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Western Australia v Ward
High Court of Australia
Chief Justice Gleeson and Justices Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan
8 August 2002
by Lisa Wright
Part I of this article appeared in the Jan-Feb 2003 edition of the Indigenous Law Bulletin [2003] ILB 9; 5(22)pg18.
This article addresses the main principles that emerged from the majority’s findings in Western Australia v Ward[1] on how native title is extinguished. Under the Native Title Act 1993 (Cth) (‘NTA’) the answer to this question lies in determining whether or not the rights and interests claimed as native title are recognised by the common law of Australia, as required by s 223(1)(c).[2] This inquiry involves entering the ‘jungle of native title legislation’. This article briefly reviews the relationship between native title legislation, the Racial Discrimination Act 1975 (Cth) (‘RDA’), and the recognition of native title as discussed in Ward.[3]
The recognition of native title by the common law of Australia occurred at a point in time where two ‘radically different social and legal systems’[4] intersected. Initially, this was at the assertion of sovereignty by the British Crown.[5] At the point of that intersection and thereafter, the recognition of claimed native title rights is ‘withdrawn’ whenever they are inconsistent with either the common law of Australia, or rights and interests arising from the imposition of the new sovereign power.[6]
The three criteria given in Ward for withdrawing recognition of native title are that:
In all three cases,[10] the fact that the rights and interests in question are shown to exist and otherwise comply with ss223(1)(a) and (b) is irrelevant. The legal conclusion is that they will not be recognised as native title rights by the common law, unless the legislature intervenes to provide for either statutory recognition or suspension, rather than extinguishment.[11]
According to the majority, both the common law and the native title legislative regimes of the Commonwealth, the states and the territories conceptualise native title as being comprised of a bundle of rights.[12] The Court acknowledged that this conceptualisation both fragments the ‘integrated view’ Indigenous people may have of their relationship with their country, and severs the rights and interests from ‘the duties and obligations that go with them’. However, according to the majority, this is what the NTA requires.[13]
The native title ‘bundle’ might consist of the right to be asked permission to use or access the area concerned, or rights to access and use the land in order to protect sites, perform ceremonies, fish, hunt, gather traditional foods, access natural resources etc. In some instances, the bundle may include a right of exclusive possession.[14]
Unless the legislature intervenes to provide otherwise, any right or interest in the native title bundle will be extinguished whenever an inconsistent non-native title right exists or existed at any time in the past over the same area.[15] This is sometimes referred to as partial extinguishment. The extent of the inconsistency is determined by applying the ‘inconsistency of incidents test’ (discussed later).
Any rights in the bundle that are consistent with any non-native title rights to the area concerned survive, until some later act lawfully creates non-native title rights that are inconsistent with any of these remaining rights. In this way, the native title bundle can be diminished over time by the sedimentary layers of dealings that have occurred since sovereignty was asserted over the area.[16]
The conceptualisation of native title as a bundle of rights led the majority to conclude that the content and extent of each of the claimed native title rights and interests should be exhaustively identified with a high degree of specificity because a failure to do so may ‘mask the fact that there is an unresolved question of extinguishment’.[17]
When determining whether or not there is any inconsistency between native title and non-native title rights and interests the ultimate question is whether, by the steps that were taken or acts that were done, the Crown created in others or asserted rights in relation to the area concerned that were inconsistent with any native title rights and interests over the area.
