6 Redefining extinguishment

HIGH COURT OF AUSTRALIA, 2002

The decision of the High Court in Western Australia v Ward (2002) (Ward) was met with disappointment and criticism.¹ The joint majority judgment of Chief Justice Gleeson and Justices Gaudron, Gummow and Hayne broadened the extent of extinguishment and reinforced the vulnerability of native title to later grants, while illustrating the complexity of inquiry required to establish the effect of extinguishing tenures on pre-existing native title. On a number of issues, the High Court’s reasoning and the resulting legal position remained unclear or ambiguous. This chapter points to a number of areas where the reasoning was open to interpretation and required further articulation by the courts. In particular, the interpretations that could lead to meaningful recognition and protection of native title have been highlighted over narrower interpretations that continue to risk leading the native title doctrine into an unworkable quagmire of impossible tests, inconsistent outcomes, incoherent theoretical underpinning and results that provide no substantive rights recognition for native title holders.

The claimed area is the traditional territory of the Miriuwung and Gajerrong peoples, an area of some 8000 square kilometres in the East Kimberley and the Northern Territory. The application was lodged in 1994, and in 1998 Justice Lee of the Federal Court confirmed that native title existed in the whole of the determination area. Justice Lee recognised a native title as right in the land itself, an underlying interest from which pendant rights, such as the right to use resources or to control access, or more narrowly defined rights such as the right to hunt, are carved.² So long as one right remains to be exercised, the underlying title (or root title) remains. Inconsistent grants, on this understanding, therefore have an impact on the exercise of rights and — if there is a limitation on the grant, for example, a licence for a limited time — the grant’s impact on the exercise of inconsistent rights only extends until the expiry of the term of the licence. After the decision, this reasoning was contrasted with what was understood as the ‘bundle of rights’ conception of native title, under which native title is constituted by a bundle of freestanding independent rights, each of which can be extinguished, permanently, one by one. Justice Lee rejected this notion of partial extinguishment. In order to find absolute and permanent extinguishment, Justice Lee argued, inconsistent rights granted must be absolutely and permanently inconsistent, concluding that:

His Honour recognised that the extent to which native title could protect the rights held under traditional laws, customs or practices was limited by the extent to which:

On appeal, the full Federal Court unanimously confirmed that the Miriuwung and Gajerrong peoples held native title to most parts of the claim area. But the two majority judges (Justices Beaumont and von Doussa) did not agree that native title could be characterised as an interest in land, and hence rejected Justice Lee’s conclusions with regard to partial extinguishment.⁵ Justices Beaumont and von Doussa acknowledged that common law native title recognises ‘rights and interests in or in relation to [the] land’,⁶ and referred to the continuum of interests that may approach full ownership, but concluded that, whether proprietary or usufructuary, even exclusive possession native title remains a personal right.⁷ They adopted the language of a bundle of rights, although in doing so they admitted that native title rights and interests in a particular case may be ‘so extensive as to be in the nature of a proprietary interest in land’.⁸ In any event, Justices Beaumont and von Doussa argued, it was not inaccurate to describe proprietary interests as a ‘bundle of rights’.⁹

Justice North, in dissent, criticised this approach that understood native title as a collection of distinct and severable rights because it denies the necessary unifying factor, or underlying title, that is necessary to the exercise of the separate rights.¹⁰ Instead, Justice North argued that the communal title was an interest in land and holders of native title have rights and interests that flow from the right to the land.¹¹ The language of a ‘bundle of rights’ was not, of itself, a concern in the majority judgment. As Justices Beaumont and von Doussa suggested, it is a term used in reference to interests in land, including freehold and leasehold as an abstract expression. They conceded that where native title rights comprise an exclusive right to possess, occupy, use and enjoy the land, it would be an impossible task to specify every kind of use or enjoyment that might thereby flow from native title. Where rights and interests are less than exclusive possession, ‘it will be necessary to sufficiently identify them’.¹² This would be particularly apparent when determining the impact of grants of inconsistent rights. The majority held that, as inconsistent rights and interests are extinguished, the ‘bundle of rights’ that make up the native title are reduced accordingly.¹³ The difference between Justices Beaumont and von Doussa (in the majority) and Justices North (in dissent) and Lee (at first instance) was in the scope for the suspension and revival of incidents, or more particular rights. Justice North argued for proportionality between the impact of the law and the effect on native title, such that native title should only be impaired to the extent necessary to ensure that inconsistent rights or interests can be exercised without interference.¹⁴ This would appear to be consistent with the High Court reasoning in Wik Peoples v Queensland (1996) (Wik).¹⁵

The decision was appealed to the High Court, where issues for consideration concentrated on the nature and principles of extinguishment. The two questions posed were, first, whether there can be partial extinguishment and, second, what the principles are for determining extinguishment.

EXTINGUISHMENT UNDER THE NATIVE TITLE ACT 1993

The High Court confirmed earlier comments that the Native Title Act 1993 (Cth) (NTA) is at the core of native title litigation where applications are brought for determination under the NTA.¹⁶ With particular attention to the principles of extinguishment at the centre of the appeal in Ward, the Court highlighted that, in accordance with s 11, native title is not able to be extinguished contrary to the NTA.¹⁷

The High Court majority also stated that the complicated regime under the NTA for confirmation and validation of past grants had altered the position at common law.¹⁸ Part 2, Division 2 of the NTA provides for the validation of ‘past acts’ that would have been invalid at common law according to the formulation of the High Court in Mabo v Queensland [No. 2] (1992) (Mabo) by the operation of the Racial Discrimination Act 1975 (Cth) (RDA). That is, interests were granted or created after the commencement of the RDA on 31 October 1975 without equal treatment in relation to the rights of property holders.¹⁹ Section 15 provides for (or ‘confirms’) the complete or partial extinguishment of native title by particular past acts, such as the grant of freehold or exclusive possession leasehold. Similarly, ss 23C and 23G provide for complete and partial extinguishment (respectively) in relation to previous exclusive possession acts and previous nonexclusive possession acts. Division 2A also introduced a validation regime for acts that took place between 1 January 1994 (the commencement of the NTA) and December 1996 (the date of the Wik decision²⁰), called intermediate period acts. In addition, extinguishment, whether effected by methods under the common law or provisions of the NTA, is deemed to be permanent under s 237A.

