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Blackshield, Simon --- "Crescent Head Native Title Agreement" [ 1997] AboriginalLawB 3 ; (1997) 3(88) Aboriginal Law Bulletin 9

Crescent Head Native Title Agreement

By Simon Blackshield

On Wednesday 9 October 1996, an agreement was signed by native title claimant Mary-Lou Buck, New South Wales Minister for Land and Water Conservation Kim Yeadon, and Manul Ritchie, Treasurer of the New South Wales Aboriginal Land Council, in relation to a native title application over 12.4 hectares of land in Crescent Head on the north coast of New South Wales. The agreement effectively settled the claim, providing for a residential subdivision of the land to be completed, with the Dunghutti people to be compensated for the loss of their native title rights to the land.

As has been widely reported, the agreement involves the first recognition of native title by an Australian government on mainland Australia, and represents both the first successful resolution of a claim under the Native Title Act 1993 (Cth) (`the NTA'), and the first time that an Australian government has negotiated an agreement with the members of an Indigenous people to acquire their land.

Stage one of the subdivision at Crescent Head had been commenced before 1994, but more than half of the lots remained unsold when the Native Title Act 1993 (Cth) came into operation on 1 January 1994. From that date, the remaining lots could not be validly sold if native title still existed over the land, unless the NSW State government complied with relevant procedures under the NTA.

In July 1994, the NSW Minister for Land and Water Conservation (then George Souris) lodged a `non-claimant' application over both the first stage of the subdivision (on which extensive public works had already been carried out, and which contained a mixture of sold and unsold lots), and the proposed second stage (which was still uncleared land).

Pursuant to ss67(4) and 24(1)(c) of the NTA, if a non-claimant application is accepted by the National Native Title Tribunal (`the NNTT'), any dealing in the land that is inconsistent with surviving native title rights and interests will be valid, if it takes place at any time between the closing of the two month period which follows the last of the notices of the application which the Registrar of the NNTT is required to give under s66 of the NTA, and the date when the application is resolved (by the making of an approved determination that native title does or does not exist, by its dismissal, or by its withdrawal). However this validity is compromised if a positive native title application is lodged with the NNTT over any part of the area covered by the non-claimant application before the expiry of the notice period, and that claimant application is subsequently accepted.

With the assistance of the NSW Aboriginal Land Council, Mary-Lou Buck of the Dunghutti people lodged a positive claim over the land covered by the Minister's non-claimant application on 10 October 1994 (the last day of the notice period), and that application was subsequently accepted on 28 November 1994.

Because the non-claimant application had been made `by or on behalf of a Minister', the acceptance of the claimant application had the effect that the non-claimant application was `taken to be dismissed' under s67(1)(c) of the NTA.

On 6 March 1995--prior to the commencement of formal mediation of the claimant application, and shortly preceding the 1995 State election--Minister Souris issued notices of his intention to compulsorily acquire any surviving native title rights in stage one of the subdivision, pursuant to ss26(1)(d) and 29 of the NTA.

As a `registered native title claimant ... in relation to [the land that would be affected by the proposed acquisition]', Mary-Lou Buck automatically became a `native title party' with whom the Minister was required to negotiate in good faith under ss29 and 31 of the NTA, `with a view to obtaining [her] agreement to [the compulsory acquisition]'.

Essentially, the effect of the `right to negotiate' provisions of the NTA (ss26 to 44) was that no further action could be taken by the Minister within six months from the publication of the compulsory acquisition notices, unless an agreement was reached with the registered claimant, and registered with the NNTT before that date.

Even after that period expired, the Minister could not have legitimately sought a determination from the NNTT allowing the compulsory acquisition to proceed, unless it had satisfied the statutory requirement of negotiating in good faith with the registered claimant (see WF 96/4, Western Australia/Taylor (Njamal)/Mullan, 7 August 1996, NNTT, unreported).

By the mutual agreement of the Minister's department and the applicant, the negotiations which took place under s31 of the NTA were broadened to include both the whole of the area under claim and the rest of the land within stage one of the subdivision, and the issue as to whether native title existed, and (if so) how it should be valued.

Submissions addressing these issues were provided to the government in November 1995, with the final agreement being reached on 9 October this year.

The agreement divides the land into three separate categories:

The combined effect of ss14, 15 and 229(2) and (4) of the NTA and ss8, 10 and 11 of the Native Title (NSW) Act 1994 is that the granting of freehold estates and the carrying out of public works are deemed to have extinguished native title as of 1 January 1994.

Because all relevant acts occurred after the commencement of the Racial Discrimination Act 1975 (Cth), the agreement provides for compensation to be paid to the native title holders.

The agreement provides for an up-front payment of $256,000 to a corporate body representing the Dun-ghutti people.

The agreement authorises the compulsory acquisition of all native title rights in that land, with payment to be made to the native title holders.

