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Australian Government Solicitor

 

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Legal Practice Briefing

Number 20

29 August 1995

THE NATIVE TITLE ACT CASE

Western Australia v Commonwealth

Introduction

In Western Australia v Commonwealth1 (the Native Title Act case), the High Court unanimously held that the substantive provisions of the Commonwealth Native Title Act 1993 (the Native Title Act) were valid. In related proceedings, the Court also unanimously held that the provisions of the Western Australian Land (Titles and Traditional Usage) Act 1993 (the Western Australian Act) challenged by two groups of Western Australian Aboriginal people and the Commonwealth, were invalid.

Both the Native Title Act and the Western Australian Act were legislative responses to the earlier High Court decision in Mabo v Queensland (No. 2) 2 (Mabo (No. 2)) which recognised for the first time the traditional native title rights of Australia's indigenous people. In Mabo v Queensland (No. 1)3 the Court held that native title holders enjoyed the protection of the Racial Discrimination Act 1975 (the Racial Discrimination Act). These decisions meant that native title had to be accommodated within Australia's land management systems. The Native Title Act and the Western Australian Act each took a fundamentally different approach to achieve this end.

This Briefing provides a short summary of the High Court decision. The earlier decision of the High Court in Mabo (No. 2) was discussed in Legal Practice Briefing No. 5, which was published on 30 July 1993. The Native Title Act was discussed in Legal Practice Briefing No. 11, published on 29 April 1994. In particular, that Briefing sets out how Commonwealth officers who take action in relation to land or waters can comply with the Act.

Survival of Native Title in Western Australia

In the Native Title Act case the High Court rejected an argument that native title to any land within the limits of Western Australia was extinguished upon the establishment of the colony of Western Australia. The Court held that the British Crown did not manifest an intention to assume absolute beneficial ownership of all land in the colony and to effect a general extinguishment of any native title in relation to that land. The Crown's policy of settlement, which required that land within the colony be surveyed and made available for sale, could be implemented without such a general extinguishment of native title.

It was well known that Aboriginal people were in occupation of areas of land on the west coast of Australia. However, their rights and interests in relation to the land were ignored in the course of settlement of the colony (as the land was regarded as terra nullius). Consequently, the Court held, native title was extinguished only parcel by parcel, as interests in land were granted or land was appropriated for use by the Crown in a manner inconsistent with the continued right to enjoy native title.

The decision of the Court confirms that the principles applied in Mabo (No. 2) to the Torres Strait are equally applicable to mainland Australia. It also indicates that it will be difficult, if not impossible, to establish that native title, or particular incidents of native title, have been generally extinguished throughout a State or Territory. General legislation enacted prior to Mabo (No. 2) is unlikely to reveal a 'clear and plain intention' to extinguish native title. While native title may have been extinguished over particular parcels of land by inconsistent grant or appropriation and use, there are still areas of land where this has not occurred and to which Aboriginal people or Torres Strait Islanders may have maintained a connection.

The Validity of the Native Title Act

In summary, the Native Title Act:

  • recognises native title rights and sets down some basic principles in relation to native title in Australia;
  • provides for the validation of past Commonwealth acts which may be invalid because of the existence of native title, and enables the States and Territories to do the same;
  • provides for a future regime in which native title rights are protected and conditions imposed on acts affecting native title land and waters, and in particular provides a special 'right to negotiate' for native title holders and claimants in relation to mining and compulsory acquisition for third parties; and
  • provides a process by which native title rights can be established and compensation determined, and by which determinations can be made as to whether future grants can be made or acts done over native title land and waters.

Commonwealth Power

The core provisions of the Native Title Act were held to be a valid exercise of the Commonwealth Parliament's power to make laws with respect to 'the people of any race for whom it is deemed necessary to make special laws' (Constitution, s.51(xxvi)). In the Court's view, to be a 'special' law, the law must have a differential operation on the people of a particular race, such as by conferring a right or benefit or imposing an obligation or disadvantage especially on such people. Beyond this, the Court stated that it was a matter for the Parliament to decide whether it was necessary to enact the law.

The Court held that the Native Title Act was within the 'races power' because it conferred a benefit on Aboriginal people (or at least that group of Aboriginal people who hold native title) by providing for the recognition and protection of native title, and removing its vulnerability at common law to extinguishment or impairment.

It was not necessary for the Court to consider whether the Native Title Act was also supported by the external affairs power (Constitution, s.51(xxix)).

