Native Title after Wik: Where to Now?
| Author: | Peter van Hattem Partner, Freehill, Hollingdale & Page (Barristers & Solicitors) |
| Subjects: | Aborigines - land tenure (Other articles) Native title -- Australia (Other articles) Wik Peoples v State of Queensland and others (Other articles) |
| Issue: | Volume 4, Number 1 (March 1997) |
| Category: | Current Developments |
This paper was prepared for presentation to the 67th Annual Conference of the Pastoralists' and Graziers' Association of Western Australia Inc. on 27 February 1997.
Introduction
The decision of the High Court in the Wik case was delivered on 23 December 1996. Four and a half years after the Mabo decision, the Court again sent shock waves through numerous industries and Governments, by sweeping aside what was regarded by many as a fundamental premise of native title law in Australia.
The aims of this paper are:
Background to the Wik decision
In the High Court's 1992 Mabo decision, the Court decided for the first time that land rights under traditional Aboriginal laws and customs (known as "native title" rights) were recognised by the common law of Australia, and formulated the general common law principles for determining their existence, content and extinguishment. The development of native title law in Australia, both through the Commonwealth and State Parliaments and in the courts, has largely been based on what the High Court said in Mabo.
Six of the seven members of the High Court said that the valid grant of leases by the Crown extinguishes native title. Four of the seven went so far as to say that a Crown lease which expressly reserved to Aboriginal people the right to enter land for traditional purposes still had the effect of extinguishing their native title. In his leading judgment, Justice Brennan (now Chief Justice) said:
"Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by the grants of estates of freehold or of leases but not necessarily by the grant of lesser interests."
It was therefore widely believed that all Crown leases, including pastoral leases which cover about 40% of mainland Australia, had extinguished native title.
The Native Title Act was introduced by the Keating government in response to that decision. The principle of extinguishment by the grant of leases was reflected in the Preamble to the Act:
"The High Court has ... held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates."
Provision was made in the Act for the validation of leases and other titles which might have been invalidly granted over native title land. Invalid pastoral leases were grouped with invalid freeholds and commercial, agricultural and residential leases. Each could be validated by State and Territory legislation and, upon validation, would have the effect of extinguishing native title. The policy underlying this provision appears to have been to bring invalid pastoral leases into line with what was understood to be the position with all valid leases, including pastoral leases. Mining leases and leases for charitable or educational purposes were put in separate categories. The States and Territories passed validation legislation accordingly.
The Native Title Act also imposed considerable restrictions on dealings with land which was the subject of native title rights after 1 January 1994. Those restrictions, known as the "future act provisions" and including the "right to negotiate procedures" were probably not intended to apply to pastoral lands, because it was Government policy that native title had been extinguished by the grant (or validation) of pastoral leases. Consequently, it was widely believed that the restrictions would only affect proposed dealings affecting reserves and vacant Crown land.
However, neither the High Court in Mabo nor the Commonwealth Parliament in the Native Title Act specifically said that valid pastoral leases extinguished native title. Consequently, there was a degree of uncertainty on the issue. The Keating and Howard Governments both took the position that valid pastoral leases did extinguish native title, but that any uncertainty was to be resolved by the High Court, not the Parliament.
The National Native Title Tribunal and the Federal Court appear to have assumed that pastoral leases extinguished native title, unless they contained express reservations of aboriginal access rights. Native title claims over pastoral lands were usually either rejected, or amended to exclude pastoral leases without reservations. This approach was rejected by the High Court in the Waanyi case, with the result that native title claims could be registered over all pastoral leases.
In some parts of Australia (for example Western Australia), the State Government took a cautious approach to land management, and followed the procedures required by the Native Title Act in relation to proposals affecting pastoral lands. This resulted in considerable delays, and the Government was criticised in some circles for what was regarded as an attempt to overload the National Native Title Tribunal. In other parts of Australia (notably Queensland) the Government proceeded on the basis that native title had been extinguished on pastoral lands. Many titles were granted and development approvals given in relation to pastoral lands, without first satisfying the requirements of the Native Title Act.
Against that background of expectation hedged with uncertainty, the question of extinguishment of native title by the grant of pastoral leases came before the High Court for decision.
