Stoeckel, Kate --- "Case Note - Western Australia v Ward & Ors" [2003] SydLawRw 12; (2003) 25(2) Sydney Law Review 255

Case Note

Western Australia v Ward & Ors

KATE STOECKEL

1. Introduction

2. Background to the Case

This case concerned a native title application by three groups of indigenous claimants[1] over a 7900 square kilometre area of land and waters in the East Kimberley region of Western Australia extending into the Northern Territory. Included in the claim area were two substantial economic entities: the Ord River irrigation project and the Argyle Diamond Mine. The area under consideration is a remote area of Australia where ‘a large part of the land resumed or acquired ... remains in unaltered form’.[2] Various native title rights were claimed. Some were very wide, such as the right to ‘possession, occupation use and enjoyment of the land’ and the right to ‘speak for country’.[3] Others were narrower, for example sustenance rights, the right to hunt and gather food, and the rights to perform ceremonies and protect cultural knowledge.[4]

The claim was first heard in 1995 in the Federal Court before Justice Lee.[5] At that time the Native Title Act was in its original form. For native title to be recognised under the Act, it must satisfy the elements set out in s223(1).[6] A determination over a particular area is then made under s225. The primary judge held that native title, as determined under s225 of the Native Title Act as it was at the time of the hearing, occurred in respect of ‘a very large portion of the claim area’.[7] Important to the subsequent appeals was that Justice Lee recognised that the nature and extent of native title included the right to control access to the determination area.[8]

The primary decision was appealed against and the Full Federal Court substituted a new determination.[9] This decision was also appealed. Altogether, four appeals were heard before the High Court.[10] The Aboriginal claimants submitted that the determination of native title should have been more extensive, to reflect their ‘communal native title’ as being ‘practically equivalent to full ownership’ vested in the community.[11] The native title claimed, it was submitted, should also include the right to resources and the right to ‘maintain, protect and prevent the misuse of cultural knowledge’, found by the trial judge but overturned by the Full Court.[12] The opposing parties responded with contrary submissions.

3. The High Court Judgments

Four judgments were handed down. Chief Justice Gleeson and Justices Gaudron, Gummow and Hayne issued a joint judgment. Justice Kirby generally concurred with the majority, but added some minor qualifications.[13] To provide ‘a clear statement of the applicable law’[14] in the legal quagmire of native title disputes, Justice Kirby put aside his personal preferences on certain issues in accordance with his view that the ‘avoidance of unnecessary doubt and confusion is a proper objective of land law’.[15] The reservations he records are discussed below in the relevant sections. Separate dissenting judgments were delivered by Justice McHugh and Justice Callinan.

3.1 The Majority

(a) Characterisation of Native Title

The High Court did not devote much analysis to the Full Federal Court’s substantial debate regarding the proper characterisation of native title, as the principles of extinguishment focused on by the High Court do not turn on characterisation. However, the High Court did state that any determination on native title must first understand the meaning of the term.[16]

(i) The Spiritual Connection with the Land

There will always be a substantial degree of difficulty in reconciling two very different systems of law. For example, the complex spiritual and ‘organic’[17] relationship between Aboriginal people and their land defies characterisation as a ‘right’ or an ‘interest’ by its very nature. So how can it be recognised by Anglo-Australian land law? Yet, as noted by the High Court, that is precisely what the Native Title Act requires:

The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into the rights and interests which are considered apart from the duties and obligations which go with them.[18]

The disempowering ramifications of the fragmentation of traditional rights can be seen in the Court’s determination on cultural knowledge.[19] The primary judge found the existence of a ‘native title right to maintain, protect and prevent the misuse of cultural knowledge’.[20] The Full Federal Court overturned this finding, and the High Court upheld the Full Court’s view by majority. The reason given by the High Court joint judgment is that a native title right to prevent the misuse of cultural knowledge goes beyond the ‘connection’ required by s223(1)(b) of the Native Title Act, discussed below, as it would be ‘akin to a new species of intellectual property’.[21] Although the majority noted that the native title right to restrict access to culturally sensitive sites, where not extinguished, could be used to protect cultural knowledge, the majority view was that a regime to protect cultural knowledge must be found under general law and statute.[22]

Justice Kirby, in disagreement with the majority on this point, found that the connection required under s223(1)(b) could be established through the spiritual connection with the land.[23] This view is supported by reference to Australia’s ratification of international human rights instruments,[24] which, in Justice Kirby’s opinion, include ‘the right of indigenous people to have “full ownership, control and protection of their cultural and intellectual property.” ’[25] Justice Kirby’s finding is a rare instance of the practical application of the sui generis nature of native title. To date this concept has been dormant in Australian law, for ‘so far claims have generally related physically to land or waters in a way analogous to common law property concepts.’[26] The possibilities arising from the uniqueness of native title have not yet been fully realised or tested in Australia.

(ii) The Right to ‘Speak for Country’ and the‘Bundle of Rights’ Debate

The right to ‘speak for country’ was accepted by the High Court as ‘a core concept in traditional law and custom’, that does not, however, exhaustively capture the rights and interests conferred by traditional law.[27] The concept is expressed most closely in the common law as the ‘right to possess, occupy, use and enjoy the land to the exclusion of all others’.[28] However, defining the right to ‘speak for country’ in this way gives rise to a tendency to ‘break the expression into its constituent elements’.[29] This, in turn, may see the right to speak for country misconstrued as a ‘bundle of rights’ rather than as a relationship with the land.[30]

Whether native title can be seen as a ‘bundle of rights’ was comprehensively discussed before the Full Federal Court. Although the sui generis nature of native title was recognised in Mabo,[31] Justices Beaumont and von Doussa in the Full Federal Court took the view that native title constitutes a ‘bundle of rights’.[32] Even though this view was qualified as ‘not to deny the possibility that in a particular case the rights and interests may be so extensive as to be in the nature of a proprietary interest in land’, it does not adequately reflect the indigenous relationship with the land.[33] This view was in contrast to the primary judge’s characterisation of native title as ‘a communal “right to land” arising from the significant connection of an indigenous society with land under its customs and culture’.[34]

Justice North in the Full Federal Court agreed with the primary judge’s characterisation, regarding communal native title rights as ‘[reflecting] the traditional law of the Aboriginal people’.[35] There is precedent to support this view. For example, Justice Brennan in R v Toohey; ex parte Meneling Station Pty Ltd held that ‘Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights’.[36] The relevance of this debate becomes apparent in the present case when considering extinguishment. If the sui generis characterisation of native title as a relationship to the land were followed, it would be difficult to establish a rationale for the partial extinguishment of native title rights. However, the High Court took the view in this case that the ‘bundle of rights metaphor’ was ‘useful’: it highlights the possibility that more than one right may exist, and more than one type of right may be present.[37] This approach warrants extinguishment of one or more rights whilst leaving others intact.

(b) Principles of Extinguishment

(i) Prior to the 1998 Amendments

Mabo established that, regardless of earlier precedent, native title exists in Australia and is recognised by the common law.[38] Further, it continues to exist until extinguished by clear and plain legislative intent. Mabo’s principles meant that suddenly many native title issues arose for urgent determination. Of relevance to this case was how the pastoral lease — a peculiar statutory creature covering large swathes of territory — interacts with native title. The High Court decision of Wik held that pastoral leases did not necessarily confer the right of exclusive possession upon the grantee, and could thus coexist with native title. Ward takes up the issue of the extinguishment of native title under the pastoral lease, and particularly whether partial extinguishment is possible.

