extinguished or suspended where the Minister administering
the W.A. Act considers such extinguishment or suspension "to be
necessary for any purpose for which land could be taken or resumed compulsorily
under any written law" (s.26). According to the Court:
"It is clear ... that s.26 of the W.A. Act and the Public Works Act (as amended
by the W.A. Act) deny to the Aboriginal holders of native title the same
protection against compulsory acquisition as the protection by way of
notice, the right to object and the right to proper consideration of
objection which the law and judicial review accord to the holders of other
forms of title." (at 45).
Compensation for the taking of land: Despite the substantial shortfall between
rights of traditional usage created by s.7 and qualified by subsequent
sections of the W.A. Act and the rights and entitlements conferred by
native title, s.28(1) of the W.A. Act precludes compensation for the
extinguishment of native title effected by s.7(1)(a) of that Act.
The Court concluded that the rights of traditional usage created by s.7 and
qualified by subsequent sections of the W.A. Act fall substantially short
of the rights and entitlements conferred by native title. Its review of
various provisions of the W.A. Act had revealed the comparative insecurity
of s.7 rights. The Court found the qualification of s.7 rights effected by
the W.A. Act to be inconsistent with s.10(1) of the Racial Discrimination
Act and the prospective operation of the W.A. Act, based on s.7, destroyed
by that inconsistency (at 46).
(ii) Retrospective extinguishment and impairment of native title: Section 5
of the W.A. Act
The High Court proceeded to examine the validity of s.5, the key retrospective
provision of the W.A. Act. Section 5 is concerned to confirm retrospectively
the validity of titles granted in the period between the commencement of
the Racial Discrimination Act 1975 (Cth) (31 October 1975) and the
commencement of Parts 2 and 3 of the W.A. Act (2 December 1993). Section 5
excludes the application of s.7 to rights and entitlements extinguished or
impaired by the making of grants of title during that period.
The Court considered two hypotheses. On the first hypothesis, s.5 did not have
the effect of extinguishing or impairing native title because of prior
valid extinguishment or impairment by State laws. On this hypothesis, s.5
had no legal effect on native title. On a second hypothesis, acts
purporting to extinguish or impair native title were authorised by laws
inconsistent with the Racial Discrimination Act at the time the acts were
done. On this hypothesis, s.5 was denied any effect by reason of s.109 of
the Constitution. On either hypothesis, s.5 of the W.A. Act was
ineffective and without legal operation.
The Native Title Act: Its constitutional character
As a result of the survival of native title upon the establishment of the Colony
of Western and the failure of the W.A. Act in its purpose of extinguishing
native title, the Court concluded that native title survived, or was
capable of surviving, in Western Australia as at 1 January 1994, the date
of commencement of operation of the substantive provisions of the Native
Title Act (at 49). It remained to
consider the constitutional character of the Native Title Act.
The Court identified three aspects of the Native Title Act of central importance
to its constitutional character. These are the recognition and protection
of native title, the giving of full force and effect to past acts which
might not otherwise have been effective to extinguish or impair native
title and the giving of full force and effect to future acts which might
not otherwise be effective to extinguish or impair native title. The Court
summarised the salient features of the Act relevant to determining its
constitutional character and concluded:
"The Act removes the common law defeasibility of native title, and secures the
Aboriginal people and Torres 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." (at 60).
In support of the Native Title Act, the Commonwealth relied principally on the
powers contained in s.51(xxvi) of the Constitution. Section 51 confers on
the Parliament power to make laws with respect to - "(xxvi) The people of
any race for whom it is deemed necessary to make special laws." Unlike the
aliens and corporations powers, the races power is not expressed to be a
power to make laws simply with respect to persons of a designated character.
In this connection the Court noted: "It must be "deemed necessary"
that "special laws" be made for "the people of any
race"." The Court referred to the discussion by Stephen J. in
Koowarta v. Bjelke-Petersen of the requirement that laws enacted under
par.(xxvi) be "special" ((1982) 153 CLR 168 at 210):
"It must be because of their special needs or because of the special threat
or problem which they present that the necessity for the law arises;
without this particular necessity as the occasion for the law, it will not
be a special law such as s.51(xxvi) speaks of."
