Lockhart, O’Loughlin and Whitlam JJ
In a decision on whether or not there was a fundamental inconsistency between the the rights and interests of native title holders and statutory owners of a grant under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) the court answered the following questions:
whether a grant under s 12(1)(a) of the ALRAC amounted to discrimination under s 9(1) of the Racial Discrimination Act 1975 (Cth)
whether the ALRA constituted a law that mounted to discrimination under s 10(1) of the Racial Discrimination Act 1975 (Cth) (RDA)
If yes (for either questions 1-2) whether the ALRA a special measure
If yes (for question 3) whether ss 10(3) of the RDA applies
whether the grant under the ALRA without the consent of native title holders is unlawful
In reaching its decision, the court considered the nature of native title and noted at [23] that:
...the common law of Australia recognizes a form of native title which, except where it has been extinguished, reflects the entitlement of the indigenous inhabitants in accordance with their laws or customs to their traditional land which is preserved as native title. Native title has its origins in and is given its content by the traditional laws acknowledged by, and the traditional customs observed by, the indigenous inhabitants of the territory. The nature of native title must be ascertained by reference to the traditional laws and customs of the indigenous inhabitants of the land. Native title does not have the customary incidents of common law title to land, but it is recognized by the common law. It may not be alienated under the common law.
With respect to the inconsistency the court noted at [36]:
The applicants claim to enjoy their traditional native title in conjunction with all other members of their clan or group, and to enjoy their traditional rights and interests on a communal basis. To the extent that traditional native title is enjoyed communally, Aboriginal people are entitled under the Land Rights Act, when grants have been made to Land Trusts, to exercise their traditional rights through the community decision-making processes which are established by and recognized under the Act...The mechanisms of the Land Rights Act, namely, Land Trusts and Land Councils, are completely consistent with this objective. It is true that there is no precise correspondence between the Aboriginal people whose wishes and opinions must be ascertained by a Land Council and Aboriginal people who enjoy native title. But a grant of fee simple to a Land Trust is not inconsistent with native title.
The Court did not consider it necessary to consider whether or not there was an inconsistency between the ALRA and the RDA but addressed the issue of whether the ALRA constituted a special measure based on Article 1(4) of the International Convention On The Elimination Of All Forms Of Racial Discrimination.
Accordingly, the Court held there was no fundamental inconsistency between the the rights and interests of native title holders and statutory owners of a grant under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).