It is the very source of native title, namely traditional Aboriginal laws and customs, that also gives rise to its central weakness — its susceptibility to extinguishment. As native title is not derived from Crown sovereignty and is not held of the Crown, it does not enjoy the same protection and priority as Crown tenures. It is extinguished by ‘a valid exercise of sovereign power inconsistent with the continued enjoyment or unimpaired enjoyment of native title’,[39] including Crown actions that evince a clear and plain intention to extinguish such title.[40] The purpose of extinguishment, as noted by Justice North in the Full Court:

is to ensure that inconsistent rights or interests have priority over native title and override native title ... .Where those rights or interests can be enjoyed without abolition of native title there is no place for extinguishment.[41]

Extinguishment, once effected, is irreversible. Justice Kirby offered four explanations for the irreversibility in Fejo, a case where the inconsistent grant was a statutory estate in fee simple.[42] Firstly, native title is a fragile legal property right recognised by the common law as highly susceptible to extinguishment.[43] Secondly, the granting of an estate is an ‘assertion of the sovereign rights of the grantor to establish its power in respect of the land and to exclude any claim not specifically granted by it.’[44] Thirdly, for native title to exist after extinguishment, a common law rule would be required for its reinstatement. As native title is not derived from the common law but from traditional Aboriginal laws and customs, ‘[t]he conferral of ... new rights by common law would be completely incompatible with the notion that native title rights have their origin in Aboriginal custom: not in the Australian legal system.’[45] Finally, non-revival of extinguished native title recognises the legal history of Australia’s land law and the inability of the courts to interfere with its central principles.[46] As property jurisprudence is an area of law where ‘there is a very high premium on certainty’,[47] the principle of non-revival reflects both this history, and practical and policy considerations.

However, the irreversibility of extinguishment for native title has dire consequences for indigenous communities for, as seen above, the concept of land within Aboriginal culture is intrinsic to every aspect of indigenous culture. Arguably, the denial of native title rights has a further-reaching and more serious effect than the denial of non-indigenous interests.

(ii) Statutory Framework for Extinguishment

One of the primary functions of the Native Title Act is to provide certainty for non-indigenous Australians who have been granted interests in land that is potentially subject to native title. Certainty in tenure is at the heart of Australian land law, providing strong incentives for economic growth and prosperity. However, the indigenous perspective reveals that ‘certainty’ is really a euphemism for ‘extinguishment’.

The High Court made it clear that extinguishment is to be governed by the statutory scheme of the Native Title Act.[48] Section 11(1) of the Native Title Act states that native title cannot be extinguished contrary to the Act. In order for native title to be protected, the rights and interests it encompasses must first come within the definition of native title in s223(1):[49]

(a) 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

(b) The Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) The rights and interests are recognised by the common law of Australia.

Regarding s223(1)(b), it is not necessary that the connection with the land or waters be of continual usage or physical occupation,[50] although s13(1) of the Act provides that any judicial determination of native title can be varied or revoked if the continued connection with the land is disrupted.[51] Rather, ‘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’.[52] However, it is lamentable that the High Court did not provide guidance on what the nature of the connection must be, and particularly, when a spiritual connection might suffice.

Regarding ‘recognition’ under s223(1)(c), the majority note that ‘the case law does not purport to provide a comprehensive understanding of what is involved in the notion of “recognition”.’[53] Justice Kirby adds that ‘recognition’ of native title has no effect on the underlying Aboriginal law, as traditional laws and interests remain separate and continue to operate ‘regardless of any ... extinguishment’.[54]

Section 237A of the Act provides that native title, once extinguished, cannot be revived. However, s238 embodies a ‘non-extinguishment principle’, whereby native title rights and interests are suspended in certain circumstances for the duration of the inconsistent interest. Once the non-native interest ceases to operate, native title again has full effect.[55]

Before the 1998 amendments, which were the legislative response to Wik,[56] there was little in the Native Title Act regarding extinguishment.[57] Divisions 2A and 2B were part of the 1998 amendments, and now govern extinguishment of native title in conjunction with Div 2. Firstly, however, an act must be valid before the extinguishment question arises. Divisions 2A and 2B then confirm past extinguishment of native title by certain valid or validated acts attributable to the Commonwealth.[58]

The timing of an act is important for validation purposes. Acts predating the Racial Discrimination Act are valid,[59] as are acts validated by the operation of the Native Title Act. The past acts referred to in Division 2B are generally those done between the time of commencement of the Racial Discrimination Act and 31 December 1993 and are validated by Division 2. A previous act under Division 2B will be valid if it is not invalidated by the operation of the Racial Discrimination Act, or if the Native Title Act renders the act valid.[60] Intermediate acts fall between 1 January 1994 and 23 December 1996 and are validated by Div 2A.[61] Certain past and intermediate period acts that would otherwise be invalid due to the operation of the Racial Discrimination Act are also expressly validated by Div 2B.

Sections 23C and 23G of Division 2B mandate full and partial extinguishment respectively. Section 23C deals with extinguishment by ‘previous exclusive possession acts’, as defined in s23B, which completely extinguish native title. Section 23G deals with extinguishment by ‘previous non-exclusive possession acts’, as defined in s23F, which extinguish native title to the extent of any inconsistency.[62]

(iii) The Test for Extinguishment in the Event ofInconsistency

The regime established by the Native Title Act distinguishes between previous exclusive and previous non-exclusive possession acts. As seen above, previous exclusive possession acts will completely extinguish native title, and must be determined on a case-by-case basis.[63] Where there has been a previous non-exclusive possession act, native title will be partially extinguished to the extent of the inconsistency.

The High Court held that the appropriate test to determine the extent of extinguishment is the ‘inconsistency of incidents’ test, whereby the legal nature and extent of the rights of the non-indigenous interest are identified and objectively compared against an established native title claim.[64] The High Court preferred this test because of its objectivity, whereas examining acts for a ‘clear and plain intention’ necessarily involves looking at the subjective intention of the legislature. In agreeing with the majority on this issue, Justice Kirby added that it would be useful to supplement this test with the ‘reasonable user’ test propounded by Justices Beaumont and von Doussa in the Full Federal Court.[65]

‘Operational inconsistency’ was ruled out as a basis for extinguishment, but is nevertheless useful as an analogy.[66] It is the legal rights of both parties that must be compared, not the practical effect of their actions. For example, when examining possible inconsistencies with the Ord River Irrigation Project, the court was not to view the Project as a holistic economic or geographic entity, but as a creature of statute. The legal effect of each statutory grant that established the Project, rather than the effects of its daily operations, needed to be compared with native title rights.[67]

The High Court affirmed the rejection by the Full Federal Court of the ‘adverse dominion test’.[68] This was the test adopted by the primary judge. The test’s three elements required:

First, that there be a clear and plain expression of intention by parliament to bring about extinguishment in that manner; secondly, that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and thirdly, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof.[69]

The High Court reasoned that the first step of the adverse dominion test, namely identification of a ‘clear and plain expression of intention by parliament to extinguish’ is again ‘apt to mislead’ by creating irrelevant inquiries into subjective intentions.[70] An objective comparison between indigenous and non-indigenous legal rights is preferred.

