Central Issues
The High Court concentrated on the nature and principles of extinguishment in framing the decision. The two questions posed were: whether there can be partial extinguishment and the principles for determining extinguishment.
These issues were dealt with comprehensively and attempt to clarify the operation of the Native Title Act 1993 (Cth). However, the orders state that both appeals are allowed. As Gleeson CJ stated when delivering the Court’s judgment, no party was entirely successful in these proceedings. A number of issues were sent back to the Federal Court for further evidence to be adduced.
Bundle of rights
The Court only briefly discussed the bundle of rights versus interest in land debate. The ‘bundle of rights’ idea was said to be useful as a metaphor to illustrate that there may be more than one right or interest in a particular piece of land. In addition, the ‘bundle of rights' metaphor reflected their view that there may be several kinds of rights and interests, not all of which are fully or accurately expressed as rights to control what others may do on land. The Court suggested that the inquiry into the nature and extent of native title must focus on what the traditional laws and customs say about the relationship to the land. In this way expressing greater particularity about the laws and customs and the rights conferred by native title.
The Court drew a distinction between areas of land where native title might be equated with exclusive possession (with which they did not concern themselves in this decision) and areas where the rights to control access and use of land to the exclusion of all others may have been compromised by other interests. Of course the occurrence of areas unaffected by other tenures are incredibly scarce. This of course has significant implications for the proof of native title and the presentation of evidence.
Proof of native title
The High Court reconfirmed the view that native title rights and interests are derived from traditional law and custom and the common law recognises those rights and interests through the device of native title. However, the High Court placed a greater emphasis on the content of the laws and customs and the relationship with the rights and interests conferred by native title than has been the case previously.
The Court confirmed that the requirement for rights and interests to have a connection to land (under s.223(1)(b)) does not require a physical connection and is not directed to how Indigenous peoples use or occupy the land. Absence of evidence of recent use does not lead to the conclusion that there is no relevant connection. However, the requirement of a connection to land limited the rights and interests protected by native title under the NTA. Protection of cultural knowledge is a native title right/interest only in so far as it relates to land, for example in denying/restricting access to sites or areas. In part this seems to reflect the constraints
of operating within the Act.
Principles for extinguishment
The Court reiterated its position that the Act is at the core of native title litigation where applications are brought for determination under the Act. They highlighted that native title is not able to be extinguished contrary to the Act (s.11), but held that the Act mandates the recognition of partial extinguishment. The Court confirmed that within the framework of the Act, the principles established in Wik and other cases still applied.
That is, despite other interests, to some extent native title might survive or there might be no inconsistency in the relevant sense at all. Further, statute may regulate the exercise of native title without abrogating it. ‘Inconsistency of Incidents’ was held to be the appropriate test for determining extinguishment and co-existence. Taking its lead from Toohey J in Wik the Court affirmed:
‘Inquiry into extinguishment and the extent of inconsistency requires comparison of particular rights and interests conferred by native title on the one hand and by the statutory grant or interest on the other’.
They rejected any subjective interpretation of ‘clear and plain intention’. The Court argued that the requirement that legislation or authorised act have a demonstrated clear and plain intention to extinguish native title should be understood within the framework of the test set out above.
One positive that may be gleaned from this is the detail to which non-native title parties are also subjected. Each Act and tenure must be assessed according to its terms to determine the extent of inconsistency between the two sets of rights. The Court, in applying this test seemed to attribute a more robust character to native title than has been the practice since Wik. However, together with the requirements of proof, the intricacy of this test appears to make litigation almost impossible as a method of resolving the relationship between native title and other interests. One other positive outcome may be the Court’s rejection of ‘operational inconsistency’ as a separate basis for extinguishment. The Court’s treatment of pastoral leases provides an illustration of the operation of the test of extinguishment. The Court described pastoral leases under Western Australian legislation as a ‘precarious’ interest, even more so in some respects than leases considered in Wik.
On no view, they argued, could the pastoral leases be said to give the holder exclusive possession. Mining leases under the Mining Act (WA), similarly, were held to grant exclusive possession for mining purposes only. It is a limited right to exclude others from mining. It does not give the right to exclude native title holders. While certain native title rights in certain areas of the mining lease may be extinguished and the remaining rights must yield to the leaseholder’s enjoyment of rights under the terms of the lease, native title is not completely abrogated.
In discussing the effect of these two forms of tenure, the court draws a distinction between inconsistent incidents and extinguishment as opposed to the enjoyment of rights by the leaseholder prevailing over but not extinguishing native title rights and interests. In the latter case, activities would impact on the enjoyment of native title rights only as long as that activity was being undertaken.
Reservations, resumptions and vesting
The Court confirmed the opinion of the Courts below that a reservation for public purposes of itself does not affect native title. The Court considered that reservation or dedication was not a ‘public work’ under the Act but that that dedication may demonstrate an assertion of rights that are inconsistent with a native title right for example to determine future inconsistent use of the land. However, they confirmed that the Crown may create an interest in itself that would be inconsistent with native title. This reasoning also led the Court to reconsider the opinion of both lower courts that had held that mere vesting did not affect native title and was merely a means of management.
The Crown’s vesting and assertion of property in minerals and petroleum was distinguished from that with respect to the fauna legislation considered in Yanner and held to extinguish native title rights to minerals and petroleum.
Applicable law
The Full Court wrongly took the applicable law to be that in force at the time of the original hearing (cf CDJ v VAJ (1998) 197 CLR 172). This led the Court into error in not considering State and Commonwealth validation and confirmation provisions passed pursuant to the 1998 amendments to the Native Title Act 1993 (Cth). The matter was sent back for further consideration by the Federal Court in relation to impact of these provisions, in particular: possible extinguishment [s.23C (PEPAs), s.23G (PNEPAs)]; possible suspension, under the non-extinguishment principle [s.15]; and possible compensation pursuant to the Racial Discrimination Act [s.23J; s.45].
This would also require further particularity in the findings of traditional laws and customs and native title rights and interests in different areas and the interests conferred by grants or other instruments.
Lisa Strelein, AIATSIS Native Title News Letter, July-August 2002