Title : Constitutional Validity of the Commonwealth's Native Title Regime Confirmed: The State of Western Australia v the Commonwealth; The Wororra Peoples v The Commonwealth; Teddy Biljabu v The Commonwealth Author : Sarah Pritchard Organisation : Faculty of Law, University of New South Wales Keywords : native title legislation; constitutional law Abstract : Case comment on the recent Australian cases of The State of Western Australia v the Commonwealth; The Wororra Peoples v The Commonwealth; Teddy Biljabu v The Commonwealth decided by the High Court of Australia Contact Name : The Editors, E Law Contact Address: Murdoch University School of Law, PO Box 1014, : Canning Vale, Western Australia, 6155 Contact Phone : + 61 09 360 2976 Contact Email : elaw-editors@csuvax1.murdoch.edu.au Last Verified : Last Updated : Creation Date : March, 1995 Filename : pritchar.txt File Size : 38,915 bytes File Type : Document File Format : ASCII Publication Status: Final COPYRIGHT POLICY: Material appearing in E Law is accepted on the basis that the material is the original, uncopied work of the author or authors. 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ISSN: 1321-8247 EMAIL RETRIEVAL: send message "get elaw-j pritchar.txt" URL: gopher://infolib.murdoch.edu.au:70/00/.ftp/pub/subj/law/jnl/elaw/ current/pritchar.txt ftp://infolib.murdoch.edu.au/pub/subj/law/jnl/elaw/current/ pritchar.txt -------------------------------------------------------------- CONSTITUTIONAL VALIDITY OF THE COMMONWEALTH'S NATIVE TITLE REGIME CONFIRMED: THE STATE OF WESTERN AUSTRALIA v THE COMMONWEALTH; THE WORORRA PEOPLES v THE COMMONWEALTH; TEDDY BILJABU v THE COMMONWEALTH Sarah Pritchard Postdoctoral Research Fellow Faculty of Law, University of New South Wales In a decision handed down on 16 March 1995, the High Court of Australia upheld the historic Native Title Act 1993 (Cth). The decision of the Full Court in The State of Western Australia v. The Commonwealth; The Wororra Peoples and anor v. The State of Western Australia; Teddy Biljabu and ors v. The State of Western Australia struck down the legislative response of Western Australia to the Court's 1992 decision in Mabo v. Queensland [No 2] ((1992) 175 CLR 1) and confirmed and developed the Court's decisions in Mabo v. Queensland [No 1] ((1988) 161 CLR 186) and Mabo v. Queensland [No 2]. Background In Mabo v. Queensland [No 1] ((1988) 166 CLR 186) the High Court of Australia held that the enactment by the Commonwealth Parliament of the Racial Discrimination Act 1975 (Cth) limits the effect of an exercise of legislative or executive power by a State or Territory to extinguish native title. A majority of the Court held a bare legislative extinguishment of native title to be inconsistent with the Racial Discrimination Act and for that reason inoperative under s.109 of the Constitution. In its landmark decision in Mabo v Queensland [No. 2] ((1992) 175 CLR 1), the High Court rejected the doctrine that Australia was terra nullius at the time of European colonisation and held that the common law of Australia recognises a form of native title. The decision, handed down on 3 June 1992, signified a major development in Australian law. On 27 October 1992 the Commonwealth Government announced a process of consultation with State and Territory governments, Aboriginal and Torres Strait Islander organisations and industry to discuss the implications of, and appropriate responses to the High Court's decision. The State of Western Australia contains large tracts of unalienated Crown land which might be claimed to be subject to native title. According to the judgement of Mason CJ, Brennan J, Deane J, Toohey J, Gaudron J and McHugh J in the present case, more than 52% of the land in Western Australia remains unalienated (at 19). During the ensuing debate, it became apparent that the Government of Western Australia would not support emerging proposals for a national legislative response to Mabo [No.2]. In 1993 the Parliament of Western Australia enacted the Land (Titles and Traditional Usage) Act 1993 (W.A.). Unlike the Queensland Coast Declaratory Act 1985 (Q.), held by the High Court in Mabo [No. 1] to be inoperative, the Western Australian legislation sought not simply to extinguish native title but to confer statutory rights in substitution thereof. The Land (Titles and Traditional Usage) Act purported to extinguish common law native title in Western Australia and replace it with statutory "rights of traditional usage". The W.A. Act commenced operation on 2 December 1993. The Commonwealth's Native Title Act 1993 (Cth) received Royal Assent on 24 December 1993. Its operative provisions commenced on 1 January 1994. The Native Title Act seeks to provide for the recognition and protection of native title as recognised by the common law of Australia (ss.3 and 10). It validates past acts by the Commonwealth which might otherwise have been invalid because of the existence of native title (s.14). It enables States and Territories to validate past acts attributable to them (s.19). It provides rights to compensation for the effects of validation of past acts on the rights of native title holders (ss.17, 20 and 51). The Act establishes federal processes, including a Native Title Tribunal (Part 6), for the determination of native title