ARTICLES NATIVE TITLE AFTER WARD: A GENERAL OVERVIEW OF THE IMPLICATIONS FOR THE MINING AND PETROLEUM INDUSTRIES Doug Young * A comprehensive statement of the findings of the High Court in Ward and the implications for the mining and petroleum industries is provided. It is concluded that the issue of the validity of mining leases granted after the Racial Discrimination Act is not free from doubt, but by contrast the potential for native title ownership of minerals has been all but removed. There has been a diminishment in the native title rights that can be claimed. The area of Australia subject to the future act regime has been reduced, including possibly wherever exploration and production mining and petroleum tenements were granted in the past. 1. INTRODUCTION 1.1 The Ward Decision 1 High Court of Australia, 8 August 2002 The decision ends the legal and political adventure begun by Judge Malcolm Lee in the Federal Court four years ago. so commented Stuart Rintoul writing about the judgment in The Australian the following day. The decision did more than that, as together with Wilson v Anderson 2 - handed down the same day many of the vacancies that previously existed in both the common law relating to native title, and native title law deriving from statute, in particular, the Native Title Act 1993 (Cth) ( NTA ), were filled in. * 1 2 LL.B (Q land), Partner, Blake Dawson Waldron, Brisbane, Senior Fellow, Graduate Program, University of Melbourne. Ward v Western Australia and South Australia [2002] HCA 28 (8 August 2002). References in footnotes to paragraphs are to that case, referred to as Ward. This paper considers only the law as pronounced in the majority judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, and does not discuss the minority judgments. Wilson v Anderson [2002] HCA 29 (8 August 2002)
208 Articles (2002) 21 AMPLJ A notable feature of Ward was that much of the new common law, particularly that relating to extinguishment by the grant of titles such as mining leases, accords with the policy position adopted by the Commonwealth Parliament, both in 1993 with the passage of the NTA, and the 1998 amendments to that Act ( the 1998 Act ). 3 1.2 Implications Overall, the decisions provide greater certainty than had previously existed, but there is still some way to go before the mosaic of native title law is complete. In some areas, the case has created uncertainty regarding issues previously thought settled. Overall, the implications for industry are a greater certainty for the most part, uncertainty having been resolved in favour of industry and a significant narrowing of the matters about which negotiations will have to occur for the obtaining of new tenements, with a consequent reduction in the compensation that might be payable. 4 However, the implications of the case are not confined to the mining and petroleum industries the real challenges will be confronted by native title parties and those who represent them. To illustrate, the High Court did not find that any of the native title rights and interests found by Mr Justice Lee at first instance 5 to exist to the mining lease land were able to be made out, or at least made out intact. This came about in a number of ways the evidence did not support the finding; the incident of native title identified was not capable of being a native title right; or any right which might have existed had been extinguished by legislation or grant of inconsistent title. Because of the limited findings as to the content of the native title rights and interests, the High Court remitted the case to the Federal Court for further hearing determination to determine what, if any, native title rights might be made out to those areas. This is where the challenge will arise, given the breadth of rights claimed which the High Court found did not exist. The decision adds certainty regarding the legal nature of native title, and provides some guidance as to how it is to be proved. It shows that the bundle of rights concept is correct, and while each right in the bundle must be separately established, so each right can also be separately extinguished. Brennan J's leading judgment in Mabo No. 2 6 has again been clarified by a subsequent judgment, this time seeing the operational inconsistency or use test discarded. 7 The 3 4 5 6 7 An example is the non extinguishment of native title in toto by the grant of mining lease, despite conferral of rights of exclusive possession. This accords with the position adopted for validation of invalid mining leases under the NTA. Although the manner of assessing compensation for extinguishing or impairing native title is one of the areas where judicial guidance, a decade after Mabo No 2, is still awaited. Ward v Western Australia and Northern Territory (1998) 159 ALR 483. (1992) 175 CLR 1. Ward at [149]-[151], [394].