Control of States' Legislative Power

The Native Title Act imposes restrictions on the operation of State laws which affect native title, or which authorise acts which affect native title. Western Australia argued that this amounted to an attempt to control the exercise by the States of their legislative powers, or to withdraw legislative power from the States by purporting to directly provide that State laws were invalid.

The Court rejected Western Australia's argument. It held that the Commonwealth had legislative power to completely control the extinguishment or impairment of native title. It therefore also had power to specify the extent to which, and the conditions on which, State laws could operate to extinguish, impair or affect native title (or to authorise acts which have that effect). In other words, the Commonwealth had power to exclude the States completely from the field, and so it could also exclude them partially.

The Court accepted that the Native Title Act does not directly invalidate State laws. Rather, laws which are inconsistent with the Native Title Act will be inoperative to the extent of the inconsistency by force of s.109 of the Constitution. Thus, a State law may only extinguish or impair native title if it complies with the Native Title Act, which defines the area within which State laws in relation to native title may operate.

Impairment of State Functions

Western Australia also argued that the Native Title Act infringed implied limitations on Commonwealth legislative power which protect the continued existence of the States within the federal system.

The Court held that the Native Title Act did not discriminate against Western Australia or against the States as a whole. In order to effectively protect native title, it was necessary for the Native Title Act to apply to the legislative and executive branches of the States, which had the power at common law to extinguish or impair native title. The Court acknowledged that the Native Title Act may in practice have a greater effect or impact in Western Australia than in other parts of the Commonwealth, due to the size of the State and the fact that a greater proportion of it may be subject to native title. However, this was a result of the history and geography of Western Australia, and the fact that what had previously been regarded as Crown land might now be subject to native title. It did not indicate that the Native Title Act discriminated against Western Australia.

The Court also held that the Native Title Act did not impair the capacity of Western Australia to function as a government. The limitations on Commonwealth legislative power do not preserve State powers, but rather protect the machinery of government and the capacity of the organs of a State government to exercise their powers. In the administration of its land and resource management laws, the Western Australian Government was now required to take account of the existence of native title and to comply with the Native Title Act and the Racial Discrimination Act. The Court concluded that, although the Native Title Act may affect the ease with which a State exercised its constitutional functions, it did not impair the State's capacity to exercise those functions.

Section 12

Section 12 of the Native Title Act provided that the common law in respect of native title shall have the force of a law of the Commonwealth. The Court held this section invalid. The invalidity of s.12 does not affect the validity of any other provision of the Native Title Act (in particular, the conferral on the Federal Court of jurisdiction to hear and determine applications concerning native title).

Section 53 of the Constitution

Section 53 of the Constitution provides that the Senate may not amend Bills so as to increase any proposed charge or burden on the people. Western Australia argued that several amendments made to the Native Title Act in the course of its passage through the Senate infringed this provision. The Court affirmed the traditional view that a law passed by the Parliament could not be invalidated due to a failure to comply with s.53, which was a procedural provision governing the internal relationship of the Houses of Parliament.

The Relationship Between the Native Title Act and the Racial Discrimination Act

Section 7(1) of the Native Title Act provides that nothing in the Act affects the operation of the Racial Discrimination Act. Western Australia argued that as a result, the Native Title Act itself is subject to the Racial Discrimination Act, and that many of the provisions of the Native Title Act were inconsistent with that Act and were therefore inoperative. The Court did not accept the arguments.

Rather, the Court found that the Native Title Act was not subject to the Racial Discrimination Act. Thus the general provisions of the Racial Discrimination Act will yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. Prior to the Native Title Act, the Racial Discrimination Act operated generally to protect native title rights. Now the Native Title Act protects those rights. The strong implication is that acts which satisfy the Native Title Act will generally not be affected by the Racial Discrimination Act.

Invalidity of the Western Australian Act

The key part of the challenge bought by Western Australian Aboriginal groups to the validity of the Western Australian Act related to section 7 of that Act, which purported to compulsorily extinguish any native title in Western Australia and substitute statutory 'rights of traditional usage'. The Court was asked to determine whether this purported extinguishment of native title was inconsistent with section 10(1) of the Racial Discrimination Act.

The purpose of s.10 of the Racial Discrimination Act is to provide to persons of all races equality before the law in their enjoyment of human rights. In this case the relevant human rights were principally the right to own property (including the right not to be arbitrarily deprived of property) and the right to inherit property.4 The Court considered the nature of the protection afforded to native title by the Racial Discrimination Act, and concluded that Aboriginal holders are secure in the possession and enjoyment of native title to the same extent as the holders of other forms of title are secure in the possession and enjoyment of those titles.5

In the Court's view, if the holders of rights of traditional usage had less security in the enjoyment of their title than the holders of Crown titles (or less security than holders of native title protected by the Racial Discrimination Act), then they would enjoy their right to own property to a lesser extent than the holders of those other titles.

