CHAPTER 4
CHAPTER 4
4.1 Since the Mabo (No 2) and Wik decisions many people
in both rural and urban areas have been concerned that they no longer
enjoy the rights in land that they thought that they had. Rumour and misinformation
have been spread that people could be forced off their land due to the
existence of native title, and widespread uncertainty has resulted. Some
of this incorrect information was presented to the Committee. Mr Jerry
Callope of the Carpentaria Land Council indicated his belief that native
title claims involving exclusive possession were able to be made over
pastoral lease land. He was asked by the Committee if a native title claim
for exclusive possession on a pastoral lease were to be successful, would
it mean that the pastoralist would have to leave? He responded:
Depending on the individual pastoralist and the traditional owners
involved, and reading that on face value, yes. But, as always, what
the Native Title Act encourages is negotiated outcomes.[1]
4.2 The Act at present contains little to reduce the uncertainty that
has followed the Mabo (No 2) and Wik decisions. As the Explanatory
Memorandum to the Bill points out (para.5.2), the Act says little about
whether or where native title may still exist in Australia. At present,
if a native title claim is registered, others with an interest in the
land concerned have to be brought into the process even though the claim
may contain ambit elements with no real prospect of success.
4.3 Mr John Clarke of the Western Australian Government's Native Title
Unit told the Committee of the anxiety and anger that results when a native
title claim is lodged that embraces freehold or other form of tenure where
it has no prospect of success:
I find the whole thing frustrating because both you and I know
that native title is not going to be found to coexist with a freehold
title ... But the problem we face is that, because a claim is capable
of being lodged over that tenure, you immediately bring that titleholder
into the process. The titleholder comes in angry and cranky, and that
essentially destroys any chance of there being a reasonable and mediated
outcome. That is why we have consistently argued for certainty in relation
to those tenures where native title does not exist.[2]
4.4 Mr Clarke described the claims involving freehold land in Western
Australia:
In recent times a number of claims, particularly those being
lodged by the Aboriginal Legal Service on behalf of claimant groups,
are including all freehold land granted after 1 January 1994. That is
having quite a dramatic effect on bringing freehold title holders into
the native title process because they are not differentiating between,
if you like, freehold land that somehow or other they think the government
might have granted outside the procedures of the act. They are simply
saying freehold land granted after 1 January 1994. For instance, the
government often acquires either by purchase or compulsory acquisition
of urban land development, a large freehold title, and subdivides it
into smaller residential lots. Those lots are new freehold titles. So
all of those lots are now being picked up under these revised provisions.
The area of freehold land that is affected ... is large. Claims also
extend to all government freehold land. Governments, in their various
guises, hold enormous numbers of freehold titles - schools, hospitals,
medical centres, welfare housing. All of those titles are predominantly
held on freehold titles, but they are ultimately held by the government
or a government agency. So in the case of the metropolitan claims, that
involves some 60,000 freehold titles within the metropolitan area of
Perth that are government-held titles.
Senator FERRIS,So, the suggestion that backyards will
not be claimed is clearly facetious?
Mr Clarke,Yes.[3]
Similarly, an officer of the Queensland Government told the Committee:
I understand that there is one claim in Queensland that does
include privately held freehold and that was registered by the National
Native Title Tribunal. ... But, as a general comment, there are a growing
number of claims being made in the state over regional towns, particularly
in the last month on the eastern seaboard of Queensland, taking in major
areas such as Gladstone, Bundaberg, Rockhampton and areas further north.
Those areas do include housing commission homes and courthouses, doctors'
residences in hospitals, the hospitals themselves, those sorts of areas.[4]
4.5 The Commonwealth has taken the view that the best way to limit the
present uncertainty is to insert into the Act a clear statement of the
impact of various types of tenures and activities that affect native title.
The Government's declared aim in doing this is to restate the common law
concerning the tenures that extinguish native title in whole or in part,
not to alter that law to provide further extinguishment.[5]
Under the common law as set out in the Mabo(No 2) and Wik
decisions, native title has been extinguished by the grant of tenures
conferring exclusive possession such as freeholds and residential leases,
and extinguished to the extent of any inconsistency by non-exclusive agricultural
and pastoral leases.
4.6 The Bill proposes to insert a new Division 2B into the Act to confirm
that certain tenures have extinguished native title. It provides that
'previous exclusive possession acts' by the Commonwealth have extinguished
native title (new s.23C). The Bill also defines a further category of
acts which it calls 'previous non-exclusive possession acts' (new s.23F)
consisting in the grant of non-exclusive agricultural and pastoral leases.
It provides that Commonwealth acts in this category extinguish native
title only to the extent that they confer rights that are inconsistent
with native title rights (new s.23G). The Bill enables each State and
Territory to legislate in the same way in relation to its acts in either
category (new ss.23E, 23I).
4.7 The Bill defines 'previous exclusive possession acts' (new s.23B)
as consisting of the grant or vesting before 24 December 1996 nominated
estates or interests. These include freehold estates, commercial leases,
exclusive agricultural and pastoral leases, residential leases, community
purposes leases and other leases considered to confer exclusive possession.
A 'previous exclusive possession act' also includes an interest listed
in Schedule 4 of the Bill, which will become Schedule 1 of the Act as
amended. The schedule lists classes of leases by State and Territory by
reference to the particular Acts under which each class of lease was granted.
There are no Commonwealth or Australian Capital Territory tenures listed
in the schedule. Where a particular Act permitted leases to be granted
for a variety of purposes, only some of which entailed exclusive possession,
the schedule contains a list of purposes deemed to require exclusive possession.
Only leases granted under the particular Act for such purposes qualify
as scheduled interests. The definition of scheduled interest expressly
excludes mining leases (new s.249C).
4.8 The Bill provides for 'just terms' compensation payable by the extinguishing
government should these provisions extinguish a native title right that
had not already been extinguished by the common law (new s.23J). The Explanatory
Memorandum indicates that it is not expected that this compensation provision
will need to operate: it has been included as a safeguard in the event
that a court ever finds that extinguishment goes further than comprehended
at present by the common law (para.5.45).
4.9 Any confirmation that restricts itself to matters upon which the
existing law is utterly clear and free from doubt will serve little useful
purpose. Confirmation provisions that go beyond this (and enact what is,
in effect, no more than a best estimate of what the law is) will result
in an added measure of certainty. But of course they will also be open
to claims that the courts could eventually arrive at some different result,
and that the confirmation provision therefore is 'changing' the law.
4.10 Alternatives are to draft confirmation provisions according to some
other, necessarily speculative, view of what the courts might eventually
decide, or to leave matters to the process of case-by-case resolution
through the courts.[6] This latter option was representative
of some views expressed about the confirmation provisions in the Bill;
indigenous interests and others opposed the provisions as pre-empting
what the courts might decide or as going beyond what they believed that
courts had already decided. For example, Mr Michael Dodson, the Aboriginal
and Torres Strait Islander Social Justice Commissioner argued in his submission
(p.12):
By attempting to 'confirm' extinguishment by inconsistent grants,
the Commonwealth is intentionally pre-empting the development of the
common law.
4.11 In this context the Committee notes the views put by Mr Brad Selway
QC on behalf of the South Australian Government.[7] He pointed out that the clarification of native title
rights by the courts on a case-by-case basis will result in extended periods
of uncertainty and will be extraordinarily expensive to all parties. He
said that any native title case which is disputed is expected to cost
several million dollars to run, and there was simply not enough money
available to let matters be dealt with on a case-by-case basis, even assuming
that the courts could do so. He illustrated his argument by reference
to the question whether freehold title extinguishes native title:
Our understanding at the moment is that all judges have accepted
that freehold title extinguishes native title. But we say that that
is not self-evidently so. In Wik it was argued that that was not true.
The Canadian courts have held that native title can continue to apply
in respect of freehold. Academic papers have been written that suggest
native title can continue to apply in respect of freehold. There are
arguments - which I think have been put to this committee - that a spiritual
connection is sufficient. If a spiritual connection is sufficient, then
there is no reason in principle why freehold should extinguish native
title. All freehold does is extinguish physical connection.
It is in that context that one says, 'Here is an area of the
law which we can understand a dispute occurring about for a long period.'
If that is left open, the consequences of the development of land law
in Australia are significant and the consequences of the relationship
of the public to the courts are significant. It is simply not a matter
that needs to be left to the courts; it is a matter for the parliament
to deal with.[8]
4.12 The Committee agrees that the issue concerning the types of tenures
that extinguish native title should not be left to the courts, but should
be resolved by the Parliament. Therefore it endorses the principle of
the inclusion of confirmation provisions in the Bill. This leaves the
question whether the exact details of the particular provisions in the
Bill are appropriate.
4.13 One of the confirmation provisions said to be inappropriate is the
provision that extinguishment is permanent.[9]
At common law it is not clear whether there remains any possibility of
native title reviving if the extinguishing act ceases to operate; the
Wik decision gave no answer on this matter.[10]
The Bill provides that, in order to avoid doubt, the word 'extinguish',
in relation to native title, means permanent extinguishment, with no possibility
of revival (new s.237A).
4.14 The Committee was told that this meaning given in the Bill reflects
the understanding of the Parliament when the Act was passed in 1993.[11] On 20 December 1993 Senator the Hon
Gareth Evans QC, speaking for the then Government, told the Senate:
The threshold rule to remember is that extinction means extinction.
It is gone; it is dead. It cannot come back; it cannot revive. Everything
else follows from that. There is a small element of doubt ... because
it has not been decided by the High Court once and for all that that
is so. But the over-whelming probability is that it will prove to be
so as far as past valid grants are concerned.[12]
The Commonwealth Government informed the Committee of the reasons for
accepting this meaning:
It is the view of this Government that to leave this issue unresolved
adds to the already considerable uncertainty surrounding native title
and land management in Australia. The revival of native title would
raise real questions for those with existing titles and for land management
in the future. ... It would be a highly unsatisfactory situation if
these kinds of issues were left to be resolved by the courts in relation
to every kind of tenure in Australia on a case-by-case basis. In order
to restore certainty to land management, the Government has decided
as a matter of policy to settle in the Bill that the extinguishment
of native title is permanent.[13]
4.15 The Committee agrees that the approach taken in the Bill is preferable
to leaving the matter to be resolved through what may prove to be lengthy,
expensive and uncertain court cases.
4.16 The Supplementary Explanatory Memorandum which deals with Schedule
4 sets out in detail the criteria used by the Commonwealth to determine
which interests were included in the schedule, and identifies the source
of each criterion in the (not altogether consistent) judgments delivered
by the four judges in the majority in the Wik decision (paras.36.24
to 36.39). The document explains the guiding principle as follows (para.36.23):
In determining whether any particular lease should be included
in the Schedule, the relevant State or Territory and the Commonwealth
have principally had regard to the substantive rights and obligations
of the grantee under the relevant legislation. If it could be said with
reasonable certainty that by reason of those rights and obligations
the lease conferred exclusive possession on the grantee, then the lease
has been included in the Schedule. If there was significant doubt about
a particular lease, it was not included in the Schedule.
As a result of this approach, the schedule does not include pastoral
leases or Iesser interests, such as licences or permits. 4.17 Importantly,
the Committee was advised that the tenures included in the schedule comprise
less that 7.7 per cent of the land area of Australia.[14]
4.18 Concerns were expressed that there had been insufficient consultation
with stakeholders in the development of the content of Schedule 4. The
Committee notes that there was discussion with stakeholders, including
Indigenous representatives, once the content of the schedule had been
sufficiently settled by the Government to enable an exposure draft to
be provided on 20 August.[15] There was an opportunity to comment after this
date and written submissions were received from Indigenous interests requesting
the exclusion of certain leases, and some were excluded after re-examination.[16] Mr Graham Tanna of the Australian Government Solicitor's
Office told the Committee of some of the changes made as a result:
One of the main ones was put up by the Central Land Council.
Certainly, with the purposes for Aboriginal town camps, Aboriginal residential
facilities, there was several Aboriginal purposes, residences or facilities
in the Northern Territory. They involved some substantial area, maybe
in the hundreds of hectares. If aggregated they may have been in the
thousands. They were all taken off the list as a result of those discussions.
... There were some church missions taken off, and a riding school.
All of them would have involved larger areas ...[17]
4.19 In addition to discussion with Indigenous groups and other stakeholders,
there was intense discussion with the States and the Northern Territory
both before and after this date.
