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Mabo and beyond

In Mabo v the State of Queensland (No.2) an Australian court determined for the first time that the title acquired by the Crown at sovereignty was subject to the pre-existing native title rights and interests held by the indigenous inhabitants under their traditional laws and customs.

Last updated November 2005

Establishing native title

The significance of the Racial Discrimination Act

Mining interests

Real property titles

Establishing Native Title

Before Mabo

The position before Mabo had been as follows:

  1. under the common law, settlement by the Crown was recognised as an effective way of acquiring sovereignty;
  2. if the land was already occupied at the time of settlement, the sovereign title acquired by the Crown was subject to the pre-existing rights and interests held under the indigenous inhabitants' system of laws and customs;
  3. if however the land was terra nullius, the Crown acquired full beneficial ownership of the settled lands;
  4. subsequently, the doctrine of terra nullius was extended to apply to cases where, although the territory was already occupied, the indigenous inhabitants were taken to be without laws, without a sovereign and primitive in their social organisation;
  5. it was assumed from first settlement that the extended doctrine of terra nullius applied in Australia. Thus, in 1837 a Select Committee on Aborigines reported to the House of Commons that the state of Australian aborigines was 'barbarous' and 'so entirely destitute … of the rudest forms of civil polity, that their claims, whether as sovereigns or proprietors of the soil, have been utterly disregarded';
  6. this view was also adopted by the courts with the Privy Council asserting in Cooper v Stuart (1889) 14 App. Cas. 286 at 291, albeit without any evidentiary foundation, that at the time of settlement the Colony of New South Wales 'consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law';
  7. however by 1921, when Amodu Tijani v The Secretary, Southern Nigeria was decided, the Privy Council had adopted a more enlightened approach to the recognition of the rights and interests of the indigenous inhabitants of a settled territory. Their Lordships said:
    'There is a tendency, operating at times unconsciously, to render native title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely. As a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with. … The title, such as it is, may not be that of the individual, as in this country it nearly always is in some form, but may be that of a community. Such a community may have the possessory title to the common enjoyment of a usufruct, with customs under which its individual members are admitted to enjoyment, and even to a right of transmitting the individual enjoyment as members by assignment inter vivos or by succession. To ascertain how far this development of right development of right has progressed involves the study of the history of the particular community and its usages in each case.'
  8. the only reported decision of an Australian court directly dealing with the merits of an Aboriginal claim to particular traditional tribal or communal lands is Milirrpum v Nabalco Pty Ltd. The case was heard by Blackburn J, who noted that:
    'The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called `a government of laws, and not of men', it is that shown in the evidence before me.'
    However, faced with previous decisions such as those of the Privy Council in Cooper v Stuart, His Honour held that the issue was to be determined as a question of law, not of fact.

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The decision in Mabo

The approach taken by Blackburn J was rejected by the High Court in Mabo.

The evidence in Mabo showed that:

  1. the Murray Islands, which lie in the Torres Strait, had a total land area is of the order of 9 square kilometres. The biggest is Mer (known also as Murray Island), oval in shape about 2.79 kms long and about 1.65 kms across. A channel about 900 m wide separates Mer from the other two islands, Dauar and Waier, which lie closely adjacent to each other to the south of Mer;
  2. the people who were in occupation of these Islands before first European contact and who have continued to occupy those Islands to the present day are known as the Meriam people;
  3. although outsiders, relatively few in number, have lived on the Murray Islands from time to time and worked as missionaries, government officials, or fishermen, there has not been a permanent immigrant population;
  4. anthropological evidence showed that the present inhabitants of the Islands were descended from the people in occupation at sovereignty;
  5. the people lived in groups of huts strung along the foreshore or strand immediately behind the sandy beach. They still do although there has been a contraction of the villages and the huts are increasingly houses. The cultivated garden land was and is in the higher central portion of the island. There seems however in recent times a trend for cultivation to be in more close proximity with habitation. The groups of houses were and are organised in named villages. It is far from obvious to the uninitiated, but is patent to an islander, that one is moving from one village to another. The area occupied by an individual village is, even having regard to the confined area on a fairly small island which is in any event available for 'village land', quite small. Garden land is identified by reference to a named locality coupled with the name of relevant individuals if further differentiation is necessary. The Islands are not surveyed and boundaries are in terms of known land marks such as specific trees or mounds of rocks;
  6. since annexation an Island Court, the Island Council, a police force and other government agencies have been introduced to the Islands. Land disputes were dealt with by the Island Court in accordance with the custom of the Meriam people. Thus, even in cases where there may have been an absence of a law to determine a point in contest between rival claimants, such a contest was capable of being determined according to the Meriam people's laws and customs.