This usually requires that all acts done at any time since sovereignty was asserted over the area that involved the concession, reception, creation, grant or assertion of a non-native title right must be identified.[18] This involves tracing the history of dealings with the area covered by the native title claim from the date on which sovereignty was asserted to the present day.[19]
If there is inconsistency, then ‘it was accepted in Mabo (No 2) that the common law would prevail’.[20] The decision in Ward makes clear that, unless the legislature intervenes, the common law prevails by withdrawing recognition of those rights and interests to the extent they are inconsistent with rights and interests ‘created in others, or asserted’ by the Crown in any capacity.[21]
As the Court notes, one of the major effects of the decision in Ward is that the native title right most likely to be inconsistent with non-native title rights is the right to control who may access and use the land and waters concerned, because:
[t]he assertion of sovereignty marked the imposition of a new source of authority ... Upon that authority being exercised, by the creation or assertion of rights to control access to the land, the [native title] right to be asked permission to use or have access to the land was inevitably confined, if not excluded.[22]
Since ‘it may greatly be doubted that there is any right to control access to land or make binding decisions about the use it is put’ unless there is also a right to exclusive possession of the area concerned,[23] these are the most ‘inherently fragile’ native title rights.[24]
For example, the majority notes that if it could be shown that there was an exclusive native title right to possession, occupation, use and enjoyment of tidal waters,[25] it would be ‘fundamentally’ inconsistent with common law public rights to fish and navigate in these waters.[26] Therefore, any such native title right was extinguished when the colony received the common law of the new sovereign.[27]
To determine whether the common law will recognise native title under s 223(1)(c) of the NTA, the nature and location of the intersection of two ‘radically different social and legal systems’[28] must be identified by paying ‘careful attention’ to:
The reference to statutory law is important because s11(1) of the NTA, which is a ‘central provision’,[30] provides that ‘native title is not able to be extinguished contrary to’ the NTA.[31] Therefore, questions of extinguishment ‘do not fall for consideration purely under the common law ... divorced from statute’.[32] However, neither s10, which provides for the recognition and protection of native title under the NTA, nor s11 provide native title with blanket protection from extinguishment. The NTA regime operates only to prescribe whether acts done under the authority of either Commonwealth, state or territory laws are valid or invalid and, if valid, the conditions of validity.[33]
For example, the NTA provides for the validation of ‘past acts’,[34] a defined class of acts done after the RDA commenced on 31 October 1975 but (usually) before the NTA commenced.[35] Following the decision in Mabo (No.1),[36] and without the intervention of the NTA, these acts are invalid to the extent that they ‘affected’ native title.[37] The NTA intervenes and ‘displaces the invalidity which otherwise flowed from the operation of the RDA’[38] by validating (ie making legally effective) the otherwise invalid (ie unlawful) acts as past acts.[39]
Where a past act is attributable to the Commonwealth, validation takes place by operation of the NTA. Section 19 of the NTA allows the states or territories to legislate to validate past acts attributable to them, provided certain conditions are met. Legislation passed in reliance upon this provision is referred to as the state or territory ‘analogue’ because it contains provisions that are analogous, but not necessarily identical, to the provisions of the NTA.[40] Past acts are divided into four categories, two of which (Category A and B) have the effect of extinguishing native title, either completely or partially.[41]
However, the mere fact that an act affecting native title took place on or after the RDA commenced but before the NTA commenced does not mean that it is a ‘past act,’ because the application of the RDA does not necessarily make these acts invalid. If it does not, then the act was ‘effective at common law to work extinguishment of native title’.[42] The extent of the extinguishment is determined by applying the inconsistency of incidents test (discussed later). Note that the validity of most acts done on or after the NTA commenced is determined by applying the provisions of the NTA and the state or territory legislative analogues without reference to the RDA.[43]
Finally, neither the NTA nor the state and territory analogues affect the validity of any act done before the RDA commenced.[44] The only encroachment by the legislature upon this period is found in the confirmation of extinguishment provisions that were inserted by the 1998 amendments to the NTA and the state and territory analogues.[45] These provisions ‘confirm’ the extinguishment or impairment of native title brought about by ‘previous exclusive possession acts’ and ‘previous non-exclusive possession acts’[46] done at any time on or before 23 December 1996.[47] In cases where these provisions do not apply to an act that took place before the RDA commenced, whether or not it was ‘effective at common law to work extinguishment’[48] is determined by applying the inconsistency of incidents test. Again, it is usually necessary to identify all acts done at any time since sovereignty was asserted over the area that involved the creation, grant or assertion of non-native title rights in order to apply the confirmation of extinguishment and validation provisions of the NTA, and state or territory analogues.[49]
Although a ‘clear and plain intention’ to extinguish native title must be demonstrated,[50] that expression ‘must not be misunderstood’.[51] The question is not what the legislature meant but the meaning of the statute under which the act in question was done.[52] Obviously, where the NTA and state and territory analogues mandate extinguishment (eg as a result of a previous exclusive possession act having been done), the intention to extinguish is ‘clear and plain’.
