THE FIRST CONTESTED MAINLAND NATIVE TITLE DETERMINATION

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1 (2002) 21 AMPLJ Risk v Northern Territory of Australia 187 land to form part of that Aboriginal land, or for a "buffer zone" as the Woodward Royal Commission had recommended. Rather, provision was made, in the form of what became s 73(1)(d), for applications to be made to the Administrator of the Northern Territory to close seas within 2 kilometres of Aboriginal land. The majority noted that attempts to amend this aspect of the Bill were rejected, and concluded that the legislative history of the Act ran contrary to the appellant's submissions. McHugh, Gummow and Callinan JJ all wrote separate judgments to similar effect. IMPLICATIONS OF THE DECISION In addition to the Beagle Gulf claim, the Northern Land Council had made similar claims to the seabed around the entire coastline of the Northern Territory, without apparent limitation as to their extent other than that they were claims to land "in the Northern Territory". It is accepted that "land in the Northern Territory" extends only to the low water mark other than where it includes bays and gulfs. As a result the claims would have been confined to the seabed within those historic bays and gulfs in any event. The decision, however, prevents any such claims proceeding, or indeed having any validity. The result is that no land below the low water mark of the Territory coast is susceptible to the operation of the Act. THE FIRST CONTESTED MAINLAND NATIVE TITLE DETERMINATION WESTERN AUSTRALIA V WARD 1 Native title Native Title Act proof content minerals extinguishment suspension Racial Discrimination Act pastoral leases mining leases leases reserves vesting national park Richard Bartlett* FACTS AND NATURE OF CLAIM On 26 May in 1994 the Registrar of the Native Title Tribunal accepted a claim for native title over 7900 sq km of the eastern Kimberley in Western Australia and the Northern Territory. On 2 February 1995 the Registrar lodged an application for a determination of native title with the * Professor of Law, The University of Western Australia. 1 [2002] HCA 18, 8 August 2002.

2 188 Case Notes (2002) 21 AMPLJ Federal Court. At the time of the claim the land was mainly comprised of vacant Crown land and reserves, but had in the past been subject to a wide variety of dispositions including permits, leases, conditional purchase leases, mining leases and pastoral leases. Much of the land in the Northern Territory was part of the Keep River National Park. Much of the area in Western Australia had been resumed for purposes of the Ord Irrigation Project before TRIAL JUDGE On 24 November 1998 the trial judge, Lee J, made a determination of the existence of native title over a large part of the claim area. 2 Lee J upheld the claim including "a right to possess, occupy use and enjoy" and "a right to use and enjoy resources of" the determination area. The judge rejected extinguishment on account of dispositions or dealings other than fee simple grants or the creation of public works. Lee J. rejected the concept of partial extinguishment and required that acts of extinguishment must be permanent in nature so as to expressly or impliedly reflect a clear and plain intention to extinguish. FULL COURT Judgment on appeal was delivered on 3 March The Full Court rejected the inclusion of resources other than traditional resources such as ochre in the determination. The Full Court found that extinguishment could be partial and need not be permanent. Total extinguishment was found on account of leases, mining leases and pastoral leases where enclosed or improved. The Ord Irrigation Project was found to have totally extinguished native title. HIGH COURT OF AUSTRALIA An appeal to the High Court was heard in March Judgment was delivered on 8 August There are four judgments. The determinative judgment is that of Gleeson CJ, Gaudron, Gummow, and Hayne JJ. The joint judgment found total extinguishment over most of the dispositions in issue, but not on account of the grant of mining leases or pastoral leases, the reservation of reserves or the mere exercise of management and control over the Ord Irrigation Project. Kirby J. delivered a short judgment which concurred with much of the joint judgment, but expressed differences as to the content of native title, including as to mineral resources, and a lesser willingness to find extinguishment, including a reluctance to construe the loss of exclusivity of a native title right as extinguishment. Callinan J. delivered a lengthy judgment which found extinguishment on account of all dealings, dispositions and reservations, short of annual licences. McHugh J. delivered a judgment in which he agreed with the reasons of Callinan J., except as to whether or not a native title holder could be an occupier under the Mining Act. 2 3 (1998) 17 AMPLA 413, (1998) 159 ALR (2000) 19 AMPLA ---, (2000) 170 ALR 159.

