Case: The Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1
Outcome: discussed
The NT Act in its present form was, of course, enacted largely as a response to the decision of the High Court in Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (" Wik "). In that case the High Court held that the grant of pastoral leases in Queensland did not "necessarily extinguish all incidents of Aboriginal title". The significance of that decision went far beyond the question of the relationship of pastoral leases to native title. It had profound implications for the concept of native title, and the notion of extinguishment generally. 521 The leases under consideration in Wik were all located in far north Queensland. Use of the land was limited to pastoral purposes only. There were no express reservations in favour of Aboriginal people. The importance of the decision lay in the criteria of extinguishment declared applicable to all forms of extinguishment. The majority (Toohey, Gaudron, Gummow and Kirby JJ) stressed the need for a clear and plain intention in order to extinguish native title. This requirement was seen as simply an application of the more general rule whereby there was a presumption against expropriation of existing rights, especially without compensation. In other words, native title was regarded as being protected by universal principles relating to the respect to be accorded to property rights. Native title could not be extinguished without a manifestation of unequivocal intent. In order to manifest such an intent, there would have to be an inconsistency between the native title rights and the rights of the grantee, of such a stark nature, that those rights could not co-exist. 522 The dissentients in Wik , Brennan CJ, Dawson and McHugh JJ, rejected this approach. Brennan CJ stated (at 86) that: "it would erroneous, after identifying the relevant act as the grant of a pastoral lease ... to enquire whether the grant of the lease exhibited a clear and plain intention to extinguish native title". 523 His Honour did not explain what degree of inconsistency would result in extinguishment. However, he did observe that a finding of exclusive possession would give rise to such inconsistency. 524 The majority in Wik viewed pastoral leases as having created only the rights and obligations contemplated by the legislation under which they were granted. Accordingly, they rejected any notion that a pastoral lease could be equated with a common law leasehold interest. The minority, however, regarded the use in a statute of a term such as "lease", that had acquired a technical legal meaning, as prima facie evidence that the legislature intended the rights conferred under that instrument to bear that meaning. Thus, a pastoral lease would normally be regarded as conferring a right to "exclusive possession". Such a right was manifestly inconsistent with native title. 525 Much of the reasoning in Wik is now of historical interest only. It has been overtaken by the enactment of the Native Title Amendment Act 1998 (Cth). That Act came into effect on 30 September 1998. It amended the NT Act , with a view to validating certain grants, providing certainty for pastoralists and confirming the extinguishment of native title by freehold and most leases. Regrettably, it has also rendered the NT Act , already highly complex in its original form, extraordinarily difficult to apply. 526 The NT Act in its present form deals with the past extinguishment of native title rights and interests. It provides for the validation of all grants made between 1 January 1994 and 23 December 1996 (when judgment in Wik was handed down) over land which was formerly the subject of a freehold estate or any lease, including pastoral leases, but excluding mining leases. This validation would, in most cases, extinguish native title. It was justified on the basis that, prior to Wik , it was always assumed that native title had been extinguished by pastoral leases. 527 However, no such assumption could be made in Western Australia. Pastoral leases granted in that State differed from those in other parts of the country. For example, they generally contained an express reservation in favour of the rights of indigenous people. 528 Division 2B of the NT Act is founded upon a distinction between "exclusive possession" and "non-exclusive possession" acts. The adoption of exclusive possession as a criterion of extinguishment was criticised in both Wik and Ward HC as "obscuring" the central issue regarding extinguishment. 529 In Ward HC, the requirement of a "clear and plain" legislative intention to extinguish native title, favoured in Wik, was rejected. The test under the NT Act in its present form was said to be whether rights granted to third parties are inconsistent with native title rights and interests. This entails "an objective inquiry which requires identification of and comparison between the two sets of rights", and rejects the notion that there can be degrees of inconsistency. 530 In the language of the joint judgment (at [82]) it was: "... a false premise, that there can be degrees of inconsistency of rights, only some of which can be described as "total", "fundamental" or "absolute". Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment. ..." 531 As previously noted, Ward HC makes it clear that the starting point when determining a native title claim under the NT Act is the Act itself, and not the common law. To that extent, both Mabo (No 2) and Wik have become sidelined. The only present relevance of those decisions is the light they cast upon the NT Act . 550 In Wik , Gummow J said (at 169): "... the content of native title is to be reached by determination of matters of fact, ascertained by evidence." 551 In Mabo (No 2) , Toohey J observed that the use of the word "title" in the composite expression "native title" was artificial, and potentially misleading. Often the rights claimed would not correspond with "ownership" as that term was generally understood. Rather, what was at issue was a "special collective right" vested in a particular indigenous group by virtue of its long standing connection with and use of the land or its resources. 552 In that sense, it may not be particularly fruitful to inquire closely into whether native title is, in truth, best characterised as "proprietary" or "personal". 553 Dawson J characterised native title as "a permissive occupancy" in Mabo (No 2) , while in Wik, Kirby J observed (at 215): "... Aboriginal rights are sui generis, difficult if not impossible to describe in the terminology of traditional property law, being communal, personal and usufructuary." See also Yarmirr (at [12]) and Ward HC (at [14]). 593 The decision in Wik signalled an end to the comparatively straightforward regime created under the original version of the NT Act . After the amendments came into force in 1998, the process became more complex. 