(2002) 21 AMPLJ Native Title After Ward 209 High Court held that regardless of activity performed on land, it is the rights conferred that extinguish native title, rather than the exercise of those rights. In other respects, the comments of Brennan J in Wik 8 have been prophetic, such as his reference to non-accessory rights associated with native title. 9 The spiritual, rather than the physical nature of any connection with the land or waters has found favour with the High Court in Ward. At times, the High Court's findings appear deceptively simple, masking as they do some complex principles, subject to even more complicated application. The implications of many of the findings for industry will be far reaching, particularly in the areas of mineral and petroleum ownership, and the apparent scope for governments to amend their legislation to, if necessary, permit the grant of rights to explore for and extract minerals and petroleum, to avoid the future act regime 10 under the NTA, at least where the land has been the subject of pastoral, mining, or petroleum leases at certain times in the past. It may even be that where land has previously been the subject of exploration titles, that similar rights can be granted over the same land and waters without the future act regime and, in turn, the right to negotiate 11 principles being invoked. To explore the implications, first it is necessary to recite, in summary form, the principal findings in the case. 12 2. THE FINDINGS Unless the contrary is indicated, the statement of the findings ignore the effect of the Racial Discrimination Act 1975 (Cth) ( RDA ), outlining the common law as it existed prior to the enactment of the RDA or the NTA. 2.1 Nature of Native Title Previous decisions of the High Court suggested but did not mandate 13 - that native title rights and interests each had to be separately established, with each susceptible to individual extinguishment, but leaving other native title rights and interests intact. 14 However Lee J held that native title was more akin to a single set of rights, 15 the result of the adoption of the adverse dominion test. 16 8 9 10 11 12 13 14 15 16 Wik v Queensland (1996) 187 CLR 1. (1996) 187 CLR 1 at 88. NTA Part 2, Division 3 ss.24aa 44G. NTA Part 2, Division 3 Subdivision P. The findings are conveniently summarised in the judgment of the majority in Ward [467] [468]. Ward at [1], where the Court commented that the answers to questions of extinguishment of native title could not be found in its previous decisions. Eg. Mabo No. 2 (1991-1992) 175 CLR 1 at 69-70. Ward at [82]. At [84].
210 Articles (2002) 21 AMPLJ This was rejected by the High Court in Ward, holding instead that native title is akin to a bundle of rights and not analogous to a fee simple 17. Callinan J put it, native title is not a monolithic title 18. The High Court in Ward has therefore confirmed that each right in the bundle of rights has to be separately made out on the evidence, and may be separately extinguished. 19 While there can be partial extinguishment of native title, there is no concept of degrees of inconsistency when determining whether or not the grant of an inconsistent right has extinguished native title. 20 As the High Court said, rights are inconsistent, or they are not, and if they are inconsistent, there will be extinguishment to the extent of the inconsistency 21. Other than where provided for by statute, there can be no concept of inconsistent native title rights being suspended. 2.2 Physical Connection The Court held that physical occupation of land is not required to establish native title, nor is current occupation 22, and went on to say that the fact that there has been no recent exercise of a contended native title right does not necessarily deny the possibility that native title can be established 23. Further, occupation, without evidence of traditional law or custom underpinning that occupation, is insufficient to conclude native title exists 24. 2.3 Minerals and Petroleum The claimants failed to make out a case for native title to include ownership of minerals and petroleum, despite evidence of engaging in an activity that is akin to mining the extraction and use of ochre 25. The High Court went on to say that even were such rights established, they would have been extinguished by legislation, in the particular instance in Western Australia by s 117 Mining Act 1904 and s 9 Petroleum Act 1936. 26 Further, the High Court observed that s 3 of the Western Australia Constitution Act 1890 27 had the effect of converting the radical title to the land taken at sovereignty to full dominion over the substances in question (minerals and petroleum). This seemed to 17 18 19 20 21 22 23 24 25 26 27 At [76], [82] and [95]. At [615]. At [76]. At [81] and [82]. At [82]. At [62] and [63]. At [465]. At [93]. At [381]. At [383]. Which vested in the legislature the proceeds of the sale, letting and disposal, including all royalties, mines and minerals taken from the lands of Western Australia
(2002) 21 AMPLJ Native Title After Ward 211 suggest that any native title that might have existed to these substances was extinguished in 1890, rather than by the specific Acts passed in 1904 and 1936. 28 2.4 Pastoral and mining leases The Court held that grants of pastoral and mining leases in Western Australia, and in the Northern Territory, do not necessarily extinguish all incidents of native title. However, native title rights and interests are extinguished to the extent of the inconsistency with the rights conferred by such titles. This decision effectively extends the decision in Wik regarding pastoral leases to Western Australia and the Northern Territory. 29 However to the extent that an incident of native title is a right to control access to or use of land or waters, then that right has been extinguished by the grant of such titles. 30 This is despite pastoral leases being described as precarious in a number of instances. 31 2.5 The right to control access The grant of pastoral and mining leases has extinguished some but not all native title rights. The right definitely extinguished is the native title right for control of access to and use of land. 32 A right to burn off the land (as contended by the claimants) was also probably inconsistent with any pastoralist rights. 33 While a mining lease conferred a right of exclusive possession, this was only for the purpose of mining, and as such would not wholly extinguish native title. 34 2.6 General purpose leases mining legislation General purpose leases under mining legislation only confer a right of exclusive possession for mining purposes, 35 and for that reason do not necessarily extinguish all the incidents of native title. 36 This is consistent with the NTA provisions concerning confirmation of extinguishment, where leases for mining purposes 37 are excluded from the statutory extinguishment scheme. 28 29 30 31 32 33 34 35 36 37 Ward at [384]. McHugh J (dissenting) at [476], said... the ideas that generated that (Wik) decision still haunt the corridors of native title law. In particular, they have survived its burial in relation to pastoral and mining leases. At [192] and [309]. At [170], [180(e)], [184] and [251]. At [192]. At [194]. At [307] and [308]. At [337]. At [340]. See NTA s 23B(2)(viii), which excludes a mining lease from the effect of the division 37 and also the exemption in the definition of a Scheduled Interest as defined in s 249C which excludes from Schedule 1 any interest included in it, which comprises a mining lease.
