PASTORAL AND GRAZING LEASES AND NATIVE TITLE Graham Hiley QC The background jurisprudence in Mabo No 2, Wik and the Native Title Amendment Act 1998 concerning the extinguishment of native title on leases, in particular pastoral leases, is explained. The differences between the grazing leases in perpetuity in New South Wales considered in Wilson V Anderson, where extinguishment was held to be complete, and the pastoral leases in Ward, where it was held to be partial, are discussed. A native title holder on a pastoral lease may be able to establish non-exclusive rights, but the rights of the pastoralist will prevail. 1. THE BACKGROUND 1.1 Mabo[No.2] 1 Whilst the main focus of Mabo [No 2] was the recognition of native title by the common law, the High Court of Australia also gave some consideration to its extinguishment by and upon the granting of a lease. In fact, in Mabo [No 2], there had been a special lease of 2 acres of land on the island of Mer to the London Missionary Society, and another lease over the whole of the islands of Dauar and Waier for the purpose of establishing a sardine factory. Brennan J held that if those leases were validly granted the traditional rights and interests of the Meriam people would have been extinguished. At page 73: By granting the lease, the Crown purported to confer possessory rights on the lessee and to acquire for itself the reversion expectant on the termination of the lease. The sum of those rights would have left no room for the continued existence of rights and interests derived from Meriam laws and customs. All seven Justices expressed the view that native title has been extinguished by a lease conferring rights to exclusive possession. However, for various reasons, the Court did not finally determine the question as to the extinguishing effect of the particular leases involved in Mabo [No 2] and excluded the land subject of them from its declaration that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the land of the Murray Islands. 2 The High Court s decision in Mabo [No 2] was followed by the enactment of the Native Title Act 1993 ( NTA ). The parliamentary debates which had preceded its enactment assumed that leases, including pastoral leases, extinguished all native title. 1 2 Mabo v Queensland [No.2] (1992) 175 CLR 1 ( Mabo [No.2] ). Ibid at 217.
(2002) 21 AMPLJ Pastoral and Grazing Leases and Native Title 269 1.2 Wik 3 The main argument put by those who contended that a Queensland pastoral lease extinguished all native title was based upon the assumption that a pastoral lease had all the characteristics of a common law lease and conferred upon the lessee rights of exclusive possession, thus extinguishing any native title. A second argument in support of the same conclusion was based upon the reliance by Brennan J in Mabo [No 2] upon the English doctrines of tenure which, if applicable in Australia, brought about the consequence that upon the determination of a lease the Crown s radical title would expand to plenum dominium thereby extinguishing any native title. Although Brennan CJ and Dawson and McHugh JJ were of the view that the pastoral leases did extinguish all native title, the other four Justices concluded that this was not necessarily the case. In doing so, the majority expressed the view that the relevant pastoral leases were sui generis and that they did not possess all the characteristics of a common law lease. They concluded that the rights of the pastoralists were more limited than those held by a lessee under a common law lease and more limited than those held by the holder of a freehold interest. Further, they held that there was room for some co-existence between pastoralists on the one hand and native title holders on the other. Their Honours were able to avoid the plenum dominium argument by holding that the English land tenure doctrines were not necessarily applicable in Australia. 4 In the postscript 5 the majority made the following points: the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it ; there was no necessary extinguishment of [native title] rights by reason of the grant of pastoral leases under the Acts in question ; whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established ; if there is inconsistency between the native title rights on the one hand and rights conferred under the leases on the other, the native title rights must yield, to that extent, to the rights of the grantees ; and to say that the pastoral leases in question did not confer rights to exclusive possession on the grantees is in no way destructive of the title of those grantees. 3 4 5 Wik Peoples v Queensland (1996) 187 CLR 1 ( Wik ). See P McDermott, Wik and Doctrine of Tenures; A Synopsis in G Hiley (ed), The Wik Case:Issues and Implications, Butterworths, 1997 pp 35-39. (1996) 187 CLR 1 at 132-133.