There are several ways in which the legislature intervenes in relation to the extinguishment of native title:
Where native title is only partially extinguished or suspended, the extent of any inconsistency must be determined by applying the inconsistency of incidents test because native title rights and interests are only extinguished or suspended to the extent that they are inconsistent with any non-native title rights and interests.[57]
The confirmation of extinguishment provisions found in Pt 2 Div 2B of the NTA and the state/territory analogues provide ‘the analytical starting point’[58] when dealing with extinguishment in relation to a native title claim. These provisions resolve the priority to be given to the provisions dealing with the effect of certain acts on native title.[59] An overlap arises between the latter provisions because there is an overlap between the dates used to determine whether or not a particular act falls within a particular prescribed category. For example, the past act period generally runs from 31 October 1975 to 1 January 1994, and the whole of this period is also covered by the confirmation of extinguishment provisions.[60]
Pt 2 Div 2B provides that the effect of the validation of an act that can be categorised as both a past or intermediate period act, and either a previous exclusive or non-exclusive possession act is determined under the provisions dealing with the effect of previous exclusive or non-exclusive possession acts.[61] For example, if a grant of freehold falls within the definition of a Category A past act but is also caught by the previous exclusive possession act provisions, then its effect on native title is as a previous exclusive possession act.[62]
One exception to the priority given to the confirmation of extinguishment provisions is in a case where a non-exclusive pastoral or non-exclusive agricultural lease that is a ‘previous non-exclusive possession act’ also falls within the definition of a Category A past act. In these cases the effect of the act is total, rather than partial, extinguishment or occasionally suspension. That is, the effect of the act is found in s15(1)(a) and not s23G(1)(b)(i).[63]
In cases where neither the NTA and the state/territory analogues nor the common law provide for complete extinguishment,[64] the extent of the inconsistency between the claimed rights and interests that are recognised by ss223(1)(a) and (b) and the common law of Australia is determined by applying the ‘inconsistency of incidents test’. Under this test, the rights and interests that make up both the native title and the non-native title bundles of rights must be specifically identified. It will usually only be possible to determine the extent of any inconsistency between native title and non-native title rights and interests once the legal content of both sets of rights said to conflict is established.[65]
An ‘objective inquiry’ directed at determining the extent of the inconsistency, between the claimed native title rights and interests and any non-native title rights and interests that exist or previously existed over the claim area is then conducted. Any native title rights found to be inconsistent with any of the non-native title rights will be extinguished unless the legislature has intervened to provide otherwise.
The fact that non-native title rights exist or previously existed over a particular area does not automatically indicate that there is inconsistency. There may be circumstances where there is no inconsistency ‘in the relevant sense’ at all.[66] In other words, there may be ‘consistent’ native title rights and interests in the bundle that survive the creation, grant or assertion of non-native title rights. For example, ‘many’ native title rights other than those conferring a right to control use and access, may survive the grant of a pastoral lease that does not confer a right of exclusive possession on the lessee.[67]
Use of an area by a non-native title party may suggest or demonstrate that inconsistent rights have been created. However, the ‘basic inquiry’ is about inconsistency of rights, not inconsistency of use.[68] Therefore, evidence of activities done in a particular area or how the area has been used is relevant to an inquiry into inconsistency only to the extent that it focuses attention on the right to use the area that is asserted.[69] Moreover, the fact that native title rights may not be capable of being exercised over a particular area or at a particular time because of the exercise of non-native title rights is not necessarily an indication that there is any inconsistency. However, there may be spatial and temporal conflict between the exercise of the two sets of rights.[70]
Prior to enactment of the original NTA but following the decisions in Mabo (No.1) and Mabo (No.2),[71] it was possible that acts that affected native title done after the commencement of the RDA were invalid. As noted earlier, the enactment of the original NTA rendered valid what might otherwise have been invalid under the law at the time.
The relevant provision of the RDA is s10(1),[72] which is directed at circumstances where by reason of a law of the Commonwealth, a state or a territory:
In determining whether the application of the RDA, without intervention by the NTA, would have invalided an act done under statutory authority[74] after the RDA commenced, over an area where native title existed at the time, three possible scenarios were identified in Ward.