3 (2002) 21 AMPLJ Western Australia v Ward 189 In the result where extinguishment was found by the joint judgment the Court is unanimous 7 0. Where extinguishment is not found by the joint judgment the Court is split 5 2, and is accordingly split 5 2 with respect to mining leases and pastoral leases. In the report of the reasons that follows, references are given to the paragraph numbers of the joint judgment. THE NATIVE TITLE ACT GOVERNS The joint judgment emphasised that it is the Native Title Act that governs the claim, not the common law. Yet again it must be emphasised that it is to the terms of the Native Title Act that primary regard must be had, and not the decisions in Mabo (No 2) or Wik. The only present relevance of those decisions is for whatever light they cast on the Native Title Act. [25]. PROOF Proof of native title rights requires identification of the traditional laws and custom and the rights and interests said to flow therefrom. Ownership or rights of occupation requires establishing a right to speak for country under traditional law and custom and cannot be assumed. [18, 84, 88, 93]. Proof of continued use of lands or waters is not essential to the establishment of connection within section 223 (1) [63]. "The absence of evidence of some recent use of the land or waters does not of itself require the conclusion that there can be no relevant connection. [64] We need express no view on when a spiritual connection with the land...will suffice. [64] also [465, 468 (7)] the High Court did not overturn the preparedness of the Full Court to find the continuation of native title over the waters of Lake Argyle. CONTENT Cultural Knowledge The right to protect cultural knowledge, beyond access to land, is not protected by the Native Title Act. It goes beyond the content of the definition in section 223 (1) which requires a connection with land or waters. [19, 59 60, 468 (7)]. MINERALS Consistently with the requirement to identify traditional laws and customs and the rights and interests said to flow therefrom, no native title rights or interest in minerals or petroleum were established because there was no evidence of any traditional aboriginal law, custom or use relating to petroleum or any of the substances within the mining legislation [382, 385, 468 (22)].

4 190 Case Notes (2002) 21 AMPLJ EXTINGUISHMENT GENERAL PRINCIPLES Inconsistency and clear and plain intention The focus of the inquiry is inconsistency in rights. Where there has been a grant of rights to third parties the question is whether the rights are inconsistent with the alleged native title rights and interests. That is an objective inquiry which requires identification of and comparison between the two sets of rights [78]. The requirement of total fundamental or absolute inconsistency is rejected. The place of the requirement of a clear and plain intention to extinguish is unclear. It is observed that the cases often refer to the need for those who contend native title has been extinguished to demonstrate a clear and plain intention to do so [78], but it is also commented that the requirement of a clear and plain expression of intention is apt to mislead, because of the suggestion of regard to subjective thought processes [78, 468 (5)]. In Wilson V Anderson 4 delivered the same day, in the joint judgment, to which Gleeson CJ is not a party, the requirement of a clear and plain intention is affirmed [61]. The place of the requirement is clearly a matter of some considerable disagreement even amongst members of the majority. The requirement is not expressly used to distinguish degrees of inconsistency. The joint judgment rejects degrees of inconsistency of rights Two rights are inconsistent or they are not. [82]. Use of lands is not the criterion The focus on inconsistency of rights is comprehensive, including with respect to reserve lands. The ultimate question is whether, by the steps that were taken, the Crown created in others, or asserted, rights in relation to the land that were inconsistent with native title rights and interests of the land. [214] References to use of land may distract intention from the relevant inquiries [215]. The basic inquiry is about inconsistency of rights, not inconsistency of use [215] [234]. Suspension Suspension of native title rights by dispositions which are less than permanent, such as leases, is rejected. It was declared that it is plain that some rights which are not unlimited in time are inconsistent with the continued existence of native title rights. There are obvious difficulties in identifying satisfactory criterion for a distinguishing between long-term and other transactions. [80] Questions of suspension of one set of rights in favour of another do not arise at common law [82]. Partial extinguishment Partial extinguishment existed at common law and continues under the Native Title Act [26 27] The NTA postulates there may be partial extinguishments [29]. 4 [2002] HCA 29.