The court held that the Crown's title to the Mer Islands was held subject to the rights and interests of the Mer Islanders possessed under the traditional laws acknowledged and the traditional customs observed by the indigenous inhabitants. The court also noted that, because the native title is held in accordance with the local native system:

  1. it is only capable of entitlement and enjoyment within that system, and hence it is not capable of alienation or assignment;
  2. it does not constitute a legal or beneficial estate or interest in the land.

Having regard to the evidence led in Mabo, and to the principles expressed in Amodu Tijani, the decision essentially involved the application of the facts as found in accordance with well established legal principle.

However Brennan J, with whom Mason CJ and McHugh J agreed, made some observations by way of obiter as to the circumstances in which native title rights and interests could be lost subsequent to European settlement, saying that:

'Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence'

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Native Title Act

These concepts were subsequently embodied within the Native Title Act (the Act), and in particular section 223(1), which provides that:

'The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

  1. the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
  2. the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
  3. the rights and interests are recognised by the common law of Australia.'

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Subsequent cases

In the period since introduction of the Act a number of cases have been decided dealing with applications for native title over various regions throughout Australia. In recent times three of the cases have been dealt with by the High Court; namely:

  1. Western Australia v Ward (2002) 191 ALR 1 (Ward)
  2. The Commonwealth v Yarmirr (2002) 208 CLR 1 (Yarmirr)
  3. Members of the Yorta Yorta Aboriginal Community v Victoria (2003) 194 ALR 538 (Yorta Yorta)

These cases, which have helped to give content and clarity to the principles set out in the Act, contain the following propositions in relation to establishing native title:

Identification of the rights and interests held by the applicant group
  • it is of the first importance to recognise that it is in the Act, and in particular s. 223, that the rights and interests which are claimed by the claimants must find reflection;
  • while the rights and interests must be held in relation to land or waters, it is not necessary that the rights have characteristics which the common law would traditionally classify a rights of or interests in property;
  • the reference to rights and interests enjoyed under traditional laws and customs invites attention to how as a matter of traditional law breach of the right and interest might be dealt with, but it also invites attention to how as a matter of custom the right and interest is observed. The latter element of the inquiry is directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community;
  • a group is capable of holding native title where it exists as a society; that is as a group of persons united in and by its acknowledgment and observance of a body of law and customs;
  • the rules under which the rights or interests are said to be possessed, must be rules having normative content and not just observable patterns of behaviour;
  • the society, and its body of laws and customs which give rise to rights or interests in relation to land or waters, must have had a continuous existence and vitality since sovereignty;
  • the demonstration of some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law and custom is whether the law and custom can still be seen to be traditional law and traditional custom. Interruption will present more difficult problems because acknowledgment and observance of the laws and customs must have continued substantially uninterrupted since sovereignty;
  • it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters;
  • it is necessary that the relevant rights and interests be separately identified, and it is useful for them to be described as a 'bundle of rights' as that draws attention to the facts that there may be more than one right and interest and that there may be several kinds of rights and interests
Connection
  • establishing the relevant connection may well depend upon the same evidence as is used to establish rights and interests in relation to land or waters which are possessed under traditional laws and customs, although the two inquiries are required by the Act;
  • the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection.
Recognition by the common law

(l) the reference in s 223(1)(c) to `recognised by the common law of Australia' is to be understood as serving two purposes:

  1. the first is a requirement for refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law;
  2. the second is to emphasise the fact the native title rights and interests which are the subject of the NTA are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected.

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The current approach

A recent example of the application of these principles is provided by the decision in Daniel v State of Western Australia.

In that case, the court found that the first applicants held non-exclusive Native Title rights and interests relating to access, ritual, camping, hunting, fishing, taking of fauna, flora, water and ochre, cooking and lighting fires for cooking purposes, and the protecting and caring for sites and objects, saying that:

'The evidence establishes and I find that the above observable behaviours are more than social habits and [have] about them the quality of being a social rule in that some at least (and indeed a considerable number) of the first applicants group look upon the behaviour in question as a general standard to be followed by the group as a whole.

His Honour said that in finding that the relevant connection had been established, he took into account evidence of continuing use accompanied by an enduring sense of connection, which he took to fall within the description of spiritual connection.

His Honour said, in relation to the onus of proof, that:

  1. as to the existence, scope, content and continuation of native title the applicants carry both an evidential onus and the ultimate onus, or burden, of proof;
  2. where extinguishment is said to arise by acts of the state or executive, evidence is required to prove the fact and content of the act. In accordance with ordinary principles, the party asserting extinguishment carries that evidentiary onus.