The first is that a law in question is expressed in ‘general terms’ and ‘forbids [or removes] the enjoyment of a human right or fundamental freedom’ in such a way that ‘the burden falls upon all racial groups equally’. In these cases, there is ‘no discrimination’, s10(1) of the RDA is not attracted and the law takes effect on its terms. The past act provisions of the NTA are not attracted because there is no question of invalidity.
An acquisition under s18 of the Public Works Act 1902 (WA), pursuant to which the ‘estate and interest of every person’ in the area concerned was deemed to have been converted into a compensation claim, was found to fall into this category: ‘The Public Works Act provided no different treatment of native title rights and interests from the treatment of other rights and interests’.[75] A similar finding was made in relation to the grant of a mining or general purpose lease under the Mining Act 1978 (WA), subject to those whose native title was partially extinguished by such a grant being given an entitlement to compensation as ‘owners’ or ‘occupiers’ of the area in question, as those terms are defined in the state legislation.[76]
The second scenario is that a law in question omits to make enjoyment of the rights in question universal. For example, ‘a state law ... provides for the extinguishment of land titles but provides for compensation only in respect of non-native title’.[77] In these circumstances, the state law is valid, as is any act done pursuant to it that extinguished the ‘land titles’. This means that the past act provisions of the NTA are not attracted because there is no question of invalidity. However, the RDA will confer the same rights on those whose native title was extinguished as the state law does on those who held non-native title rights.[78]
The grant of a mining or general purpose lease under the Mining Act 1978 (WA) will fall into this category if it is found that those whose native title was partially extinguished by such a grant were not entitled to compensation as ‘owners’ or ‘occupiers’ under the Mining Act.[79] The vesting of a reserve under s33 of the Land Act 1933 (WA), which is an act that completely extinguishes native title, would also fall into this category if native title existed at the time of the vesting and only native title rights were extinguished without compensation.[80]
The third possibility is that the purpose or effect of the law in question is that it allows for the uncompensated destruction of native title rights and interests while leaving other titles intact.[81] This infringes only the native title holders’ enjoyment of the fundamental right to be immune from arbitrary deprivation of property rights. In these circumstances, s10 of the RDA confers the same immunity from legislative interference with the relevant right on those whose native title was extinguished as that enjoyed by other members of the community.[82] As a result, the state law in question is inconsistent with s10 of the RDA and by operation of s109 of the Commonwealth Constitution, is rendered inoperative to that extent.[83] Any act done under the authority of this state law would have been invalid had the NTA not intervened via the past act regime to validate these acts. It is only in these circumstances that the past act provisions are attracted, bringing with it the possibility that the non-extinguishment principle will apply.
Examples of the third category are the grant of a non-exclusive pastoral lease or the creation of a reserve under the Land Act 1933 (WA) over an area where the native title right to control use and access existed at the time.[84]
The long awaited decision in Ward disappointed those hoping for more coexistence than extinguishment. While McHugh J, in dissent, was referring to the past, his comments seem pertinent to the current state of affairs:
Given the racist nature of Australian society at material times, it would not surprise me that, if the Aboriginal people ... complained of the injustice of their treatment, the legislature would have replied as the Athenian representatives cynically ... replied to the Melians from whom they were demanding tribute:
[y]ou know as well as we do that, when these matters are discussed by practical people, the standard of justice depends on the equality of power to compel and that in fact the strong do what they have the power to do and the weak accept what they have to accept.[85]
The case also serves to emphasise the complexity of the route that must be taken to achieve recognition of native title, even where what is achieved is the recognition of a set of rights rendered ‘small ... and harmless’[86] by operation of the legislature and the common law of Australia. It is now clear that other avenues must be pursued if the wrongs brought about by the continuing dispossession of Aboriginal and Torres Strait Islanders are to be redressed.[87]
Lisa Wright is a Senior Legal Officer at the National Native Title Tribunal.
1 Western Australia v Ward (2002) 191 ALR 1. The majority comprised Gleeson CJ, Gaudron, Gummow and Hayne JJ in a joint judgement, with Kirby J reluctantly concurring.
[2] It is assumed that claimants have been able to meet the onerous burden of proof cast upon them via the High Court’s interpretation of ss223(1)(a) and (b) of the NTA: see ‘Part One of an Analysis of Ward decision’ (2003) 5(22) ILB.