In the present case the Court did not consider it necessary to exercise its
supervisory jurisdiction to examine the question of necessity against the
possibility of a manifest abuse of the races power:
"The removal of the common law general defeasibility of native title by the
Native Title Act is sufficient to demonstrate that the Parliament could
properly have deemed that Act to be "necessary". "Special"
qualifies "law"; it does not relate to necessity. Therefore the
special quality of a law must be ascertained by reference to its
differential operation upon the people of a particular race, not by
reference to the circumstances which led the Parliament to deem it
necessary to enact the law. A special quality appears when the law confers
a right or benefit or imposes an obligation or disadvantage especially on
the people of a particular race." (at 62-63)
Applying these observations, the Court said:
[T]he 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 native title. ...
Whether it was "necessary" to enact the 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. (at 64)
The Court noted that the regime established by the Native Title Act was more
specific and more complex than the regime established by the Racial Discrimination
Act and identified two aspects of the relationship between the two pieces
of legislation:
"[F]irst, 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 Court continued:
"Thus the Racial Discrimination Act protects native title holders against discriminatory
extinction or impairment of native title. The Native Title Act, on the
other hand, protects native title holders against any extinction or
impairment of native title subject to the specific and detailed and
exceptions which that Act prescribes or permits." (at 65)
In light of its conclusion that the Native Title Act is prima facie supported
by the races power, it was unnecessary for the Court to consider whether
it is also supported by the external affairs power.
The Native Title Act: Implied Constitutional Limitations
Western Australia submitted that even if the Native Title Act were prima facie
supported by an available power, it failed to attract the support of that
power because of limitations implied from the text and structure of the
Constitution. Certain impugned provisions of the Native Title Act were said
to offend implied constitutional limitations and thus to be outside the
legislative powers of the Commonwealth.
(I) Control of the legislative powers of the State
Western Australia's first submission was that the impugned provisions purport
to control the legislative powers of the State or directly to render State
laws invalid. Section 107 of the Constitution confers on or confirms to
the Parliaments of the States the powers vested in them as at the
establishment of the Commonwealth except to the extent that any power is
"exclusively vested in the Parliament of the Commonwealth or withdrawn from
the Parliament of the State." It is outside the legislative powers of the
Commonwealth Parliament to withdraw from a State Parliament a power conferred
on or confirmed to it by s.107. A Commonwealth law purporting to prohibit
a State Parliament from enacting a law finds no support in s.109 of the
Constitution as s.109 operates only on laws lawfully enacted by State
Parliaments (Gerhardy v. Brown (1985) 159 CLR 70 at 121, per Brennan J.).
In light of these general principles, the Court examined a number of provisions
of the Native Title Act which, in the Eubmission of Western Australia,
impermissibly attempted to control State legislative powers and directly
to impose invalidity on State legislation. In particular, Western Australia
challenged the validity of ss.11(2)and 19 which, notwithstanding the prima
facie protection of native title from extinguishing acts in s.11(1),
define the boundaries of areas within which States and Territories may
operate to validate past acts. The Court said:
"The critical question is not whether the impugned provisiEns ... are beyond
the legislative power of the Commonwealth, but whether s.11(1) is within
Commonwealth power. As we have seen, a law of the Commonwealth protecting
native title from extinguishment is a law which is supported by s.51(xxvi)
of the Constitution. Therefore s.11(1) is valid and it is within the
powers of the Parliament of the Commonwealth to prescribe the areas within
which other laws may operate to affect the regime of protection prima
facie prescribed by s.11(1). As the only repositorEes of power capable of
extinguishing native title other than the Commonwealth are the States and
Territories and some of their statutory authorities, a law protecting
native title from extinguishment must either exclude the application of
State and Territory laws or prescribe the areas within which those laws
may operate. The Commonwealth has chosen to prescribe the areas available
..." (73-74)
Western Australia also challenged the validity of ss.22, 23, 26, 28 and 43 which
prescribe criteria to Ee satisfied by State or Territory laws operating
within the area relating to future acts left to them by the Native Title
Act. The Court said of these provisions:
"These provisions are, for the most part, merely regulatory. ... The provisions
prescribing the procedure to be followed and the conditions to be
satisfied simply define the scope of certain exceptions to the general protection
of native title declared by s.11(1). They do not purport to impose upon a
State Parliament or other "GovernmenE party" any positive obligation
or duty to do anything or to follow particular procedures." (at 77-78).
Also challenged as beyond Commonwealth power was s.211. This section addresses
usufructuary rights and interests such as hunting, fishing and gathering
which are the incidents of native title. The Court said of this section:
"Again the effect of s.211 is not to control the exercise of State legislative
power but to exclude laws made in the exercise of that power (inter alia)
from affectingEthe freedom of native title holder to enjoy the
usufructuary rights referred to in s.211." (at 82)
The Court considered ss.20 and 23 separately. These sections do not simply create
exceptions to the protection cast over native title by s.11(1) but impose
upon States and Territories an obligation to pay compensation to native
title holders for the extinguishment or impairment of native title, either
through validation of past acts or permissible future acts attributable to
them. The Court found theEsubmission that these provisions single out the
States to be misconceived:
"The compensation provisions apply to each of the polities - Commonwealth, States
and Territories - which may so exercise their legislative or executive
powers as to effect a divestiture of native title in accordance with the
provisions of the Native Title Act. There are no other repositories of
power capable of effecting divestiture. The States are not singled out to
bear an arbitrary financial burden. ... These provisionE are supported by
s.51 of the Constitution." (at 83-84)
(ii) Impermissible discrimination against Western Australia and impermissible
impairment of the ability of Western Australia to function as a State
Western Australia also submitted that the provisions of the Native Title Act
governing future acts constitute impermissible discrimination against Western
Australia and impermissible impairment of the ability of Western Australia
to function as a State and thus exceed the limits of CommonwealtE
legislative power implied by the Constitution. This submission was based
on a principle stated in Melbourne Corporation v. The Commonwealth ((1947)
74 CLR 31) and Queensland Electricity Commission v. The Commonwealth
(1985) 159 CLR 192). In the latter case, Mason J said (at 217):
"This review of the authorities shows that the principle ... consists of two
elements: (1) the prohibition against discrimination which involves the
placing on the States of special burdens or disabilities; and (2) the Eprohibition
against laws of general application which operate to destroy or curtail
the continued existence of the States or their capacity to function as
governments."
Western Australia submitted that the Native Title Act produces a more substantial
effect upon Western Australia than any other part of the Commonwealth. The
Court disposed of this argument as to differential effect shortly:
"The differential effect on Western Australia arises simply because history
and geography have combined En creating in Western Australia a greater
area and proportion of land which might be subject to native title than
the area or proportion of such land in other parts of the Commonwealth.
The difference is of practical importance, but it does not indicate
impermissible discrimination in the application of the Native Title
Act."
The Court then examined Western Australia's submission as to interference with
its capacity to function as a government, in particular, with its capacity
to perform the funEtion of administering land and mining legislation.
Accepting for the purposes of determining constitutional validity that the
Act would complicate government administration in Western Australia and
delay the making of administrative decisions, the question for the Court
was whether such effects constitute an impermissible interference with the
capacity of the Government to function as such. The Court said:
"These effects touch upon the scope of State power and the difficulty of its
exercise, notEupon the machinery of the government of the State. ... For
constitutional purposes, the relevant question is not whether State powers
are effectively restricted or their exercise made more complex or subjected
to delaying procedures by the Commonwealth law. The relevant question is
whether the Commonwealth law affects what Dixon J, called the 'existence
and nature' (in Melbourne Corporation v. The Commonwealth (1947) 74 CLR at
82) of the State body politic."
The Court held that the Act did not imEair the capacity of Western Australia
to exercise constitutional functions, though it may affect the ease with
which those functions are exercised. The Court was not particularly
sympathetic to the difficulties asserted by Western Australia in this respect:
"Such practical difficulty as there may be in the administration of the legislation
of Western Australia governing land, minerals and the pipeline transportation
of petroleum products can be attributed to the realization that land
subject to native title is not the unburdened property of the State to use
or to dispose of as though it were the unburdened owner. The notion that
the waste lands of the Crown could be administered as the 'patrimony of
the nation' and that the traditional rights of the holders of native title
could be ignored was said to be erroneous in Mabo [No 2]."
