westernaustrralia v benward others · the "ultimate burden ofproof'is on applicants to...

82 Case Notes

WESTERN AUStrRALIA V BEN WARD & OTHERS1

(The 'fMiriuwung Gajerrong Case")

Richard Bartlett·

(2000) 19 AMPLJ

Native title - connection - nature and content - extinguishment - pastoral leases - rights to minerals andpetroleum - extinguishment - Argyle Mining ·project - mining leases

Centre Editor's note: This case note has been prepared by Professor Bartlett in response to a request foran urgent, "stop-press" inclusion in the Journal. The judgments run to several hundred pages, and arecomplex. In the time available before the deadline for publication, the author has sought to capture in"shorthand" form the reasons given on the major issues, with references given to the relevant paragraphnumbers in the judgments. For a fuller understanding ofany issue, reference should be made to the fullreasons for judgment

INTRODUCTION

The appeal of the first contested mainland determination of native title under the Native Title Act 1993(Cth) ('NTA') was one of the longest ever before the Full Federal Court-I 5 days. The appeal canvasseda multitude of issues relating to the proof, content and extinguishment of native title. All Justices(Beaumont, von Doussa and North JJ) were in agreement on the issues of proof and in those respectsupheld the rulings of Lee J at trial.

On content of native title and extinguishment however, the Court split, with North J dissenting from thejoint judgement of Beaumont and von Doussa J1. The majority considered that the content of native titledid not include minerals and petroleum, and in any event the legislation vested ownership in the Crownand thereby extinguished any native title interest in minerals and petroleum. The majority also ruled thatLee J had erred with respect to questions of suspension, "clear and plain intention", extinguishment byactual use, partial extinguishment, and the significance of the presence or absence of reservations forAboriginal rights. The majority accordingly concluded that a much greater degree of extinguishment hadoccurred by virtue of pastoral leases, the Ord River Project, the use of reserves, the Argyle project, miningleases, and surface leases of all varieties.

North J, in dissent, concluded that native title included minerals and petroleum. His Honour also agreedwith Lee J's analysis regarding the principles of extinguishment and their application. North J did notconsider that native title was extinguished by the Argyle Project or mining leases.

The judgments are lengthy and detailed. A breakdown of the reasons on the major issues follows insummary form, including references to paragraph numbers in the judgments.2

Federal Court of Australia, Full Court, [2000] FCA 191 (3 March, 2000).Professor of Law, Law School, The University of Westem Australia.

2 Unless otherwise indicated, references to sections are to those in the NTA. 'WA' means the State of WesternAustralia, and 'NT' means the Northern Territory of Australia.

(2000) 19 AMPLJ

DETERMINATION

Case Notes 83

• Declaration of native title (1 st Schedule), except where native title is wholly extinguished (2ndSchedule).

• Native title is held by the Miriuwung and Gajerrong people.

• Native title is subject to regulation, control and curtailment under valid laws, and

where not in any way extinguished, is an entitlement against the whole world to possession,occupation, use and enjoyment, except:

minerals and petroleum

in reserves subject to s47A does not affect public works in the-Ord Project (3,4,7, 10)

where partially extinguished, is a non-exclusive right to

possess, occupy, use and enjoy

make decisions about the land

use and enjoy the traditional resources

maintain and protect places of importance

except:

minerals and petroleum

native title must yield to the interests created by the Crown in other persons (5, 6, 7, 8, 9, 10)(Schedule 3).

MAJORITY JOINT JUDGMENT: BEAUMONT & VON DOUSSA JJ

PROOF OF CONNECTION

Composite group not separate "estate" groups

A composite group of claimant groups, not separate estate groups, was upheld. There was no necessity tospecify the particular members or rights or boundaries of the estate sub-groups - that is a matter "left forthe common law holders to determine among themselves in' accordance with the traditional laws andcustoms": The Mabo No.2 Case (202-205, 239).

Not required to identify members

The NTA imposes no obligation to identify members of the group. Identification of the group suffices andthereafter membership will be determined in accordance with traditional laws and customs (212-213).

84

Role of appeal court

Case Notes (2000) 19 AMPLJ

An appeal court should not interfere with findings of trial judge "so long as there is evidence which isopen to an interpretation which supports the fmdings of the trial judge" (225). The Court upheld thefindings of fact of the trial judge (226).