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Conclusion

As can be seen from the discussion above, the emphasis in native title claims is now likely to be on whether:

  1. the group claiming native title exists as a society; that is as a group of person united in and by its acknowledgment and observance of a body of law and customs;
  2. the society, and the body of laws and customs that give rise to its members' rights or interests in relation to land or waters, has had a continuous existence and vitality since sovereignty. However, provided the laws and customs can still be characterised as traditional, their continued existence is not affected by change or adaptation;
  3. the native title rights and interests claimed find reflection in behaviour which:
    1. is observed by those claiming to be members of the group claiming native title;
    2. is more than merely a social habit;
    3. has the quality of being a social rule, in that the group looks upon the behaviour in question as a general standard to be followed by the group as a whole.

However, the focus on these issues is nevertheless likely to continue to involve very considerable anthropological, historical and linguistic evidence being led as to the nature of aboriginal society as it existed at sovereignty and how that society has been affected by European settlement, followed by lay evidence from members of the applicant group (from different generations with different lifestyles) as to the sorts of activities in which they have engaged and in respect of which a native title right or interest is claimed.

In Amodu Tijani, the Privy Council said that a determination of the native title rights and interests held by a group involves the study of the history of the particular community and its usages in each case, and the abstract principles fashioned a priori are of but little assistance, and are as often as not misleading.' These words were echoed by the High Court in Yarmirr.

However, it is inevitable that the Court will speak in abstract terms at least in setting out the conceptual approach to be taken to ascertaining the existence of Native Title rights and interests.

This is evidenced by the reference by the High Court in Yorta Yorta to the need to establish a 'normative' content to the rules under which the rights or interests are said to be possessed, and the statement in Ward that the absence of evidence of recent use does not require the conclusion that there can be no relevant connection, without indicating what is required, absent evidence of use, in order to establish connection.

The very large amount of evidence that is led in Native Title cases has led to very long reasons for decision being delivered which summarise all of the evidence, and set out the conclusions reached but which do not separately identify which evidence is relied on in support of the particular conclusions reached.

This is demonstrated in the Daniel case by the court's approach to fishing. The evidence showing that the first applicants fished offshore was said to be in the character of a social habit, whereas fishing onshore was said to be an observable behaviour 'which was acknowledge and observed by the first applicants, and which was normative'.

However, no attempt was made to identify what it was that enabled a judgment to be made as to which behaviour should be characterised as in the nature of a social habit and which should be characterised as evidencing the existence of a native title right or interest.

The absence of any definition or content to abstract propositions such as those referred to above, and the very large amount of anthropological, historical, linguistic and lay evidence led in native title cases, is likely to continue to result, in those cases that require determination by the Federal Court in a very long and drawn out process followed by the delivery of very lengthy reasons for decision.

Further the consensus, at least among practitioners acting for respondents, has been that it is very difficult to successfully defend a native title claim brought by descendants of the language group that was associated with the relevant claim area at sovereignty, and certainly this has been the experience in the two substantial claims determined in Western Australia, Ward in relation to the Kimberley and now Daniel in relation to the Pilbara.

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The Significance of the Racial Discrimination Act

The Racial Discrimination Act 1975 (Cth) (RDA) was passed to give effect to Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. It came into force on 31 October 1975. Section 10(1) of the RDA provides:

10(1) If by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

The importance of the RDA in the context of native title arose in Mabo v Queensland (No. 1) (1988) 166 CLR 186. The case concerned the validity of the Queensland Coast Islands Declaratory Act 1985 (Qld) which purported to vest all right title and interest in the Murray Islands in the Crown in the right of Queensland, to the exclusion of all other rights or claims.

The High Court held that the Act impaired the human rights of the Meriam People (by arbitrarily extinguishing their traditional rights) while leaving unimpaired the rights of people in the Murray Islands who did not derive their rights from traditional Meriam law. The Act therefore breached section 10(1) of the RDA.

The consequence of the High Court's finding in Mabo (No. 1) was to impose restraints on the way in which a legislature could deal with native title interests in land:

In practical terms, this means that if traditional native title was not extinguished before the Racial Discrimination Act came into force, a state law which seeks to extinguish it now will fail [Mabo (No. 1) (1988) 166 CLR 186 at 218 per Brennan, Toohey and Gaudron JJ]

31 October 1975 is now an important date for native title purposes. Any land or resource titles, grants or dispositions that were issued prior to that date are not subject to the RDA and so will take effect according to their terms. Such titles may freely extinguish or suppress native title.

