Hunter, Phillip --- "Judicial Activism? The High Court and the Wik Decision" [1997] IndigLawB 43; (1997) 4(2) Indigenous Law Bulletin 6
Judicial Activism? The High Court and the Wik Decision
By Philip Hunter
Amidst allegations of unprecedented judicial activism by the High Court in Wik Peoples v State of Queensland &Ors,[1] it is necessary to give consideration to the Court's role in determining the pastoral lease issue in favour of the Wik and Thayorre Peoples.
Initially, it is important to understand that the High Court's involvement in the Wik Peoples' appeal only commenced in March 1996, when the State of Queensland sought to remove the appeal on aspects of Drummond J's decision[2] on certain preliminary questions of law from the Federal Court directly to the High Court for determination.[3]
It is also important to record what was actually determined by the High Court in Mabo v Queensland [No. 2] (`Mabo [No. 2]').4[4]As the majority in the Wik Peoples' appeal stated, whilst Mabo [No. 2] was `helpful ... [in] identifying some of the problems which are presented by the rather different leases in the present claims ... [it did] not provide the solutions'.[5]
Mabo [No. 2] was more particularly concerned with exploding the fiction that native title had not survived the Crown's acquisition of sovereignty, and establishing that the Crown's acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title, rather than determining what forms of Crown leasehold tenure may or may not be inconsistent with native title. Crown leases did, however, exist at times on the Murray Islands, and were referred to in the High Court's judgment.
One of leases considered by the High Court in Mabo [No. 2] was a special lease granted in 1882 of two acres of land on the island of Mer to the London Missionary Society, which was later transferred to the Australian Board of Missions. Another lease was granted on 6 May 1931 over the whole of the islands of Dauar and Waier for a period of twenty years for the purpose of establishing a sardine factory. Ultimately, the sardine factory lease was forfeited.
In Mabo [No. 2], the Solicitor-General for the State of Queensland `did not contend that if, contrary to his submissions, native title became, after annexation and without an act of recognition by the Crown, a legally recognized interest in the Murray Islands, the Crown had extinguished that title'. [6]Counsel for Eddie Mabo, Mr Greg McIntyre, submitted to the High Court during the Wik Peoples' appeal that the only submission made to the High Court in Mabo [No. 2] as to any of the leases was to the effect that the Crown had no power under the Land Act 1962 (Qld) to grant the sardine factory lease.[7] More importantly, neither of the leases in Mabo [No. 2] were pastoral leases or leases for pastoral purposes.
In the joint judgment of Mason CJ and McHugh J it was stated, with the authority of the other members of the Court constituting the majority, that `the formal order to be made by the court ... is cast in a form which will not give rise to any possible implication affecting the status of land which is not the subject of the declaration in ... the formal order'.[8] Toohey J also held that whether the leases were effective to extinguish native title was something that was unnecessary to answer,[9] as the questions that were reserved by the Chief Justice for the consideration of the High Court did not specifically raise whether or not they extinguished the native title of the Meriam people.
The Commonwealth, in view of the significance of Mabo [No. 2], sought to develop a legislative response to the decision, culminating in the enactment of the Native Title Act 1993 (Cth) (`the NTA'), which commenced operation on 1 January 1994. The Wik Peoples' Federal Court proceedings which claimed co-existence of their native title with the interests of the lessees under the various pastoral leases[10] had, by this time, been underway for six months.
If the NTA had contained provisions which effectively extinguished native title by valid grants of pastoral leases, the Wik Peoples' claims over current and former pastoral lease lands obviously could not have been prosecuted. However, the NTA clearly only dealt with pastoral leases that were invalid due to the existence of native title,[11] notwithstanding that the Preamble to the NTA stated that the High Court had `held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates'.[12]
Whilst none of the parties or interveners in the Wik Peoples' appeal submitted that the NTA provided an answer to the appellants' claims in respect of current and former pastoral lease areas, this did not prevent legal commentators from determining the fate of these claims through varying interpretations of statements made in the judgments in Mabo [No. 2].
Then in August 1994, the Registrar of the National Native Title Tribunal declined to accept the Waanyi Peoples' native title determination over a camping and water reserve in the Gulf region of north Queensland, on the basis that a tenure history submitted to her by the solicitors for Century Zinc Limited revealed that two pastoral leases had been `granted' over the land in 1883 and 1904, and that as in her view the leases conferred exclusive possession on the lessees, the Waanyi People could not make out a prima facie claim for native title.[13]
In Western Australia v The Commonwealth,[14] which concerned Western Australia's unsuccessful challenge to the constitutional validity of the NTA and a successful challenge to the validity of the Land (Titles and Traditional Usage) Act 1993 (WA), the pastoral lease issue was not identified by any of the parties as a question for determination. As a result, the Court was correct in avoiding any unnecessary consideration of the effect of particular grants of interests in land on subsisting native title rights and interests.
When the Waanyi Peoples' High Court appeal[15] was determined in their favour in February 1996, it became clear that the possible survival of incidents of native title, notwithstanding the grant of pastoral leases, was `plainly arguable'. In that case, the High Court, in determining the appeal on the initial procedural point over the non-acceptance of the native title determination application, specifically declined to address the pastoral lease issue on the basis that it would be an advisory opinion.[16]
Only two months later, the High Court considered that the Wik Peoples' and Thayorre Peoples' appeals represented the first real opportunity and a suitable vehicle with which to clarify the impact of the grant of pastoral leases on native title. As a result, the High Court ordered the removal of the appeals[17] and expedited the hearing, burdened with the role of determining the complex legal issues involved.
In determining that the pastoral leases in question did not confer exclusive possession on the lessees, and by mere reason of their grant do not necessarily extinguish all incidents of the Wik Peoples' and the Thayorre Peoples' native title, it was necessary for the Court to construe legislation in light of the retrospective recognition of native title accorded by the common law by reason of the decision in Mabo [No. 2]. In doing so, the Court considered the historical development of statutory leasehold tenures in colonial New South Wales and Queensland, and the attributes of the common law in England which were received as forming part of the common law in the colony of New South Wales following the acquisition of sovereignty.
The majority concluded that there was `nothing in the statute which authorised the lease, or in the lease itself, which conferred on the grantee rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title'.[18] The majority also concluded that none of the grants `clearly, plainly and distinctly authorised activities and other enjoyment of the land which necessarily were inconsistent with the continued existence of any of the incidents of native title which could have been subsisting at the time of these grants'.[19]
The majority also rejected Brennan CJ's reversion doctrine in Mabo [No. 2] that `the scheme of the 1910 [Land] Act and the 1962 [Land] Act is such that, with respect to the grant of the limited interests thereunder by the Crown, the necessary consequence is the acquisition by the Crown of a reversion expectant on the cesser of that interest, thereby generating for the Crown that full and beneficial ownership which is necessarily inconsistent with subsisting native title'.[20] To Kirby J, `[i]mporting into the Land Acts notions of the common law apt for tenurial holdings under the Crown in medieval England, and attributing them to the Crown itself, piles fiction upon fiction. As it is not expressed in the legislation, I would not introduce it.'[21]
Kirby J regarded the Wik Peoples' primary argument for the survival of their native title as `simple and correct':
`Pastoral leases give rise to statutory interests in land which are sui generis. Being creatures of Australian statutes, their character and incidents must be derived from statute. Neither of the acts in question here expressly extinguishes native title. To do so very clear statutory language would, by conventional theory, be required. When the Acts are examined, clear language of extinguishment is simply missing ... The extent to which the two interests could operate together is a matter for further evidence and legal analysis. Only if there is any inconsistency between the legal interests of the lessee (as defined by the instrument of lease and the legislation under which it was granted) and the native title (as established by evidence), will such native title, to the extent of the inconsistency, be extinguished.'[22]
The majority stated clearly that the decision was `in no way destructive of the title of the [pastoralists]' in that `if inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees'.[23]
It is, however, clear from the majority and minority judgments that the grant of an estate in fee simple extinguishes native title as it is `the largest estate know to all the common law, [and] confers the widest powers of enjoyment in respect of all advantages to be derived from the land itself and from anything found upon it'[24] and `necessarily expels any residual native title in respect of such land'.[25]
It is difficult to understand what more the High Court could have done to provide the `clarity' and `certainty' demanded by all parties other than deliver a decision that supported the submissions of those who would have native title extinguished over all Crown leasehold land, including Crown leases that contained reservations preserving the rights of Aboriginal inhabitants to have access to those lands.