Biological descent

A strict requirement of "biological descent" of all members was rejected, in favour of a requirement of asubstantial degree of ancestral connection between the community and the original native title holders(229-233). Adopted members were not excluded. A broad spread of links sufficed (235).

A requirement of patrilineal descent was rejected. The evidence showed that membership might arisethrough many other relationships (234-235).

Substantial maintenance

Actual physical presence is not necessary to substantially maintain connection. It may be maintained bycontinued acknowledgment of traditional laws and observance of traditional customs "off the land" whereactual physical presence is impracticable (108, 241-245, 248-263). Connection was maintained in respectof the areas flooded by Lakes Kunnurra and Argyle (251-252).

CONTENT OF NATIVE TITLE

Freehold equivalent

Entitlement to possession, occupation, use and enjoyment against the whole world as in Mabo No. 2 isequivalent to freehold (207).

Specification of rights

There is no need to specify every use and enjoyment permitted unless native title is less than such afreehold equivalent. "Section 225 cannot have been intended to impose such an impossible task" (209210).

Minerals and custom

Lee J was referring to "resources of a customary or traditional kind. Ochre would be picked up by thisreference but, in our view, minerals that are mined by modem methods would not". (517). The claim toochre was established by the evidence of the applicants' "traditional connection" (534, 542). Ochre usedfor traditional purposes is not within the mining legislation ofWA (535-538) or the Territory (544).

"No evidence of any traditional Aboriginal law, custom or use relating to petroleum" and no claim is"established" (541).

The determination must exclude minerals and petroleum from "resources" (666).

(2000) 19 AMPLJ

Fishing

Case Notes 85

The determination must recognise a public right to fish at common law (216, 660). The public right tofish extinguishes the exclusivity of native title rights to fish.

Protect cultural knowledge

The right to protect cultural knowledge is a "personal right", is not a burden on the Crown's radical title,cannot be extinguished by legislation or executive act, and cannot be the subject of a determination ofnative title (666).

GENERAL PRINCIPLES OF EXTINGUISHMENT

Favour inconsistency over clear and plain intention

Reliance was placed on Brennan CJ in dissent in the Wik and Fejo Cases to favour an "inconsistency ofincidents" test to determine extinguishment by grant (67-78) over the requirement of a clear and plainintention to extinguish (80). Yet the majority indicated recognition of the requirement of a clear and plainintention in all cases (Ill).

Permanence

Rejected requirement that any inconsistency be permanent in order to bring about extinguishment (82-85).If inconsistency, native title rights must "yield to the extent of the inconsistency and are extinguished"(665).

Actual use

Accepted that "operational inconsistency" from actual use may bring about extinguishment in addition tothat arising upon grant from actual use, but construed Lee J ~o have required such operationalinconsistency in all cases irrespective of extinguishment upon the grant (79, 86, but see Ill).

Partial extinguishment

Rejected requirement that inconsistency be "fundamental" (93) in order to effect extinguishment. Nativetitle consists in a "bundle of rights" which can be extinguished bit by bit such that partial extinguishmentoccurs (109, 88-109). The dicta in Yanner was distinguished (98-106).

Onus of proof

The "ultimate burden of proof' is on applicants to establish that extinguishment has not occurred underboth the NTA and at common law (117).

The onus of proof must be distinguished from the rule of law requiring a clear and plain intention else it ispresumed that no extinguishment is intended (119-120).

"The party asserting extinguishment carries an evidential onus of proving the nature and content of theexecutive act". Once proved the effect of the act is "a matter of law" determined in accordance with therequirement of a clear and plain intention (120).

86

Important factors

• The majority gave particular significance to:

reservations of Aboriginal rights:


manifesting intention to extinguish native title outside the limits of the reservations ego pastoralleases, nature reserves

in their absence, manifesting that Aboriginal rights were extinguished ego conditional purchaselease, special leases, leases of reserves.

• use of common law terms to find "exclusive possession" and the importance of "exclusivepossession" of a lessee ego Argyle, general purpose lease, special leases, leases of reserves

• size of areas granted:

small areas indicating difficulty of co-existence, ego mining leases, conditional purpose lease,

large areas indicating immensity of project ego Argyle.

• A wider meaning of "use" of Crown lands and reserve lands in the context of the Ord Project thanwas given by Lee J, including setting aside land for future development.

PASTORAL LEASES

The WikCase

The reasoning in Wik is applicable to WA, the differences in legislation are not such as to afford a groundof distinction (285).