594 Notwithstanding the strictures in Ward HC regarding the need to focus primarily upon the provisions of the NT Act in native title cases (rather than the common law), native title, as developed by the common law, remains important when construing the Act. As previously mentioned, s 223(1)(c) provides that native title rights and interests, in order to be established under the NT Act , must be "recognised by the common law of Australia". At common law, the nature and extent of native title is essentially a question of fact to be determined from such evidence as is available regarding the traditional laws and customs associated with the claimants. Exactly the same is true under the NT Act . 595 Native title is usually communal. However, in some circumstances a claim to group or individual native title rights and interests may be brought: see Mabo (No 2) at 52, 85, 88, and 109-110. 626 Pastoral leases of the type that feature in this case present special difficulties. Wik considered whether extinguishment followed automatically from the grant of such leases. The High Court noted that the term "pastoral lease" described a variety of statutory tenures in which the Crown grants rights to occupy land for pastoral purposes. The pastoral leases in Wik were expressed in the traditional language of common law leases, and the legislation under which they were granted used similar terms. The "leases" in that case, unlike those in the present case, contained no specific reservation in favour of indigenous people. In addition, the properties over which they were granted were very large, far greater in area than, for example, Pastoral Lease 2189. They were also located in a remote part of Queensland, and not in or near a township within the Northern Territory. 627 As is well known, the High Court in Wik divided four to three on the result. The minority (Brennan CJ, with whom Dawson and McHugh JJ agreed), held that the pastoral lease under consideration conferred a right of exclusive possession. The legislation used terms of art such as "demise", "rent", "surrender" and "forfeiture", all consistent with the creation of a common law lease. Not only that, but the legislation also distinguished between a "lease", and a "licence" granted under it: Wik (at 76 and 80). In those circumstances, to recognise any interest, such as native title, not derived from the Crown, would "fracture a skeletal principle of land law", namely the doctrine of tenures and estates: Wik (at 92-93). 628 The majority in Wik (Toohey, Gaudron, Gummow and Kirby JJ), held that the grant of pastoral leases would not necessarily extinguish native title. Despite the use of technical terms characteristic of ordinary leases, pastoral leases were not to be equated with leasehold interests at common law. In particular, pastoral leases did not confer a right of exclusive possession: Wik (at 118, 152, 176 and 224). 629 In arriving at this conclusion, the majority considered not only the terms used in the grants, but also the historical background to the legislation authorising them, and the limited "pastoral purposes" for which the lessees had the right to occupy the land. In their view, the relevant question was whether any statutory rights that were conferred were so inconsistent with the continued existence of native title as to lead to the conclusion that such title had been extinguished. That question could be answered in the negative. 630 The decision in Wik was subsequently approved in Ward HC, a case concerning pastoral leases granted under analogous legislation in Western Australia. Once again, the High Court held that these statutory interests did not extinguish all native title rights and interests even though they were granted without the benefit of a reservation in favour of aboriginal peoples: Ward HC (at [186]). 631 As the law now stands, whether an interest granted under a pastoral lease extinguishes native title requires a comparison to be undertaken of the legal nature and incidents of the native title with the rights conferred on the lessee. This is sometimes described as the "inconsistency of incidents" test. If the incidents of the respective rights are such that native title could not be exercised without abrogating the statutory right, native title is extinguished, (at least to the extent of the inconsistency). This approach accords with the view that native title consists essentially of a "bundle of rights". If pastoral leases do not extinguish native title completely, they may nonetheless impair any native title rights that would otherwise amount to incidents of full ownership. They may thereby abrogate any "exclusive" native title rights and interests: Ward HC (at [308]). 632 It is important to remember that native title is not extinguished merely by the enactment of legislation under which rights may be granted in the future, or by conditions which deprive a grant of legal effect until they are fulfilled: see Ward HC (at [149]-[151]). Inconsistency will not be readily inferred if the grant contains qualifications or reservations that preserve the entitlement of indigenous people to continue to carry out their traditional activities on the land, as is the case with the pastoral leases granted in the Timber Creek region. Finally, it should be noted that the question of inconsistency must be determined at the date the grant takes effect. As at that date, rights are either inconsistent, or they are not. 691 Section 47 was contained in the original Native Title Act as enacted in 1993. Sections 47A and 47B , along with many other amendments, came into effect on 30 September 1998. Like s 47 , these provisions require certain acts of extinguishment to be "disregarded". These amendments were introduced, in part, as a response to Wik . That case revealed the anomalous situation that could occur if aboriginal people have been living in a particular area for some time, but could not obtain a determination of native title because of some extinguishing event that may have occurred only briefly, and a long time ago. As a result, since the 1998 amendments, claims can be made to, and determinations of native title made in respect of, areas which were formerly the subject of a "previous exclusive possession act". Such an act would ordinarily have extinguished native title, but for the operation of ss 47 , 47A or 47B . 692 The Explanatory Memorandum to the Native Title Amendment Bill 1997 included under the heading "Provisions relating to certain reserves or vacant Crown land" the following statement in relation to s 47B: "5.56 Section 47B is a statutory mechanism designed to allow native title claimants who are in occupation of vacant Crown land to overcome the effect of past extinguishment and have their claim determined by the court. The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease. This provision will allow a claim for vacant Crown land where the claimants are in occupation of that land, notwithstanding possible extinguishment by any historical act." 693 The Explanatory Memorandum recognised that the amendment followed a recommendation of the Majority Report of the Parliamentary Joint Committee on Native Title that: "Governments should deal sensitively and on a case by case basis with those situations where indigenous people continue to live on reserves but are unable to register native title applications"