5 (2002) 21 AMPLJ Western Australia v Ward 191 RACIAL DISCRIMINATION ACT Section 9 Section 9 is not relevant to the determination of extinguishment by dealings in land. Section 9 does not apply where there is statutory authority for an act. Because legislative sanction is now necessary before anything can be done with Crown land which would extinguish or affect native title, section 9 (1) does not operate to invalidate discriminatory acts of that kind. [ ] Section 10 The application of the guarantee of formal and substantive equality before the law to native title found in Mabo No 1 and Western Australia v Commonwealth was affirmed. It is wrong to confine the relevant operation of the Racial Discrimination Act to laws whose purpose can be identified as discriminatory. Regard must be had to the effect of an act. It is "concerned not merely with matters of form but with matters of substance" [105, 115]. Callinan J. disagrees fundamentally, and declares that the Racial Discrimination Act only protects against formal discrimination, that is, it must be based on race or have the purpose of discrimination [659]. Callinan J. did not consider that any of the extinguishing laws or acts entail a violation of the Racial Discrimination Act being laws of general application or undertaken pursuant thereto. The fragility of native title does not deny the protection of the Racial Discrimination Act. There is no basis for distinguishing between different types of ownership of property or different types of inheritance in the context of section 10 of the Racial Discrimination Act. [120]. The Court [in Mabo No 1] has rejected the argument that native title can be treated differently from other forms of title because native title has different characteristics, from those other forms of title and derives from a different source [122]. Valid and invalid A significant departure from Western Australia V Commonwealth was the distinction drawn between acts which are valid and invalid. Where a relevant state law merely omits to make enjoyment of the right universal then section 10 operates to confer that right for example where a state law provides for the extinguishment of land titles but provides for compensation only in respect of non-native title. The state law is valid, but a right to compensation is conferred. Where there is a prohibition forbidding a particular race from enjoying a human right, and section 10 confers the right, this necessarily results in inconsistency between section 10 and the prohibition for example a state law which extinguishes only native title and leaves other titles intact the state law is rendered invalid. [108, 468 (6)] If Section 10 (1) does not operate to invalidate the relevant state legislation, the past acts provisions of the NTA... are not engaged [114].

6 192 Case Notes (2002) 21 AMPLJ PASTORAL LEASES The grant of pastoral leases in Western Australia and the Northern Territory does not necessarily extinguish all native title rights and interests. The rights granted are limited and precarious having regard to the rights of the Crown and the extensive reservations [170,171,178,180, 186,415]. The reservation of Aboriginal access is not to be read as confining Aboriginal access. There was no right apart therefrom to exclude Aboriginal people [179, 185,417]. Accordingly enclosure or improvement did not deny access [186]. The grants did not confer exclusive possession to the exclusion of native title holders. They were "very different" from common law leases [177]. The grants are previous non-exclusive possession acts within section 23 Native Title Act. [422] Native title rights and interests were partially extinguished by the grant of pastoral leases, rights such as control of access and making decisions about the land [192,417] and the right to burn [194], but other rights would probably be unaffected, for example the right to hunt and gather [194] [468 (10),(24)]. The Court remitted the matters to the Full Court to determine the content of native title rights, and the degree of inconsistency [ ]. LEASES Special leases and leases of reserves Special leases and leases of reserves are not considered "precarious" and are not subject to such reservations as in pastoral leases [355]. They confer exclusive possession [357,369,374] [468 (20, 21)]. If granted after 1975 they constitute an invalid grant under the Racial Discrimination Act [ ], but are validated as previous exclusive possession acts [357, 372, 468 (21)] Conditional purchase leases It was not necessary to decide the extinguishing effect of conditional purchase leases [350]. RESERVATION OF RESERVES The relevant inquiry is inconsistency of rights not use, despite Brennan J.'s observations in Mabo No 2 [ ]. No rights in others are created by mere reservation by the Crown [200]. Nor did the trespass penal provisions apply to native title holders so as to totally extinguish native title [220]. However designating the purpose for which land was reserved was inconsistent with native title holders deciding how land could be used and extinguished the right to control use and access, but not necessarily native title holders right to use the land [219, 222]. Partial extinguishment by reservation after 1975 would be invalid under the Racial Discrimination Act, but validated as a category D past act resulting in suspension of the affected native title rights and interests [222, 468 (12)].

7 (2002) 21 AMPLJ Western Australia v Ward 193 VESTING Land Act The joint judgment disregarded "high authority", in particular Privy Council authority, in concluding that vesting of lands under the Land Act in public offices conveyed the fee simple and totally extinguished all native title rights and interests [228, 249, 274, 468 (14, 15)]]. The particular legislation was emphasised. It was declared that vesting under the Land Act entailed the creation of a public or statutory trust which transferred the legal estate in trust [ ]. Vesting was not invalid under the Racial Discrimination Act because a right to compensation for some lands resumed for reserves was provided [250]. Accordingly the Racial Discrimination Act conferred a right of compensation and the vesting was not invalid [253]. In any event the vesting was a previous exclusive possession act under the Native Title Act section 12 I. Nature reserves Vesting of nature reserves under the Land Act totally extinguished native title [258]. Rights in Water and Irrigation Act Vesting of the right to the use and flow of the control of the water under section 4 (1) of the Rights in Water and Irrigation Act was inconsistent with any exclusive native title right to waters [263]. Vesting of works in the Minister would totally extinguish native title as under the Land Act [468 (15)]. But vacant Crown land is not generally within the definition of works and therefore did not vest on that account. But it could not be determined if the land was used in connection with the works on the facts so found so as to bring about vesting, so the matter was remitted [ ]. Vesting in Crown did not deny extinguishment Vesting in the Crown would not preclude extinguishment at common law [ ]. ORD PROJECT In examining the extinguishing effect of particular projects one must examine the legal effect of particular grants or statutes. It is not appropriate to take a global or project view [147, 152,468 (8), 468 (15)]. Mere administrative management and control is not sufficient to bring about inconsistency. Authority without action is insufficient to extinguish [148, 151]. Whether or not much of the area of the Ord project was subject to extinguishment by virtue of being "public works" within section 251 D could not be resolved on the facts as found and was remitted to the Full Court accordingly [ , 468 (9)].