212 Articles (2002) 21 AMPLJ 2.7 Special leases under Land Act Provisions Unlike pastoral leases, special leases are not precarious 38 and their grant conferred a right of exclusive possession, the consequence being the complete extinguishment of native title 39. 2.8 Crown to Crown grants Grants by the Crown vesting an estate in fee simple in the Crown, despite the Court surmising this to be an oddity, have the result of extinguishing all incidents of native title to that land. 40 2.9 Resumptions or compulsory acquisitions Resumptions of pastoral leases which do not then vest the land in a third party have no effect on native title 41, but a compulsory acquisition which vests a fee simple in the Crown, will extinguish native title. 42 2.10 Reserves The creation of a reserve, absent vesting that reserve in a third party, will extinguish only the native title right to control access to or use of land and waters. 43 Further, the comments of Brennan J in Mabo No. 2 regarding extinguishment by use have been overturned along with the whole of the doctrine of operational inconsistency. 44 However, when a reserve is vested in a third party, native title will be extinguished. 45 The grant of leases over land reserved (but not vested in a third party) also extinguishes native title. 46 2.11 Public works There was detailed consideration of the issue of what constituted public works, and the High Court made it clear there had to be specificity in complying with the definitions of the NTA in order to attract the extinguishment provisions of the NTA. 38 39 40 41 42 43 44 45 46 Ward at [355]. At [357]. At [204]. At [208]. At [203-4], [278-80]. At [219] and [220]. At 2[13], [141], [394] and [148] [151]. At [258]. At [358], [369] and [370].
(2002) 21 AMPLJ Native Title After Ward 213 2.12 Township areas on mining leases The impact of the provisions which extinguish native title to township areas on mining leases was also considered 47 but the Court made it clear that there had to be permanence in the structures, as required by the NTA, 48 for the extinguishment provision to be enlivened. 2.13 Flora and fauna 2.14 Fishing The legislation under consideration by the High Court completely extinguished any native title to flora and fauna which may have existed. 49 The right to fish is a public right which is inconsistent with any exclusive native title right. 50 2.15 Navigation Navigation is likewise a public right, which is inconsistent with and results in the extinguishment of any exclusive native title right re same. 51 2.166 Cultural knowledge A right or obligation to protect cultural knowledge would only be a native title right to the extent that it allowed denial or control of access to land or waters. 52 Cultural knowledge itself is not a native title right and not entitled either to be defined as such by, or receive protection from, the NTA. 2.17 RDA issues The application of RDA to State and Territory laws was considered at length and, in essence, the tests established by Mason J in Gerhardy v Brown 53 were endorsed and applied. 54 The first test, if satisfied, results only in a right to compensation by way of a complementary right. If the second test operates, the result is the invalidity of a State law, and any titles granted under it, due to s 109 of the Constitution 55 being invoked as a result of inconsistency between the RDA and the relevant State Law. 47 48 49 50 51 52 53 54 55 At [300] [305]. S 245(3)(b)(iii) NTA. Ward at [265]. At [389]. At [388]. At [468(7)]. (1985) 159 CLR 70. Ward at [101] [107]. Commonwealth of Australia Constitution Act.