Summary of the decision
The Wik decision arose out of two native title claims in Queensland, by the Wik peoples and the Thayorre people. The claims were over large areas which included a number of pastoral leases, and two special mining leases granted under ratified State Government agreements. The claimants asserted that their native title rights had survived the grant of the pastoral leases, and that the mining leases were invalid. The respondents to the claim asserted that, applying the principles stated by the High Court in Mabo, any native title which might have existed was necessarily extinguished by the grant of the pastoral leases. Justice Drummond in the Federal Court found against the claimants on both issues. The claimants' appeal to the Full Court of the Federal Court was removed to the High Court.
The High Court found for the claimants on the pastoral lease issue (by a majority of four judges to three), and found against them unanimously in relation to the special mining leases. Although the latter issue is of great significance to the mining industry, this paper is principally concerned with the former issue and its implications for the pastoral industry.
The majority (Justices Toohey, Gaudron, Gummow and Kirby) held that the pastoral leases in question were not really "leases" in the common law sense, that is, interests in land which confer a right of exclusive possession. Instead, they said that they were creatures of statute, and their qualities were to be ascertained not by reference their being called leases, but to the terms of the statute under which they were granted, and the instrument of lease. Since the right of exclusive possession was not expressly conferred in either, it was not to be implied, because that would result in the extinguishment of native title without a clear and plain intention to do so. They held that the pastoralists had no right to exclude native title holders from the leased property, but that their interests were otherwise valid, and prevailed over native title rights to the extent of any inconsistency. It followed in their opinion that the leases did not necessarily extinguish native title. Their effect on native title, if any, was a matter to be determined not by the characterisation of the interest as a "lease", but by a detailed comparison between the native title rights held by the particular claimants and the rights conferred on the holder of the relevant pastoral lease. This exercise could not be conducted in a vacuum, but required a case by case comparison of the native title rights and the rights conferred on the lessee.
Implications of the decision
General implications - increased uncertainty, delay and expense
The decision undermines one of the fundamental assumptions on which the Native Title Act was based, and considerably broadens its potential application. It also means that other statute based interests in land, described as leases, may not in fact be leases in the sense of conferring exclusive possession. The effect of statutory leases, including special leases, mining leases and commercial leases, is now uncertain, and may have to be decided on a case by case basis. Unless the majority of cases are resolved without recourse to litigation, the expense and delay involved in determining native title claims will be astronomical.
As Justice Kirby, one of the four majority judges, said:
"The position of ... the pastoral and other leasehold interests elsewhere in Australia must remain to be elucidated in later cases. It is true that this result introduces an element of uncertainty into land title in Australia, other than fee-simple. However, this is no more than the result of the working out of the rules adopted in Mabo [No 2]."
It will also be necessary to comply with the future act provisions of the Native Title Act, including the right to negotiate procedures where applicable, in a substantially larger number of cases than expected. This will add to the expense and delay associated with new projects.
Co-existence of native title rights and statutory rights
Because of the finding in the Wik decision that native title had not necessarily been extinguished on all pastoral land, there is now a real possibility that native title rights and statute-based rights both exist at the same time in relation to the same land.
If the common law provides for co-existence, the principles have not yet been stated. Although the common law recognises co-existence of similar interests (for example, the law relating to joint tenancy and tenancy-in-common), the Courts have not yet had occasion to address the relationship between native title rights and statutory rights in any detail.
The Native Title Act does not presently make sufficient provision in that regard, and (in concert with the Racial Discrimination Act) probably prevents States and Territories legislating to provide for co-existence.
Extinguishment and non-extinguishment of native title rights
As a result of the Wik decision, there are artificial distinctions between valid and validated statutory leases in their effect on native title.
These distinctions arise out of the intention, under the Native Title Act, to give validated leases in category A the same effect on native title as was believed to be the effect of their valid equivalents. The Wik decision demonstrates that the opposite was achieved. This compounds another problem, which has always existed under the Native Title Act, that it is impossible to say definitively whether a lease is valid or validated without a court ruling, which can only occur on a case by case basis.
Native title rights can differ from one Aboriginal group to another. Similarly, the rights conferred on the holder of a pastoral lease can vary from place to place, and from time to time. Consequently, the comparison of rights required by the majority decision, to ascertain whether and to what extent the grant of a pastoral lease extinguishes or otherwise affects native title, can only be undertaken on a case-by-case basis, after all the evidence in the case has been presented.