The Court then examined the protection accorded to rights of traditional usage under the Western Australian Act. It concluded that rights of traditional usage under that Act had much less protection than was accorded to native title under the Racial Discrimination Act and less protection than the general law confers on the holders of other forms of title. The diminution in rights effected by the Western Australian Act was inconsistent with the Racial Discrimination Act and therefore by operation of s.109 of the Constitution, the Western Australian Act has no legal operation.

The Court has established the security of enjoyment of Crown titles as the benchmark for comparing the security of enjoyment of native title under the Racial Discrimination Act. Native title, despite its unique status, must therefore be treated in the same way as Crown title. This is the approach adopted by the Native Title Act.

The Court also held that the Western Australian Act was inconsistent with the Native Title Act.

Practical Consequences

The High Court has confirmed the Commonwealth's constitutional power to enact laws with respect to native title. It has also confirmed the validity of the substantive provisions of the Native Title Act recognising and protecting native title, and imposing conditions on acts which may affect that title.

Workload

A practical effect of the decision has been to increase the workload of the Native Title Registrar and the National Native Title Tribunal (NNTT) as governments, particularly Western Australia, and others have begun to utilise the processes established by the Native Title Act.

Applications may be made by persons claiming native title (claimant applications), by others with an interest in land (non-claimant applications), or may be for compensation. Claims are made to the Registrar. If accepted, they are notified, and the NNTT commences a mediation process in an attempt to resolve differences between the parties. Mediation of these claims is a principal function of the NNTT. It is a complex process involving Commonwealth, State, and local Governments, multiple industry interests (pastoral, mining, forestry, fishing, tourism etc) conservation and heritage issues, and Aboriginal groups other than applicants who seek to assert a separate traditional association with the land or waters subject to the application.

If mediation is unsuccessful, the claim is referred to the Federal Court for determination.

The NNTT is also the 'arbitral body' for determining whether acts attracting the 'right to negotiate' can proceed and, if so, on what conditions. This function is activated by a party to negotiations making a future act determination application in circumstances where agreement has not been reached. A related NNTT function is determining objections to the application of expedited procedures to acts which would otherwise attract the right to negotiate.

As at 28 July 1995 the NNTT had received 93 applications for determination of native title nationally. It has accepted 37, and is considering for acceptance a further 45 claims. Four claims have been referred to the Federal Court because mediation has been unsuccessful, 5 have been rejected, and 2 withdrawn. In addition there are 63 applications nationally from non-claimants seeking to know the native title status of land in which they have an interest.

Validating Legislation

The Court held that the Native Title Act validation scheme must be followed by the States and Territories if they are to remove doubts about the validity of acts done prior to the commencement of the Native Title Act. It also confirmed that there may have been such invalidity arising from the Racial Discrimination Act. All States and Territories, including Western Australia, have now passed validating legislation in accordance with the Native Title Act.

The High Court decision casts doubt on the validity of some grants of interests over native title land made between December 1993 and March 1995 in accordance with the Western Australian Act. However, the decision does not itself invalidate any grants. The validity of particular grants made in accordance with the Western Australian Act will have to be determined by further litigation in that State.

Commonwealth acts affecting native title land and waters will be valid when done in accordance with the Native Title Act. Acts affecting native title land which are not subject to the Native Title Act (such as land held under grants made under the Aboriginal Land Rights (Northern Territory) Act 1976) 6 will probably have to be consistent with the Racial Discrimination Act. Therefore Commonwealth officers, when taking decisions or actions which affect land or waters, need to take care that they consider any native title implications and comply with the restrictions and processes of the Native Title Act. These are more fully set out in Legal Practice Briefing No. 11.

1 (1995) 128 ALR 1

2 (1992) 175 CLR 1

3 (1988) 166 CLR 186

4 Rights recognised in Articles 5(d)(v) and (vi) of the International Convention on Elimination of All Forms of Racial Discrimination.

5 Western Australia v Commonwealth (1995) 128 ALR 1, at 25

6 Native Title Act 1993, subsection 233(3) and section 253

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact the Legal Practice before any action or decision is taken on the basis of any of the material in this briefing.

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