214 Articles (2002) 21 AMPLJ However, the application of these tests is not free from doubt see for example the discussion regarding mining leases. 56 The Court was considering the effect on native title of mining leases granted over land that had previously been the subject of pastoral leases, with the resultant extinguishment of any native title right to control access to or use of land. The Court indicated that if the native title right to control access existed immediately prior to the grants of the mining leases, then it was extinguished by those grants. This would raise the issue of invalidity of the grant by operation of the RDA and subsequent validation by the NTA and the State Validation Act. 57 Contrast this with the observation regarding the consequences of the extinguishment, by the grant of a mining lease, of other native title rights yet to be identified by the Federal Court when it takes further evidence. The Court said 58 it should be emphasised that when the RDA operates in this way, the validity of the grants of the mining leases is unaffected as is the extinguishing effect that those grants may have on native title. In essence, the High Court has held that if, but for the operation of the RDA, the grant of a mining lease would extinguish the right to control access, then the mining lease would be invalidated by the application of the second test proposed by Mason J in Gerhardy v Brown. 59 However, if any other native title right and interest would be extinguished, the effect of the RDA would not be to invalidate the grant of the mining lease, with the first test proposed by Mason J being applied instead. 60 For this reason, it cannot be stated as a general proposition that the grant of mining leases over land the subject of native title after the commencement of the RDA will in all cases be valid, with native title extinguished to the extent of the inconsistency and with the only operation of the RDA being to confer a right to compensation. It seems that result only occurred in this case due to the prior extinguishment of a particular right by earlier, pre-rda, pastoral leases. The application of these principles is a complex operation, and identifying what, and where native title rights have survived or been extinguished will be a painstaking exercise. 56 57 58 59 60 See particularly Ward [306] [321]. At [309]. At [321]. At [307] and [107]. Note that in a particular case, whether or not invalidity will be the consequence will depend on how the right referred to in s 10 RDA is characterised. For invalidity to result, a fundamental right must be enjoyed to a lesser extent by members of one racial group than others, as a consequence of the operation of a State law. The right can be one under municipal law, or one of the type referred to in the Convention appended to the RDA. The High Court has on a number of occasions used as the right immunity from arbitrary deprivation of property, and this is presumably the right which would be used here to invalidate the grant of a mining lease which extinguished only native title rights to control access. It could be looked at from another perspective to give a different result, if the right under consideration was the right to control access and use of land. If that right is confined to the right to control access for mining purposes, the extinguishment of it is not discriminatory, as it is not a right enjoyed by holders of conventional titles such rights are not conferred by grants, being instead reserved to the Crown. On this view, the right is not enjoyed by native title holders to a lesser extent then the holders of conventional titles, and therefore s 10, and in turn, s 109 of the Constitution will not be engaged.
(2002) 21 AMPLJ Native Title After Ward 215 2.18 Water In relation to water, the Rights in Water and Irrigation Act 1914 (WA) provided 61 that the right to the use and flow and to the control of the water in natural waters shall... vest in the Crown. The High Court held that the vesting of waters in the Crown was inconsistent with any native title right to possession of those waters to the exclusion of others. 62 3. IMPLICATIONS 3.1 Mineral and Petroleum Ownership Largely, any doubt about Crown ownership of minerals and petroleum has been removed. This was an issue identified immediately after the decision in Mabo No. 2, and as a result of representations by industry s 212 of the NTA was passed, allowing States and Territories to confirm any existing ownership of natural resources. This did not allow doubt to be removed, and the Parliament, by enacting s 11 of the NTA, providing that native title is not able to be extinguished contrary to this Act prevented States and Territories from putting the matter beyond doubt. 3.2 High Court findings 3.2.1 Western Australia The Court held that: (i) (ii) no evidence existed of native title to minerals and petroleum; and that even if it did exist, it would have been extinguished by the vesting effected by s 117 Mining Act 1904 and s 9 Petroleum Act 1936. The High Court also seems to suggest that any native title to those substances was in fact extinguished by s 3 Western Australia Constitution Act in 1890 63. 3.2.2 Northern Territory The High Court looked only at the evidence or lack of it to conclude that the claimants had not made out the evidence necessary to support a determination of native title to minerals or petroleum. 61 62 63 In s 4(1). Ward at [263]. At [384].
