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Barlett, Richard --- "Wik: Equity and the Fallacy of 'Extinguishment'" [1997] IndigLawB 31; (1997) 4(1) Indigenous Law Bulletin 11

Wik: Equality and the Fallacy of 'Extinguishment'

By Richard Bartlett

The decision of the High Court in Wik was of great significance in the making available for claim to native title of that vast area of Australia, perhaps as much as one half, with a pastoral lease history. But the decision has a more fundamental significance in the declaration of the equal status of native title at common law to interests granted by the Crown. The decision is a rejection of a subordinate status which four Justices in Mabo [No. 2] had favoured. The most obvious consequence of the equal status of native title is the inappropriateness of the use of the term `extinguishment', with its suggestion of special rules which bring about the termination of native title. But the implications with respect to native title go well beyond the termination of native title, including the content of native title, the burden of proof which must be borne by a claimant, the measure of compensation, and the possibility of suspension and revival of native title.

A subordinate status in Mabo [No. 2]

A majority of six Justices in Mabo [No. 2] accepted native title as part of the common law of Australia, and voiced a common rationale of equality:

`The preferable rule equates the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land and recognises in the indigenous inhabitants of a settled colony the rights and interests recognised ... as surviving to the benefit of the residents of a conquered colony'.[1]
The courts would accordingly presume `that the rights of property of the inhabitants are to be fully respected'.[2] `Extinguishment' or expropriation by the Crown would require the clearest and plainest manifestation of legislative intention. The common law imposed such a requirement upon the expropriation of any right in property, and equality and `full respect' dictated that the requirement must also apply to the `extinguishment' or expropriation of native title.

But three Justices of these six in Mabo [No. 2], Mason CJ, Brennan and McHugh JJ, rejected that necessary consequence of the equal status to be accorded native title. The Justices rejected `the conclusion ... that, at least in the absence of clear and ambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages'.[3]

Brennan J sought to explain that opinion as due to the subordinate status of native title to interests granted by the Crown.[4] But of course, it was inconsistent with the generally declared rationale of equality and relied fundamentally on the pragmatism of the United States jurisprudence and the decision of Chief Justice Marshall of the United States Supreme Court in Johnson v McIntosh.[5] Marshall CJ had rejected the application of principles which otherwise would equally govern all rights and interests in favour of a `new and different rule, better adapted to the actual state of things' in order to give paramountcy to the rights of settlers.

Dawson J was the seventh justice in Mabo [No. 2]. He had, of course, rejected native title as part of the common law of Australia except as a `form of permissive occupancy at the will of the Crown'.[6] There were accordingly four Justices in Mabo [No. 2] who favoured a subordinate status for native title at common law when considering the crucial question of `extinguishment' or unilateral termination.

Three Justices in Mabo [No. 2], Deane, Gaudron and Toohey JJ, rejected such an approach and considered that extinguishment by inconsistent grant without clear and plain legislative authority was wrongful.[7] The requirement of such authority was considered applicable to all rights and interests including native title. It was a restatement of the canon of construction that proprietary rights of a subject may not be taken away in the absence of unequivocal language.[8] The essence of their position was that native title should be accorded equal treatment under the law with interests granted by the Crown. They maintained the fundamental rationale of equality declared in the acceptance of native title as part of the common law by all six members of the Court who had recognised native title.

Equal status in Wik

In Wik Gaudron J and Toohey J were joined by Gummow J and Kirby J in upholding the rationale of equal status for native title. The Justices formed a majority of four in concluding that a Crown grant can only unilaterally terminate native title by virtue of inconsistency if legislation has manifested a clear and plain intention that extinguishment should result from the grant.[9] The majority applied the principles governing expropriation of all other rights and interests to native title. They rejected the application of a unique and arcane jurisprudence that relies upon a lesser unequal status for native title.

The minority judgment, written by Brennan CJ, adhered to the notion he had applied in Mabo [No. 2], of the lesser status of native title. The Chief Justice in Wik expressly rejected any requirement that the legislature must clearly and plainly manifest an intention that extinguishment result from a Crown grant.[1]0 He made no mention of any principle of equality or `full respect' due native title. The minority opinion is incompatible with such a principle.

The fallacy of `extinguishment'

It is proper to conclude from the majority decision in Wik, and the rationale of native title expressly declared by the High Court in Mabo [No. 2], that native title should be accorded equal status at common law to that of other rights and interests. A lower common law status in order to give paramountcy to settler interests has been rejected. Such paramountcy would only be given effect when the supremacy of the legislature, manifested by clear and plain statutory authority, has so ordained. The ordinary principles applicable to the expropriation of all rights and interests apply to the `extinguishment' of native title. It is accordingly a fallacy, an error which can only mislead, to continue to use the term `extinguishment' with reference to native title, with its suggestion of unique arcane rules. Language should be used that accords with the general principles applicable to all rights and interests, which, in the case of unilateral confiscation by the Crown, is `expropriation'.[1]1 In future the issue before the Courts, where the Crown asserts that native title has been `extinguished', is more accurately expressed as whether or not the legislature made clear and plain its intention to expropriate native title without compensation.