The Native Title Act: Consistency with the Racial Discrimination Act
Finally, the Court rejected the submission of Western Australia that the Native
Title Act discriminates in favour of Aborigines and Torres Strait Islanders
and thus offends the Racial Discrimination Act. In the first place, the
Court had difficulty detecting any inconsistency between the two Acts.
Even if there were any discrepancy in the operation of the two Acts, the
Native Title Act could be regarded "either as a special measure under
s.8 of the Racial Discrimination Act or as law which, though it makes
racial distinctions, is not racially discriminatory so as to offend the
Racial Discrimination Act or the International Convention on the Elimination
of All Forms of Racial Discrimination." This dictum indicates that
the Court may be inclined to depart from its earlier analysis in Gerhardy
v Brown (1985) 159 CLR 70 of an aspect of land rights legislation as a
prima facie discriminatory special measure of protection and to embrace an
understanding of racial discrimination which refers not to any distinction
or differentiation but only to those which are arbitrary, invidious or unjustified.
On this analysis, measures adopted by reference to race may not constitute
discrimination where the criteria for such differentiation are legitimate.
Concluding observations
In answer to the questions reserved for the opinion of the Full Court, the majority
found the whole of the Land (Titles and Traditional Usage) Act 1993 (W.A.)
to be inconsistent with s.10 of the Racial Discrimination Act and
therefore, by reason of s.109 of the Constitution, invalid. The Court also
found the whole of the W.A. Act to be inconsistent with the Native Title
Act and therefore, also by reason of s.109 of the Constitution, invalid.
In a separate judgement, Dawson J. agreed with the answers proposed by the majority.
In a dissenting judgment in Mabo v Queensland [No.2], Dawson J. had found
that native title, if it existed, had ceased to exist. In the present
case, he accepted the reasons for judgment of Brennan J., with whom Mason
C.J. and McHugh J. agreed, as "containing the basic principles for which
Mabo [No. 2] now stands as authority." (at 106)
Dawson J continued:
"[N]otwithstanding 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
served by my continuing to follow a line of reasoning which has been rejected."
The High Court's decision in The State of Western Australia v. The Commonwealth;
The Wororra Peoples and anor v. The State of Western Australia; Teddy
Biljabu and ors v. The State of Western Australia covers little new legal
ground. It does represent, however, important confirmation of the
Commonwealth's native title regime. It removes residual uncertainty as to
the possible inconsistency of the W.A. Act with the Racial Discrimination
Act, as to the constitutional foundations of the Native Title Act and as
to possible discrimination against Western Australia or impairment of the
legislative or executive functions of that State. It continues the long
overdue process of correcting the erroneous and racist notions which have
debased the foundations of the Australian legal system.
Since the Native Title Act commenced operation in January 1994, an estimated
10,000 land titles have been issued in Western Australia. The High Court
has confirmed that those land titles may be subject to native title
claims. It remains for the Government of Western Australia to act to resolve
uncertainty over interests in land engendered by its decision not to
cooperate with the Commonwealth's native title regime. The Premier of Western
Australia has vowed to continue his fight and make the Native Title Act an
issue at the next federal election. In a more modulated response to the
High Court's decision, the Mining Industry Council stated that a political
solution has become "a national imperative". Mr Peter Barnett,
the Council's President said: "The interests of Aboriginal people and
the mining industry need not necessarily be at odds. Aboriginal people by
and large want mining development and the economic advantages it brings.
Equally, the mining industry respects Aboriginal needs and interests."
("Aborigines, miners call for end to land title uncertainty", The
Australian, Friday March 17 1995, at 44).
The High Court's decision suggests that the pressure is on the States and Territories
to cooperate with the Commonwealth to achieve a workable system for the
recognition of indigenous native title throughout Australia. The defeat of
Western Australia's racially discriminatory legislation represents a
further step in the difficult process towards reconciliation between
indigenous and non-indigenous Australians. Whilst some Aboriginal groups
have expressed dissatisfaction with the processes and outcomes of the
Native Title Act, the High Court's decision indicates that the
Commonwealth's legislative response to Mabo is largely on the right track.