216 Articles (2002) 21 AMPLJ 3.3 Applicability of reasoning There have been a number of Federal Court determinations to the effect that native title to minerals and petroleum, where it is proven on the evidence to have existed, would have been extinguished by legislation applying in other States and Territories. The reasoning adopted by the High Court regarding Western Australia is consistent with the reasoning in those cases, details of which are set out below. 3.3.1 Queensland Drummond J in Wik Peoples v Queensland 64 at first instance held that in relation to Queensland, native title to minerals had been extinguished by s 21 of the Mining on Private Land Act 1909 (Qld) and s 4 of the Mining Acts Amendment Act 1925 and to petroleum by s 4 Petroleum Act 1915. (This part of his Honour s judgment was not the subject of the appeal which was dealt with by the High Court in Wik.) 3.3.2 Northern Territory offshore Olney J in Yarmirr v Northern Territory 65 at first instance held that native title to offshore minerals in the Northern Territory had been extinguished by the effect of a combination of legislation 66. Olney J did not consider the position with regard to petroleum. 3.3.3 Northern Territory onshore As stated above, Beaumont and von Doussa JJ in the Full Federal Court Appeal of Ward v Western Australia 67 held that native title to onshore minerals in the Northern Territory had been extinguished. 68 The majority of Beaumont and von Doussa JJ did not refer to Northern Territory petroleum legislation. The minority judge, North J, did refer to this and held that an appropriation had occurred in such a way that extinguished all native title that may have existed in petroleum reserves. 69 64 65 66 67 68 69 (1996) 134 ALR 637 at 688. (1998) 156 ALR 370 at 158. This was achieved by the vesting absolutely in the Crown in the right of the Commonwealth all minerals within the limits of the Northern Territory including those on or below the seabed by s 3 Minerals (Acquisition) Ordinance 1953. The title to those minerals within the limits of the Northern Territory was transferred to the Northern Territory on 1 July 1978 by the Northern Territory (Self Government) Act 1978 (Cth). Northern Territory laws were then extended by statute into adjoining coastal waters out to 3 nautical miles under the Coastal Waters (Northern Territory Powers) Act 1980 (Cth) and the Coastal Waters (Northern Territory Title) Act 1980 (Cth) and the Offshore Waters (Application of Territory Laws) Act 1985 (NT). (2000)170 ALR 159. By the s 3 Minerals (Acquisition) Ordinance 1953 (NT) and a combination of other legislation. Ward at [461].
(2002) 21 AMPLJ Native Title After Ward 217 Previously, Olney J in Wandarang 70 also held that Northern Territory legislation had appropriated to the Crown a full beneficial interest in all minerals and petroleum within the Territory. 3.3.4 Western Australia The High Court in Ward has also confirmed the findings of Beaumont and von Doussa JJ in the Full Federal Court appeal that in Western Australia native title to minerals had been extinguished by s 117 of the Mining Act 1904 (WA) and to petroleum by s 3 Western Australian Constitution Act and s 9 Petroleum Act 1936 (WA). 3.4 Applicability of provisions in other States and Territories 3.4.1 Onshore In all States and Territories there is legislation appropriating minerals and petroleum to the Crown in some form. 71 The reasoning of the High Court in Ward should generally be applicable in those jurisdictions. However, this is not entirely free from doubt, either where titles were granted in the early part of the State or Territory's history, carrying with them rights to minerals and petroleum or where the legislation ignores, for example, the royal prerogative to gold and silver. 72 It has been suggested that for example, indigenous ownership of royal metals (were they to be established on the evidence) survived the reception of the prerogative as part of the common law and it has been argued that such rights may survive in South Australia and New South Wales. 73 3.4.2 Offshore The Commonwealth has sovereignty over offshore areas. Following the enactment of the Seas and Submerged Lands Act 1973 (Cth) an agreement was reached by the States, Northern Territory and the Commonwealth to transfer control of certain offshore areas. 74 70 71 72 73 74 Wandarang and others v Northern Territory [2000] FCA 923. Minerals (not previously the subject of judicial consideration) South Australia: Mining Act 1971 (SA). Victoria: Lands Act 1891(Vic) and Mines Act 1891(Vic). There is some doubt about whether this legislation had a retrospective effect. In addition the Victorian Parliament enacted the Mines (Amendment) Act 1983 (Vic) to assert ownership in all minerals, though this is post RDA. New South Wales: Crown Lands Act 1884 (NSW) and Coal Acquisition Act 1981(NSW) (also post RDA). In a similar way as for Victoria, the 1884 legislation may have only been prospective in operation and therefore some doubt remains. Tasmania: Crown Lands Act 1905 (Tas), Mining Act 1911 (Tas). Petroleum Queensland: Petroleum Act 1923 (Qld). South Australia: Petroleum Act 1940 (SA). Victoria: Petroleum Act 1958 (Vic). New South Wales: Petroleum Act 1955 (NSW). Western Australia: Petroleum Act 1958 (WA). Northern Territory: Petroleum (Prospecting and Mining) Ordinance 1954. Tasmania: Mining Act 1929 (Tas) Mentioned in passing: Ward at [384]. Mark Newton, Native title and the royal minerals (2001) 6(1) Australian Indigenous Law Reporter. Offshore Constitutional Settlement 1979 1982.