However, any titles or dispositions issued after 31 October 1975 or any variations to titles issued before that date are subject to the RDA. Therefore, any purported extinguishment of native title by those titles or dispositions will be ineffective.

Following the High Court's decision in Mabo (No. 2), the status of the thousands of titles issued after 31 October 1975 were put into doubt. The need to confirm these titles was one of the reasons for the Native Title Act 1993 (Cth).

The importance of the RDA (and in particular, section 10(1)) in relation to acts that occurred after the RDA commenced was highlighted in the High Court decision in Western Australia v Ward (2002) 191 ALR 1. The joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ expressly adopted the classification of State laws to which section 10(1) of the RDA would apply set out by Mason J in Gerhardy v Brown (1985) 159 CLR 70.

Mason J said there were two kinds of cases where section 10(1) of the RDA would operate but different considerations would arise:

  1. If a State law omits to make enjoyment of a particular right universal (by failing to confer that right on persons of a particular race), s10(1) operates to confer that right on persons of that particular race. As a result, the provisions of the State law remain unaffected.
  2. If a provision of a State law forbids persons of a particular race from enjoying a human right, s10 confers that right on those persons. This results in an inconsistency between s10 and the prohibition in the State laws.

In Western Australia v Ward, the majority said:

Three situations may be considered (i) a State law expressed in general terms forbids the enjoyment of a human right or fundamental freedom and, because the burden falls upon all racial groups, there is no discrimination upon which s10(1) may operate; (ii) a State law, for example, provides for the extinguishment of land titles but provides for compensation only in respect of non-native title; or [Mason J's] analysis, this falls in the first category … for the operation of s10(1) and, whilst the extinguishment remains valid, there is, … a right to compensation provided to native title holders; (iii) a State law, for example, extinguishes only native title and leaves other titles intact; the situation falls in the second category identified by Mason J and the discriminatory burden of extinguishment is removed because the operation of the State law is rendered invalid by s109 of the Constitution.

The majority went on to say that the characterisation of the State law (ie. whether it differentiates between groups of people based on race, colour or national or ethnic origin) was critical because it is the legal effect of the State law that underpins any conclusion of inconsistency between that State law and the RDA:

If s10(1) does not operate to invalidate the relevant State legislation, the 'past acts' provisions of the NTA, and the equivalent State provisions, are not engaged. It is therefore of the first importance to ascertain the precise operation and effect of any potentially discriminatory legislation affecting or authorising acts affecting native title rather than assuming that the NTA is to apply.

The High Court's comments are important because the characterisation of an act in relation to land or waters as a 'past act' based on the effect of the act on the exercise of native title rights and interests will, in some circumstances, dictate what procedures must be followed in relation to future acts concerning the same area.

Even if an act does not offend s10(1) of the RDA and so is not a 'past act', one must still consider whether the provisions of Part 2 Division 2B of the NTA may apply because the definition of 'previous exclusive possession acts' and 'previous non-exclusive possession acts' extends to acts which are valid independently of the NTA.

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Mining Interests

Minerals and Petroleum

Native title rights and interests, even if found to exist over an area of land, will not extend to most commercially produced minerals which may exist in that land or petroleum that exists in the land. This position was long suspected to be the case, but was only conclusively confirmed by the High Court in the decision of Western Australia v Ward. In that particular case, the High Court decided that native title rights did not exist in relation to minerals or petroleum for two reasons:

  1. the native title claimants did not establish on the evidence that their native title rights and interests extended to the minerals and petroleum being claimed – ie, there had been no traditional use of the minerals and petroleum resources of the land; and
  2. even if on the evidence native title rights could have been established to minerals and petroleum, those rights have been extinguished by the relevant Western Australian mining and petroleum legislation, which vested beneficial ownership in the minerals and petroleum in the Crown.

Although the decision in Ward primarily considered the Western Australian legislation, as similar legislation exists in all Australian state and territory jurisdictions vesting property in minerals and petroleum in the Crown, it would seem highly likely that the universal position throughout Australia is that any native title rights that may have ever existed in respect of minerals and petroleum have been extinguished by the operation of such legislation. Indeed, in respect of Queensland, Justice Drummond reached this conclusion in the decision of Wik Peoples v Queensland. Provided such vesting legislation was enacted prior to 31 October 1975 (the date of the commencement of the Racial Discrimination Act) no compensation would be payable to native title holders (even assuming they could establish a prior native title right to the minerals and petroleum).