Not helpful to determine if a common law lease (287, 308), but use of technical common law termssuggest exclusive possession other than against Aboriginal people (290, 340).

Inconsistency of incidents test focuses on relationship between native title holders and pastoral lessees(288).

The "reservation" in terms of grants was an exception from the grant (306, 339). But Land Act 1993(WA) s 106(2) operated as a reservation (306).

Section 106(2) goes "further than merely preserving an existing native title right". Section 106(2) and theTerritory reservation "elevates that right to a statutory right" which "does not carry the implication that thepre-existing native title right is abolished" and the statutory right substituted (306, 339).

The reservation in the grants before 1933 in WA and in s106(2) "plainly and clearly intended" theabrogation of rights outside the limits of the reservation (317, 319, 328).

Native title in WA is accordingly wholly extinguished to the extent of enclosure or improvements(Determination Schedule 2(4».

(2000) 19 AMPLJ Case Notes 87

The grant of pastoral leases in NT abrogated native title to the extent of inconsistency (339-340): thereservations "operate to defme the scope of the Aboriginal rights which were preserved" (340).

Improvements and operational inconsistency

Improvements may also wholly or potentially extinguish native title as a matter of operationalinconsistency (327).

Extinguishment

Exclusive native title rights were extinguished upon grant, and all native title rights were extinguished ifoutside reservations in WA (329), but only to extent of inconsistency with grant in NT (340).

Aboriginal occupied pastoral leases

Effect of extinguishment disregarded over Aboriginal occupied pastoral lease in WA (331) per s 47(2),and in NT (366) per s 47A(2)(b).

KEEP RIVER NATIONAL PARK

The leases to the Conservation Land Corporation were subject to Parks and Wildlife Conservation Act(NT) s 122, which preserved traditional rights (352).

The statutory vesting in the Corporation was merely a vesting of management (354-355).

Improvements in the Park were made with consent and were minor in nature; they were not inconsistentwith native title (358).

The management regime and by-laws regulated native title but did not extinguish native title (362).

Freehold granted under Aboriginal community living areas legislation did not manifest a clear and plainintention to extinguish native title (363-365). In any event, under s 47A(1)(b)(ii) the grants to Aboriginalcorporations were to be disregarded (366).

Native title was partially extinguished by the grant of pastoral leases but not further extinguished by thegrant of the leases, vesting or freehold grants (366).

PERMIT TO OCCUpy

A permit to occupy entitled the grantee to exclusive possession "that would have been perpetuated by thegrant in fee simple". The permit "plainly and clearly intend~d to extinguish native title ... the right wasintended to continue in perpetuity" (373).

ROADS

The State be allowed to lead further evidence to clarify the evidence in relation to a disputed road (375).

An access track was temporary and such a "use could not amount to an operational inconsistency of thekind that would extinguish native title". Nor was it ever declared or accepted for use by the public (376).

88

RESERVES

Creation


The creation of reserves does not extinguish native title, the inapplicability of offences of occupation ofreserves to native title holders supports such conclusion: Mabo, Wik (386). Reservation did not altercontrol of the land and no rights were created in respect of third parties - might be different if class A anddedicated so as to create inconsistent rights (387-389, 486).

Vesting

Vesting does not generally convey an estate so as to manifest a clear and plain intention to extinguishnative title: AGfor Quebec (390-391, 486).

Use

No need to address all of the reserves because in those under control and management of Ord Project,native title was wholly extinguished (445, 473, 479, 480).

Must reject Lee J's conclusions because based on notion that there could not be partial extinguishment,and extinguishment needed to be permanent to give rise to "adverse dominion" (444).

National Park, Mirima

The dedication of land as Class A, to extent it created rights in the public, would have partiallyextinguished native title by removing exclusivity (446): Williams, Randwick.

The regulations "stringently control and regulate activities" but not to the point of prohibition; notsufficient to manifest a clear and plain intention to wholly extinguish native title (446).

Reserves for use and benefit of Aboriginal inhabitants

The setting aside of reserves for use and benefit of Aboriginal inhabitants is inconsistent with intention toextinguish (447, 470, 483).

Section 47A NTA operates so as to dictate prior extinguishment as to such reserves be disregarded. Abroad view should be taken of "occupy" in s 47A (448-449, 483).

But all of land reserved for Ord Project are "public works" within ss 251D, 253 and accordingly Crown'sinterest is not affected (450-452).