270 Articles (2002) 21 AMPLJ 1.3 1998 Amendments to NTA Notwithstanding the unambiguous statements of the majority in Wik to the effect that the rights conferred under the relevant pastoral leases were not diminished or otherwise affected by any coexisting native title, and notwithstanding that implicit in the majority s conclusion was the fact that native title rights and interests of an exclusive kind were extinguished thus leaving room only for lesser rights such as rights to hunt and fish, the fact that the High Court left the door open for some native title rights to remain on land the subject of pastoral leases was of considerable concern to many people, and was subject of much debate leading up to the substantial amendments made to the NTA in 1998. Of particular relevance to leases in general, and pastoral leases in particular, were provisions: confirming the validity of grants and other acts that had taken place prior to the High Court s decision in Wik on the erroneous assumption that native title had been extinguished over land subject of pastoral leases (anywhere in Australia) 6 ; confirming that things done in accordance with valid leases, licences etc were valid and could not be prevented by native title holders 7 ; confirming that all native title has been extinguished upon the doing of previous exclusive possession acts 8 ; declaring various acts to be previous exclusive possession acts including Scheduled interests 9, various other leases such as certain commercial leases 10, residential leases 11, community purposes leases 12, certain parts of mining leases 13, other leases (other than mining leases) that confer a right of exclusive possession, 14 and agricultural leases and pastoral leases that fit within the definitions of exclusive agricultural lease 15 or exclusive pastoral lease 16 ; confirming that native title has been partially extinguished by previous non-exclusive possession acts 17 including agricultural and pastoral leases that are not exclusive agricultural or pastoral leases 18 ; 6 7 8 9 10 11 12 13 14 15 16 17 18 See for example the intermediate period act provisions. S 44H NTA. See s 23B, 23C and 23E NTA. Schedule 1 identifies numerous leases and other interests, thereby removing any doubt about what the common law might say about their extinguishing effect. Defined in s 246 NTA. Defined in s 249 NTA. Defined in s 249A NTA. See ss 23B (2) (c) (vii) and 245 NTA. See s 23B (2) (c) (viii) NTA. Defined in s 247A NTA. Agricultural lease is defined in s 247 NTA. Defined in s 248A NTA. Pastoral lease is defined in s 248 NTA. See s 23F, 23G and 23I NTA. See ss 247B and 248B NTA.
(2002) 21 AMPLJ Pastoral and Grazing Leases and Native Title 271 providing a mechanism for the carrying out of certain activities upon non-exclusive agricultural or pastoral leases including primary production activities 19, farm tourism activities 20, off-farm activities that are directly connected to primary production activities 21 and for the granting of rights to third parties 22 ; and providing for the renewal of leases, licences etc. 23 The amendments also enabled other anomalies to be overcome. For example, they enabled certain acts of prior extinguishment to be disregarded in certain circumstances, such as those which existed in the case of one of the leases the subject of the Wik case namely where the lease was no longer extant and where the native title holders had continued to occupy or otherwise maintain their connection with the land notwithstanding the existence, albeit for a small time, of an extinguishing tenure. 24 Notwithstanding Parliament s attempt to bring about certainty, doubts still remained about the applicability of Wik to pastoral and grazing leases elsewhere in Australia, including Western Australian pastoral leases and leases held over much of western New South Wales under the Western Lands Act 1901 (NSW). These doubts formed the basis of the two important decisions of the High Court delivered on 8 August, 2002, namely Ward 25 and Wilson v Anderson 26. 2. THE GRAZING LEASES IN PERPETUITY IN NEW SOUTH WALES: WILSON v ANDERSON In Anderson v Wilson 27 the Full Federal Court declined to answer questions as to whether Mr Wilson s Western Lands Act lease in perpetuity for grazing purposes conferred exclusive possession of the lease area upon him, or whether any native title rights, the exercise of which involved the native title holders presence on the lease area, would have been extinguished or suspended by the grant of the lease. The Court held that even if the lease did confer a right to exclusive possession, that did not necessarily extinguish native title. Rather, native title claims on Western Lands Act grazing leases must be assessed on a case by case basis. As no factual findings had been made as to the nature and extent of the native title rights it could not be concluded that all native title rights had been extinguished at common law. The Court held that such findings must be made before one can ascertain whether and to what extent the rights conferred upon the lessee are inconsistent with any or all of the rights which make up the native title existing in the land at 19 20 21 22 23 24 25 26 27 Defined in s 24GA NTA. S 24GB NTA. S 24GD NTA. S 24GE NTA. Ss 24IB and 24IC NTA. See ss 47 and 47B NTA. See too s 47A NTA. Western Australia v Ward [2002] HCA 28. Wilson v Anderson [2002] HCA 29. Anderson v Wilson (2000) 97 FCR 453; 171 ALR 705. See too Casenote on Anderson v Wilson by Chris Searle 4 NTN 164.