218 Articles (2002) 21 AMPLJ The Commonwealth and each State and Territory passed legislation 75 to recognise State and Territory legislative power over these waters. Olney J in Yarmirr 76 noted that for the Northern Territory, the legislation relating to minerals would have had the effect of appropriating full beneficial ownership in minerals to the Crown, including offshore minerals within the jurisdiction of the Northern Territory. Given the uniform co-operative scheme, it would appear that the same reasoning would apply to the appropriation of petroleum and minerals to the offshore area of all States and Territories. 3.5 Summary of Ward as it relates to minerals and petroleum The High Court's decision in Ward, as it relates to minerals and petroleum (and its applicability to other jurisdictions) can be summarised and interpreted as follows: (a) (b) (c) (d) (e) (f) (g) Native title could in theory exist, or have existed, to minerals or petroleum. This will be a matter for evidence. Native title is a bundle of rights, each of which needs to be proven by the native title claimants and as such, a right to minerals and petroleum is not an automatic consequence of establishing native title to a particular area. The evidence necessary to establish native title to minerals and petroleum would be of a traditional Aboriginal law, custom or use relating to minerals. Evidence of digging for and using ochre (which is not a mineral, but which activity could be described as mining ) does not establish native title rights to minerals (or anything else that might be mined such as petroleum.) 77 It would be exceptional, based on the evidence adduced in native title cases to date for native title to minerals or petroleum to be established, even without considering the extinguishing effect of legislation. Even if native title rights to minerals or petroleum could be established, where relevant State or Territory legislation appropriates the beneficial interest in minerals and petroleum to the Crown, that will have extinguished native title to minerals and petroleum. Where this appropriation occurred before 31 October 1975 (the date of commencement of the RDA), there will be no compensation payable to native title holders for the extinguishment of any such rights, even if it could be established that native title had previously existed to minerals and petroleum. 75 76 77 Constitutional Powers (Coastal Waters) Act (each State and the NT), Coastal Waters (State Powers) Act 1987 (Cth), Coastal Waters (State Title) Act 1987 (Cth). (1998) 156 ALR 670 and 158. The NTA definition of mine (at s 253) includes explore or prospect or extract petroleum or gas from land or from the bed or sub-soil under waters.
(2002) 21 AMPLJ Native Title After Ward 219 3.6 Reduction in native title rights that can be claimed in most instances Where valid pastoral leases or mining leases have been granted, at least prior to the advent of the RDA in 1975, some native title rights, specifically those to do with controlling access to and use to be made of land, have been extinguished. Further, many of the native title rights and interests typically claimed in native title determination applications will now not be able to be made out. Following the High Court's decision, the National Native Title Tribunal ( NNTT ) issued Revised Interim Guidelines for delegates and case managers 78 relating to the application of the registration test after the Ward decision. The NNTT commented on the application of s 190B(6) NTA post Ward to a current native title determination application and gave an example, as set out below, of the rights typically claimed. Those affected by the Ward findings are underlined. (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) to possess, occupy, use and enjoy the area claimed to the exclusion of all others; to speak for and to make decisions about the use and enjoyment of the application area; to reside upon and otherwise to have access to and within the application area; to control the access of others to the application area; to use and enjoy the resources of the application area; to control the use and enjoyment of others of the resources of the application area; to maintain and protect places of importance under traditional laws, customs and practices in the application area; to maintain, protect and prevent the misuse of and transmit to others their cultural knowledge, customs and practices associated with the application area; to determine and regulate membership of and recruitment to the landholding group; to share, exchange and/or trade resources derived on and from the application area. Many of these rights can no longer be claimed. This will reduce the number of rights and interests that can be registered and as a result, the matters about which arbitration has to occur under the right to negotiate, given that 78 National Native Title Tribunal: Revised Interim Guidelines for Delegates and Case Managers issued 1 October 2002 and amended 9 and 10 October 2002.
