Case: Wilson v Anderson [2002] HCA 29 ; (2002) 213 CLR 401
Outcome: followed
In any claim for determination of native title, or for compensation for loss or impairment of native title rights and interests, the NTA is 'determinative': Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta (HC) ') , at [32], [70]. Accordingly, even if native title was extinguished under common law rules which are taken to have applied prior to the commencement of the NTA , it is still necessary to consider the application of the statute (and its State and Territory counterparts) to any act said to have extinguished native title: Wilson v Anderson [2002] HCA 29 ; (2002) 213 CLR 401 , at [45]-[47], per Gaudron, Gummow and Hayne JJ. 53 In Wilson v Anderson , Gaudron, Gummow and Hayne JJ observed (at [51]) that s 23J(1) of the NTA : 'has the effect of conferring upon native title holders an entitlement to compensation only where the statutory extinguishment exceeds the extinguishment that would have occurred at common law. The evident purpose of s 23J is to limit, so far as possible, the entitlement to compensation under s 23J, to cases where the "act" is invalid by reason of the Racial Discrimination Act 1975 (Cth) ... and is subsequently validated by s 14 of the NTA or s 8 of the State Act [equivalent to s 4 of the Validation Act ]. However, s 23J also may be attracted in respect of a valid "act" which, although satisfying the definition of "previous exclusive possession act", would not completely extinguish native title at common law. That a different result may be reached under Div 2B of Pt 2 of the NTA or Pt 4 of the State Act [equivalent to Parts 3B and 3C of the Validation Act ] emphasises the point that it is the statutory criteria provided for by those provisions which are to be applied when determining issues of extinguishment.' (Emphasis added.) 54 Section 10(1) of the RD Act (the terms of which are reproduced at par 102, below) may operate to confer a right to compensation upon native title holders where a State or Territory law has failed to make the right universal by denying it to the native title holders. For example in Ward (HC) , the High Court held (at [253]) that s 10(1) of the RD Act conferred a right to compensation on native title holders for the loss of their rights by the creation of a reserve pursuant to a State statute. The RD Act conferred a right to compensation because under State law the only interests that were destroyed without compensation by the creation of the reserve were those of the native title holders. In such circumstances, the creation of the reserve was valid and could not be a 'past act' validated by legislation corresponding to Div 2 of Part 2 of the NTA . The effect of s 10(1) of the RD Act , however, was that the native title holders were entitled to compensation. 55 Section 45 of the NTA is concerned with a right to compensation which arises in such circumstances. It provides as follows: '(1) If the Racial Discrimination Act 1975 has the effect that compensation is payable to native title holders in respect of an act that validly affects native title to any extent, the compensation, in so far as it relates to the effect on native title, is to be determined in accordance with section 50 as if the entitlement arose under this Act. Recovery of compensation (2) If the act took place before 1 January 1994 and is attributable to the Commonwealth, a State or a Territory, the native title holders may recover the compensation from the Commonwealth, the State or the Territory, as the case requires.' 560 A number of other propositions were endorsed in Ward (HC). They were recently summarised in De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (' De Rose (FC) (No 2) '), at [145], as follows: (the references are to paragraphs in Ward (HC) ). '(i) Native title rights and interests are properly to be seen as a bundle of rights, the separate components of which can be extinguished separately (at [76]-[77]). (ii) Where a grant of rights in land is made pursuant to statute, the question (so far as extinguishment is concerned) is whether the rights are inconsistent with native title rights and interests in respect of the land [(at [214])]. This is an objective inquiry which requires identification of and a comparison between two sets of rights, one deriving from traditional laws and customs and the other from 'the new sovereign authority that came with settlement' (at [78], [82]). Reference to the use of land is relevant only to the extent that it focuses attention upon the rights pursuant to which the land is used (at [78]). (iii) Rights held under an interest in land less than a fee simple estate, such as a lease, can be inconsistent with the continued existence of native title rights and interests and therefore can extinguish them (at [80]). (iv) There is no such thing as degrees of inconsistency of rights: "Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency ... Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise " ( at [82]). (Emphasis added.) (v) Section 23G(1)(b)(i) of the NTA contemplates that a previous non-exclusive possession act, such as a pre- RD Act pastoral lease, may grant rights and interests that are inconsistent with native title rights and interests and extinguish the latter (at [192]; see, too, Wilson v Anderson, at [46]). Where that occurs, no question of suspension of native title arises. (vi) Section 23G(1)(b)(ii) of the NTA addresses the case where there is an inconsistent grant of rights which, apart from the NTA and its State [or Territory] counterpart, would not extinguish native title rights and interests. The example given is a post-1975 grant which, by operation of the RD Act , was ineffective to extinguish native title rights and interests (at [82]). (This seems to involve reading the expression "the grant of rights" in s 23G(1)(b) as including a purported grant, given that the RD Act would, apart from the NTA , presumably render the grant invalid.)' To these six propositions derived from Ward (HC) two others can usefully be added: (vii) Reference to the use of land in the context of extinguishment may distract attention from the true inquiry, namely whether rights have been created in third parties that are inconsistent with native title rights and interests. Use of land may suggest, or even demonstrate, that such rights have been created, but the basic inquiry is about inconsistency of rights, not use (at [215]). (viii) The metaphor of a 'bundle of rights' is useful in two respects: 'It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom' (at [95]). (Emphasis added.) 769 This view receives support from the observations concerning s 23J made by Gaudron, Gummow and Hayne JJ in Wilson v Anderson . Their Honours said this (at [51]): 'Sub-section (1) of s 23J has the effect of conferring upon native title holders an entitlement to compensation only where the statutory extinguishment exceeds the extinguishment that would have occurred at common law. The evident purpose s 23J is to limit, so far as possible, the entitlement to compensation under s 23J , to cases where the "act" is invalid by reason of the Racial Discrimination Act 1975 (Cth) ... and is subsequently validated by s 14 of the NTA or [equivalent State or Territory legislation] . However, s 23J also may be attracted in respect of a valid "act" which, although satisfying the definition of "previous exclusive possession act", would not completely extinguish native title at common law. That a different result may be reached under Div 2B of Pt 2 of the NTA or Pt 4 of the State Act emphasises the point that it is the statutory criteria provided for by those provisions which are to applied when determining issues of extinguishment'. Their Honours' observations proceed on the basis that s 23J of the NTA creates an entitlement to compensation in cases where an act is invalid by reason of the RD Act but is subsequently validated by s 14 of the NTA or a State or Territory counterpart. Such an act presumably would be a 'past act' as defined in s 228(2) of the NTA as well as a 'previous exclusive possession act' as defined in s 23B of the NTA. 770 This construction of Div 2B of the NTA does not leave Div 2 without any work to do. Not all past acts are previous exclusive possession acts for the purposes of Div 2B of the NTA. For example, the grant of an estate is not a previous exclusive possession act if the grant involves the establishment of a national park for the purpose of preserving the natural environment: s 23B(9A). Yet such a grant may vest a right of exclusive possession in the grantee which is capable of extinguishing native title rights and interests: Ward (HC) , at [258]. If the grant was invalid under the RD Act by reason of its effect on native title, it could be a past act (s 228(2)) and could be validated by s 14 of the NTA. The effect on native title of the grant would be determined by s 15 of the NTA and the entitlement to compensation would arise under s 17. 771 As Mr Hughston pointed out, this construction of Div 2B accords with what will often be the practical realities and avoids what otherwise would be strange consequences. Previous exclusive possession acts include grants of fee simple estates or leases and the construction of public works. Some of these acts may have been invalid when done by reason of the RD Act (and thus would have been 'past acts'), but this would not have been known at the time. The practical consequences of these acts usually would have included the de facto loss or impairment of native title rights and interests. It makes sense that any right to compensation in respect of the validation of those acts is to be determined as at the date the acts took place.