(c) Practical Application of Extinguishment

(i) Pastoral Leases

Wik determined that native title could coexist with pastoral leases. Further questions of extinguishment, such as whether it is whole or partial, were addressed in the present case. If the pastoral leases in this case conferred a right of exclusive possession, they would extinguish native title completely under s23C of Division 2B. Under the ‘inconsistency of incidents’ test, the court must first look at what rights are granted under the pastoral lease, and then classify the grant.[71] The High Court concluded that the rights under a pastoral lease are limited due to the extensive conditions and reservations imposed.[72] Reaffirming Wik, the majority held that even with all its common law connotations, the nomenclature of a ‘lease’ does not of itself grant exclusive possession.[73]

Without the right of exclusive possession, the Western Australian pastoral leases fell within the s248B definition of a ‘non-exclusive pastoral lease’.[74] As any lease is valid if granted before the commencement of the Racial Discrimination Act in 1975, the WA pastoral leases in this instance were ‘previous non-exclusive possession acts’ as defined in s23F of the Native Title Act. Native title was, therefore, open to partial extinguishment, under s23G, if inconsistent with the rights granted under the lease.[75] Where the ‘inconsistency of incidents’ test found that the continuation of native title was not inconsistent with the rights under the pastoral lease, the latter were held to prevail over the native title rights and interests but not to extinguish them.[76]

The main native title right held by the court to be inconsistent with the pastoral leases was the right to control access to the land, which is also reflected in the right to ‘speak for country’:

The pastoral leases ... denied to the native title holders the continuation of a traditional right to say who could or who could not come onto the land in question.[77]

3. The High Court Judgments

Four judgments were handed down. Chief Justice Gleeson and Justices Gaudron, Gummow and Hayne issued a joint judgment. Justice Kirby generally concurred with the majority, but added some minor qualifications.[78] To provide ‘a clear statement of the applicable law’[79] in the legal quagmire of native title disputes, Justice Kirby put aside his personal preferences on certain issues in accordance with his view that the ‘avoidance of unnecessary doubt and confusion is a proper objective of land law’.[80] The reservations he records are discussed below in the relevant sections. Separate dissenting judgments were delivered by Justice McHugh and Justice Callinan.

3.1 The Majority

(a) Characterisation of Native Title

The High Court did not devote much analysis to the Full Federal Court’s substantial debate regarding the proper characterisation of native title, as the principles of extinguishment focused on by the High Court do not turn on characterisation. However, the High Court did state that any determination on native title must first understand the meaning of the term.[81]

(i) The Spiritual Connection with the Land

There will always be a substantial degree of difficulty in reconciling two very different systems of law. For example, the complex spiritual and ‘organic’[82] relationship between Aboriginal people and their land defies characterisation as a ‘right’ or an ‘interest’ by its very nature. So how can it be recognised by Anglo-Australian land law? Yet, as noted by the High Court, that is precisely what the Native Title Act requires:

The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into the rights and interests which are considered apart from the duties and obligations which go with them.[83]

The disempowering ramifications of the fragmentation of traditional rights can be seen in the Court’s determination on cultural knowledge.[84] The primary judge found the existence of a ‘native title right to maintain, protect and prevent the misuse of cultural knowledge’.[85] The Full Federal Court overturned this finding, and the High Court upheld the Full Court’s view by majority. The reason given by the High Court joint judgment is that a native title right to prevent the misuse of cultural knowledge goes beyond the ‘connection’ required by s223(1)(b) of the Native Title Act, discussed below, as it would be ‘akin to a new species of intellectual property’.[86] Although the majority noted that the native title right to restrict access to culturally sensitive sites, where not extinguished, could be used to protect cultural knowledge, the majority view was that a regime to protect cultural knowledge must be found under general law and statute.[87]

Justice Kirby, in disagreement with the majority on this point, found that the connection required under s223(1)(b) could be established through the spiritual connection with the land.[88] This view is supported by reference to Australia’s ratification of international human rights instruments,[89] which, in Justice Kirby’s opinion, include ‘the right of indigenous people to have “full ownership, control and protection of their cultural and intellectual property.” ’[90] Justice Kirby’s finding is a rare instance of the practical application of the sui generis nature of native title. To date this concept has been dormant in Australian law, for ‘so far claims have generally related physically to land or waters in a way analogous to common law property concepts.’[91] The possibilities arising from the uniqueness of native title have not yet been fully realised or tested in Australia.

(ii) The Right to ‘Speak for Country’ and the‘Bundle of Rights’ Debate

The right to ‘speak for country’ was accepted by the High Court as ‘a core concept in traditional law and custom’, that does not, however, exhaustively capture the rights and interests conferred by traditional law.[92] The concept is expressed most closely in the common law as the ‘right to possess, occupy, use and enjoy the land to the exclusion of all others’.[93] However, defining the right to ‘speak for country’ in this way gives rise to a tendency to ‘break the expression into its constituent elements’.[94] This, in turn, may see the right to speak for country misconstrued as a ‘bundle of rights’ rather than as a relationship with the land.[95]

Whether native title can be seen as a ‘bundle of rights’ was comprehensively discussed before the Full Federal Court. Although the sui generis nature of native title was recognised in Mabo,[96] Justices Beaumont and von Doussa in the Full Federal Court took the view that native title constitutes a ‘bundle of rights’.[97] Even though this view was qualified as ‘not to deny the possibility that in a particular case the rights and interests may be so extensive as to be in the nature of a proprietary interest in land’, it does not adequately reflect the indigenous relationship with the land.[98] This view was in contrast to the primary judge’s characterisation of native title as ‘a communal “right to land” arising from the significant connection of an indigenous society with land under its customs and culture’.[99]

Justice North in the Full Federal Court agreed with the primary judge’s characterisation, regarding communal native title rights as ‘[reflecting] the traditional law of the Aboriginal people’.[100] There is precedent to support this view. For example, Justice Brennan in R v Toohey; ex parte Meneling Station Pty Ltd held that ‘Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights’.[101] The relevance of this debate becomes apparent in the present case when considering extinguishment. If the sui generis characterisation of native title as a relationship to the land were followed, it would be difficult to establish a rationale for the partial extinguishment of native title rights. However, the High Court took the view in this case that the ‘bundle of rights metaphor’ was ‘useful’: it highlights the possibility that more than one right may exist, and more than one type of right may be present.[102] This approach warrants extinguishment of one or more rights whilst leaving others intact.

(b) Principles of Extinguishment

(i) Prior to the 1998 Amendments

Mabo established that, regardless of earlier precedent, native title exists in Australia and is recognised by the common law.[103] Further, it continues to exist until extinguished by clear and plain legislative intent. Mabo’s principles meant that suddenly many native title issues arose for urgent determination. Of relevance to this case was how the pastoral lease — a peculiar statutory creature covering large swathes of territory — interacts with native title. The High Court decision of Wik held that pastoral leases did not necessarily confer the right of exclusive possession upon the grantee, and could thus coexist with native title. Ward takes up the issue of the extinguishment of native title under the pastoral lease, and particularly whether partial extinguishment is possible.