220 Articles (2002) 21 AMPLJ the arbitral body, in terms of native title rights and interest, only has to consider the effect on those that are registered. 79 In the Ward case itself virtually none of the claimed rights could be made out, either because of those rights not being capable of being native title rights, or because they were extinguished by legislation or the grant of titles. The Court declined to express a view on when a spiritual connection with land will suffice to establish native title. 80 However, given the finding that physical occupation, and recent exercise of native title rights and interests, are not necessarily preconditions to establishing native title, 81 it seems one can expect pressure on the Government to amend the registration test under the NTA. In particular, one can expect requests for deletion of the physical connection requirement under s 190B(7) which requires the registrar to be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land or waters covered by the application. 3.7 Avoidance of the future act regime altogether? Much of Australia has at some stage been subject to authorities to exploration titles. Applying the principles enunciated by the High Court in this case, it seems clear that the grant of such rights 82 will have extinguished some native title rights, including any exclusive right to control access to or use of land, and any other rights inconsistent with those conferred by the exploration titles. 83 The High Court reiterated that such extinguishment was permanent, and this has been statutorily reinforced by NTA s 237A. 84 Accordingly, it seems possible for States and Territories to grant new exploration titles over such land without affecting 85 any native title that might otherwise survive. 79 80 81 82 83 84 85 See, for example, s 39(1) NTA requiring the arbitral body to take into account the effect of the proposed grant of exploration or extraction rights on the enjoyment by the native title parties of their registered native title rights and interests. Ward at [64]. At [465], among others. Despite Brennan J's comments in Mabo No. 2, that authorities to prospect for minerals need not necessarily have extinguished native title 175 CLR 1 at 69. This assumes the grants confer immediate rights, rather than rights that only come into existence once a condition subsequent is satisfied see discussion at Ward at [150]. NTA s 237A states The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the Act that caused the extinguishment ceases to have effect. NTA s 227 provides an act affects native title if it extinguishes the native rights in the interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.
(2002) 21 AMPLJ Native Title After Ward 221 If the grant of such interests do not affect native title, they will not be future acts and therefore the right to negotiate scheme will not apply to the grant. The same would apply to the grant of mining and petroleum leases over land to which they had previously been subject, provided, once again, that the State or Territory is careful to ensure that no new rights beyond those conferred by the original mining lease or petroleum lease, are granted. Such an outcome would not be without irony. By the 1998 Act, the Parliament intended to allow States and Territories to grant certain types of title without invoking the right to negotiate 86, and to exempt the grant of mining and exploration tenements from the full right to negotiate on land previously or currently subject to pastoral leases. 87 Despite the Northern Territory and Queensland enacting legislation that complied in all respects with the NTA scheme, the Senates disallowed a number of these provisions. 88 And the Senate only allowed the Queensland s 26A scheme for low impact exploration to operate after imposing onerous conditions not required by the NTA. 89 It may well be that as a result of Ward, new tenements can be granted in many areas without having to follow any NTA future act processes. 3.8 Need for validation Western Australia In Western Australia following the Full Federal Court decision in Ward, the (then) Government of Western Australia introduced a policy to the effect that where evidence of a prior grant of a mining lease or the enclosure or improvement of a pastoral lease could be provided, new mining tenure would be granted without compliance with any of the procedures in the NTA, on the basis that any native title had been wholly extinguished (the Ward Policy ). A large number of tenements, particularly exploration licences, were granted in accordance with the Ward Policy. The Ward Policy was suspended by the present Government of Western Australia, when it came to power in February 2001. One of the consequences of the High Court's decision in Ward is that native title is capable of existing in relation to land where the Ward Policy assumed it could not exist. Consequently, to the extent that any native title would otherwise be affected 90 by the 86 87 88 89 90 S 26A NTA, for low impact exploration. S 43A NTA. The Northern Territory s 43A alternative scheme was disallowed by the Senate on 31 August 1999 and Queensland s 43A scheme was disallowed by the Senate on 30 August 2000 The Queensland scheme was challenged by the Central Queensland Land Council ([2002] FCA 58), and the decision of Wilcox J in striking down Queensland's high impact exploration and mining processes has been appealed. See the definition of Act of affecting native title in s 227 NTA.
222 Articles (2002) 21 AMPLJ grant of Ward Policy tenements, those tenements are probably invalid to the extent they affect any native title. 91 This is a similar situation to that arising following the Wik case, where a number of titles had been granted across Australia on the assumption of extinguishment by the grant of pastoral lease. This led to the provisions validating such titles (referred to as intermediate period acts ) bought into force with the 1998 Act. 92 3.9 Operational inconsistency or use and lack of recent occupation test The High Court has now discarded both these tests. However, a number of States and Territories used these theories to conclude that native title did not exist to areas where those theories applied. A number of titles were granted over such land after the commencement of the NTA, and without going through any of the future act processes. The writer is aware of a site offered by a State government for a major industrial plant comprising a freehold grant made over previously unalienated State land. The Ward decision must cast doubt on the validity of such titles. Many of the native title assessments thus performed will now be of little or no use, and it will be up to individual companies to determine, if they relied on government assurances in taking titles granted after the NTA without going through the future act regime, whether the land might still also be subject to native title. If so, the NTA ensures such titles will be invalid. 93 It may well be that the only avenue to obtain validity for such titles is via an indigenous land use agreement. 94 3.10 Different legal background beneath valid, validated and post 1 January 1994 mining leases As the High Court has pointed out, pre-1994 mining leases (regardless of the RDA) will have extinguished some incidents of native title without needing to be validated. 95 Mining and other leases granted after 1 January 1994 will be subject to the non-extinguishment principle 96 which means that the rights will only be suspended, including, for example, the right to control access to and use of land. This will make it difficult to determine what native title rights and interests might exist in particular areas. It also raises the question of the obligation of a mining lease holder with respect to those suspended native title rights. Is there an obligation on a mining or petroleum company to exercise rights in a manner that least affects the underlying native title rights regardless of costs? 91 92 93 94 95 96 S 24AA(2), s 25(1)) and s 28 NTA. NTA part 2 division 2A. S 24OA NTA. Part 2 Division 3 Subdivisions (b), (c) and (d) NTA. Ward [321]. S 238 NTA.