rights and of compensation for acts affecting native title. The Act also provides for the recognition of procedures established under State or Territory laws consistent with criteria prescribed in the Native Title Act (s.251). Finally, the Act establishes a regime for the protection of native title rights in future dealings affecting native title land and waters ("future acts") (ss.21-44). In the case of future acts other than low impact future acts, native title holders are entitled to the same procedural rights as the holders of freehold title (s.23(6) and 253). For certain future acts, relating amongst other things to mining proposals, the Act recognises an additional right of native title holders and claimants to negotiate, not a right to veto (ss.26-44). Shortly after the enactment of the W.A. Act, constitutional challenges were filed in the High Court of Australia by the Kimberley Land Council for the Wororra and Yawuru peoples and others (No M147 of 1993) and by the Aboriginal Legal Service of Western Australia for Teddy Biljabu and others on behalf of the Martu people (No P45 of 1993). The State of Western Australia filed a challenge to the Native Title Act (No P4 of 1994). The Chief Justice heard submissions in all three matters and reserved questions for the opinion of the Full Court. In September 1994, the Full Court heard argument together in the three proceedings. The State of Western Australia was the plaintiff in proceedings against the Commonwealth. In these proceedings, Western Australia challenged the validity of the Native Title Act 1993 (Cth).The State of Western Australia was the defendant in proceedings brought by representatives of the Wororra and Yawuru peoples and by representatives of the Martu peoples. In these two proceedings, the validity of the Land (Titles and Traditional Usage) Act 1993 (WA) was challenged. Overview of the submissions As of 1 July 1993, native title can be extinguished by Commonwealth, State or Territory legislation only in accordance with conditions prescribed by the Native Title Act (s.11(2)). In its submissions, Western Australia conceded that the W.A. Act failed to satisfy those conditions and was inconsistent with the Native Title Act. However, the operation in Western Australia of both the W.A. Act and the Native Title Act depends on the existence of land subject to native title in that State. If there were no native title land, there could be neither native title holders in whom statutory rights of traditional usage created by the W.A. Act could vest nor native title land upon which the Native Title Act might fasten. Accordingly, Western Australia's primary submission was that native title came to an end upon the establishment of the Colony of Western Australia; or alternatively, that native title in Western Australia was wholly and irrevocably extinguished by the W.A. Act. In its submissions, the Commonwealth argued that native title survived the establishment of the Colony of Western Australia. The Commonwealth also supported the submission of other parties, representing the Woorarra, Yawuru and Martu peoples, that the W.A. Act was inconsistent with the Racial Discrimination Act 1975 (Cth) and, by reason of s.109 of the Constitution, without valid operation. According to this submission, the W.A. Act discriminated against the Aborigines in comparison with the holders of other forms of title. Western Australia submitted that, however these issues be decided, the Native Title Act was invalid as beyond the legislative powers of the Commonwealth. To support the Native Title Act, the Commonwealth relied upon the powers conferred by s.51 (xxvi) (the races power) and s.51 (xxix) (the external affairs power) of the Constitution. Western Australia submitted that even if prima facie supportable by either of those powers, the Native Title Act exceeds the limits on Commonwealth legislative power implicit in the federal structure of the Constitution. The establishment of Western Australia: Was native title extinguished? The Full Court first considered whether native title was extinguished by the establishment of the Colony of Western Australia. It was Western Australia's submission that the British Crown intended a general extinguishment of native title to land within the colonial boundaries of Western Australia. Such intention was manifested in Governor Stirling's Commission of 4 March 1831 and the accompanying instructions. The majority of the Court, Mason CJ, Brennan J, Deane J, Toohey J, Gaudron J and McHugh J, found the facts to show "only that it was intended to exercise the sovereign power of the Crown to grant land to immigrant settlers." At the time of settlement of Western Australia, the common law theory which underlay the acquisition of sovereignty in "settled" colonies regarded the territory of colonies inhabited by indigenous people to be "desert uninhabited". An inference that the British Crown intended a general extinguishment of native title could not be drawn: "Extinguishment would have been an unnecessary step to take. The Crown's colonial policy was capable of being implemented without a general extinguishment of native title." (at 22) Two consequences followed from this: First, since the establishment of the Colony, native title has been extinguished only parcel by parcel. Native title has been extinguished by the valid exercise of power either to grant interests in some of those parcels or to appropriate others of them for the use of the Crown inconsistently with the continuing right of the Aborigines to enjoy native title. Second, at the time the W.A. Act commenced operation, native title existed in Western Australia in respect of land where the continuing right of Aborigines to enjoy their native title was inconsistent neither with the grant of an interest nor with a valid appropriation of the land for the use of the Crown. The W.A. Act and its operation: Consistency with the Racial Discrimination Act The Commonwealth and other parties representing the Woorarra, Yawuru and Martu peoples submitted that the W.A. Act was inconsistent with the Racial Discrimination Act 1975 (Cth). (I) Prospective extinguishment and impairment of native title: Section 7 rights The key prospective provision of the W.A. Act is s.7. Section 7 purports to extinguish any native title to land that existed before its commencement (sub-s.(1)(a)) and to replace the rights and entitlements that were the incidents of native title with statutory rights of traditional usage (sub-s.(1)(b)). Rights of traditional usage, or s.7 rights, replace the rights and entitlements that were incidents of native title "unless this Act provides otherwise." (sub-s.(2)). Pursuant to s.23 of the W.A. Act, s.7 rights are extinguished by, inter alia, legislative or executive action clearly and plainly intended to extinguish the rights or inconsistent with the continued existence of the rights. Pursuant to s.17, executive action resulting in the extinguishment, suspension or impairment of s.7 rights may be taken under the "general laws" of the State. These general laws include those amended by Sched. 1 to the W.A. Act, amongst others the Mining Act 1978, Land Act 1933, Petroleum Act 1967 and Public Works Act 1902. The Land Act 1933: Section 7(1) of the Land Act authorises the Governor to dispose of Crown lands which include land subject to s.7 rights. By reason of s.23 of the W.A. Act, a simple exercise of the executive power of disposal under the Land Act can extinguish or impair s.7 rights. In the present case, the Court found the protection conferred on the holders of s.7 rights under the Land Act to be inconsistent with the protection conferred by the Racial Discrimination Act on the holders of native title and by the general law on the holders of other forms of title: "By subjecting s.7 rights to the qualification 'unless this Act provides otherwise', the holders of s.7 rights suffer a diminution in their human rights inconsistent with s.10 of the Racial Discrimination Act." (at 35) The Mining Act 1978: The Court found the protection of s.7 rights under the Mining Act 1978 to be as much at the discretion of the Minister for Mines as the protection of s.7 rights under the Land Act at the discretion of the Minister of Lands. The regime established under the Mining Act precludes the exercise of s.7 rights when inconsistent with rights conferred by a mining tenement. Section 7 rights are extinguished by the grant of a mining lease, unless expressly reserved by the lease. The majority stated: "The protection of Aboriginal holders of s.7 rights against liability to having their rights suspended or extinguished is significantly less than the protection against a similar liability given by the Mining Act to the holders of "title" to private land or an "occupier" of Crown land." (at 41) The Petroleum Act 1967: Amendments to the Petroleum Act 1967 follow the same pattern as the amendments to the Mining Act 1978, except that the Minister for Mines is required to give notice to the Commissioner for Aboriginal Planning of applications for approval to carry out operations, other than exploration, on Crown land. The giving of notice sets in train objection and consultation procedures. In relation to s.7 rights, power to "disapply" the objection and consultation procedures is inserted in the Act. The Court found the holders of s.7 rights in respect of Crown land to have lesser rights than the holders of title to private land. (at 42) The compulsory taking of land subject to s.7 rights: The Public Works Act 1902:The Public Works Act 1902 (W.A.) prescribes a procedure to be observed when State public authorities are authorised to take land for the purpose of constructing a public work. Amendments to the Public Works Act by the W.A. Act established a procedure for the taking of "prescribed land." This is defined to include Crown land, reserves and pastoral leases under the Land Act and land held for the benefit and use of Aboriginal people. The procedure for taking "prescribed land" under the Public Works Act differs from the procedure for taking land owned or occupied by persons having an estate amounting to "title" in that land in numerous respects. In addition to this power to extinguish s.7 rights by taking "prescribed land", s.7 rights can be extinguished or suspended where the Minister administering the W.A. Act considers such extinguishment or suspension "to be necessary for any purpose for which land could be taken or resumed compulsorily under any written law" (s.26). According to the Court: "It is clear ... that s.26 of the W.A. Act and the Public Works