8 194 Case Notes (2002) 21 AMPLJ BY LAWS By laws made under the Rights In Water and Irrigation Act and shire by laws were considered to impose an absolute prohibition on hunting and gathering and accordingly extinguished all native title rights to hunt and gather [265, 268]. Shire by laws made after 1975 were considered invalid under the Racial Discrimination Act as only native title rights were affected. They were validated as a category D past act. RESUMPTIONS Large areas of lands were resumed from pastoral leases under section 109 of the Land Act and the Public Works Act for the purposes of the Ord project. It was determined that the resumption under section 109 of the Land Act did no more than restore to the Crown radical title [208, 468 (11)]. By contrast resumption under the Public Works Act which was expressed to vest the fee simple in the Crown totally extinguished native title [204] [468 (16)]. It was a previous exclusive possession act [468 (16)]. The resumption was not invalid under the Racial Discrimination Act, as it made no distinction between native title holders and others and applied to everybody's interests [278, 468 (16)]. MINERALS The joint judgment declared that any native title right to minerals that might have existed was extinguished by the declaration of property in the Crown. The ruling would seem to extinguish any possibility of a native title right to minerals or petroleum anywhere in Australia. The declaration in section 117 of the Mining Act 1904, that all minerals other than those alienated in fee simple before 1899 are the property of the Crown, converted radical title to ownership. The vesting of property was not a mere fiction as in Yanner [384]. The section 122 and 123 resumption provisions in the Mining Act 1904 were directed at resuming lands generally not minerals particularly [385]. MINING LEASES (INCLUDING ARGYLE AND GENERAL PURPOSE LEASES) [468 (17, 18)] The joint judgment ruled that the grant of the mining leases and general purpose leases issued under the Mining Act 1978 and the Argyle mining lease did not entirely extinguish all native title rights and interests. There was a looseness in the terminology of lease as applied to mining leases [287]. The rights granted were not necessarily inconsistent with all native title rights and interests [296]. Reference was made to the extensive reservations in mining leases [295, 338]. The exclusive possession granted only for the purposes of mining did not necessarily exclude native title holders from all parts of the lease area [308, , 340]. Some native title rights were of course extinguished including control of access[309, 341]. And of course native title rights must yield to statutory mining rights [291].

9 (2002) 21 AMPLJ Western Australia v Ward 195 A precise determination of the degree of extinguishment and the degree of coexistence was not possible because "of the generality of the determination respecting the content of the native title being asserted" and that matter was remitted to the Full Court to determine the degree of inconsistency and extinguishment [308]. The grants of the mining leases were not invalid under the Racial Discrimination Act because it was suggested that interests of all persons could be subject to such overriding grant. A right of compensation would be provided under section 123 of the Mining Act or supplied by operation of section 10 of the Racial Discrimination Act. Since the grants were not invalid they could not be past acts within the meaning of the Native Title Act. In the result native title appears to be extinguished only in part, and native title holders have a right of compensation. It was incidentally ruled that the dissected mining lease provisions of section 245 of the Native Title Act are inapplicable to such mining leases because the buildings must be removed at the end of the lease [305]. KEEP RIVER NATIONAL PARK [468 (25)] The land the subject of the Keep River National Park in the Northern Territory was the subject of a special purpose lease and a Crown lease perpetual to the Conservation Land Corporation. Consistently with the joint judgment ruling with respect to other leases it was held that the leases conferred exclusive possession on the grantee and would have totally extinguished native title at common law [433, 439]. The setting up of the National Park by formal leases rather than by reservation had the effect of extinguishing native title, despite Brennan J.'s observations in Mabo No 2 as to the possible coexistence between native title and a National Park. However the grants were invalid under the Racial Discrimination Act section 10 and constituted category D past acts under the Native Title Act, being grants to a statutory authority within section 230 (d) (i) [446] [448]. Native title is suspended to the extent of the inconsistency [448]. The grants were not previous exclusive possession acts, being excluded as directed to the conservation of the environment of the area within the statutory exception [ ]. No extinguishment of native title was brought about by the declaration of the Park itself or the institution of a plan of management, because the declaration was invalid under the Territory legislation insofar as it sought to include any interests other than that of the Territory [456, ]. ORDER The Court set side the determination of native title made by the Full Court and ordered the matter be remitted to the full Court for further hearing and determination in accordance with the reasons given in the judgment [ ].