[3] For a more expansive analysis of Ward and other recent High Court cases, see the Aboriginal & Torres Strait Islander Social Justice Commissioner’s Native Title Report 2002 available at www.hreoc.gov.au. For a summary of the majority decision in Ward, see Native Title Hot Spots No.1, National Native Title Tribunal homepage: ‘Newsletters’ at http://nntt.gov.au. For a series of articles on particular aspects of the case, see issue No 10, (2001-2002) 5 NTN.
[4] Commonwealth v Yarmirr (2001-2002) 208 CLR 1 [10], per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
[5] Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 194 ALR 538 (Yorta Yorta), [77] per Gleeson CJ, Gummow and Hayne JJ.
[6] The notion of withdrawing recognition is an acknowledgement that the native title claim group concerned has proven, in the face of the many obstacles presented by ss223(1)(a) and (b), that the rights and interests claimed do in fact exist currently. However, due to the exercise of the powers available to or the concession of rights under international law by the new sovereign, the court can no longer recognise them as native title rights and interests.
[7] Ward (2002) 191 ALR 1, [21] or, in other words, are ‘antithetical to fundamental tenets of the common law’: Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, [77] per Gleeson CJ, Gummow and Hayne JJ.
[8] This is put somewhat obliquely in Ward (2002) 191 ALR 1, [21] but see Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, [77].
[9] Ward (2002) 191 ALR 1, [21] and [78]. It is doubtful that a failure to satisfy the requirements of ss223(1)(a) and (b) is ‘at the core of the meaning to be given to extinguishment’: Ward (2002) 191 ALR 1, [26]. In these cases, native title will be found to have ceased to exist, rather than to have been extinguished.
[10] Case law does not yet provide examples of rights and interests falling into the first criterion for withdrawal and has not been developed in relation to the second: Ward (2002) 191 ALR 1, [20] to [21]. Therefore, in cases where recognition has been found to have been withdrawn under s223(1)(c), the logical conclusion is that this was because the rights in question were extinguished.
[11] Ward (2002) 191 ALR 1, [21]; Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, [77]. The legislature can also intervene to extinguish native title where this would not be the case otherwise.
[12] Ibid, [5], [76] to [79], [82], [95], [190] to [192], [221], [258] to [260] and [422].
[13] Ibid, [14]. However, this fragmentation apparently takes place as a result of s223(1)(a) and (b) which, at [2], the majority found is ‘plainly based’ on what was said in Mabo v Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1.
[14] Ibid, [88].
[15] Ibid, [5], [76] to [79], [82], [95], [190] to [192]. For example, unless the legislature otherwise provides, an exclusive native title right to control access to and use of a particular area is extinguished whenever a non-native title right to access and use the same area has been lawfully created over the same area.
[16] For a discussion of why High Court’s approach to extinguishment of native title in Australia, from Mabo v Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1 onwards, ‘cannot be ... justified on the basis of legal principle and precedent’, see ‘The Vulnerability of Indigenous Land Rights in Australia and Canada’ by Kent McNeil, forthcoming in Property Rights in the Colonial Imagination and Experience’, A Buck, J McLaren and N Wright (eds), University of British Columbia Press, Vancouver, 2003.
[17] Ward (2002) 191 ALR 1, [53]: The more general the terms in which the findings are made as to the subsistence of native title, the more difficult the giving of specificity to findings of extinguishment: Ibid, [29]. This is also true in circumstances where the legislature has intervened to provide for the suspension of native title rights and interests to the extent of the inconsistency with a non-native title right or interest. (Arguably, s225 of the NTA also requires a similar degree of specificity). Note that specific findings as to the nature and content of a native title right may facilitate a finding that it has been regulated rather than extinguished: Ward (2002) 191 ALR 1, [29], referring to Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351.
[18] On the effect of the acquisition of sovereignty, the concession of rights at international law and the reception of the common law, see Yarmirr (2001-2002) 208 CLR 1.
[19] This is not necessary if it is apparent that an act that wholly extinguishes native title has been done over the area concerned. However, most claimant applications exclude all such areas from the area covered by the application because of s61A(2) and ss190B(8) and (9)(c). Note the exception in s61A(4).