Partial Extinguishment

Extinguishment of exclusivity and accordingly partial extinguishment, resulted from use of reserves ascattle watering point and stock route (455-465, 469) access for recreation (458) pony recreation (485).

No extinguishment by use

No extinguishment by use where not used for purpose (468); wildlife sanctuary (471) conservation offlora and fauna reserve (472, 474-475, 477); trigonometrical station site (481).


Wholly extinguished (Determination Schedule 2(3»

Wholly extinguished by use where cattlemen depot including inn and dipping site (478); quarantinecheckpoint: " ... extinguishment is not confined to the small areas actually covered by the facilities" (490);dam and power station: including land not actually used or required - reject "narrow view as to use takenby trial judge" ... "wholly extinguished by appropriation of land ... to Ord Project" (492).

ORD RIVER PROJECT

Proclamation of Part III of Rights in Water and Irrigation Act 1914 (WA) ('RIWA')

• "Mere vesting" under Part III does not "evidence an intention to extinguish native title. S6, 7, 14 and17 preserve existing rights and provide for their regulation - Part III does not substitute new rightsafter extinguishing existing rights (400-401).

• Native title holders are "occupiers" within the meaning of the Act (403).

• Native title was not wholly extinguished, but the application of Part III did "destroy exclusivity"(406).

• The proclamation of the District did not extinguish native title (405, 439).

• The by-laws made in the District did not signify a "Crown intention to wholly extinguish native title",but did remove the "exclusivity" of the native title right (406).

Resumptions under s109 LandAct (WA) from pastoral leases

Reserved native title rights are unaffected by the resumption under s109 (416) and resumptions do not ofthemselves reveal a clear and plain intention to extinguish (419).

Resumptions under RIWA and Public Works Act (WA) (pWA)

Resumptions under PWA clearly and plainly evidenced an intention that any remaining native title bewholly extinguished (432) by vesting an estate in fee simple (433).

Land used inconsistently with Native Title

"If land [reserved] is used and occupied for the public purpose, and the manner of occupation isinconsistent with the continued enjoyment of native title, native title will be extinguished" (419). Theimplementation of the Ord River Project is an inconsistent use of the land (419) (Determination Schedule2(1)). Lee J erred in:

• taking too narrow a view of the requirement of appropriation and use, requiring actual use of virtuallyevery part in a permanent manner (418),

• failing to consider the Ord River Project as a whole (418).

The land reserved included that required for the Ord River Project for future development, buffer zones,protection against erosion and flooding, on which no actual development had occurred. Such land was"reasonably required for the purpose and has been applied and used for that purpose" (421-422).

90 Case Notes (2000) 19 AMPLJ

Upon "works" being carried out the management and control of the "works" gives rise to "operationalinconsistency" which wholly extinguishes native title (422). The township of Kunnunurra is part of the"works". Reliance on Wheat v Lacon [1966] AC 552 and Newcastle City Council (1957) 96 CLR 493 use of land as buffer zone and for future expansion.

Mirima National Park was not necessary to the Project and accordingly has not been used or applied so asto extinguish native title (425-427).

Vesting under s3(2) RIWA

The vesting of reserved lands and irrigation works in the Minister was only for the purpose of control andmanagement (419, 422).

Acquisition of pastoral lease

The acquisition merely terminated the pastoral lease not native title (438), but large parts of the landincluding the land under water are lands and "irrigation works" "which are an integral part of the OrdProject and that administrative management and control give rise to operational inconsistency that whollyextinguishes native title" (439-441) (Determination Schedule 2 (2)) even though not actually developed:reliance (441) on Newcastle City Council (1957) 96 CLR 443.

The creation of reserves in the area for uses consistent with native title does not deny that the "degree ofmanagement and control ... is such as to wholly extinguish native title" (442), for example lands used forgrazing where necessary for erosion control (443).

MINERALS

Extinguished native title to minerals in WA and NT

By virtue of s 3 of the Constitution Act (WA) and s 117 of the Mining Act 1904 (WA) any native titlerights to minerals were wholly extinguished: Wik and farmirr. "Those provisions were intended toreserve to the legislature and the Crown the full beneficial ownership of all the minerals specified" (541,527). "Similarly" any right to petroleum "was wholly extinguished by virtue of s 3 of WA ConstitutionAct and s 9 Petroleum Act" (541). Section 3 Minerals Acquisition Ordinance 1953 (NT) extinguishednative title right to minerals in NT (542-544).