Validity of titles, and approvals and consents in relation to titles
The Wik decision has significant implications for the validity of titles granted over, and other acts done in relation to, native title land after 1 January 1994. In many cases titles were granted and other acts were done without regard to the requirements of the Native Title Act, on the erroneous assumption that native title rights had necessarily been extinguished. The grants of those titles, and those acts, could in many cases be wholly or partly invalid under the Native Title Act, either as impermissible future acts, or for failure to comply with the right to negotiate procedures.
The validity of invalid tiles granted and acts done before 1 January 1994 and validated by the Native Title Act, or by State and Territory laws enacted in conformity with the Native Title Act, is not affected by theWik decision. However, it is now less likely that statutory leases granted over native title land prior to 1 January 1994 were wholly or partly invalid due to the existence of native title, so as to attract those validation provisions and their extinguishing effect on native title. Consequently, native title rights thought to have been extinguished by validation legislation might not have been extinguished at all.
Approvals and consents in relation to titles and permits can affect native title rights, and might therefore be subject to the Native Title Act. Approvals and consents given after 1 January 1994 in relation to validated titles should treated as past acts and should be valid. Approvals and consents given after 1 January 1994 in relation to valid titles might in some cases be held to fall outside the definition of permissible future acts, and therefore be invalid to the extent that they affect native title. As a result of the decision in Wik, approvals and consents given in relation to pastoral leases could be held to be impermissible future acts.
Application and scope of the right to negotiate provisions
At the time the Native Title Act was passed, it was believed by the Commonwealth government that native title had been extinguished (or would be extinguished, through validation) on all pastoral land. The right to negotiate procedures would therefore have no application to mining rights proposed to be granted on pastoral land, and compulsory acquisitions of pastoral land for the purpose of conferring rights on third parties. As a result of the Wik decision, the right to negotiate procedures have a considerably wider application than was originally anticipated.
This will impact on mining and petroleum exploration and development, and private sector projects and infrastructure in pastoral areas: roads, railways, powerlines, pipelines, power stations, processing plants, and so forth.
The present reform agenda
On 27 June 1996 the Howard Government introduced into Parliament the Native Title Amendment Bill 1996. An earlier Bill to amend the Native Title Act, introduced by the Keating Government, had lapsed. Both Bills were primarily directed at overcoming the High Court's Brandy decision, which was understood to substantially limit the role to be performed by the National Native Title Tribunal in the process of determining native title and compensation claims. On 8 October 1996 the Howard Government released further amendments.
The proposed amendments (as they presently stand) attempt to address some of the problems which have emerged since the commencement of the Native Title Act on 1 January 1994:
The proposed amendments do not include any provisions for the legislative extinguishment of native title. The Federal Government has hitherto taken the approach that issues relating to the existence of extinguishment of native title should be dealt with by the Courts. Following the decision in the Wik case, the Federal Government has been called upon to reconsider this approach.
The proposed amendments will impose a more stringent registration test on claims. Before the Native Title Registrar can accept a claim for registration, the Registrar must be satisfied that a prima facie case for each native title right claimed exists.
The registration test will take effect from 27 June 1997. However, upon the giving of a notice (known as a section 29 notice) that a government party proposes to create, vary or extend a right to mine, the "registration test" will be triggered. Before a registered claimant can obtain the benefit of the "right to negotiate" provisions, the Registrar must apply the "registration test" to the claim. If the claim fails the test, the claimants will not obtain the right to negotiate and the claim must be removed from the register.
This amendment is intended to ensure that only "bona fide" native title claimants can exercise the rights pursuant to the Native Title Act. Claimants lodging claims with little or no prospect of success will not be able to obtain the right to negotiate.
The Amendment Bill involved extensive amendment to the right to negotiate procedures. The Federal Government 's stated objective is to reduce the impact of the right to negotiate process on the mining industry. In summary, the proposed amendments:
The proposed amendments also provide for the formal recognition of Aboriginal representative bodies. The functions of the representative bodies will include the coordination of the preparation of native title claims, certification of native title claims and assisting in the resolution of disputes between competing native title claimants.
The object of the proposed amendments is to reduce the likelihood of competing native title claims by giving one representative Aboriginal body responsibility for the implementation of a coordinated regional approach to native title issues.
Where to now? - Some policy options
The Native Title Amendment Bill 1996 did not anticipate the decision in Wik and does not address its implications. The Prime Minister has stated that there will be a legislative response to the Wik decision. The Federal Government is presently considering the nature and scope of that response.