If the vesting legislation was enacted after 31 October 1975, native title claimants could possibly have a claim for compensation. However, the native title claimants would first have to demonstrate a native title right to the minerals or petroleum in question did exist prior to the effect of the vesting legislation. On the basis of native title determinations made to date, it would seem that it would be a very rare case where a native title claimant could establish a traditional usage of minerals and petroleum.

It is always important to consider whether the substance in question is in fact a 'mineral' under the relevant State mining legislation. If the substance in question is not a mineral, then it is unlikely that the beneficial ownership of that substance has been vested in the Crown by operation of legislation. For example, in Daniel v State of Western Australia, Justice Nicholson found that the Ngarluma People established the native title right to dig for and gather ochre.

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Mining Leases and Native Title

In Ward, the majority of the High Court considered the effect of mining leases granted under the Western Australian mining legislation on native title. The Court concluded that the mining leases did not totally extinguish native title over the land to which they related, although they did extinguish native title rights which were inconsistent with the rights granted pursuant to the mining lease. In doing so, the High Court overturned the decision of the full Federal Court, which considered that the mining leases in question had granted the lessee exclusive possession of the land and therefore extinguished all native title rights. The High Court, however, decided that the mining leases granted the lessee exclusive possession 'or mining purposes only' (ie, as against other people wanting to use the land for mining purposes.

Importantly, in Ward the High Court ruled that the grant of a mining lease over an area of land extinguished any native title right to exclusive possession of the land or to control access to the land. It would seem this conclusion can be drawn in respect of mining leases generally.

As to what other native title rights may be extinguished by or survive the grant of a mining lease, consideration will need to be given in each instance to the particular rights granted pursuant to the mining lease and the particular native title rights which may be established. For example, in Daniel, Justice Nicholson found that native title rights to remain or camp (in the sense of living on the land) on the mining lease area, engage in rituals or ceremonies, cook and light fires for cooking, were inconsistent with the rights granted under the mining tenements in question in that case. However, native title rights which survived the grant of the mining tenements included the rights to enter and travel through the lease area, to hunt and forage, to temporarily camp (but not so as to live in the area) and to protect and care for sites and objects of significance.

Despite the decision in Ward, it seems that there is still some scope for certain mining leases to completely extinguish native title. For example, in Daniel Justice Nicholson considered the effect on native title of the grant of a solar salt mining lease pursuant to the Dampier Solar Salt Agreement Act and concluded that the effect of the lease was to totally extinguish native title rights that may have otherwise existed in respect of the land. Justice Nicholson reached this conclusion on the basis that the purpose of the lease was specific to solar salt production, 'which is different to other forms of mining'. Justice Nicholson decided that the nature of solar salt production is such that exclusive possession against the whole world and not just the exclusive right to mine must have been intended. He stated this is one case where an understanding of the rights granted pursuant to a lease were properly informed by the evidence of usage.

However, it does not follow that all State Agreement Acts will have a similar effect. For example, in Daniel Justice Nicholson decided that mining leases granted under the Iron Ore (Hamersley Range) Agreement Act extinguished native title rights to exclusive possession, but did not necessarily extinguish all instances of native title. Similarly, the High Court in Ward found that the mining leases granted under the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act did not totally extinguish native title.

When considering the effect of mining leases on native title rights, it is important to consider on what basis the mining leases in question are valid. There are three obvious possibilities:

  1. the mining leases are valid in their own right and do not rely on the Native Title Act for validation;
  2. the mining leases are 'category C past acts' or 'category C intermediate period acts'; or
  3. for mining leases granted after 23 December 1996 (and potentially some mining leases granted between 1 January 1994 and 23 December 1996), the mining leases have been granted pursuant to a 'future act' procedure under the Native Title Act.

Where a mining lease is valid in its own right, it will have the extinguishing effect based on the principles set down in Ward. All mining leases granted before 31 October 1975 (the date of the commencement of the Racial Discrimination Act) will be valid in their own right and have this effect. Further, on the authority of the decision in Ward, it seems that even mining leases granted after 31 October 1975 (but not necessarily after 1 January 1994, and not pursuant to a future act procedure) are valid in their own right and do not rely upon the Native Title Act past act provisions for validation. Prior to Ward, there was an argument that mining leases granted after 31 October 1975 were invalid on native title grounds for being inconsistent with the Racial Discrimination Act. However, the High Court in Ward held that this was not the case and the decision has subsequently been followed in Daniel. Again, whilst the mining leases in these cases were Western Australian mining leases, it would seem likely that the same principle will apply to other jurisdictions in Australia.