Act (as amended by the W.A. Act) deny to the Aboriginal holders of native title the same protection against compulsory acquisition as the protection by way of notice, the right to object and the right to proper consideration of objection which the law and judicial review accord to the holders of other forms of title." (at 45). Compensation for the taking of land: Despite the substantial shortfall between rights of traditional usage created by s.7 and qualified by subsequent sections of the W.A. Act and the rights and entitlements conferred by native title, s.28(1) of the W.A. Act precludes compensation for the extinguishment of native title effected by s.7(1)(a) of that Act. The Court concluded that the rights of traditional usage created by s.7 and qualified by subsequent sections of the W.A. Act fall substantially short of the rights and entitlements conferred by native title. Its review of various provisions of the W.A. Act had revealed the comparative insecurity of s.7 rights. The Court found the qualification of s.7 rights effected by the W.A. Act to be inconsistent with s.10(1) of the Racial Discrimination Act and the prospective operation of the W.A. Act, based on s.7, destroyed by that inconsistency (at 46). (ii) Retrospective extinguishment and impairment of native title: Section 5 of the W.A. Act The High Court proceeded to examine the validity of s.5, the key retrospective provision of the W.A. Act. Section 5 is concerned to confirm retrospectively the validity of titles granted in the period between the commencement of the Racial Discrimination Act 1975 (Cth) (31 October 1975) and the commencement of Parts 2 and 3 of the W.A. Act (2 December 1993). Section 5 excludes the application of s.7 to rights and entitlements extinguished or impaired by the making of grants of title during that period. The Court considered two hypotheses. On the first hypothesis, s.5 did not have the effect of extinguishing or impairing native title because of prior valid extinguishment or impairment by State laws. On this hypothesis, s.5 had no legal effect on native title. On a second hypothesis, acts purporting to extinguish or impair native title were authorised by laws inconsistent with the Racial Discrimination Act at the time the acts were done. On this hypothesis, s.5 was denied any effect by reason of s.109 of the Constitution. On either hypothesis, s.5 of the W.A. Act was ineffective and without legal operation. The Native Title Act: Its constitutional character As a result of the survival of native title upon the establishment of the Colony of Western and the failure of the W.A. Act in its purpose of extinguishing native title, the Court concluded that native title survived, or was capable of surviving, in Western Australia as at 1 January 1994, the date of commencement of operation of the substantive provisions of the Native Title Act (at 49). It remained to consider the constitutional character of the Native Title Act. The Court identified three aspects of the Native Title Act of central importance to its constitutional character. These are the recognition and protection of native title, the giving of full force and effect to past acts which might not otherwise have been effective to extinguish or impair native title and the giving of full force and effect to future acts which might not otherwise be effective to extinguish or impair native title. The Court summarised the salient features of the Act relevant to determining its constitutional character and concluded: "The Act removes the common law defeasibility of native title, and secures the Aboriginal people and Torres Strait Islanders in the enjoyment of their native title subject to the prescribed exceptions which provide for native title to be extinguished or impaired. There are only three exceptions: the occurrence of a past act that has been validated, an agreement on the part of the native title holders, or the doing of a permissible future act." (at 60). In support of the Native Title Act, the Commonwealth relied principally on the powers contained in s.51(xxvi) of the Constitution. Section 51 confers on the Parliament power to make laws with respect to - "(xxvi) The people of any race for whom it is deemed necessary to make special laws." Unlike the aliens and corporations powers, the races power is not expressed to be a power to make laws simply with respect to persons of a designated character. In this connection the Court noted: "It must be "deemed necessary" that "special laws" be made for "the people of any race"." The Court referred to the discussion by Stephen J. in Koowarta v. Bjelke-Petersen of the requirement that laws enacted under par.