Possible responses include:
Extinguishment of native title in pastoral areas
In response to the Wik decision, the President of the National Farmers, Federation, Donald McGauchie, has called for the extinguishment of native title on all pastoral leases (press release dated 31 January 1997). This approach would:
In some respects, it is a very simple and effective response. However, it faces a number of obstacles:
On present indications, the obstacles facing this approach will be considerable.
Statutory definition of native title in pastoral areas
A less extreme approach is to define, by statute, the content of native title rights on pastoral lands. The purpose of this approach is to remove the uncertainty which presently exists as to the content of native title on pastoral lands, and the need for a case by case approach to the resolution of that uncertainty.
This approach recognises that common law native title, whatever its content, must give way to valid statutory rights. Because pastoralists have the right to occupy pastoral lands and carry on pastoral activities, native title in those areas can not include a right to exclude others, as is widely claimed at present.
As with extinguishment, this approach is not without its difficulties:
Provisions to provide for co-existence of native title and statutory rights
Continuing doubts about the co-existence of statutory and native title rights can be addressed by amendments which make it clear that the rights of statutory title holders prevail over native title rights. This would avoid any possibility of the common law on this subject (as presently understood) being changed, or the Racial Discrimination Act being interpreted in a way which produces a different result.
Pastoral leases may call for special treatment. The non-extinguishment principle could be made to apply to all pastoral leases (past and future), with provisions which permit the native title holders to exercise their native title rights subject to conditions which accommodate the concerns of pastoralists. For example, read literally, passages in the Wik decision suggest that the holder of a pastoral lease can not exclude native title holders from any part of the lease, including parts used for residential or domestic purposes.
Amendments to past act validation provisions
The current position with respect to leases granted before 1 January 1994 depends on whether the lease is valid or validated for its effect on native title, an issue which can not easily be resolved. That distinction should be removed. There are three different ways of doing this.
The preferred proposal should promote the following purposes:
Amendments to future act provisions
(a) Repeal the right to negotiate procedures
The difficulties concerning the titles issued over pastoral lease land since 1 January 1994 and the unworkability of the right to negotiate procedure could be addressed by repealing the right to negotiate entirely and relying on the freehold equivalent procedural rights in Native Title Act section 23(6).
In this case, native title holders would have the same rights as those enjoyed by holders of a freehold estate in fee simple under State and Territory land administration systems. The fate of pending negotiations and proceedings would need to be addressed in transitional provisions.
The repeal of the right to negotiate provisions would result in the procedural rights provision in section 23(6) applying to all permissible future acts (presently it does not apply to those covered by the right to negotiate procedures). The notice procedures in section 23(7) have proved costly, wasteful and largely ineffective. Section 23(7) should be amended to simplify the procedures for giving notice.
(b) Limit the right to negotiate procedures
As an alternative to removing the right to negotiate procedures, their scope could be limited to exclude proposals in relation to pastoral lands. This proposal would see the right to negotiate procedures operating in the manner contemplated by the Parliament when it passed the Native Title Act.
The amending Act could provide for this amendment to apply from 1 January 1994 and thus remove the possible invalidity of titles issued over pastoral lease land since that date.
(c) Expand the definition of permissible future acts
The grant of a pastoral lease over native title land is currently an ":impermissible future act". The definition of permissible future act could be amended to include grants of pastoral leases, so that pastoral leases may be granted without first extinguishing native title. A new section could be inserted to provide for rights of access for native title holders, or Aboriginal people generally.
Provisions to deal with future acts between 31 December 1993 and 31 December 1996
From the commencement of the Native Title Act on 1 January 1994 until the delivery of the Wik decision on 24 December 1996, many acts were done in the belief that native title had been extinguished over leased land, so that the future act provisions of the Native Title Act did not apply. The validity of these acts is now in doubt. The validity of these acts would be addressed if the right to negotiate procedure is repealed (see above) with effect from 1 January 1994, or if pastoral lease land is excluded from the right to negotiate procedures (see above) with effect from 1 January 1994. Alternatively, the cut off date for past acts could be advanced from 31 December 1993 to 31 December 1996. This could be achieved by amendments to the Native Title Act and State and Territory validation legislation.
Transitional provisions
The timing and effect of any proposed amendments to the Native Title Act need to be considered. Some of the issues to be addressed in transitional provisions include the following:
Conclusion
The Wik decision: