Watson, Nicole --- "A Denial of Religious Freedoms: Section 190C(3) of the Native Title Act" [2001] IndigLawB 17; (2001) 5(7) Indigenous Law Bulletin 4
A Denial of Religious Freedoms: Section 190C(3) of the Native Title Act
By Nicole Watson
Arguably, there is no greater manifestation of the divergence between mainstream and Indigenous societies than that which springs from the subject of land ownership. While one society perceives itself as distinct from the land and views the land through an economic lens, the other is melded to the land through a complex array of spiritual relationships.
Under Indigenous laws primary spiritual responsibility for any particular area will invariably be vested in one clan group. However, the religious obligations of individuals within that group may attenuate outside of the clan’s territory. For example, ‘Dreaming tracks’ may extend into the land of other groups. Individuals may also acquire obligations to the land through intermarriage between different groups.
The Native Title Act 1993 (Cth) (‘the NTA’) determines how Indigenous spiritual relationships interact with introduced legal interests. Native title claimants who are able to satisfy all of the conditions of the registration test may exercise certain temporary rights, such as a statutory right of access over the claim area for the purpose of conducting traditional activities[1] and the right to negotiate.[2]
Section 190C(3) of the NTA is one of the eleven conditions of the registration test. In essence, section 190C(3) prevents the registration of a claimant application where it overlaps with an earlier registered claim and at least one person is a member of both claim groups.
This paper will argue that in some circumstances section 190C(3) may operate to prohibit the free exercise of religion. In particular, where a claim group lodges an application in anticipation of a future act, individuals within the group who are also affiliated with earlier overlapping claims may face a predicament. Their inclusion in the claimant group may prevent the all-important registration of the claim. In exchange for ensuring appropriate Indigenous participation in potentially critical future act negotiations, individuals may have to forgo their inclusion in the group. This may result in a failure to recognize their religious obligations, such as speaking for ‘country’ in negotiations with the grantee party and in some circumstances, access rights to practise their traditional activities. It is submitted that because section 190C(3) may operate to restrict the spiritual rights of Indigenous people, it is a law for prohibiting the free exercise of religion and is thereby rendered invalid by section 116 of the Commonwealth Constitution.
Religion in the Commonwealth Constitution
Section 116 of the Constitution is one of the few limitations on Commonwealth legislative power that affords protection to the civil liberties of the Australian people. Section 116 provides that:
The Commonwealth shall not make a law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
The first detailed judicial consideration of section 116 was the decision of the High Court in Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth.[3] The Court determined that section 116 was of general application to all Commonwealth laws. As stated by Chief Justice Latham:
[s]ection 116 is a general prohibition applying to all laws, under whatever power those laws may be made. It is an overriding provision. It does not compete with other provisions... All the legislative powers of the Commonwealth are subject to the condition which s 116 imposes.[4]
As the NTA is a Commonwealth statute it is subject to the limitations contained within section 116.
Definition of Religion
The legal definition of religion was considered by the High Court in Church of New Faith v Commissioner of Pay-Roll Tax (Vict) (‘the Church of New Faith case’).[5] The sole issue in dispute in that case was whether or not the Church of Scientology was a religion. If the appellant association was held to be a religious institution, it would be able to avail itself of an exemption from liability for pay-roll tax.