The reality that must be accepted is that the High Court had not had the opportunity until Wik Peoples v State of Queensland &Ors to give clarity to the manner in which native title rights and interests are effected by valid Crown pastoral leasehold grants. The Court was, however, constrained as to how they could deal with these issues by the way the pastoral lease preliminary questions were framed by the legal representatives for the pastoralists and the State of Queensland.[26] The criticism of the role of the High Court in determining the pastoral lease issue would, in the circumstances, appear to be totally unjustified.
The Solicitor-General for the Commonwealth submitted that the High Court should `accept ... entirely the injustices, the social degradations, the shameful acts which have occurred' such that it is now `not possible to rewrite the rules as to tenure to obtain what might be seen as an acceptable present outcome'.[27] Now that the Court has determined that the grant of the pastoral leases in question did not have the requisite extinguishing effect, it is difficult to accept that the Federal and State Governments wish to support substantive amendments to the Racial Discrimination Act 1975 (Cth) and the NTA that would achieve a similarly unpalatable result.
In the absence of any determinations as to the nature and content of native title on mainland Australia, and the identification of consistencies between native title rights and interests and the rights held by Crown leaseholders, it is also difficult to perceive how legislators could seek to codify native title or effectively determine what `sufficient connection' is necessary to establish these rights without watering down the rights and interests that native title claimants may be able to prove.
Considering the importance of the issues, it is hoped that the Federal and State Governments will see the benefits in pursuing a response that delivers `justice to all parties'. The total or `effective' extinguishment of native title on all Crown leasehold land within Australia would be an unfortunate response.
[1] Wik Peoples v State of Queensland; The Thayorre People v State of Queensland & Ors (1996) 141 ALR 129.
[2] Wik Peoples v State of Queensland &Ors (1996) 134 ALR 637.
[3] Pursuant to s40 of the Judiciary Act 1904 (Cth).
[4] Mabo v Queensland [No.2] [1992] HCA 23; (1992) 175 CLR 1.
[5] Per Kirby J at 265.
[6] Brennan J (as he then was) at 67.
[7] High Court Transcript of Hearing, 11 June 1996, pp 83-84.
[8] At 16.
[9] At 197. See Deane and Gaudron JJ at 117. See also Toohey J (1996) 141 ALR 129 at 183.
[10] Paragraph L of the Wik Peoples' amended Application filed 12 September 1994.
[11] The grant of a pastoral lease prior to 1 January 1994 which is current, and held to be invalid by reason of the existence of native title, is deemed to be a `category A past act' which is validated by the NTA with the effect that native title is extinguished and compensation payable for such extinguishment on just terms. See ss 14, 15, 228 and 229 of the NTA.
[12] When considering the Preamble to the NTA, Toohey J at 183 stated that it `reads too much into the judgments in Mabo [No. 2] so far as the reference to leasehold estates is concerned unless particular attention is given to what is meant by that term. At their highest, the references are obiter'.
[13] Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373.
[14] Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373.
[15] North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595; (1996) 70 ALJR 344; (1996) 135 ALR 225.
[16] Per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ at 612 and McHugh J at 642. In May 1995, the Waanyi People's application to remove their appeal against French J's decision into the High Court for determination was refused, as the Court was of the view that `a removal of issues at this stage may result in a ruling that would not have the clear authority which the public interest demands'. Per Brennan CJ, Toohey and Gummow JJ in North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 15; (1995) 69 ALJR 569.
[17] Ordered by Brennan CJ, McHugh and Gaudron JJ on 15 April 1996.
[18] Per Toohey J at 181. See also Kirby J at 280.
[19] Per Gummow J at 222.
[20] Per Gummow J at 222.
[21] At 280. See also Gaudron J at 209.
[22] At 279.
[23] Per Toohey J at 189-190.
[24] Per Gummow J at 226. See also Toohey J at 184.
[25] Kirby J at 285.
[26] See Toohey J at 188, Gummow J at 248.
[27] High Court Transcript of Hearing, 12 June 1996, p 171. See also pp 172 and 177