Had negotiations not resolved this issue, the Minister would have been able to seek a determination from the NNTT authorising the compulsory acquisition, pursuant to s38 of the NTA. If the NNTT had made a determination refusing to permit the acquisition, it would have been possible for the relevant Commonwealth Minister to overrule that determination in `the interest of the State', under s42 of the NTA.

The agreement provides for an up-front payment of $482,000 to a corporate body representing the Dun-

ghutti people.

The two up-front payments mentioned above together represent $738,000 for approximately 5 hectares of land.

The agreement provides for native title rights in that land to pass to the Crown as envisaged in s21(1)(a) of the NTA, with progressive payments to be made to the claimants, representing a percentage of the sale price of lots in the new subdivision, over a maximum period of ten years.

It would have been open to the applicant to pursue a determination of native title over that land, so as to obtain effective ownership of the land itself, rather than compensation.

However, this course would have required a contested hearing in the Federal Court, unless the thirty-nine non-Indigenous Crescent Head residents who were parties to the claimant application (most of whom owned blocks within stage one of the subdivision) had all been prepared to agree to a positive determination of native title over that land. (By contrast, none of the parties to the Crescent Head claim had standing with respect to the `right to negotiate' proceedings under which the agreement was reached, aside from the applicant and the Minister).

Putting aside the fact of native title having been recognised in a settled part of mainland Australia, there are a couple of key features of the agreement worth noting.

First is the nature of the native title recognised by the State of New South Wales. This is dealt with in sub-clause 1(g) of the Deed of Agreement:

` ... [N]ative title means the communal rights and interests of the Dunghutti people in relation to [the land under claim], conferring on the Dunghutti people possession, occupation and enjoyment of the land to the exclusion of all people such that the Dunghutti people may exercise whatever rights and interests (whether communal, group or personal) are recognised by their traditional laws and customs as in force at any relevant time, subject to any laws of the State of New South Wales or the Commonwealth of Australia which are not inconsistent with the Racial Discrimination Act 1975 or [the Native Title Act 1993].'

The legal basis for this recognition has been most effectively argued by Hal Wootten QC AC:

`In all Justice Brennan's discussion of the nature of native title [in the Mabo [No. 2] case], the word "use" never appears, the defining characteristic of the title not being use, but the rights and interests recognised by the traditional law and custom. Rights are something that owe their existence to, and are defined by, their recognition by a system of law and custom ...

`The approach [of commentators who advocate a "bundle of rights" approach] resembles deducing from an inspection of a grazier's property that his title does not allow him or her to grow crops, or from an inspection of the activities of nineteenth century freeholders that freehold title does not allow the holder to establish airstrips or radio transmitters ...

`The view [that native title is a full traditional proprietary community title] is supported by the discussion [in the Mabo [No. 2] decision] of the effect of change in native custom over time, which is seen as primarily a matter of changing rights of members between themselves, rather than a change in the enduring communal title, which is not in competition with any owner' (See H Wootten, `The Mabo Decision and National Parks' in Competing Interests--Aboriginal Participation in National Parks and Conservation Reserves in Australia: A Review Australian Conservation Foundation, 1994, pp314-6).

It is significant that in the discussion of the sardine factory lease in the Mabo [No. 2] decision, the concept of partial extinguishment is not considered, with two extremes instead being presented in the respective judgments of Brennan J and Deane and Gaudron JJ: total extinguishment versus mere temporary impairment.

In their joint judgment, Deane and Gaudron JJ (at 117) expressed a tentative view as to the effect of the lease upon native title as follows:

`It would seem likely that ... it neither extinguished nor had any continuing adverse effect upon any rights of Murray Islanders under common law native title' (emphasis added).

This principle is supported by the High Court decision in Geta Sebea & Ors v the Territory of Papua [1941] HCA 37; (1941) 67 CLR 544 at 557, to the effect that the inalienability of a communal native title (except to the Crown) is not to be taken into account for the purpose of assessing its monetary value.

It is also worth noting that the High Court in the Geta Sebea case was prepared to acknowledge the appellants' title to the land as being `a communal usufructuary title equivalent to full ownership of land' for the purpose of assessing compensation (per Williams J, with whom Rich ACJ agreed, at 557), notwithstanding that the Supreme Court of Papua (which made findings on key questions of fact which were remitted to it by the High Court) had been unable to spell out `the incidents as to duration, devolution and otherwise of the rights of ownership or enjoyment' of the land, finding that `there was no custom in relation to the right of ownership other than the right to enjoy except the right of control in the Iduhu, which is loosely called ownership' (Geta Sebea at 547, emphasis added).

Of course, the agreement does not in any way compromise the assertion or protection of native title to any land within Dunghutti territory, other than the actual land at Crescent Head dealt with in the agreement.

To the contrary, when further native claims are made over the land within Dunghutti territory, the popular assumption will be that the claimants are people who have managed to maintain the necessary connection to their traditional country--and non-Indigenous people will have to think twice before dismissing the idea of native title being successfully claimed in settled areas.