It is the very source of native title, namely traditional Aboriginal laws and customs, that also gives rise to its central weakness — its susceptibility to extinguishment. As native title is not derived from Crown sovereignty and is not held of the Crown, it does not enjoy the same protection and priority as Crown tenures. It is extinguished by ‘a valid exercise of sovereign power inconsistent with the continued enjoyment or unimpaired enjoyment of native title’,[104] including Crown actions that evince a clear and plain intention to extinguish such title.[105] The purpose of extinguishment, as noted by Justice North in the Full Court:

is to ensure that inconsistent rights or interests have priority over native title and override native title ... .Where those rights or interests can be enjoyed without abolition of native title there is no place for extinguishment.[106]

Extinguishment, once effected, is irreversible. Justice Kirby offered four explanations for the irreversibility in Fejo, a case where the inconsistent grant was a statutory estate in fee simple.[107] Firstly, native title is a fragile legal property right recognised by the common law as highly susceptible to extinguishment.[108] Secondly, the granting of an estate is an ‘assertion of the sovereign rights of the grantor to establish its power in respect of the land and to exclude any claim not specifically granted by it.’[109] Thirdly, for native title to exist after extinguishment, a common law rule would be required for its reinstatement. As native title is not derived from the common law but from traditional Aboriginal laws and customs, ‘[t]he conferral of ... new rights by common law would be completely incompatible with the notion that native title rights have their origin in Aboriginal custom: not in the Australian legal system.’[110] Finally, non-revival of extinguished native title recognises the legal history of Australia’s land law and the inability of the courts to interfere with its central principles.[111] As property jurisprudence is an area of law where ‘there is a very high premium on certainty’,[112] the principle of non-revival reflects both this history, and practical and policy considerations.

However, the irreversibility of extinguishment for native title has dire consequences for indigenous communities for, as seen above, the concept of land within Aboriginal culture is intrinsic to every aspect of indigenous culture. Arguably, the denial of native title rights has a further-reaching and more serious effect than the denial of non-indigenous interests.

(ii) Statutory Framework for Extinguishment

One of the primary functions of the Native Title Act is to provide certainty for non-indigenous Australians who have been granted interests in land that is potentially subject to native title. Certainty in tenure is at the heart of Australian land law, providing strong incentives for economic growth and prosperity. However, the indigenous perspective reveals that ‘certainty’ is really a euphemism for ‘extinguishment’.

The High Court made it clear that extinguishment is to be governed by the statutory scheme of the Native Title Act.[113] Section 11(1) of the Native Title Act states that native title cannot be extinguished contrary to the Act. In order for native title to be protected, the rights and interests it encompasses must first come within the definition of native title in s223(1):[114]

(a) 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

(b) The Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) The rights and interests are recognised by the common law of Australia.

Regarding s223(1)(b), it is not necessary that the connection with the land or waters be of continual usage or physical occupation,[115] although s13(1) of the Act provides that any judicial determination of native title can be varied or revoked if the continued connection with the land is disrupted.[116] Rather, ‘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’.[117] However, it is lamentable that the High Court did not provide guidance on what the nature of the connection must be, and particularly, when a spiritual connection might suffice.

Regarding ‘recognition’ under s223(1)(c), the majority note that ‘the case law does not purport to provide a comprehensive understanding of what is involved in the notion of “recognition”.’[118] Justice Kirby adds that ‘recognition’ of native title has no effect on the underlying Aboriginal law, as traditional laws and interests remain separate and continue to operate ‘regardless of any ... extinguishment’.[119]

Section 237A of the Act provides that native title, once extinguished, cannot be revived. However, s238 embodies a ‘non-extinguishment principle’, whereby native title rights and interests are suspended in certain circumstances for the duration of the inconsistent interest. Once the non-native interest ceases to operate, native title again has full effect.[120]

Before the 1998 amendments, which were the legislative response to Wik,[121] there was little in the Native Title Act regarding extinguishment.[122] Divisions 2A and 2B were part of the 1998 amendments, and now govern extinguishment of native title in conjunction with Div 2. Firstly, however, an act must be valid before the extinguishment question arises. Divisions 2A and 2B then confirm past extinguishment of native title by certain valid or validated acts attributable to the Commonwealth.[123]

The timing of an act is important for validation purposes. Acts predating the Racial Discrimination Act are valid,[124] as are acts validated by the operation of the Native Title Act. The past acts referred to in Division 2B are generally those done between the time of commencement of the Racial Discrimination Act and 31 December 1993 and are validated by Division 2. A previous act under Division 2B will be valid if it is not invalidated by the operation of the Racial Discrimination Act, or if the Native Title Act renders the act valid.[125] Intermediate acts fall between 1 January 1994 and 23 December 1996 and are validated by Div 2A.[126] Certain past and intermediate period acts that would otherwise be invalid due to the operation of the Racial Discrimination Act are also expressly validated by Div 2B.

Sections 23C and 23G of Division 2B mandate full and partial extinguishment respectively. Section 23C deals with extinguishment by ‘previous exclusive possession acts’, as defined in s23B, which completely extinguish native title. Section 23G deals with extinguishment by ‘previous non-exclusive possession acts’, as defined in s23F, which extinguish native title to the extent of any inconsistency.[127]

(iii) The Test for Extinguishment in the Event ofInconsistency

The regime established by the Native Title Act distinguishes between previous exclusive and previous non-exclusive possession acts. As seen above, previous exclusive possession acts will completely extinguish native title, and must be determined on a case-by-case basis.[128] Where there has been a previous non-exclusive possession act, native title will be partially extinguished to the extent of the inconsistency.

The High Court held that the appropriate test to determine the extent of extinguishment is the ‘inconsistency of incidents’ test, whereby the legal nature and extent of the rights of the non-indigenous interest are identified and objectively compared against an established native title claim.[129] The High Court preferred this test because of its objectivity, whereas examining acts for a ‘clear and plain intention’ necessarily involves looking at the subjective intention of the legislature. In agreeing with the majority on this issue, Justice Kirby added that it would be useful to supplement this test with the ‘reasonable user’ test propounded by Justices Beaumont and von Doussa in the Full Federal Court.[130]

‘Operational inconsistency’ was ruled out as a basis for extinguishment, but is nevertheless useful as an analogy.[131] It is the legal rights of both parties that must be compared, not the practical effect of their actions. For example, when examining possible inconsistencies with the Ord River Irrigation Project, the court was not to view the Project as a holistic economic or geographic entity, but as a creature of statute. The legal effect of each statutory grant that established the Project, rather than the effects of its daily operations, needed to be compared with native title rights.[132]

The High Court affirmed the rejection by the Full Federal Court of the ‘adverse dominion test’.[133] This was the test adopted by the primary judge. The test’s three elements required:

First, that there be a clear and plain expression of intention by parliament to bring about extinguishment in that manner; secondly, that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and thirdly, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof.[134]

The High Court reasoned that the first step of the adverse dominion test, namely identification of a ‘clear and plain expression of intention by parliament to extinguish’ is again ‘apt to mislead’ by creating irrelevant inquiries into subjective intentions.[135] An objective comparison between indigenous and non-indigenous legal rights is preferred.