10 196 Case Notes (2002) 21 AMPLJ IMPLICATIONS WITH RESPECT TO MINERALS Native title has not been totally extinguished over the vast tracts of land which were subject to pastoral leases or the highly prospective lands which were the subject of mining leases. However is not clear to what extent native title rights and interests have survived. Those matters have been remitted to the full Federal Court. Some uncertainty necessarily continues. The nature of the relationship between native title holders and miners may not be resolved in the Federal Court any time soon. Advice to the parties in Western Australia v Ward would surely encourage the settlement of the matters without returning to the Federal Court. Some problems of invalidity remain. After the Full Court decision in March 2000 until the change of government in Western Australia in 2001 some mining leases were issued over former pastoral and mining leases on the basis of the decision without agreement with native title holders or satisfaction of Native Title Act procedures. The grants are invalid insofar as they purport to affect native title. COMMENT Rumours abounded as to the reasons for delay in the decision of the High Court prior to its delivery. There were suggestions of draft judgments being circulated and then being withdrawn because agreement could not be reached. It took 18 months for the decision to be handed down. The joint judgment reflects a highly pragmatic statement of the law. Thus there is a glaring lack of discussion of underlying principle with respect to extinguishment, as manifested in the comment that there cannot be degrees of inconsistency [82]. The disagreement amongst all the levels of the courts and so many parties as to what was consistent and what was not inconsistent emphasises how obtuse an observation that is. The underlying principles of extinguishment and their relationship to clear and plain intention and equality are clearly a source of disagreement amongst the members of the joint judgment, as is evident in the pattern of judgments in Wilson v Anderson. The pragmatism of the joint judgment is evident in the degree to which it parallels the expectations and assumptions made in the Native Title Amendment Act of 1998, the 10 Point Plan. Consistently therewith the grant of mining leases and pastoral leases were held not to totally extinguish native title although all other leases do. A greater pragmatism reflects greater conservatism of the Court, reflecting changes in the composition of the Court. The fundamental principles underlying native title and its extinguishment would tend to dictate a greater recognition of native title rights and interests and lesser findings of extinguishment. Attempts to ease the burden of judicial determination and governmental management of extinguishment are evident in the conclusion that use is not determinative of extinguishment, despite Brennan J.'s observations in Mabo (No 2) to the contrary, and the surprising conclusion that vesting under the public lands legislation conveys a fee simple interest. The latter conclusion may have widespread consequences far beyond native title matters. Most interesting is the frustration declared in the judgment of all the dissenters. Callinan J. declares:

11 (2002) 21 AMPLJ Western Australia v Ward 197 It might have been better to redress the wrongs of dispossession by a true and unqualified settlement of lands or money than by an ultimately futile or unsatisfactory, in my respectful opinion, attempt to fold native title rights into the common law. [970] McHugh J. declares of the current regime of the common law and the Native Title Act: And it is a system that is costly and time-consuming. At present the chief beneficiaries of the system are the legal representatives of the parties. It may be that the time has come to think of abandoning the present system, a system that simply seeks to declare and enforce the legal rights of the parties, irrespective of their merits. A better system may be an arbitral system that declares what the rights of the parties ought to be according to the justice and circumstances of the individual case. [561] And in Wilson V Anderson Kirby J. describes the Native Title Act as an impenetrable jungle of legislation and observes: The legal advance that commenced with Mabo v Queensland (No 2), or perhaps earlier, has now attracted such difficulties that the benefits intended for Australia's indigenous peoples in relation to native title to land and waters are being channelled into costs of administration and litigation that leave everyone dissatisfied and many disappointed [126]. This writer has long urged that the path to constructive settlement of native title matters lies in agreed general settlements without legislation. The judiciary are coming to recognise the problems of the current process of judicial and legislative determination, in particular the enormous waste of resources and the failure to deliver a just settlement.