(xxvi) be "special" ((1982) 153 CLR 168 at 210): "It must be because of their special needs or because of the special threat or problem which they present that the necessity for the law arises; without this particular necessity as the occasion for the law, it will not be a special law such as s.51(xxvi) speaks of." In the present case the Court did not consider it necessary to exercise its supervisory jurisdiction to examine the question of necessity against the possibility of a manifest abuse of the races power: "The removal of the common law general defeasibility of native title by the Native Title Act is sufficient to demonstrate that the Parliament could properly have deemed that Act to be "necessary". "Special" qualifies "law"; it does not relate to necessity. Therefore the special quality of a law must be ascertained by reference to its differential operation upon the people of a particular race, not by reference to the circumstances which led the Parliament to deem it necessary to enact the law. A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race." (at 62-63) Applying these observations, the Court said: [T]he Native Title Act is "special" in that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title (the "people of any race") a benefit protective of native title. ... Whether it was "necessary" to enact the law was a matter for the Parliament to decide and, in the light of Mabo [No.2], there are no grounds on which this Court could review the Parliament's decision, assuming it had power to do so. (at 64) The Court noted that the regime established by the Native Title Act was more specific and more complex than the regime established by the Racial Discrimination Act and identified two aspects of the relationship between the two pieces of legislation: "[F]irst, the Native Title Act validates or permits the validation of past acts that were not of full force and effect because of the operation of the Racial Discrimination Act; second, the Native Title Act affords protection to the holders of native title who heretofore have been protected by (and who may continue to be protected under) the Racial Discrimination Act... " The Court continued: "Thus the Racial Discrimination Act protects native title holders against discriminatory extinction or impairment of native title. The Native Title Act, on the other hand, protects native title holders against any extinction or impairment of native title subject to the specific and detailed and exceptions which that Act prescribes or permits." (at 65) In light of its conclusion that the Native Title Act is prima facie supported by the races power, it was unnecessary for the Court to consider whether it is also supported by the external affairs power. The Native Title Act: Implied Constitutional Limitations Western Australia submitted that even if the Native Title Act were prima facie supported by an available power, it failed to attract the support of that power because of limitations implied from the text and structure of the Constitution. Certain impugned provisions of the Native Title Act were said to offend implied constitutional limitations and thus to be outside the legislative powers of the Commonwealth. (I) Control of the legislative powers of the State Western Australia's first submission was that the impugned provisions purport to control the legislative powers of the State or directly to render State laws invalid. Section 107 of the Constitution confers on or confirms to the Parliaments of the States the powers vested in them as at the establishment of the Commonwealth except to the extent that any power is "exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State." It is outside the legislative powers of the Commonwealth Parliament to withdraw from a State Parliament a power conferred on or confirmed to it by s.107. A Commonwealth law purporting to prohibit a State Parliament from enacting a law finds no support in s.109 of the Constitution as s.109 operates only on laws lawfully enacted by State Parliaments (Gerhardy v. Brown (1985) 159 CLR 70 at 121, per Brennan J.). In light of these general principles, the Court examined a number of provisions of the Native Title Act which, in the Eubmission of Western Australia, impermissibly attempted to control State legislative powers and directly to impose invalidity on State legislation. In particular, Western Australia challenged the validity of ss.11(2)and 19 which, notwithstanding the prima facie protection of native title from extinguishing acts in s.11(1), define the boundaries of areas within which States and Territories may operate to validate past acts. The Court said: "The critical question is not whether the impugned provisiEns ... are beyond the legislative power of the Commonwealth, but whether s.11(1) is within Commonwealth power. As we have seen, a law of the Commonwealth protecting native title from extinguishment is a law which is supported by s.51(xxvi) of the Constitution. Therefore s.11(1) is valid and it is within the powers of the Parliament of the Commonwealth to prescribe the areas within which other laws may operate to affect the regime of protection prima facie prescribed by s.11(1). As the only repositorEes of power capable of extinguishing native title other than the Commonwealth are the States and Territories and some of their statutory authorities, a law protecting native title from extinguishment must either exclude the application of State and Territory laws or prescribe the areas within which those laws may operate. The Commonwealth has chosen to prescribe the areas available ..." (73-74) Western Australia also challenged the validity of ss.22, 23, 26, 28 and 43 which prescribe criteria to Ee satisfied by State or Territory laws operating within the area relating to future acts left to them by the Native Title Act. The Court said of these provisions: "These provisions are, for the most part, merely regulatory. ... The