(c) Practical Application of Extinguishment

(i) Pastoral Leases

Wik determined that native title could coexist with pastoral leases. Further questions of extinguishment, such as whether it is whole or partial, were addressed in the present case. If the pastoral leases in this case conferred a right of exclusive possession, they would extinguish native title completely under s23C of Division 2B. Under the ‘inconsistency of incidents’ test, the court must first look at what rights are granted under the pastoral lease, and then classify the grant.[136] The High Court concluded that the rights under a pastoral lease are limited due to the extensive conditions and reservations imposed.[137] Reaffirming Wik, the majority held that even with all its common law connotations, the nomenclature of a ‘lease’ does not of itself grant exclusive possession.[138]

Without the right of exclusive possession, the Western Australian pastoral leases fell within the s248B definition of a ‘non-exclusive pastoral lease’.[139] As any lease is valid if granted before the commencement of the Racial Discrimination Act in 1975, the WA pastoral leases in this instance were ‘previous non-exclusive possession acts’ as defined in s23F of the Native Title Act. Native title was, therefore, open to partial extinguishment, under s23G, if inconsistent with the rights granted under the lease.[140] Where the ‘inconsistency of incidents’ test found that the continuation of native title was not inconsistent with the rights under the pastoral lease, the latter were held to prevail over the native title rights and interests but not to extinguish them.[141]

The main native title right held by the court to be inconsistent with the pastoral leases was the right to control access to the land, which is also reflected in the right to ‘speak for country’:

The pastoral leases ... denied to the native title holders the continuation of a traditional right to say who could or who could not come onto the land in question.[142]

The ability of the statutory scheme to recognise partial extinguishment led to the finding that the particular Aboriginal right to control access to the land was extinguished, but that other rights and interests not inconsistent remained, and ‘probably continue unaffected’.[143] Specific determinations of extinguishment were remitted back to the Federal Court for reconsideration following further fact-finding.

(ii) Mining Leases

Whether native title is extinguished either wholly or partially under mining leases is determined using a similar analysis to that discussed above in relation to pastoral leases. Again, the statutory framework is complicated, and careful attention to the time when the non-indigenous interest was granted must be appreciated. As native title finds its source in Aboriginal law and not common law, it cannot benefit from any protection granted by the common law in relation to priority disputes. Just as the statutory interests of pastoralists prevail over native title rights, the rights conferred under mining leases also prevail over native title rights and interests where the competing interests come into conflict.

Mining leases are statutory grants, with their meaning found in the statutes creating them. Rights granted under a mining lease include a right to exclude others but for mining purposes only.[144] In this case, the Full Federal Court had held that the Argyle Diamond mining lease granted exclusive possession to the company, and thus warranted the complete extinguishment of native title.[145] The large scale and permanence of the venture swayed the Full Federal Court towards this finding. The High Court overturned this view, determining that exclusive possession existed only for mining purposes. Consequently, the court found that ‘it does not follow that all native title rights and interests have been extinguished.’[146] For example, native title holders were still allowed access to and from the land.

There was too little evidence before the High Court for the judges to determine whether the native title rights asserted under the mining leases were extinguished wholly, or whether only particular rights and interests were extinguished. Again, the one exception was that the native title right to control access to the land was held to be inconsistent with mining access rights, and was certainly extinguished. As all the mining areas were previously held under pastoral leases, the right to control access was extinguished when the first pastoral grant was effected. Native title remains extinguished under the mining lease due to the operation of the non-revival principle.[147]

(d) Ownership and Control of Resources

(i) Minerals and Petroleum

Although the primary judge found that the native title holders in the claim area held a concurrent right to resources, including minerals and petroleum,[148] the Full Federal Court held that any indigenous right to these resources was necessarily extinguished when the Crown appropriated ‘full and beneficial ownership’ of the resources to itself.[149] The only surviving right found by the Full Federal Court was the right to ochre, as the traditional use of ochre had been established on the evidence.[150]

The majority of the High Court held that, on the evidence before it, there was:

no evidence of any traditional Aboriginal law, custom or use relating to petroleum ... [or] to any of the substances dealt with in the [relevant] Mining Acts. In these circumstances, no question of extinguishment arises. No relevant native title right or interest was established.[151]

Even if a native title right to minerals or petroleum existed, the Court held that it would necessarily be extinguished because of an inconsistency with the legislation vesting all interests in minerals and petroleum in the Crown.[152]

Justice Kirby disagreed with the majority on this issue, although he did agree that the legislation extinguished the right to resources in this case.[153] According to his view, the common law has the capacity to recognise and reflect changes and developments in traditional Aboriginal laws and customs. It should not propound an approach that is frozen in time:

It would be a mistake to ignore the possibility of new aspects of traditional rights and interests developing as part of Aboriginal customs not envisaged, or even imagined, in the times preceding settlement.[154]

By not recognising such rights and interests in minerals, the majority of the Court has effectively held that those of Anglo-Australian descent can innovate and mine with modern methods as the level of technology and knowledge develops along with society’s corresponding needs for such resources, but that Aboriginal peoples must retain the traditions they held and a level of knowledge prevailing in pre-settlement times — that is, two centuries ago.

However, it can be argued that this approach conflicts with the principle underlying the majority finding, namely that continued physical occupation of the land is not a necessary requirement for a determination of native title.[155] This principle is a clear demonstration that the Court does recognise that the law has and can move on to accommodate both modern conditions and the distinctiveness of indigenous Australian history. In allowing itself to be guided by an awareness of the changing circumstances of Aboriginal communities, the Court recognised that the dispossession, dwindling population numbers and discrimination faced by the indigenous Australians after 1788 may have made practical physical occupation impossible. Yet this lack of possession did not necessarily destroy their connection to the land.[156] The Court could extrapolate this reasoning to allow the law to progress and consequently afford indigenous communities a native title right to resources, whether or not indigenous people used the resources pre-settlement.

(ii) Fishing Rights

The High Court affirmed that the public rights of navigation and fishing over the inter-tidal waters within the determination area demonstrated a fundamental inconsistency with the native title right to exclusively fish in those waters.[157] The public interest falls under the wide definition of ‘any other right ... in connection with ... the land or waters’ in s253 of the Native Title Act, determined as required under s225(c) that all interests be considered.[158]

The denial of rights and interests to minerals and petroleum, and the denial of the exclusive right to fish in inter-tidal waters are examples of how the law is required to bend in order to apportion interests in a limited resource. The problem is not a new one, but it is amplified in cases involving aboriginal interests, as indigenous claimants are faced with the disadvantage of being compelled to argue for their rights within a legal system that does not reflect their traditional laws and customs. It would be interesting to see how Anglo-Australian land law would fare if the situation were reversed, and mining companies had to make their claim for minerals before a meeting of Aboriginal elders.

(e) Compensation and s10 of the Racial Discrimination Act

In Mabo, the High Court stated that ‘native title may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence’.[159] The Court, in the present case, commented that principles of what may constitute an ‘appropriate remedy’ are yet to be developed.[160] This includes the notion of compensation.

In the absence of a common law basis for compensation due to the extinguishment of native title, claims for compensation are determined by considering s23J of Division 2B of the Native Title Act, sections 17 and 20 of Division 2, and the interaction of the Native Title Act with s10(1) of the Racial Discrimination Act.[161] The engagement of the Racial Discrimination Act is possible because:

Native title characteristically is held by members of a particular race so that interference with the enjoyment of native title is capable of amounting to discrimination on the basis of race, colour, or national or ethnic origin.[162]

Section 10(1) of the Racial Discrimination Act is directed to the discriminatory operation of laws. It provides:

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 origin, or enjoy a right to a more limited extent ... 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 possible engagement of s10 is examined on a case-by-case basis because it depends on the effects of the particular legislation.[163] As it is, the practical effect of the law is examined for discrimination, even statutes not specifically aimed at native title can fall within its scope if they are shown to have a discriminatory effect.[164] Section 10 may be triggered either where the law ‘omits to make the enjoyment of the right universal’, or where it ‘imposes a discriminatory burden or prohibition’.[165]

Regarding compensation, s10(1) could be activated if there is extinguishment of native title without compensation (or if a lesser amount is offered) in an instance where extinguishment of a non-indigenous interest would be compensated.[166] If compensation were not offered to any holder for an interference with their interest in land, then a failure to compensate for interference with native title would not amount to discrimination.[167] In the present case, the High Court found that, having been asked to rule upon principles of extinguishment, issues regarding compensation under the Native Title Act did not directly arise.[168] A definitive statement on the issue of compensation was again delayed.