272 Articles (2002) 21 AMPLJ the date of the grant. This view is consistent with that expressed by Toohey J in Wik 28, by the Supreme Court of Queensland in Savage Togara 29, and by the majority in Ward 30, about the need to ascertain the content of the native title before considering extinguishment (at common law) 31. The High Court held that the Full Court had erred in applying a common law test of extinguishment and not applying the provisions of the NTA. Their Honours distinguished Mr Wilson s perpetual lease from those under consideration in Wik and in Ward, and held that Mr Wilson s lease did confer a right of exclusive possession. The majority appears to have been strongly influenced by the historical background behind the enactment of the Western Lands Act and by the fact that the relevant lease was in perpetuity. They concluded that the grant here was of a lease within the meaning of s 242 of the NTA which, upon the true construction of the Western Lands Act, conferred upon the lessee the essence of a freehold, including a right of exclusive possession, within the meaning of pars (iv) (with s 248A) and (viii) of s 23B (2) (c) of the NTA. 32 Thus native title was completely extinguished by force of the New South Wales equivalent of s 23 C (1). Many other leases have been granted under the Western Lands Act and contain provisions different to those in the Wilson lease. However, it seems likely that the High Court s conclusion in relation to the Wilson lease, based primarily upon the terms of the legislation rather than the terms of the lease, will apply to most, if not, all other leases granted under that legislation. This would lead to the conclusion that native title has been wholly extinguished over a significant part of western New South Wales. The decision might also have some bearing upon perpetual leases granted elsewhere in Australia under legislation which has a similar background and purpose to that of the Western Lands Act 1901 (NSW). 3. THE PASTORAL LEASES: WESTERN AUSTRALIA v WARD 33 The pastoral leases the subject of the Ward decision were significantly different from the Western Lands Act leases involved in Wilson s case and were more similar, in relevant respects, to those subject of the Wik case. In particular the relevant legislation did not have the same historical background and purpose as the Western Lands Act 1901 (NSW) and the leases were term leases, rather than perpetual. One important difference between Queensland pastoral leases of the kind considered in Wik and Western Australian pastoral leases was that the latter contained express reservations in favour of Aboriginal people, conferring upon them a statutory right of access for particular purposes over certain parts of the leased land. (Likewise, most pastoral leases in the Northern Territory and in South Australia contain reservations conferring access and limited use rights upon Aboriginal people upon land subject to pastoral leases). 28 29 30 31 32 33 Wik Peoples v Queensland (1996) 187 CLR 1 at 133. Re Savage Togara Coal Pty Ltd [1999] 2 QdR 307. Western Australia v Ward [2002] HCA 28. It is not readily apparent why the pastoralist relied so heavily upon common law extinguishment, nor why he initially only contended for extinguishment of native title rights which involved presence on the lease area. Wilson v Anderson [2002] HCA 29 at [119]. Ibid.
(2002) 21 AMPLJ Pastoral and Grazing Leases and Native Title 273 The High Court s conclusion in respect of Western Australian pastoral leases is the same as that which it reached in relation to the Queensland pastoral leases subject of its decision in Wik. 34 This is to the effect that the grant of a pastoral lease does not necessarily extinguish all native title 35, but that the rights held by the pastoralist under his or her lease prevail over any native title rights that otherwise might have survived the grant of the pastoral lease. 36 There had been some doubt, largely as a result of the decision in Ward at first instance, 37 as to whether native title could be partially extinguished. On appeal a majority of the Full Court of the Federal Court held that native title could aptly be described as a bundle of rights and thus could be partially extinguished. 38 This question was one of the main issues upon appeal before the High Court. The High Court agreed with the majority below that native title is more in the nature of a bundle of rights and is not an underlying title to land as Lee J. had held at first instance. 39.Consequently, native title could be partially extinguished. 40 Hence the effect of the grant of a pastoral lease was to extinguish some native title rights and interests, namely those which are inconsistent with the rights granted to the pastoralist, but not necessarily all of them. 41 Unlike grants of freehold and grants of Western Lands Act leases in New South Wales, 42 Western Australian pastoral leases did not confer rights of exclusive possession upon the pastoralist, and thus did not necessarily extinguish all native title. 43 In reaching this conclusion the High Court disagreed with the majority in below who had held that native title was totally extinguished in respect of some land the subject of Western Australian pastoral leases, namely land the subject of a pre-land Act 1933 pastoral lease which was enclosed and improved and land subject of a lease granted under the Land Act 1933 which had been enclosed or improved within the meaning of s 106(2) of that Act. 44 Whilst the reservations in favour of Aboriginal people applied to other land the subject of the relevant pastoral lease, the High Court was of the view that the existence or otherwise and the applicability of such reservations were not necessarily fatal to the survival of native title. 45 Such reservations did not define or confine the rights that native title holders had in relation to the land. 34 35 36 37 38 39 40 41 42 43 44 45 Wik Peoples v Queensland (1996) 187 CLR 1. Western Australia v Ward [2002] HCA 28, [194] and [417]. At [ 425]. See too s 44H NTA. Ward v Western Australia (1998) 159 ALR 483 (Lee J.). Western Australia v Ward (2000) 99 FCR 316; 170 ALR 159. Ward [2002] HCA 28, 82-95. At [9], [26]-[29], [76] and [468(3)]. At [78]-[82], [194] and [417]. Cf. Wilson v Anderson [2002] HCA 29. If the pastoral leases had conferred exclusive possession, they would have been previous exclusive possession acts within the meaning of s 23B NTA, as a consequence of which all native title would have been extinguished by force of the Western Australian equivalent of s 23C(1) NTA. Ward (2000) 99 FCR 317, 319 and 328-9. Ward [2002] HCA 28, paras. 186 and 414-5.