As a result of the decision in Ward, there may be little scope for finding that mining leases granted post 31 October 1975 are 'category C past acts' or 'category C intermediate period acts'. If a mining lease was a category C past act, then the Native Title Act would validate it but the 'non-extinguishment principle' would apply. That is, the mining lease would have no extinguishing impact on native title rights, but would merely suspend those native title rights for the duration of the mining lease (to the extent those native rights are inconsistent with the rights under the mining lease).

In respect of more recent mining leases granted after 1 January 1994 or 23 December 1996, it should always be checked whether the mining lease in question was granted pursuant to a future act procedure under the Native Title Act, such as an Indigenous Land Use Agreement or the 'right to negotiate procedures'. Generally (but not always), the result of a mining lease being granted pursuant to a future act procedure will be that the non-extinguishment principle will apply.

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Exploration Permits

The High Court in Ward did not specifically consider the effect of exploration permits on native title. However, it would seem that if the same logic was applied to exploration permits as the High Court applied to mining leases, native title rights would be extinguished by the grant of exploration permits to the extent that the native title rights are inconsistent with the rights granted under the exploration permit.

However, the case law which has directly considered this point seems to reach a different conclusion. In Daniel, Justice Nicholson considered the effect of Western Australian prospecting licences and exploration licences on native title. In doing so, he referred to the case of Mineralogy Pty Ltd v National Native Title Tribunal and noted that in that case Justice Carr had held that the grant of an exploration licence under the Western Australian Mining Act 1978 did not extinguish any instances of native title, on the basis that the evidence showed a potential for only temporary or partial inconsistency with the enjoyment or exercise of native title rights. Justice Nicholson also noted that the full Federal Court in the Ward case had approved the decision in Mineralogy. However, Justice Nicholson noted that the reasoning of Justice Carr in Mineralogy seemed to differ with the reasoning of the High Court in Ward in two respects:

  1. firstly, the High Court did not accept that there is the possibility of 'temporary inconsistency'; and
  2. secondly, the reasoning of the High Court made it clear that it was the inconsistency of rights that must be assessed so that even a short term tenement may have an extinguishing effect if the relevant inconsistency of rights appeared.

However, in the circumstances, Justice Nicholson concluded that whether he followed the approach of Justice Carr in Mineralogy or the inconsistency approach of the High Court in Ward, he would reach the same conclusion in the Daniel case that the exploration and prospecting licences in question had no extinguishing effect on native title rights.

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Overview of Native Title and Mining

In summary, it seems that the present state of the law is as follows:

  1. Native title rights to minerals and petroleum have been extinguished by legislation which vests the beneficial ownership of these substances in the Crown (and even if this was not the case, it would seem very rare that native rights could ever be established to minerals and petroleum as they are not substances which have typically been the subject of traditional use by Aboriginals).
  2. Mining leases which do not rely upon the Native Title Act for their validity will generally have extinguished some native title rights, but not extinguished all native title rights. However, any native title right to exclusive possession of the land or to control access to the land will have been extinguished by the grant of a mining lease.
  3. There is some doubt over the exact effect of exploration tenements on native title rights, with some case law suggesting that exploration tenements have no extinguishing effect on native title (but query how this sits with the logic of the decision of the High Court in Ward).
  4. The practical effect of the court decisions is that native title will remain an ongoing issue for the mining industry, but its scope has been significantly reduced since the decision in Ward. The decision that native title rights do not extend to minerals and petroleum means that the economic value of those native title rights is significantly less than what they otherwise would have been, meaning in turn that compensation payments may be less. Further, the fact that mining leases have been held to extinguish any native title right to exclusive possession of the land means that another potentially significant and valuable native title right will not exist in most cases.
  5. The result is that there will be residual, native title rights for miners to negotiate with native title groups over and compensate them for (especially in areas which have been subject to historical mining tenures). Therefore, the procedural risks (ie, delays, negotiations and potential to have to take matters before a tribunal or court) probably now pose a more significant hurdle for mining companies than any compensation that may be payable at the end of the day.
  6. The fact that the courts have held that mining tenements extinguished native title rights over the land to the extent of inconsistency with the mining lease means that if future mining leases are granted over areas of land which have previously been the subject of mining leases, and provided the future lease does not contain any 'additional' rights to those which existed under the historic lease, then there is strong argument that the future mining lease cannot affect native title (because all inconsistent native title rights have already been extinguished) and therefore the future mining lease is not a 'future act'. This would have significant advantages for a mining lease applicant as the applicant would not have to go through potentially lengthy and costly native title negotiation procedures.
  7. It might be argued that the same rationale applies in respect of future exploration permits being granted over ground which has been the subject of historical exploration tenements. However, the approach of the courts in Daniel and Mineralogy throws some doubt over this argument.