The New Zealand jurisprudence has long maintained the equality of status of native title to other interests. The Court of Appeal recently explained the relationship of expropriation to native title in Te Runanganui o Te Ika Whenua Inc Society v Attorney General.[1]2 Free consent to the taking of native title, as with other interests, is generally required, although:

`It may be that the requirement of free consent has at times to yield to the necessity of compulsory acquisition of land or other property for specific public purposes which is recognised in many societies'.
The implications of equal status for Crown grants

The acceptance of the principle of the equal status of native title at common law, and accordingly the inappropriateness of the use of the term `extinguishment', has significant implications for circumstances in which the unilateral termination of native title is asserted. It suggests that the onus upon the Crown to show such termination is much greater than has perhaps previously been perceived. Mere inconsistency in a Crown grant will not suffice. It must be such an inconsistency that it can be said that the legislature clearly and plainly intended to bring about the expropriation without compensation of native title. In Wik, the grant of pastoral leases was not considered to have expropriated all incidents of native title. Mining leases and oil and gas production licences may well be similarly construed. A variety of other Crown tenures will need to be assessed to determine if co-existence with native title was impossible,[1]3 and, accordingly, absent any other circumstances, whether there was a clear and plain intention on the part of the legislature to expropriate.

Proof, content, compensation and suspension

Other implications of the application of the principle of the equal status of native title abound and will need to be worked through by the courts. They include:

  1. The requirement that the Crown prove abandonment of native title rather than the necessity for the claimants to prove substantial maintenance. Such is the onus of proof where it is asserted that any other interests have been abandoned.
  2. The affirmation of the principle that the onus of showing expropriation or `extinguishment' is on the Crown.
  3. The need for the Crown to show a clear and plain legislative intention to expropriate when the Crown uses lands in a Crown reserve and asserts the termination of native title.
  4. The vitality of the argument that native title is only suspended and not permanently expropriated or `extinguished' by a non-permanent grant or appropriation. For example, it may be difficult to understand how the grant of a one year lease could be said to manifest a clear and plain intention on the part of the legislature to permanently expropriate native title.
  5. The need to extend `full respect' in the assessment of the content of native title demanded by the equal status of native title. Native title holders with traditional exclusive rights may be recognised as holders of the entire beneficial interest. Such would reflect the `extent of the pre-existing interest', to use the language of Deane and Gaudron JJ.[1]4 Chief Justice Marshall in the United States Supreme Court may have adopted a pragmatic approach with respect to the `extinguishment' of native title, but the Chief Justice adopted a rationale of equality with respect to its content:
  6. `Indian possession or occupation was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way and for their own purposes was as much respected'.[1]5

  7. The measure of compensation due an interest equal in status to other interests.
  8. Principle rather than pragmatism.

The majority in Wik have maintained principle, rather than pragmatism, in establishing the equal status of native title at common law. In doing so the High Court is able to do such justice to Aboriginal people as the common law allows. It is of particular significance in the context of `extinguishment' because of the absence of any protection from racial discrimination until 1975. But the common law affords only limited protection. It affords no remedy against legislation which clearly and plainly provided for the dispossession of Aboriginal people. The supremacy of Parliament will be considered to prevail, even to the extent of the expropriation of native title without compensation, if it is considered that the will of Parliament was made clear and plain.

Wik is of such great significance because of its maintenance of the principle of equality at common law, but it also makes evident the limits of the common law, and the need for a Constitutional amendment which will entrench principles of equality and apply them to the legislature, just as the common law applies them to the courts.


[1] [1992] HCA 23; (1992) 175 CLR 1 at 56-57 per Brennan J; at 15 per Mason CJ and McHugh J; at 82-83 per Deane and Gaudron JJ; at 182-184 per Toohey J.

[2] Ibid at 82-83 per Deane J, citing the Privy Council decision Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876 at 880, [1957] 2 All ER 785 at 788.

[3] . [1992] HCA 23; (1992) 175 CLR 1 at 15.

[4] Ibid at 64.

[5] (1823) 21 US 681 at 693. Brennan J relied on the United States jurisprudence and its rationale in his reference to Joint Tribal Council of Passamaquoddy Tribe v Morton (1975) 528 Fed 2d 370 at 376 n6 in [1992] HCA 23; (1992) 175 CLR 1 at 63.

[6] [1992] HCA 23; (1992) 175 CLR 1 at 15.

[7] Ibid, at 111 per Deane and Gaudron JJ, at 195-196 per Toohey J.

[8] Referring to Central Control Board (Liquor Traffic) v Canon Brewery [1919] AC 744 at 752.

[9] From judgment of 23 December 1996. At 75, 80 per Toohey J; at 111, 124 per Gaudron J; at 128, 131, 148-149, 168 per Gummow J; at 207, 216, 221 per Kirby J.

[10] Ibid, at 24-26.

[11] Ibid, at 71 per Toohey J; at 111 per Gaudron ; at, 222 per Kirby J.

[12] [1993] NZCA 218; [1994] 2 NZLR 20 at 24. And see R v Symonds (1847) NZ PCC 387 at 390.

[13] From judgment of 23 December 1996. At 75 per Toohey J; at 148-149 per Gummow ; at, 223 per Kirby J.

[14] . Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1 at 88 (and see at 86).

[15] Mitchel v United States (1835) 34 US [1835] USSC 9; (9 Pet) 711 at 746.

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