Case: Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1
Outcome: discussed
Sections 9L and 9M of the Validation Act correspond to s 23G of the NTA . Section 23G was introduced by the NTAA 1998 , but was amended in the course of its passage through Parliament. The Supplementary Explanatory Memorandum to the Native Title Amendment Bill 1997 (No 2) ('Supplementary EM') , circulated with the authority of the Prime Minister, explained the provision as follows: 'Paragraph 23G(1)(a) in the [existing] Bill provides that native title is partially extinguished by a previous non-exclusive possession act attributable to the Commonwealth. This reflects the Government's view that at common law the grant of an interest by the Crown extinguishes any native title the continuance of which is inconsistent with the grant: see Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 at 243. That is, native title is extinguished to the extent of any inconsistency with the Crown grant. Of course, it is for a court to determine to what extent native title rights and interests are inconsistent with the grant. This is still the Government's understanding of the common law. There is however an opposing view of the common law. That view is that the grant of a non-exclusive possession title, such as a non-exclusive pastoral lease of the kind involved in Wik, does not extinguish native title rights and interest [sic] that are inconsistent with the grant; rather, the inconsistent native title rights are merely suspended while the non-exclusive possession title is in force. This is not the Government's understanding of the common law. However, the Government has agreed to leave this issue to be finally determined by the common law. Paragraph 23G(1)(b) confirms that the grant of a non-exclusive possession agricultural or non-exclusive possession pastoral lease will extinguish any native title rights and interests that are inconsistent with the grant if that is the position at common law. If however the position at common law is that a non-exclusive possession agricultural lease or non-exclusive possession pastoral lease does not extinguish any inconsistent native title rights and interests, but merely suspends them while the lease is in existence, then subparagraph 23G(1)(b)(ii) ensures that the inconsistent native rights and interests are suspended for the duration of the lease (including as renewed etc).' 551 Section 23G(1)(b) of the NTA gives effect to the Government's intention. It applies to the extent that a previous non-exclusive possession act (in this case, the pastoral lease) involves the grant of rights and interests that are inconsistent with native title rights and interests. If, apart from the NTA, the act extinguishes native title rights and interests, those interests are extinguished (s 23G(1)(b)(i)). However, if the act, apart from the NTA , does not extinguish native title rights and interests, those rights and interests are nonetheless suspended for the duration of the lease (s 23G(1)(b)(ii)). Section 9M(1)(a) of the Validation Act corresponds to s 23G(1)(b)(i) of the NTA, while s 9M(1)(b) corresponds to s 23G(1)(b)(ii). 552 Insofar as the applicants contend that they have native title rights to control access to the land and the use and enjoyment of the land, and that those rights survived the grant of the pastoral leases, they must confront the reasoning adopted in Ward (HC) . The starting point for present purposes is the determination made by the Full Federal Court in that case (reproduced in Ward (HC) , at [47]). The determination declared (par 5) that the native title rights and interests over a part of the determination area included: '(a) a right to possess, occupy, use and enjoy the land; [and] (b) a right to make decisions about the use and enjoyment of the land'. The rights and interests were said (par 9) to be 'not exclusive of the rights and interests of others'. 553 The joint judgment in Ward (HC) noted (at [49)] that there was a tension between pars 5(b) and 9 of the determination. Their Honours said that: '[i]dentifying the content of a right to make decisions about use and enjoyment of land that is not exclusive of the rights of others in that regard is not easy. Providing that, to the extent that any inconsistency exists, native title rights and interests must yield to the rights of others does not help in identifying the content of a non-exclusive right to make decisions about use and enjoyment.' Their Honours also pointed out (at [52]) that without a right as against the whole world to possession of land: 'it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put'. 554 In considering whether the rights granted by the Western Australian pastoral leases were inconsistent with claimed native title rights and interests, the joint judgment in Ward (HC) reached the following conclusions (at [192], [194], [422]): 'These [pastoral leases] were acts involving the grant of rights and interests inconsistent with so much of the native title rights and interests as stipulated for control of access to the land the subject of the grants. The pastoral leases were acts attributable to the State which denied to the native title holders the continuation of a traditional right to say who could or who could not come onto the land in question. That consequence flowed apart from the provisions of the State Validation Act. It followed that to that extent the grants of pastoral leases extinguished native title rights and interests within the meaning of par (b)(i) of s 12M(1) [the equivalent to the Validation Act, s 9M(1)(a)]. ... The right to control access apart, many other native title rights to use the land the subject of the pastoral leases probably continued unaffected. For example, the native title right to hunt or gather traditional food on the land would not be inconsistent with the rights of the pastoral leaseholder although, as stated in par (a) of s 12M(1) [the equivalent to the Validation Act, s 9L], the rights of the pastoral leaseholder would "prevail over" the native title rights and interests in question. On the other hand, for the native title holders to burn off the land probably would have been inconsistent with the rights granted to the pastoral leaseholder, so as to bring about extinguishment as identified in par (b)(i) of s 12M(1). ... The right to be asked permission to use or have access to the land was inconsistent with the rights asserted under the various pastoral leases. Therefore, independently of any operation of the Territory Validation Act, the consecutive pre-RDA grants of the pastoral leases extinguished this native title right. Paragraph (a) of s 9M(1) of the Territory Validation Act thus was attracted and the relevant native title right extinguished.' 555 These conclusions accord with the approach taken in the Yarmirr (HC) . In that case, it was held that there was a 'fundamental inconsistency' between the asserted native title right to exclude all others from the waters of the claim area, on the one hand, and the common law public rights of navigation and fishing, on the other (at [98]). An assertion of sovereignty which conceded the public rights was: 'not consistent with the continuation of a right in the holders of a native title right to the area for those holders to say who may enter the area' (at [99]). The inconsistency lay not merely in the competing claims to control entry to the claim area, but in the expression of that control: 'by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights' (at [100]). 556 The inquiry must commence with the question of fact posed by the NTA: 'what are the rights and interests in relation to land or waters which are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples?' Yarmirr (HC) , at [15]; Ward (HC), at [94]. The rights and interests are those capable of being possessed under traditional laws and customs and need not correspond with common law conceptions of property: Yorta Yorta (HC) , at [40]. Such rights and interests owe their origins to a normative system other than the legal system of the new sovereign power (the Crown). That is, native title rights and interests owe their origins to the traditional laws acknowledged and traditional customs observed by the relevant indigenous peoples: Yorta Yorta (HC) , at [37]. 557 It is therefore a mistake to assume that native title rights and interests are to be expressed in common law terms. For example, it is productive of error to speak of native title rights and interests in terms of 'possession'. As was said in Ward (HC) , at [89]: 'to speak of "possession" of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms'. 558 Although the right to be asked for permission to enter or use the land and to speak for country is a core concept in traditional laws and custom, it is not an exhaustive description of the rights and interests in relation to land that exists under those laws and customs: 'It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it. To speak of Aboriginal connection with "country" in only those terms is to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between the community and the land very differently from the common lawyer'. Ward (HC) , at [90]. 559 Curiously enough, it is this core concept of a right to be asked permission and to speak for country that made native title 'inherently fragile' before the enactment of the NTA. As was said in Ward (HC) , at [91]: 'The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. But because native title is more than the right to be asked for permission to use or have access (important though that right undoubtedly is) there are other rights and interests which must be considered, including rights and interests in the use of the land'. The joint judgment also observed (at [94]) that there is particular scope for error: 'if a portmanteau expression used to translate those rights and interests ("possession, occupation, use and enjoyment ... to the exclusion of all others") is severed into its constituent parts and those parts are then treated as they would be in the description of some common law title to land.' It is doubtless for this reason that the applicants do not contend that their pleaded right against the whole world to possession, occupation, use and enjoyment of the claim area is consistent with the rights granted by the pastoral leases. 754 In Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (' Wik '), a majority of the High Court held that certain pastoral leases in Queensland did not confer a right to exclusive possession on the lessees and thus did not necessarily extinguish all incidents of native title. The decision in Wik was thought by many to be inconsistent with the assumptions underlying the NTA . In particular, the recitals to the NTA recorded that the High Court in Mabo (No 2) had: '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 '. (Emphasis added.) 755 On 8 May 1997 the Government announced a '10 Point Plan' as its response to Wik . The Native Title Amendment Bill 1997 (' NTA Bill 1997' ), which was introduced into the House of Representatives on 4 September 1997, was designed to implement the 10 Point Plan. 756 The NTA Bill 1997 was passed by the House of Representatives on 29 October 1997. The Senate subsequently passed the Bill but amended it extensively. The Bill was reintroduced into the House on 9 March 1998. Many of the Senate's amendments were accepted by the House of Representatives and the NTA Bill 1997 was amended to incorporate these changes. It was this version of the NTA Bill 1997 to which the 1997 Explanatory Memorandum was directed. 759 The 1997 Explanatory Memorandum noted that Div 2B confirmed the effect on native title of various types of Commonwealth acts done before 23 December 1996 and that the legislation attempted to reflect the Government's understanding of the common law of native title after Wik (par 5.1). It also noted that Div 2B permitted the States and Territories to confirm the effect of acts they had done prior to 23 December 1996. The 1997 Explanatory Memorandum continued as follows: '5.2 Generally speaking, the existing NTA only provides a framework for dealing with native title. The NTA currently says little about whether or where native title may still exist in Australia, and apart from the very limited validation provisions in Division 2 of Part 2 , says nothing about whether native title may or may not have been extinguished. The NTA generally leaves these issues to be determined by the common law. This has given rise to significant uncertainty for native title claimants and the holders of other interests in land. 5.3 The purpose of the proposed amendments dealing with confirmation of extinguishment of native title is to limit this uncertainty. The effect will be to confirm that the native title is extinguished on exclusive tenures (such as freehold and residential leases) and extinguished to the extent of any inconsistency on non-exclusive agricultural and pastoral leases. Consistent with the Wik decision, the rationale for such confirmation is that the rights conferred and/or the nature of the use of the land is such that the exclusion of others (including native title holders) must have been presumed when the tenure was granted. The amendments will put the matter beyond doubt.' 760 Paragraph 5.28 of the 1997 Explanatory Memorandum addressed the effect of confirmation of extinguishment on the provisions dealing with past acts, as follows: 'If native title has been extinguished by a previous exclusive possession act or a previous non-exclusive possession act, the provisions that deal with the effects of past acts... on native title do not apply [subsections 23C(3) and 23G(3) ... ] . These provisions [included] existing section 15 of the NTA ... Subsections 23C(3) and 23G(3) ensure that there is no overlap between the provisions that extinguish native title. For example, the non-extinguishment principle applies to the grant by the Commonwealth of freehold validated under Division 2 if it was no longer in existence on 1 January 1994 (see subsection 229(2) and section 232) but by reason of s 23C(1) , the native title will now be taken to have been extinguished by that grant.' (Emphasis in original.) 761 The example given in the last sentence of par 5.28 refers to s 15(1)(d) of the NTA , which provides that the non-extinguishment principle applies to a category D past act. A category D past act includes the grant of a freehold estate, where the grant was made before 1 January 1994 but the estate did not exist on 1 January 1994: s 229(2)(a) , (4). Section 23C(1) provides that a previous exclusive possession act (which includes the grant of a freehold estate validated under Div 2) extinguishes native title and does so from the date the act was done. As par 5.28 implies, the effect of s 23C(3) is to exclude s 15 of the NTA from applying to the previous exclusive possession act notwithstanding that it was also a past act. Thus the non-extinguishment principle does not apply to the category D past act.