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Real Property Titles

Freehold grants

While it has been regarded as settled for some time that grants of freehold title by the Crown to third parties will extinguish native title, in Daniel v State of Western Australia RD Nicholson J again confirmed that 'grants in fee simple taking place on or before 23 December 1996 are previous exclusive possession acts which wholly extinguish native title'.

Following the Daniel decision, Crown to Crown freehold grants before 23 December 1996 will also extinguish native title. The judge accepted the submission that to hold that a Crown's fee simple interest is different from any other person's fee simple interest would lead to illogical consequences. The judge held that the terms of the grants to the Crown in question conveyed a fee simple interest and that the excluding effect of section 23B(9C) of the Native Title Act 1993 (Cth) (NTA), that carves out Crown to Crown grants from the definition of 'previous exclusive possession act' which extinguish native title, did not operate.

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Pastoral leases

The terms of pastoral lease legislation vary from State to State. Therefore before deciding what effect a particular pastoral lease will have on native title rights and interests, one must look closely at the provisions of the relevant legislation at the time the lease was granted. The High Court has considered the terms of the pastoral lease legislation in Queensland, Western Australia, the Northern Territory and South Australia.

In Wik Peoples v Queensland, the High Court held that the fact that both the instrument creating a pastoral lease and the legislative enactment pursuant to which the instrument was granted used language that might be used in or in relation to a lease between private individuals does not conclusively demonstrate that the holder of a pastoral lease was granted a right of exclusive possession in land. Therefore, a pastoral lease granted under the relevant Queensland legislation does not automatically extinguish all native title rights in the area subject to the lease.

In Western Australia v Ward, the High Court noted the following in relation to pastoral leases granted in Western Australia since the late 1800s:

  1. The rights obtained under a pastoral lease were limited. The holder had no rights to the soil or to timber on the land (except to the extent needed to construct improvements on the land).
  2. The interest was precarious. Pastoral leases could be forfeited for non-payment of rent or for failing to comply with the terms and conditions of the lease instrument.
  3. Land subject to a pastoral lease was still regarded as 'Crown Land' under the Land Act 1898 (WA).
  4. The Crown retained extensive powers of re-entry onto, and disposal of the land the subject of, a pastoral lease.

Based on this analysis, the High Court concluded that pastoral leases did not confer a right of exclusive possession on the holder of the lease. As a result, leases granted before 23 December 1996 fall within the definition of 'previous non-exclusive possession act' and the provisions of section 23F of the NTA (and the equivalent State provisions) will apply to confirm extinguishment of native title rights and interests only to the extent that such rights are inconsistent with the rights granted by the pastoral lease.

The native title right most affected by the High Court's conclusion is the right to exclude third parties from an area within the pastoral lease and any rights of exclusive occupation of an area. The rights (if found to exist originally) will be extinguished when the pastoral lease is granted.

This view was confirmed in Daniel where RD Nicholson J also noted:

  1. a right to control access to an area by other indigenous people was also extinguished; and
  2. a right to protect and care for sacred sites does not involve necessarily exclusively or control by the native title holders. However, to the extent such exclusivity was implied by the existence of a duty to protect sacred sites, it would be extinguished.

With respect to other types of native title rights and interests, their continued existence after the grant of a pastoral lease will depend on the extent the degree of inconsistency of such rights (once defined by the court) with the rights granted to the pastoral lease holder.

Pastoral leases granted in the Northern Territory and South Australia also do not confer exclusive possession on the lease holder or completely extinguish native title rights and interests.

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Perpetual leases

For land subject of perpetual leases granted pursuant to section 23 of the Western Lands Act 1901 (NSW), native title rights and interests have been completely extinguished: Wilson v Anderson. The High Court majority based their conclusion on an examination of the historical and conveyancing background from which the leases, which only exist in the Western half of New South Wales, were derived as a substitute for a Crown grant of fee simple.

In Ward, the High Court held that a Crown Lease Perpetual granted under the Crown Lands Ordinance 1927 (NT) and a Special Purpose Lease granted in perpetuity under the Special Purposes Lease Act 1953 (NT) also conferred a right of exclusive possession extinguishing all native title rights and interests.

Special leases in Western Australia

The High Court in Ward stated that, unlike a pastoral lease, an interest granted by a special lease was not precarious. There was no general right held by the Crown to determine the lease. Special leases could be granted for specific purposes such as quarrying, grazing, construction of buildings for factories, mills and warehouses and any other purpose approved by the Governor – such purposes being quite different from the purpose for which a pastoral lease was granted. The High Court concluded that the grant of special leases under Part IV of the Land Act 1933 (WA) granted a right of exclusive possession and so completely extinguished native title rights and interests.