4.20 Concerns were raised in submissions and evidence that interests
may have been included on the schedule which at common law did not confer
exclusive possession.[18] The
opposite criticism was also made: interests which it was argued ought
to have been included were omitted because the Commonwealth could not
be persuaded that they met the criteria.[19]
4.21 The Commonwealth Government told the Committee that it had applied
rigorous scrutiny and did not simply accept all interests proposed for
conclusion by the States and Northern Territory.[20]
State officers told the Committee that the Commonwealth had been very
conservative in what it had allowed to be included in the schedule, and
they believed other items could have been added.[21]
4.22 An alternative to the schedule would be to leave the matter to the
courts. The Commonwealth Government made the following observations about
the merits of this alternative:
There are over 600 types of leases on the Schedule. There are
over 60,000 current leases of these kinds, leaving to one side the historical
leases. This approach could potentially require over 60,000 individual
judicial considerations. This would be an immensely expensive and time
consuming process. It would require the time and resources of the claimants,
their representative Aboriginal/Torres Strait Islander body, the lessee,
their representative, the Court, the mediator, and perhaps an appeal
court. Much of this process would be at public expense.
And on the basis of Wik this massive expenditure of generally
public resources would deliver nothing tangible to Aboriginal people.
As we have set out above, on the basis of Wik, common law native
title rights have been extinguished in relation to land subject to these
leases. Further, even if the conservative assessment of the Commonwealth
and State or Territory turns out in some minor cases to be wrong, there
will be no tangible benefit to the notional native title holders. The
leases on the Schedule are residential, commercial, community purpose
or agricultural leases over comparatively small areas of land. If common
law native title has survived, the rights of the lessee will none-the-less
prevail, as Wik established. Native title holders will only be
potentially able to exercise rights in relation to the land in the remote
and unlikely event that such leases are surrendered or acquired by the
Crown.
From the Government's point of view, such a massive expenditure
for no or very little tangible benefit for Aboriginal peoples cannot
be justified. Expenditure should be directed to determining where native
title does exist, and protecting the rights of the holders, not to confirming
where it has been extinguished.[22]
4.23 The Committee considers that the schedule has been compiled following
a rigorous attempt to apply criteria consistent with the majority judgments
in the Wik decision.
4.24 Under the confirmation provisions, the extinguishment is taken to
have occurred at the time that the grant of the interest in the land was
made (new s.23G(1)(c)). Combined with the provision that extinguishment
is permanent, this means that no native title can exist on land where
an extinguishing act occurred in the past, even though that act has completely
lapsed or expired and the land is currently reserved and in use for Indigenous
purposes (eg. as an Aboriginal reserve).
4.25 The Committee recognises that extinguishment in these circumstances
may seem anomalous. However, the integrity and consistency of the scheme
needs to be protected. The Committee therefore recommends that
governments should deal with these situations on a sensitive case-by-case
basis.
[Return to table of Contents]
Footnotes:
[1] Evidence, p.1546.
[2] Evidence, pp.1599-1600.
[3] Evidence, pp.1593-1594.
[4] Evidence, p.659.
[5] Explanatory Memorandum,
para.5.3; House of Representatives, Daily Hansard, 4 September
1997, p.7527.
[6] See for example the Submission
from Mr Michael Dodson, Aboriginal and Torres Strait Islander Social Justice
Commissioner, p.12 on how the common law might develop in relation to
extinguishment.
[7] Evidence, pp.1766-68.
[8] Evidence, p.1767. See similarly
the Submission from the Commonwealth Government, pp.28-9.
[9] See for example the Submission
from ATSIC, p.7.
[10] Attorney-General's Department
Legal Practice Briefing, 23 January 1997, paras. 16-19; Evidence,
pp.645-46.
[11] See for example, the Submission
from Queensland Government, pp.20-21.
[12] Senate Hansard, p.5317.
[13] Submission from the Commonwealth
Government, pp.18-19. The submission quotes a passage from Brennan CJ
in the Wik case in which he identifies some of the difficult questions
which would arise: (1996) 187 CLR at 95. The Queensland Government, Answer
to Question taken on Notice on 30 September 1997 on the revival of native
title, pp.2-3 provided examples based on actual land dealings of the sorts
of difficulties associated with the possibility of revival.
[14] Submission from the Commonwealth
Government, Attachment C.
[15] Evidence, p.622. See also
advice by Mr Graham Tanna, Australian Government Solicitor's Office, Evidence,
pp.2040-2041.
[16] Evidence, pp.636, 655.
[17] Evidence, p.2041.
[18] See for example the Submissions
from ATSIC, p.7; from the Aboriginal Legal Service of Western Australia,
pp.10-21.
[19] See for example the Submission
from the NSW Farmers' Association, pp.22-28.
[20] See for example Evidence,
pp.629, 634, 639.
[21] Evidence, pp.657-58.
[22] Submission from the Commonwealth
Government, pp.31-2.
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