provisions prescribing the procedure to be followed and the conditions to be satisfied simply define the scope of certain exceptions to the general protection of native title declared by s.11(1). They do not purport to impose upon a State Parliament or other "GovernmenE party" any positive obligation or duty to do anything or to follow particular procedures." (at 77-78). Also challenged as beyond Commonwealth power was s.211. This section addresses usufructuary rights and interests such as hunting, fishing and gathering which are the incidents of native title. The Court said of this section: "Again the effect of s.211 is not to control the exercise of State legislative power but to exclude laws made in the exercise of that power (inter alia) from affectingEthe freedom of native title holder to enjoy the usufructuary rights referred to in s.211." (at 82) The Court considered ss.20 and 23 separately. These sections do not simply create exceptions to the protection cast over native title by s.11(1) but impose upon States and Territories an obligation to pay compensation to native title holders for the extinguishment or impairment of native title, either through validation of past acts or permissible future acts attributable to them. The Court found theEsubmission that these provisions single out the States to be misconceived: "The compensation provisions apply to each of the polities - Commonwealth, States and Territories - which may so exercise their legislative or executive powers as to effect a divestiture of native title in accordance with the provisions of the Native Title Act. There are no other repositories of power capable of effecting divestiture. The States are not singled out to bear an arbitrary financial burden. ... These provisionE are supported by s.51 of the Constitution." (at 83-84) (ii) Impermissible discrimination against Western Australia and impermissible impairment of the ability of Western Australia to function as a State Western Australia also submitted that the provisions of the Native Title Act governing future acts constitute impermissible discrimination against Western Australia and impermissible impairment of the ability of Western Australia to function as a State and thus exceed the limits of CommonwealtE legislative power implied by the Constitution. This submission was based on a principle stated in Melbourne Corporation v. The Commonwealth ((1947) 74 CLR 31) and Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR 192). In the latter case, Mason J said (at 217): "This review of the authorities shows that the principle ... consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities; and (2) the Eprohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments." Western Australia submitted that the Native Title Act produces a more substantial effect upon Western Australia than any other part of the Commonwealth. The Court disposed of this argument as to differential effect shortly: "The differential effect on Western Australia arises simply because history and geography have combined En creating in Western Australia a greater area and proportion of land which might be subject to native title than the area or proportion of such land in other parts of the Commonwealth. The difference is of practical importance, but it does not indicate impermissible discrimination in the application of the Native Title Act." The Court then examined Western Australia's submission as to interference with its capacity to function as a government, in particular, with its capacity to perform the funEtion of administering land and mining legislation. Accepting for the purposes of determining constitutional validity that the Act would complicate government administration in Western Australia and delay the making of administrative decisions, the question for the Court was whether such effects constitute an impermissible interference with the capacity of the Government to function as such. The Court said: "These effects touch upon the scope of State power and the difficulty of its exercise, notEupon the machinery of the government of the State. ... For constitutional purposes, the relevant question is not whether State powers are effectively restricted or their exercise made more complex or subjected to delaying procedures by the Commonwealth law. The relevant question is whether the Commonwealth law affects what Dixon J, called the 'existence and nature' (in Melbourne Corporation v. The Commonwealth (1947) 74 CLR at 82) of the State body politic." The Court held that the Act did not imEair the capacity of Western Australia to exercise constitutional functions, though it may affect the ease with which those functions are exercised. The Court was not particularly sympathetic to the difficulties asserted by Western Australia in this respect: "Such practical difficulty as there may be in the administration of the legislation of Western Australia governing land, minerals and the pipeline transportation of petroleum products can be attributed to the realization that land subject to native title is not the unburdened property of the State to use or to dispose of as though it were the unburdened owner. The notion that the waste lands of the Crown could be administered as the 'patrimony of the nation' and that the traditional rights of