[20] Yarmirr (2001-2002) 208 CLR 1, [42] referring to Mabo v Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1.
[21] The effect of the acquisition of sovereignty and the reception of the common law may also need to be considered: Yarmirr (2001-2002) 208 CLR 1.
[22] Ward (2002) 191 ALR 1, [91].
[23] Ibid, [52]
[24] Ibid, [91]
[25] The judges were of the view that no such right had been proven.
[26] Ibid, [388].
[27] Ibid, [388]; and Yarmirr (2001-2002) 208 CLR 1.
[28] Yarmirr (2001-2002) 208 CLR 1 [10].
[29] Ward (2002) 191 ALR 1, [82] and [85], emphasis added.
[30] Ibid, [43].
[31] Ibid, [91].
[32] Wilson v Anderson (2002) 190 ALR 313, [50] per Gaudron, Gummow and Hayne JJ. See also Ward (2002) 191 ALR 1, [5] to [11].
[33] Ward (2002) 191 ALR 1, [98], citing Western Australia v Commonwealth (The Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 at 469. In some cases, the legislative scheme also prescribes the effect of certain classes of acts on native title.
[34] See Ward (2002) 191 ALR 1, [5] to [11] and [135] to [137], and Pt 2, Div 2 and s 228 to 232 NTA and the state or territory analogues. The NTA and state/territory analogues also validate ‘intermediate period acts’. The application of these provisions was among the matters remitted to the Federal Court: see Ward (2002) 191 ALR 1, [140].
[35] See s228 to s232 and Pt 2 Div 2 NTA and the state/territory legislation passed in reliance upon s19 NTA. Note, some ‘past acts’ take place after the NTA commenced: see s228(3)ff.
[36] Mabo v Queensland (No.1) (1988) 166 CLR 186.
[37] An act ‘affects’ native title if it extinguishes native title rights and interests or is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise: s227 NTA.
[38] Ward (2002) 191 ALR 1, [99]. See also s7(3) NTA. Invalidity would have resulted by operation of the RDA and s109 of the Commonwealth Constitution.
[39] Ibid, [5] to [7]; Pt 2, Div 2 and s228 to 232 and, for acts attributable to the state or territory, the analogous state/territory legislation passed in reliance upon s19 NTA.
[40] See s19 NTA. In Ward, the state analogue was the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and the Northern Territory analogue was the Validation (Native Title) Act 1994 (NT).
[41] See ss15 and 229 to 232 NTA and state or territory analogues.
[42] Ward (2002) 191 ALR 1, [5]. Note that the legislation dealing with confirmation of extinguishment by previous exclusive and non-exclusive possession acts must also be considered.
[43] The RDA may be relevant to some acts done after the NTA commenced where these are past acts: see ss223(3) to (10).
[44] According to Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 and Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, these acts were always valid.
[45] Pt 2, Div 2B NTA and the state or territory analogue passed in reliance upon s 23E and s 23I NTA. See Ward (2002) 191 ALR 1, [8] to [11], [41], [138] to [139].
[46] As defined in ss23B and 23F NTA for acts attributable to the Commonwealth or, where the act is attributable to the state or territory, the state/territory analogues.
[47] In the cases of previous non-exclusive possession acts, some will take place after this date: s23F(3) and state/territory analogue.
[48] Ward (2002) 191 ALR 1, [5].
[49] The effect of the acquisition of sovereignty and the reception of the common law may also be relevant: Yarmirr (2001-2002) 208 CLR 1.
[50] Western Australia v The Commonwealth (1995) 183 CLR 327, 423 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
[51] Ward (2002) 191 ALR 1, [78].
[52] Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169 per Gummow J, referred to with approval in Ward (2002) 191 ALR 1 at [78].
[53] Pt 2, Div 2 and Div 2A, ss228 to 232E NTA and the state or territory analogues.