In Daniel, RD Nicholson J clarified this basic proposition based on when the lease was granted and in force:

  1. For leases granted before the commencement of the RDA but not in force on 23 December 1996, the extinguishment was at common law.
  2. For leases granted before the commencement of the RDA and still in force on 23 December 1996, these are previous exclusive possession acts and extinguishment of native title rights and interests has been confirmed by the NTA and equivalent State provisions.
  3. For leases granted after the commencement of the RDA, these will be Category A or category D past acts under the NTA, depending on the purpose for which the lease was granted.
Reserves

The creation of a reserve necessarily extinguishes any native title right to control the usage of the area of land subject to the reserve. To determine whether any other native title rights and interests are extinguished, the High Court in Ward said that the rights attached to the reserve must be considered. Rights that are inconsistent with the remaining native title rights and interests will extinguish those native title rights. The use made of the reserved land is not relevant to the question of extinguishment.

In Ward, the High Court held that the vesting of a reserve under section 33 of the Land Act 1933 (WA) in an authority or other entity wholly extinguished native title. The basis for this conclusion was that the vesting of a reserve vested the legal estate of the land and a right of exclusive possession in the vestee, to be held by that person as trustee of a public charitable trust. In Daniel, RD Nicholson J found that a vesting under regulation 33 of the Land Regulation 1882, regulation 36 of the Land Regulation 1887 and section 42 of the Land Act 1898 (WA) also wholly extinguished native title rights and interests.

If the vesting occurs before the commencement of the RDA, the extinguishment is valid at common law. Except in the case of reserves vested for the purposes of protection or preservation of the natural environment, the vesting of a reserve after the commencement of the RDA falls within the definition of a 'previous exclusive possession act' and wholly extinguishes any native title rights and interests. For vested nature reserves, the extinguishment occurs at common law.

For reserves created in other States, one must carefully consider the terms of the relevant reservation, the legislation under which it was made and whether it differs from the Western Australian provisions before applying the reasoning in Ward. For example, in Queensland, the Land Act 1962 and the Land Act 1910 provided that reserved lands could be placed under the control of trustees, but the legislation did not vest title in the trustees instead giving them only a managerial role, similar to section 34 of the Land Act 1933 (WA) which the Court in Ward indicated was not sufficient to extinguish native title. Therefore, it is unlikely that many reserves created in accordance with the provisions of the Queensland Land Acts have extinguished native title.

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Leases of Reserves

If the reserve itself has not extinguished native title rights and interests, whether the grant of a lease over a reserve will extinguish native title depends on whether the terms of the grant confer a right of exclusive possession.

Easements

It is well established under common law that an easement does not confer exclusive possession to land. In Daniel, the court was called upon to consider easement granted pursuant to the Petroleum Pipelines Act 1969 (WA) and the Land Act 1933 (WA). Having considered the statutory scheme created by both Acts, RD Nicholson J held that such easements also did not confer exclusive possession to the grantee of the statutory easement.

In the case of infrastructure constructed or established by or on behalf of the Crown on or before 23 December 1996 and which falls within the definition of a 'public work' in section 253 of the NTA and which is located within an easement, native title rights and interests have been wholly extinguished. Section 251D of the NTA states that such extinguishment is over all areas 'necessary for, or incidental to, the construction, establishment or operation' of the public work. However it is not clear from the language of the section whether this means, in practice, that native title has been extinguished over the whole area of the easement. In Daniel, the court said that it should be assumed that native title has been extinguished over the whole area, with the onus on the applicants to rebut this presumption.

Where the works constructed in an easement do not satisfy the definition of a 'public work', native title rights and interests will co-exist with other rights and interests.

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Conclusion

Following the Ward and Daniel decisions, a little more certainty has been achieved in relation to some types of real property titles. Certainly, our understanding of the effects of pastoral leases and reserves on native title rights and interests has improved with these latest decisions.

However, because of the complex history of the development of Australia's land titles system and the differences in that development in each of the States and Territories, the particular regime established by the relevant legislation and the terms on which individual property interests are granted and created is critical to the determination of whether native title rights and interests have been wholly or partially extinguished.

In addition, for titles issued or created after the commencement of the RDA, one must consider whether such legislation effects native title holders differently from any other interest holder, and so whether the terms of the RDA will be invoked. The validation provisions of the NTA must also be carefully considered, including the list of 'Scheduled Interests' contained in Schedule 1 of the Act.

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