274 Articles (2002) 21 AMPLJ Rather, they were directed at giving rights of access to all Aboriginal people, including non-native title holders. 46 The Full Court had relied heavily upon the so-called operational inconsistency test as part of their reasoning. 47 However, the High Court held that the use of such a term and the reference to activities carried out on the relevant land is apt to mislead, except in so far as it focuses attention upon the particular right pursuant to which the land is used. 48 However, the High Court agreed with the views of the majority in below to the effect that the grant of pastoral leases effected partial extinguishment because the rights conferred under them were inconsistent with certain native rights often asserted, such as rights to control access to and the use to be made of land. 49 Their Honours went on to say that the right to control access apart, many other native title rights to use the land the subject of the pastoral leases probably continued unaffected. 50 They stated, by way of examples, that a native title right to hunt or gather traditional food on the land would not be inconsistent with the rights of the pastoralist (and therefore would not be extinguished), whereas a native title right to burn off the land probably would have been inconsistent with the pastoralist s rights (and thus would have been extinguished). 51 In broad terms, the effect of the High Court s decision is that any native title rights of an exclusive kind, such as rights to control access, make decisions about the use of the land, and to require others to obtain permission to access or use the land, have been extinguished by the granting of a pastoral lease. But native title rights of a usufructuary kind, such as the right to hunt, gather or fish on the land subject to a pastoral lease, may not have been extinguished. However, the pastoralist s rights under the pastoral lease to prevent native title holders from exercising such a right, for example to the extent that such exercise would interfere with the lawful activities of the pastoralist under the lease, would prevail. The Court held, that it was not possible to determine the extent of inconsistency between the native title rights and interests on the one hand and those of the pastoralist on the other, and thus the extent of extinguishment, because the trial judge had not made adequate factual findings, in particular as to each native title right and interest. Accordingly the Court has remitted the matter back to the Full Court in order to enable appropriate factual findings to be made. Not only will such findings have to be made in respect of each native title right and interest, findings will also need to be made as to the particular rights conferred under each relevant extinguishing event, including each pastoral lease that once existed in relation to land within the claim area. It is likely that Full Court will remit these questions to the trial judge. Indeed, it is likely that the trial judge may then require the parties, in particular the claimants, to better particularize the native 46 47 48 49 50 51 Ward [2002] HCA 28, [184-7] and [417]. Ward (2000) 99 FCR 327. Ward [2002] HCA 28, [78], [149-151] and [468(5)]. At [192] and [468(10)]. At [194]. Ibid.
(2002) 21 AMPLJ Pastoral and Grazing Leases and Native Title 275 title rights and interests which they assert and the traditional laws and customs relied upon 52. It is possible that the parties may seek leave to call further evidence. On the one hand the Applicants may wish to present further evidence regarding particular native title rights and interests in respect of particular parts of the claim area. On the other hand one or more Respondents may seek to tender further evidence in relation to extinguishing events, such as evidence regarding the nature and extent of public works, and regarding activities carried out by or on behalf of a pastoralist on the relevant land pursuant to rights conferred by pastoral leases. Needless to say, the longer term effect of the High Court s decision is to require those who claim to be native title holders to identify each native title right and interest and each relevant traditional law and custom, and to require those who contend for extinguishment to identify the particular rights and interests said to have been conferred by grants such as the grants of pastoral leases. Only then can a court compare the two sets of rights in order to determine which rights are inconsistent with each other and thus which native title rights have been extinguished. 4. CONCLUDING COMMENTS The critical starting point for ascertaining whether or not native title has been extinguished by the grant of a pastoral or other lease is the NTA, particularly the previous exclusive possession act provisions (s 23B, and often Schedule 1). Subject to certain exceptions, for example Crown to Crown grants, 53 a lease which is a previous exclusive possession act will have extinguished all native title in relation to the relevant land. Where the relevant lease is not a previous exclusive possession act it will be necessary to identify the claimed native title rights and interests and to ascertain the extent of inconsistency between those rights and interests and the rights and interest conferred under the lease. In most cases native title will have been extinguished to the extent of the inconsistency. 54 Notwithstanding that native title has not been completely extinguished the rights of the lessee will continue to prevail over those of the native title holders. 52 53 54 See Ward [2002] HCA 28, [18], [21], [29], [48]-[52], [64], [86], [93]-[95], [570] and [575]. See s 23B(9C) NTA See too s 23G(1) (b) (i) NTA and its State and Territory counterparts.