3.2 The Minority Judgments: Justices McHugh and Callinan

Justice Callinan provided a long dissenting judgment in this case. Justice McHugh concurred with Justice Callinan, with one exception.[169] Both judges held that pastoral and mining leases do confer exclusive possession, and so native title was fully, rather than partially, extinguished over the area.[170] However, Justice Callinan does provide for the possibility of partial extinguishment in other circumstances.[171] Despite the majority determining that the nomenclature of an interest as a ‘lease’ is not indicative of the intention to grant the lessee exclusive possession, Justice McHugh discusses the meaning of possession under the expressions ‘lease’ and ‘demise’ in some depth, arriving at the contrary conclusion.[172]

Both dissenting judges comment that the Wik judgment should be treated with caution. Even though Wik must be followed as precedent, the judges argue that less significance should be attributed to it. Justice Callinan states that this is because there is no ratio decidendi in that case;[173] Justice McHugh adds that even if this analysis is incorrect, Wik’s value as a useful precedent is necessarily limited as it deals with legislation arising in a different jurisdiction.[174]

Notably, the dissenting view that native title was fully extinguished under pastoral and mining leases led both judges to call for significant reforms in native title law. Justice McHugh stated that:

The dispossession of the Aboriginal peoples from their lands was a great wrong ... Redress cannot be achieved by a system that depends on evaluating the competing legal rights of landholders and native title holders. The deck is stacked against the native title holders whose fragile rights must give way to the superior rights of the landholders whenever the two classes of rights conflict. And it is a system that is costly and time-consuming. ... A better system may be an arbitral system that declares what the rights of the parties ought to be according to the justice and the circumstances of the individual case.[175]

Similarly, Justice Callinan called for a ‘true and unqualified settlement of lands or money’ in order to redress the wrongs of dispossession, instead of the present attempts to battle through the ‘labyrinth of Minos’[176] that he sees the current body of law as reflecting. The only resolution of this labyrinth in its current state, according to his view, is the ‘futile or unsatisfactory ... attempt to fold native title rights into the common law.’[177]

3.3 The Orders

Both appeals were allowed in this case, although neither side could be said to ‘win or lose’.[178] The High Court was unable to make a final determination on the outcome given the present state of fact-finding. The Full Federal Court did not apply the correct law, and in particular did not take Div2B of Pt 2 of the Native Title Act into account.[179] Thus, the matter was remitted to the intermediate appellate court to complete the hearing, taking into consideration the remaining questions of extinguishment arising from the High Court decision.[180]

1. The Irrelevancy of International Law?

International law has the potential to affect native title claims in two ways: firstly through international treaties and covenants that Australia has ratified;[181] and secondly, through the persuasive influence of comparable cases in similar jurisdictions. Given both the proven ability of these avenues to influence domestic law, and the submissions by the Human Rights and Equal Opportunities Commission as an intervener in this case, the scarcity of reference to international law is surprising. Only two judges make explicit reference to it at all. Justice Kirby is in favour of using international law to expand upon the principles governing the recognition and extinguishment of native title by using international human rights law.[182] Justice Callinan, on the other hand, makes a forceful statement that international precedents should not be used in an Australian context.[183] In response to a submission by HREOC that ‘lawfulness is supplied not only by national law, but also by international law’,[184] Callinan J states that:

The provisions of the Constitution are not to be read in conformity with international law. It is an anachronistic error to believe that the Constitution, which was drafted and adopted by the people of the colonies well before international bodies such as the United Nations came into existence, should be regarded as speaking to the international community. The Constitution is our fundamental law, not a collection of principles amounting to rights of man, to be read and approved by people and institutions elsewhere. The approbation of nations does not give our Constitution any force, nor does its absence deny it effect. Such a consideration should, therefore, have no part to play in interpreting our basic law.[185]

However, foreign developments in aboriginal law are frequently used for comparative analysis with Australia. Due to the legal and historical similarities, comparisons with Canada are often utilised. One area in which Canadian jurisprudence offers guidance is in the evolution of native title rights, which could influence the recognition of a native title right to minerals and petroleum in Australia. The recent case of Delgamuukw v British Columbia held that imposing limits that effectively force aboriginal rights holders to engage only in traditional activities upon their land would ‘amount to a legal straitjacket on aboriginal peoples who have a legitimate claim to the land’.[186] However, the manner of usage cannot be ‘irreconcilable with the nature of the attachment to the land which forms the basis of the group’s claim to aboriginal title’.[187] For example, as aboriginal title stems from a connection with the land, strip mining that causes massive devastation to the land would not be allowed. Canadian precedents have also demonstrated a willingness to allow indigenous communities to ‘move with the times’, for example by allowing fishing using modern methods.[188]

A second area where Canadian jurisprudence could assist native title claimants is in the area of priority disputes. Lambert JA in Delgamuukw v British Columbia questioned why aboriginal rights necessarily give way first when there is an inconsistency with a non-indigenous grant.[189] It is possible for this approach to operate effectively under the ‘adverse dominion’ test proposed by Lambert JA in that case. However, given the High Court’s rejection of that test and their affirmation of the ‘inconsistency of incidents’ test, it is unlikely that this issue will be successfully raised in the near future.

2. Conclusions and Implications

Native title is governed by the Native Title Act and related legislation. The High Court, by majority, held that partial extinguishment and suspension of native title rights is possible under this statutory framework. This view of native title seemingly supports a ‘bundle of rights’ characterisation, which may lead to additional gradual erosion of native title rights and interests over time. Yet this is the very difficulty that the Native Title Act was supposed to guard against.

Further, the Court confirmed that native title coexists to the extent that it is not inconsistent with other interests over the same land or waters. Where there is conflict, the non-indigenous rights prevail. Where there is inconsistency between the interest and a question of partial extinguishment arises, the correct test to use is the ‘inconsistency of incidents’ test, and not the ‘operational inconsistency’ nor ‘adverse dominion’ tests.

By majority, the Court held that indigenous Australians do not have native title rights to minerals or cultural property. This approach has frozen Aboriginal communities in the pre-settlement era, denying them the ability to redefine their relationship with the land as challenges and changes arise. To rethink this view in future cases, the courts need to consider, among other things, how Aboriginal laws and customs traditionally dealt with development and modernisation. However, there are substantial institutional and evidentiary impediments to taking such an approach.

If nothing else, wading through the immense complexity of the statutory scheme now governing native title claims highlights the pressing need for a simplified yet comprehensive land claims process. When both the difficulties in giving evidence and the procedural requirements under the present system are added to this complexity, it can be seen that native title disputes demand a lot of patience and capability, not only on behalf of the parties, but of the courts too. A thorough overhaul of the system is needed. Possible approaches could be in the form of Justice McHugh’s arbitral system, Justice Callinan’s definitive settlement of lands or money, or in a combination of proposals. Determining which one of these approaches is best will be difficult, resource intensive and will take years. In the meantime, courts and parties have no choice but to continue to limp clumsily through the ‘labyrinth of Minos’. It will be a long time before the native title dispute resolution system is overhauled, unless a political priority is given to this issue.