In finding for the appellant scientologists, all members of the Court adopted a wide definition of religion. Chief Justice Mason Justice Brennan specified two criteria for a body of beliefs to be classified as a religion. Firstly, the existence of a belief in a supernatural being, thing or principle and secondly, the acceptance of cannons of conduct in order to give effect to that belief.[6] The widest definition as formulated by Justice Murphy who considered that ‘[any] body which claims to be religious, and offers a way to find meaning and purpose in life is religious.’[7]
The spiritual nature of Indigenous relationships with the land was articulated by the late Professor Stanner:
No English words are good enough to give a sense of the links between an Aboriginal group and its homeland. Our word ‘home’, warm and suggestive though it may be, does not match the Aboriginal word that may mean ‘camp’, ‘hearth’, ‘country’, ‘everlasting home’, ‘totem place’, ‘life source’, ‘spirit centre’ and much else all in one. Our word ‘land’ is too spare and meagre. We can now scarcely use it except with economic overtones unless we happen to be poets. The Aboriginal would speak of ‘earth’ and used the word in a richly symbolic way to mean his ‘shoulder’ or his ‘side’. I have seen an Aboriginal embrace the earth he walked on. To put our word ‘home’ and ‘land’ together into ‘homeland’ is a little better but not much.[8]
It is submitted that the traditional belief systems of Indigenous people that are embodied in spiritual relationships with the land clearly fall within the definitions of religion espoused by the High Court in the Church of New Faith case. A common thread of Indigenous religious philosophies is the belief that their nexus with the land was created by the spirit ancestors during the Dreaming, thus satisfying the requirement of belief in the supernatural. Traditional ceremonies and the existence of rules that regulate the custodian relationship with the land are also canons of conduct which give effect to such beliefs.[9]
Scope of the Constitutional Protection
The scope of section 116 was most recently considered by the High Court in Kruger v The Commonwealth (‘the Kruger case’).[10] The plaintiffs in that case were members of the ‘stolen generation’. Between 1925 and 1960, five of the plaintiffs were removed from their families by protectors appointed under the Aboriginals Ordinance 1918 (NT) (‘the Ordinance’). The sixth plaintiff was the mother of a child so removed.
The plaintiffs submitted that the Ordinance was invalid on the basis of a number of implied freedoms within the Constitution and sought damages for the breach of their alleged constitutional rights. One of the seven grounds of the cause of action was that the Ordinance was a law for prohibiting the free exercise of religion.
Justices Dawson and McHugh both considered that legislation made under section 122 of the Constitution was not restricted by section 116. Justices Brennan and Justices Gummow and Toohey referred solely to the objective purpose of the Ordinance. As the objective purpose of the Ordinance was not a purpose that was prohibited by section 116, the plaintiffs’ submission was unsuccessful.
Justice Gaudron considered that section 116 was ‘...intended to extend to laws which operate to prevent the free exercise of religion, not merely those which, in terms, ban it’.[11] Her Honour pointed to the need to construe constitutional guarantees liberally, in order to prevent their circumvention by indirectly allowing what could not be done directly. Although Justice Gaudron agreed that the purpose of the law was the sole criterion of validity, she found it could have more than one purpose. While the general purpose of the Ordinance was the protection and preservation of the Aboriginal race, another purpose could have been the removal of Aboriginal children from their communities in order to prevent their participation in community practices. If such practices ‘...included religious practices, that purpose necessarily extended to prohibiting the free exercise of religion’.[12] However she also stated that a law that effectively operates to prohibit the free exercise of religion will not contravene section 116 if it is a law that is essential for the attainment of an overriding public purpose.[13]
Purpose of Section 190C(3)
Section 190C(3) of the NTA provides that when assessing a claimant application for the purposes of the registration test, the Native Title Registrar:
(3) ... must be satisfied that no person included in the native title claim group for the application (‘the current application’) was a member of the native title claim group for any previous application, if;(a) the previous application covered the whole or part of the area covered by the current application; and
(b) an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and
(c) the entry was made, or not removed, as a result of consideration of the previous application under section 190A.
Section 190C(3) was one of the amendments introduced by the Native Title Amendment Act 1998 (Cth). Prior to the amendments, the Registrar of the National Native Title Tribunal was required to accept an application unless it was frivolous or vexatious or prima facie the grounds of the application could not be made out.[14] It was also a requirement of the original Act that registration occur immediately upon lodgment of the claim.[15]
The low threshold test resulted in allegations of the lodgment of spurious claims, motivated by the desires of claimants to exercise the right to negotiate. An aim of the 1998 amendments, including section 190C(3), was to discourage false claims and raise the bar for registration of native title claims.[16]
However, overlapping claims may be reflective of the complexities of Indigenous relationships with land as opposed to inappropriate financial motivations of claimants. With intermarriages between neighboring groups, it is also foreseeable that different claim groups may have some common ancestors.