With reference to the different views among the Federal Court judges with regard to partial extinguishment, the High Court majority held that (within the legislative framework) partial extinguishment is mandated by the NTA.²¹ Section 23A explains the operation of the partial extinguishment and complete extinguishment provisions:

23A Overview of Division

The provision links partial extinguishment (s 23A(1)) with the extent of inconsistency test (s 23A(3)). The importance of the relationship between this provision and the provision deeming extinguishment to be permanent was not clearly articulated in the majority’s decision but was implicit, for example, in the treatment of particular acts, such as the Argyle project (a major mining development within the claim area). It is this notion of permanency that impinges on the potential of native title.

This is a significant disappointment in the decision because it confirms that the NTA allows the piecemeal erosion of native title. A large part of the effort in arguing against the ‘bundle of rights’ approach was to protect native title from unnecessary erosion over time. As the majority explained, native title may otherwise continue to exist except for the legal conclusion of extinguishment, which withdraws legal recognition of the rights conferred by native title. Justice McHugh was critical of the way in which the law operates in this circumstance to extinguish native title, regardless of the merits of the case.²³

The joint majority judgment emphasised the importance of the suspension and revival provisions in overcoming this injustice. The majority drew attention to the operation of s 15 of the NTA, which provides for the suspension of native title rights and interests in some circumstances, through the non-extinguishment principle (defined in s 238). However, this is limited to acts that, but for the validation provisions of the NTA, would have been invalid by operation of the RDA.²⁴ Section 47B of the NTA also provides in certain circumstances where vacant Crown land exists that:

This provision was drafted to exclude areas currently covered by reservation or dedication.

The majority joint judgment clearly indicated that the Court was only concerned with areas where extinguishment was in issue. Even here, the majority tried to emphasise that native title may survive the grant of interests to others or the exercise of executive power; for example:

The majority judgment drew a distinction between extinguishment within the framework of the NTA, which is permanent, and partial inconsistency under the common law, introducing the concept of ‘relevant inconsistency’ in relation to extinguishment.²⁶ At times, the majority appeared to limit the concept of partial extinguishment to previous non-exclusive possession acts. Further exploration of the relationship between the statute and common law may reveal a basis for arguing that partial extinguishment is a concept introduced by the amendments to the NTA in 1998. This would have significant compensation implications under s 23J.

THE RACIAL DISCRIMINATION ACT AND COMPENSATION

At the outset, the majority joint judgment indicated that there was still no comprehensive consideration of what is meant by ‘recognition’ in relation to native title and what appropriate remedies and protections are afforded by the law.²⁷ The majority noted that compensation for the extinguishment of native title may arise under various provisions of the NTA; for example, under s 23J, compensation might be payable where validation and confirmation provisions result in extinguishment that would not have occurred at common law. This may be the case in relation to some non-exclusive leases that are deemed to extinguish native title, but compensation under the NTA is not the only remedy and protection afforded to native title under Australian law.

The majority examined the protection that might be afforded to native title as a property right and a right of inheritance protected under the RDA. Western Australia v Commonwealth (Native Title Act case) (1995) confirmed that the NTA effectively controls the scope of other laws by determining what state laws or acts are valid and the conditions of validity.²⁸ It also controls the effect of the RDA on validated acts (s 7) to effectively withdraw protection of the RDA in relation to past acts. Apart from this express suspension of the operation of the RDA for the purposes of validation, the RDA continues to operate in relation to any future acts.

The majority emphasised that native title is ‘property’ in the context of the RDA, citing Mabo v Queensland [No. 1] (1988) as first establishing that native title, though it has different characteristics from other forms of title (in particular, not being derived from Crown grant), cannot be treated differently from other titles.²⁹ The right to ownership and inheritance of property protected by the RDA is the same right regardless of the characteristics of that property. The RDA operates on discriminatory laws or laws that affect the enjoyment of rights by some but not others, or to a different extent, based on their race or ethnicity. The RDA can either make an Act or a law invalid, or ‘top up’ legislation to ensure non-discrimination.

The majority explained the operation of the RDA with reference to Justice Mason in Gerhardy v Brown.

The majority explained that the impact of the RDA on state legislation that authorises acts or affects native title must be considered before turning to the impact of the NTA on the particular act. If the RDA does not operate to invalidate the legislation in the first instance, the ‘past acts’ provisions are not engaged. This is important in determining whether the consequential compensation provisions are then engaged. Legislation may not be explicitly discriminatory, but might discriminate in its operation or effect. Thus, the RDA has an effect where the operation of the legislation is racially discriminatory in its treatment of native title holders as a class of interest holders. For example, the definition of ‘occupier’ under the Mining Act 1978 (WA) does not include native title holders, but compensation provisions under that legislation will be extended to native title holders by operation of s 10 of the RDA. The RDA effectively operates to ‘top up’ the legislation and extend the definition of ‘occupier’ under the Act to include native title holders.

PROOF OF NATIVE TITLE

The High Court in Ward