[1] ‘The first claimants (Ben Ward & others) applied on behalf of the Miriuwung and Gajerrong People, the second claimants comprised Cecil Ningarmara and others, and the third claimants (Delores Cheinmora & others) applied on behalf of the Balangarra Peoples’: Ward, above n1 at [33] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[2] Id at [36].

[3] The right to ‘speak for country’ is an imprecisely defined Aboriginal concept in the Australian legal system. The concept embodies the broad notion that indigenous people are custodians of the physical and spiritual attributes of the land. It includes several specific rights such as granting permission to enter upon the land. See Ward, id at [14], [89] (Gleeson CJ, Gaudron, Gummow & Hayne JJ); at [592] (Kirby J).

[4] Id at [47] (Gleeson CJ, Gaudron, Gummow & Hayne JJ); at [563] (Kirby J).

[5] Ward v State of Western Australia [1998] FCA 1478; (1998) 159 ALR 483.

[6] See below at text accompanying footnote 55.

[7] Ward, above n1 at [38] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[8] Ward v State of Western Australia (1998), above n11 paragraph 3(d) of the determination.

[9] Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159 (Beaumont & von Doussa JJ; North J dissenting).

[10] Two appeals were brought by indigenous claimants, and two by the respondents at trial (the State of Western Australia and the Northern Territory): Ward, above n1 at [54]–[55] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[11] Id at [83].

[12] Id at [57].

[13] These qualifications do not, however, affect the final orders of the majority judgment. Ward, id at [599] (Kirby J).

[14] Id at [565].

[15] Wik, above n4 at 221 (Kirby J).

[16] Ward, above n1 at [13] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[17] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167 (Blackburn J).

[18] Ward, above n1 at [14] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[19] This is particularly a problem when combined with the evidentiary disadvantages that Aboriginal claimants face. Much of indigenous cultural knowledge is secret. Various internal rules apply, such as restricting access to strangers, and even restricting access to sectors of their own community, such as members of the opposite gender: Ward, id at [576] (Kirby J).

[20] Ward v State of Western Australia (1998) above n11 paragraph 3(j) of the determination.

[21] Ward, above n1 at [59].

[22] Ibid.

[23] Ward, id at [580] (Kirby J). In the alternative, Kirby J postulates a constitutional argument for the protection of cultural knowledge based on freedom of religion under s116 of the Constitution: see Ward at [586]. See further Helen Grutzner ‘Invalidating Provisions of the Native Title Act 1993 (Cth) on Religious Grounds: Section 116 of the Constitution and the Freedom to Exercise Indigenous Spiritual Beliefs’ in Christopher Boge (ed) Justice for All? Native Title in the Australian Legal System (2001) at 85–100.

[24] Such as the International Covenant on Civil and Political Rights done at New York on 19 December 1966, ATS 1980 No 23; and the International Covenant on Economic, Social and Cultural Rights done at New York on 19 December 1966, ATS 1976 No 5.

[25] Ward, above n1 at [581] (Kirby J).

[26] Ward, id at [578] (Kirby J).

[27] Ward, id at [88],[90] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[28] Id at [88].

[29] Id at [89].

[30] Id at [89], [93].

[31] Mabo, above n3 at 89 (Deane & Gaudron JJ). This approach is taken from Dickson J in the Canadian case of Guerin v The Queen [1984] 2 SCR 335 at 382.

[32] Western Australia v Ward, above n15 at [90].

[33] Id at [96]–[97].

[34] Ward v State of Western Australia, above n11 at 508 (Lee J).

[35] Western Australia v Ward, above n15 at [784].

[36] [1982] HCA 69; (1982) 158 CLR 327 at 358 (emphasis added).

[37] Ward, above n1 at [95] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[38] [1992] HCA 23; (1992) 175 CLR 1.

[39] Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 at 439 (Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ).

[40] Wik, above n4 at 85 (Brennan J).

[41] Western Australia v Ward, above n15 at 330-331 (North J).

[42] Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96. See further Christopher Boge, ‘A Fatal Collision at the Intersection? The Australian Common Law and Traditional Aboriginal Land Rights’ in Christopher Boge (ed), above n29 at 39.

[43] Fejo, id at 155 (Kirby J).

[44] Ibid.

[45] Ibid.

[46] Id at 156.

[47] Ward, above n1 at [565] (Kirby J).

[48] This consists of the Native Title Act, the related State and Territory Acts that supplement it, and the Racial Discrimination Act 1975 (Cth).

[49] Ward, above n1 at [17] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[50] Id at [63].

[51] Id at [32].

[52] Id at [64], [465].

[53] Id at [20].

[54] Id at [568] (Kirby J).

[55] Id at [7] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[56] Id at [24].

[57] Id at [26].

[58] Id at [8], [10]. Acts attributable to the States and Territories are picked up under the various State Validation Acts that operate in conjunction with the Native Title Act.

[59] The Racial Discrimination Act commenced on 31 October 1975.

[60] Ward, above n1 at [8].

[61] See id at [5–6], [11].

[62] Id at [9].

[63] Id at [588] (Kirby J).

[64] Id at [78], [149] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[65] Id at [590] (Kirby J). See Western Australia v Ward above n15 at [329], [641] (Beaumont & von Doussa JJ).

[66] Ward, above n1 at [149] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[67] Id at [147], [151]. This comparison was not undertaken by the High Court due to the lack of evidence on this issue before the Full Federal Court: at [156].

[68] This test was proposed, but not adopted, in the dissenting judgment of Lambert JA in the Canadian case of Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 669–672.

[69] Ward v State of Western Australia, above n11 at 508 (Lee J) (original emphasis).

[70] Ward, above n1 at [78] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[71] Id at [186].

[72] For example, the broadest condition reserved a right to any person ‘to enter, pass over, through, and out of any [unenclosed or enclosed but otherwise unimproved part of the land] while passing from one part of the country to another...on all necessary occasions’: Id at [178].

[73] Ward, above n1 at [180] (Gleeson CJ, Gaudron, Gummow & Hayne JJ). Note, however, that McHugh J strongly dissented on this point: see [484]–[500].

[74] Id at [188] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[75] This is under s23G of the Native Title Act for Commonwealth acts, and under its parallel (s12M) in the WA Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 for previous non-exclusive possession acts attributable to the State.

[76] Ward, above n1 at [190] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[77] Id at [192].

[78] These qualifications do not, however, affect the final orders of the majority judgment. Ward, id at [599] (Kirby J).

[79] Id at [565].

[80] Wik, above n4 at 221 (Kirby J).

[81] Ward, above n1 at [13] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[82] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167 (Blackburn J).

[83] Ward, above n1 at [14] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[84] This is particularly a problem when combined with the evidentiary disadvantages that Aboriginal claimants face. Much of indigenous cultural knowledge is secret. Various internal rules apply, such as restricting access to strangers, and even restricting access to sectors of their own community, such as members of the opposite gender: Ward, id at [576] (Kirby J).

[85] Ward v State of Western Australia (1998) above n11 paragraph 3(j) of the determination.

[86] Ward, above n1 at [59].

[87] Ibid.