the holders of native title could be ignored was said to be erroneous in Mabo [No 2]." The Native Title Act: Consistency with the Racial Discrimination Act Finally, the Court rejected the submission of Western Australia that the Native Title Act discriminates in favour of Aborigines and Torres Strait Islanders and thus offends the Racial Discrimination Act. In the first place, the Court had difficulty detecting any inconsistency between the two Acts. Even if there were any discrepancy in the operation of the two Acts, the Native Title Act could be regarded "either as a special measure under s.8 of the Racial Discrimination Act or as law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the International Convention on the Elimination of All Forms of Racial Discrimination." This dictum indicates that the Court may be inclined to depart from its earlier analysis in Gerhardy v Brown (1985) 159 CLR 70 of an aspect of land rights legislation as a prima facie discriminatory special measure of protection and to embrace an understanding of racial discrimination which refers not to any distinction or differentiation but only to those which are arbitrary, invidious or unjustified. On this analysis, measures adopted by reference to race may not constitute discrimination where the criteria for such differentiation are legitimate. Concluding observations In answer to the questions reserved for the opinion of the Full Court, the majority found the whole of the Land (Titles and Traditional Usage) Act 1993 (W.A.) to be inconsistent with s.10 of the Racial Discrimination Act and therefore, by reason of s.109 of the Constitution, invalid. The Court also found the whole of the W.A. Act to be inconsistent with the Native Title Act and therefore, also by reason of s.109 of the Constitution, invalid. In a separate judgement, Dawson J. agreed with the answers proposed by the majority. In a dissenting judgment in Mabo v Queensland [No.2], Dawson J. had found that native title, if it existed, had ceased to exist. In the present case, he accepted the reasons for judgment of Brennan J., with whom Mason C.J. and McHugh J. agreed, as "containing the basic principles for which Mabo [No. 2] now stands as authority." (at 106) Dawson J continued: "[N]otwithstanding my own views, from which I do not resile, I think that I ought now to follow the decisions of the majority in Mabo [No.1] and Mabo [No.2]. The issues which were determined by those cases are of fundamental importance and deal with questions of title to land. it is desirable that the law now follow a consistent course in order to achieve maximum certainty with the least possible disruption. No good purpose is to be served by my continuing to follow a line of reasoning which has been rejected." The High Court's decision in The State of Western Australia v. The Commonwealth; The Wororra Peoples and anor v. The State of Western Australia; Teddy Biljabu and ors v. The State of Western Australia covers little new legal ground. It does represent, however, important confirmation of the Commonwealth's native title regime. It removes residual uncertainty as to the possible inconsistency of the W.A. Act with the Racial Discrimination Act, as to the constitutional foundations of the Native Title Act and as to possible discrimination against Western Australia or impairment of the legislative or executive functions of that State. It continues the long overdue process of correcting the erroneous and racist notions which have debased the foundations of the Australian legal system. Since the Native Title Act commenced operation in January 1994, an estimated 10,000 land titles have been issued in Western Australia. The High Court has confirmed that those land titles may be subject to native title claims. It remains for the Government of Western Australia to act to resolve uncertainty over interests in land engendered by its decision not to cooperate with the Commonwealth's native title regime. The Premier of Western Australia has vowed to continue his fight and make the Native Title Act an issue at the next federal election. In a more modulated response to the High Court's decision, the Mining Industry Council stated that a political solution has become "a national imperative". Mr Peter Barnett, the Council's President said: "The interests of Aboriginal people and the mining industry need not necessarily be at odds. Aboriginal people by and large want mining development and the economic advantages it brings. Equally, the mining industry respects Aboriginal needs and interests." ("Aborigines, miners call for end to land title uncertainty", The Australian, Friday March 17 1995, at 44). The High Court's decision suggests that the pressure is on the States and Territories to cooperate with the Commonwealth to achieve a workable system for the recognition of indigenous native title throughout Australia. The defeat of Western Australia's racially discriminatory legislation represents a further step in the difficult process towards reconciliation between indigenous and non-indigenous Australians. Whilst some Aboriginal groups have expressed dissatisfaction with the processes and outcomes of the Native Title Act, the High Court's decision indicates that the Commonwealth's legislative response to Mabo is largely on the right track.