(2002) 21 AMPLJ Native Title After Ward 223 3.11 Vesting While reiterating that vesting is a term of elastic import 97, such vesting was held in this case to have extinguished native title rights to reserves, minerals and petroleum, flora and fauna, and rights to control the use of water. 98 In most States and Territories, there is legislation vesting, in similar terms, the beds and banks of boundary water courses, harbours and the like. 99 Once such vesting provisions are reviewed, it may be that any native title which might otherwise have existed to these areas has also been extinguished, provided the test laid down by the High Court is satisfied. 100 Applying the test laid down by the High Court it is necessary to first identify the rights which vesting gave to the entity in whom it was vested. It will be necessary to carefully review such legislation on a State by State or Territory basis to determine the extent to which native title has been extinguished. 3.12 Determinations of native title The High Court has made it clear that determinations of native title, including the manner in which those rights intersect with third party rights must be attended to with close attention, the outcome not simply a matter for negotiation, as suggested by Lee J. 101 For this reason, holders of titles will probably feel they need to be involved as parties to determination proceedings and not simply with a watching brief, to ensure their rights are properly identified. 4. WILSON v ANDERSON On the same day as the High Court handed down its decision in Ward, it also delivered its decision on a test case on the issue of whether the grant of leases for grazing purposes (pastoral leases) in the Western Division of NSW (an area covering 42% of the State) extinguished native title. The case called squarely into issue the application of the Wik decision to NSW pastoral leases. The High Court ruled, by a majority of 6 to 1, that the grant of such leases extinguished all incidents native title. One immediate effect of this decision is that the application of NTA future act proceedings 102 will now be greatly reduced in New South Wales. Any right to negotiate procedure either about to be commenced or already under way in relation to relevant areas will cease. In addition, compulsory 97 98 99 100 101 102 Ward at [225]. By s 4 Rights in Water and Irrigation Act 1914 (WA). See for example in Queensland, s 5 Water Act 1926 (Qld), s 77 Harbours Act 1955 (Qld). Ward at [256] [258] etc. (1998)159 ALR 483 at 639. S 24 NTA.
224 Articles (2002) 21 AMPLJ acquisition processes to take native title rights and interests commenced by the New South Wales Government over those leases are now irrelevant. Likewise, existing agreements based on an assumption of native title over Western Division lease land will need to be reviewed. Such agreements will continue to be contractually binding unless they contain clauses that state that the agreement will be terminated where native title is determined to be extinguished. The decision has implications for thousands of pastoral lease holders and others in NSW, particularly the proponents of projects in the western district of NSW. It will also reduce the area of NSW subject to native title claims. 5. CONCLUSION 5.1 Largely as a consequence of Wilson v Anderson, the area of Australia potentially subject to native title claims has been reduced. 5.2 In many other areas subject to pastoral and similar interests, some if not all incidents of native title will have been extinguished. 5.3 The result of the above will be the reduction of areas to which the future act regime applies, or where it continues to apply, will have reduced the areas about which negotiations have to occur. 5.4 The effect of the vesting findings may mean there has been substantial extinguishment to other areas, such as harbours and water courses. 5.5 The potential for native title ownership of minerals has been all but removed. 5.6 Given the extent to which Australia was previously subject to exploration titles, it may be that the new tenements of that type can be granted without being exposed to the NTA future act regime. It will take time to assess, on a State by State or Territory basis the full extent to which the application of the Ward principles has extinguished native title, but it will no doubt be substantial. 5.7 Given the complexity of the issues involved, such assessments will be painstaking and probably expensive. However, they will inevitably be done, as a necessary aspect of determining how native title and other rights intersect as part of making determinations of native title. 5.8 Overall, there will be less scope for native title issues to impede the obtaining of new tenements for exploration for and extraction of minerals and petroleum, for resources such as water, and for accessing the land where infrastructure for such activities will be required.