Case: Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1
Outcome: discussed
The Commonwealth points out that Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 (' Mabo (No 2) '), decided that the extinguishment of native title by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title rights and interests does not entitle the native title holders to compensation. It follows, so it is said, that any general right to compensation must be created by statute. The mere fact that native title has been extinguished does not create a right to compensation. The Commonwealth also says that an act which occurred prior to the enactment of the NTA , which at the time was both valid and effective to extinguish native title, is not affected by the NTA (although the NTA confirms the extinguishment of native title by a valid 'previous exclusive possession act'). 635 Assuming (contrary to the Commonwealth's principal submissions and my findings) that the applicants have established the existence of native title rights and interests over the Application Area at the date of the compensation acts, the Commonwealth submits that compensation is payable to them only if: &#8226; the act in question was valid, but a right to compensation was created by s 10(1) of the RD Act so as to confer upon the native title holders the same rights as the holders of other forms of title ( NTA , s 45); &#8226; the act in question was invalid by reason of the existence of native title (being a 'past act' as defined in the NTA , s 228), but was validated by the NTA or equivalent State or Territory legislation ( NTA , s 20); or &#8226; the act was a 'previous exclusive possession act' within s 23B of the NTA which extinguishes native title under Div 2B of the NTA , but only to the extent that native title rights were not extinguished otherwise than under the NTA ( NTA, s 23J). 636 The Commonwealth accepts that the grants of fee simple estates over Crown land within the Application Area do not of themselves extinguish any native title rights and interests that may have survived the grant of the nineteenth century pastoral leases. The same concession is made in relation to CL 256. The concessions are said to be dictated by reasoning in Ward (HC), based on s 10(1) of the RD Act , in relation to certain leases of Crown land in the Territory. The Commonwealth accepts that the circumstances in Ward (HC) cannot be distinguished from those of the present case. 637 Nonetheless, the Commonwealth contends that any surviving native title rights and interests over the Application Area (other than the Lasseter Highway) were extinguished before the NTA or the Validation Act came into force. This result is said to flow from the operation of the so-called indefeasibility provisions of the South Australian Torrens system statute, the Real Property Act which, as amended by Territory laws, was then in force in the Territory. According to the Commonwealth, the Real Property Act conferred an indefeasible title on each grantee which title validly extinguished any surviving native title rights and interests. There was no inconsistency with s 10(1) of the Real Property Act , so it is argued, because the Real Property Act treats unregistered native title rights and interests in the same way as other unregistered interests in land brought under the Real Property Act . I deal with this argument later (see section 24.3, below). 638 The Commonwealth submits that, in these circumstances, native title holders are not entitled to compensation for the extinguishment of their rights and interests over the Application Area. Neither s 20 nor s 23J confers any right to compensation, since the extinguishment took place independently of the NTA and the Validation Act. The Commonwealth also submits that the construction of the Public Works by the Territory validly extinguished any surviving native title rights and interests independently of the operation of the NTA or the Validation Act . Thus no entitlement to compensation arises under the NTA in respect of the extinguishment of those rights and interests.