[88] Ward, id at [580] (Kirby J). In the alternative, Kirby J postulates a constitutional argument for the protection of cultural knowledge based on freedom of religion under s116 of the Constitution: see Ward at [586]. See further Helen Grutzner ‘Invalidating Provisions of the Native Title Act 1993 (Cth) on Religious Grounds: Section 116 of the Constitution and the Freedom to Exercise Indigenous Spiritual Beliefs’ in Christopher Boge (ed) Justice for All? Native Title in the Australian Legal System (2001) at 85–100.

[89] Such as the International Covenant on Civil and Political Rights done at New York on 19 December 1966, ATS 1980 No 23; and the International Covenant on Economic, Social and Cultural Rights done at New York on 19 December 1966, ATS 1976 No 5.

[90] Ward, above n1 at [581] (Kirby J).

[91] Ward, id at [578] (Kirby J).

[92] Ward, id at [88],[90] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[93] Id at [88].

[94] Id at [89].

[95] Id at [89], [93].

[96] Mabo, above n3 at 89 (Deane & Gaudron JJ). This approach is taken from Dickson J in the Canadian case of Guerin v The Queen [1984] 2 SCR 335 at 382.

[97] Western Australia v Ward, above n15 at [90].

[98] Id at [96]–[97].

[99] Ward v State of Western Australia, above n11 at 508 (Lee J).

[100] Western Australia v Ward, above n15 at [784].

[101] [1982] HCA 69; (1982) 158 CLR 327 at 358 (emphasis added).

[102] Ward, above n1 at [95] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[103] [1992] HCA 23; (1992) 175 CLR 1.

[104] Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 at 439 (Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ).

[105] Wik, above n4 at 85 (Brennan J).

[106] Western Australia v Ward, above n15 at 330-331 (North J).

[107] Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96. See further Christopher Boge, ‘A Fatal Collision at the Intersection? The Australian Common Law and Traditional Aboriginal Land Rights’ in Christopher Boge (ed), above n29 at 39.

[108] Fejo, id at 155 (Kirby J).

[109] Ibid.

[110] Ibid.

[111] Id at 156.

[112] Ward, above n1 at [565] (Kirby J).

[113] This consists of the Native Title Act, the related State and Territory Acts that supplement it, and the Racial Discrimination Act 1975 (Cth).

[114] Ward, above n1 at [17] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[115] Id at [63].

[116] Id at [32].

[117] Id at [64], [465].

[118] Id at [20].

[119] Id at [568] (Kirby J).

[120] Id at [7] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[121] Id at [24].

[122] Id at [26].

[123] Id at [8], [10]. Acts attributable to the States and Territories are picked up under the various State Validation Acts that operate in conjunction with the Native Title Act.

[124] The Racial Discrimination Act commenced on 31 October 1975.

[125] Ward, above n1 at [8].

[126] See id at [5–6], [11].

[127] Id at [9].

[128] Id at [588] (Kirby J).

[129] Id at [78], [149] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[130] Id at [590] (Kirby J). See Western Australia v Ward above n15 at [329], [641] (Beaumont & von Doussa JJ).

[131] Ward, above n1 at [149] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[132] Id at [147], [151]. This comparison was not undertaken by the High Court due to the lack of evidence on this issue before the Full Federal Court: at [156].

[133] This test was proposed, but not adopted, in the dissenting judgment of Lambert JA in the Canadian case of Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 669–672.

[134] Ward v State of Western Australia, above n11 at 508 (Lee J) (original emphasis).

[135] Ward, above n1 at [78] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[136] Id at [186].

[137] For example, the broadest condition reserved a right to any person ‘to enter, pass over, through, and out of any [unenclosed or enclosed but otherwise unimproved part of the land] while passing from one part of the country to another...on all necessary occasions’: Id at [178].

[138] Ward, above n1 at [180] (Gleeson CJ, Gaudron, Gummow & Hayne JJ). Note, however, that McHugh J strongly dissented on this point: see [484]–[500].

[139] Id at [188] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[140] This is under s23G of the Native Title Act for Commonwealth acts, and under its parallel (s12M) in the WA Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 for previous non-exclusive possession acts attributable to the State.

[141] Ward, above n1 at [190] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[142] Id at [192].

[143] Id at [193]–[194]. For the same reasons, the High Court held that excepting the right to control access, the leases in the Northern Territory were also not inconsistent and aspects of native title remained: at [415]–[417].

[144] Id at [308].

[145] Id at [333].

[146] Id at [308] [emphasis added].

[147] Id at [309].

[148] Ward v State of Western Australia, above n11 at 639 (Lee J).

[149] Western Australia v Ward, above n15 at 290 (Beaumont & van Doussa JJ).

[150] Id at 291-292.

[151]Ward, above n1 at [382] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[152] Id at [383].

[153] There would potentially be a very different outcome in another case if the mining legislation was different: Ward, above n1 at [575] (Kirby J).

[154] Id at [574].

[155] See Ward, above n1 at [63]–[64] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[156] See Boge, above n48 at 24 where he notes that ‘a spiritual connection, and a performance of responsibility for the land could be maintained even where physical presence had ceased, either because the indigenous people had been hunted off the land, or because their numbers had become so thinned that it was impracticable to visit the area.’

[157] Ward, above n1 at [388] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[158] Id at [387].

[159] Mabo, above n3 at 70.

[160] Ward, above n1 at [21] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[161] Additionally, s7 of the Native Title Act says that the ‘Native Title Act is to be read and construed subject to the provisions of the Racial Discrimination Act’, so that any validation effected by the Native Title Act displaces invalidity resulting from operation of the Racial Discrimination Act: Ward at [99].

[162] Ward, above n1 at [117]; Mabo (No 1) (1988) 166 CLR 186 at 218 (Brennan, Toohey, & Gaudron JJ), and at 230 (Deane J); Native Title Act Case, above n45 at 437 (Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ).

[163] Ward, above n1 at [126].

[164] Id at [115].

[165] Id at [106]–[107] referring to Mason J in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 98.

[166] Ward, above n1 at [124].

[167] Id at [126].

[168] Id at [12].

[169] Ward, above n1 at [472] (McHugh J). McHugh J disagrees with Callinan J’s finding (Ward, above n1 at [854]) that native title holders fall within the definition of ‘occupier’ for the purposes of the Mining Act 1978 (WA): at [559].

[170] Ward, above n1 at [699]–[701] (Callinan J).

[171] Id at [616]–[618].

[172] Id at [482]–[500], and again relating to pastoral and mining leases at [549]–[558].

[173] Id at [696].

[174] Id at [480].

[175] Id at [561] (emphasis added).

[176] Ward, above n1 at [969] (Callinan J).

[177] Id at [970].

[178] Ward, above n1 at [471] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[179] The Federal Court is bound (on appeal) to ‘decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal’. Id at [70].

[180] Id at [72], [467].

[181] Although treaties have no effect in domestic law without implementing legislation, the High Court held that there was a ‘legitimate expectation’ that administrative decisions would be made in accordance with ratified, but as yet un-implemented treaties: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353 at 361 (Mason CJ & Deane J).

[182] See Ward, above n1 at [566]–[567] (Kirby J).

[183] See Part IV of Callinan J’s judgment at [954]–[963].

[184] Id at [960].

[185] Id at [961].

[186] Delgamuukw v British Columbia [1997] 3 SCR 1010 at 1091 (Lamer CJC).

[187] Id at 1088.

[188] See for example R v Sparrow [1990] 1 SCR 1075 at 1093.

[189] Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 671.