If an early application defines the claim group in terms of descendants of named ancestors,[17] individuals who have common ancestry with a subsequent overlapping claim group may find themselves in an arduous position. Such individuals will have to be excluded from the claim group of the subsequent application in order to secure its registration. The fact of registration may be of critical importance to native title claim groups, particularly in circumstances where the claim is lodged in anticipation of a future act to which Part 2 Division 3 Subdivision P applies (eg an application for a mining lease).
In such circumstances, section 190C(3) operates to prohibit the free exercise of Indigenous religions because individuals within the claim group may be denied some of the incidents of their spiritual relationship with the land. For example, individuals may be denied the opportunity to participate in discussions in relation to cultural heritage issues arising in the context of the right to negotiate with government and grantee parties.
Furthermore, it is doubtful that the interference with the free exercise of Indigenous religion brought about by the operation of section 190C(3) actually attains the ‘overriding public purpose’ of providing certainty to non-Indigenous land users. At the outset, conflict between registered claimants and those who have failed the registration test could adversely impact upon mediation with non-Indigenous land users, leading to protracted negotiations.
As established earlier in this paper, the NTA is subject to the limitations contained within section 116 and Indigenous belief systems are properly included in any definition of religion for the purposes of section 116.
It is also foreseeable that the operation of section 190C(3) could place Indigenous people in an invidious situation of forgoing some spiritual obligations to their land in order to ensure the free exercise of others.
However, it is unlikely that the present High Court would classify section 190C(3) as a law for prohibiting the free exercise of religion. In the Kruger case,[18] the majority confined their enquiry to the objective purpose of the legislation and precluded any investigation of the practical effects of the law’s operation. Should the majority’s view be applied to section 190C(3), it would be held that section 190C(3) was not a law for an object proscribed by section 116.
However, should the views of Justice Gaudron prevail, there would be room to examine the operation of section 190C(3). Whilst certainty for non-Indigenous land-users may be one purpose, the undue restriction of Indigenous spiritual relationships with land could be another.
It is submitted that the arguments in favour of Justice Gaudron’s reasoning are compelling. Constitutional guarantees such as section 116 become illusory when the focus of the enquiry is confined to the text of the legislation. Under such reasoning the Commonwealth could pass an immigration law that operated to deport all adherents of a particular religion. In accordance with the reasoning of the majority in the Kruger case, the Court would be precluded from considering any practical effects of the operation of the legislation. In those circumstances, the Court would completely resile from any assessment of whether or not the subject law unduly infringed upon the religious freedom of Australian citizens and in a practical sense abdicate such responsibility to the Parliament. Furthermore, the important goal of providing special protection to the religious freedom of minorities such as native title-holders should not be overwhelmed by the narrow compass of textual construction.
The views expressed in this article are those of the author and do not represent the views of the Qld Environmental Protection Agency.
Nicole Watson is a member of the Birri Gubba tribe of central Queensland. She is a lawyer employed by the Qld Parks and Wildlife Service.
The views expressed in this article are those of the author and do not represent the views of the Qld Environmental Protection Agency[.]
1 NTA s 44B.
[2] NTA Part 2 Division 3 Subdivision P.
[3] [1943] HCA 12; (1943) 67 CLR 116.
[4] Ibid 123.
[5] [1983] HCA 40; (1983) 154 CLR 120.
[6] Ibid 137.
[7] Ibid 151.
[8] Quoted by Brennan J in R v Toohey; Ex Parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327, 356-357.
[9] The inclusion of Aboriginal systems of faith and worship into the definition of religion for the purposes of section 116 is also supported by obiter dicta in the judgments of Justice Murphy in the Church of New Faith Case, above n 5, 151 and Gummow J in Kruger v The Commonwealth [1997] HCA 27; (1996) 190 CLR 1, 160.
[10] Ibid.
[11] Ibid 131.
[12] Ibid 133.
[13] Ibid 134.
[14] The now-repealed s 63(1) NTA.
[15] Northern Territory v Lane (1995) 59 FCR 332.
[16] Commonwealth, Parliamentary Debates, House of Representatives, 9 March 1998, 784.
[17] It is common place for claim groups to be defined in terms of descendants of named ancestors, thus satisfying the requirement in s 190B(3)(b) that the application describe the claim group ‘sufficiently clearly so that it can be ascertained whether any particular person is in that group’.
[18] Ibid, above n 9.