[54] Pt 2, Div 2B NTA and state or territory analogue. There may be circumstances where statutory ‘confirmation’ of extinguishment exceeds that which would have occurred under the common law inconsistency of incidents test, as was noted in Wilson v Anderson (2002) 190 ALR 313, [51] per Gaudron, Gummow and Hayne JJ. However, this has not been the case to date
[55] See ss47, 47A and 47B, which apply respectively to areas that were, when the claimant application was made: (a) subject to a pastoral lease held by or on behalf of the native title holders; or (b) held by or on behalf of Aboriginal peoples or Torres Strait Islanders and occupied by one or more members of the claim group; or (c) certain areas of unallocated Crown land that were occupied by one or more members of the claim group. Where one of these sections applies, the non-extinguishment principle also applies in relation to the area so that any inconsistent native title rights and interests are suspended for the duration of any ‘prior interest’. These provisions were not considered in Ward.
[56] These provisions were not considered in Ward but see Pt 2 Div 3 and s233.
[57] For example, the grant of a non-exclusive pastoral lease as defined in s248B which is a non-exclusive possession act as defined in s23F to which s23G(1)(b)(i) applies or the grant of a mining or general purpose lease under the Mining Act 1978 (WA): Ward (2002) 191 ALR 1, [187]-[194], [419]-[425] and [296], [308], [309], [340]. Suspension will occur if the non-extinguishment principle in s238 NTA applies: ibid, [418], [423].
[58] Ward (2002) 191 ALR 1, [10].
[59] Ibid.
[60] See Appendix I.
[61] See ss23C(3) and 23G(3) NTA and state/territory analogues.
[62] However, its status as a past act will be of importance in relation to compensation entitlements under the NTA: see s23J NTA and Wilson v Anderson (2002) 190 ALR 313. As noted, there are cases where the NTA provides that such extinguishment must be disregarded for all purposes under the NTA: see ss47, 47A and 47B.
[63] See s23G(2) NTA and state/territory analogues and Ward (2002) 191 ALR 1, [418], [423].
[64] For example, the NTA provides that all previous exclusive possession acts and all Category A and some category B past and intermediate period acts completely extinguish native title.
[65] Ward (2002) 191 ALR 1, [82] and [149]. Note also, if it is clear that the act in question is wholly inconsistent with the continued existence of native title (eg the vesting or grant of a fee simple estate or grant of a lease that confers a right of exclusive possession), this inquiry is not required.
[66] Ibid, [26].
[67] Ibid, [193] to [194]. The only exception is where the lease in question is also a category A past act, where the effect of validation is total extinguishment: ibid at [418] and s23G(2).
[68] Ibid, [215].
[69] Ibid, [78].
[70] Ibid, [308].
[71] Mabo v Queensland (No.1) (1988) 166 CLR 186 and Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 respectively.
[72] Ibid, [98] to [104].
[73] Ibid, [103], [105], [127] to [133], emphasis in original.
[74] For example, the grant of a pastoral lease or the creation of a reserve in accordance with the relevant legislation.
[75] Ward (2002) 191 ALR 1, [278]. At [279], however, the majority contemplate that there was a question about the validity of the compensation provisions of the Public Works Act, which could mean that the RDA would invalidate those provisions and give those whose native title was extinguished a right to compensation. If so, this would fall into the second category.
[76] Ibid, [316] to [321], [342].
[77] Ibid, [108].
[78] Under s45 of the NTA, any compensation entitlement must be determined under the NTA provisions dealing with compensation: see Ward (2002) 191 ALR 1.
[79] Ward (2002) 191 ALR 1, [316] to [321], [342].
[80] Ibid, [250] to [253].
[81] Ibid, [108].
[82] Ibid, [109], referring to Mabo v Queensland (No.1) (1988) 166 CLR 186 at 219 and North Ganalanja Aboriginal Corp v Queensland (1996) 185 CLR 595.
[83] Ibid, [108].
[84] Ibid, [418] to [422] and [222] .
[85] Ibid, [528]. This is not to say that indigenous people are ‘weak’. Rather, it illustrates the effect of the power imbalance.
[86] Aboriginal & Torres Strait Islander Social Justice Commissioner, Native Title Report, 2002, p30
[87] The Preamble to the NTA has always acknowledged that ‘many Aboriginal peoples and Torres Strait Islanders, because they were dispossessed of their traditional lands, will be unable to assert native title rights and interests and that a special fund [the Indigenous Land Fund] needs to be established to assist them to acquire land.’
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