Distinguished fanner as a case where there was an artificial vesting of property so as to resemble asituation where a royalty is payable.

ARGYLE MINING PROJECT

Project wholly extinguished Native Title

The project, like Ord Project, indicates "complete inconsistency" having regard to the "very size of theinfrastructure ... when coupled with the nature and intensity of the large range of activities" (554,559).

"Inevitable that nature rights must totally yield to the lessee's rights (and obligations) under theAgreement, the Ratifying Act, the Mining Act and the mining lease itself" (554). This is not a case of a"lesser interest" of the kind referred to by Brennan J in Mabo (554).


The Ratifying Act 1981 did not offend s 9(1) Racial Discrimination Act 1975 (Cth) because it was not"aimed at native title", nor makes a "distinction based on race". It does not discriminate against nativetitle holders (556).

Lee J was in error in that:

• right of exclusive possession in Ratifying Act should not be read down so as to be confmed to theearlier dispute (556);

• the Aboriginal Heritage Act applies generally to all land in the State and in any event has noapplication here, where there are no sites (557);

• the limit of exclusive possession for a specific purpose does not allow others to possess the land(558);

• the mining lease entailed a "substantial element of permanence" for mining over a large area andaccordingly extinguished native title "entirely". The term was 21 years with provision for successiverenewals cf Mineralogy (559);

• the Argyle lease was a true "lease", especially considering that "an area of land not a defmed seamwas involved": leI Alkali cf Wik (560-568);

• exclusive possession is a determinant: Mabo No.2, Wik, Fejo (569);

• a clause providing for third party access is not indicative of intention not to extinguish because accesswas only with State consent (570);

• the power of the Minister to control mining is not indicative of an intention not to extinguish (571).

Mining Leases

The grant of mining leases extinguished all native title rights (584, Determination Schedule 2 (4)(iii))because:

• the small area of the leases substantially affects the scope for concurrent activities (581);

• the statutory scheme of the Act and Regulations establishes a regime such that the statutory characterof the leases is inconsistent with use and occupation of the lands by any other person (581);

• the duration of 21 years with "capacity" for successive renewals is very different from short durationin Mineralogy (583).

• the absence of any requirement for production does not detract from the lessee's right to exclusivepossession, and right and obligation as to expenditure requirements. The "rights and obligations ofthis scope and intensity creates ... a situation which is quite inconsistent with the existence of nativetitle rights" (583).

• the limitation to "mining" does not suggest that any other person may have rights.

92

General Purpose Leases

Case Notes (2000) 19 AMPU

The grant created rights wholly inconsistent with any native title rights. The exclusive possession, theregime of control, and the small area not allowing for concurrent activities "create rights and obligations,the exercise and performance of which are inconsistent with native title" (589-592). The duration cannotbe equated with the short term exploration licence in the Mineralogy Case.

Other Mining Tenements

Accept Carr J's decision in Mineralogy that the grant of an exploration licence did not extinguish (593).

CONDITIONAL PURCHASE LEASES

The grant ofa conditional purchase lease would wholly extinguish native title (603,609) because:

• not for a confmed purpose;

• for a small area;

• the parties contemplated the lease would mature into a lease in fee simple;

• reservations were less extensive than Wik;

• arguable though Toohey J in Wik said focus on exclusive possession "obscures the critical question";

• the consideration that "decides the question" is the absence of a reservation for Aboriginal access. Itis a "clear indication that ... native title rights were not excepted from the possessory rights granted tothe lessee" (603);

• the grant points to the intention that the lessee will permanently retain the land: Moore & Scroope(605).

SPECIAL LEASES

Validity of some leases upheld with the benefit of the presumption of regularity, however others neverissued (611-612).

In the absence of the proof of terms of the lease "it is impossible to hold that either the grant of the lease,or the use to which the land was lawfully put extinguished native title" (613).

Special leases under s 1520fthe Land Act 1898 (WA) (Determination Schedule 2(4)(ii)):

• had common hallmarks of a lease;

• used common law concepts, indicating a demise;

• created a leasehold interest;

• had reservations less extensive than Wik;

(2000) 19 AMPLJ

• covered small area;

• was for intensive purposes;

Case Notes 93

• "Importantly ... there is no reservation in favour of Aboriginal people" so as to distinguish from Wik.

The lessees were granted rights of possession "which were wholly inconsistent as with ... native title andeffected a total extinguishment" (614).

Special leases granted under s 116 Land Act 1933 (WA) for "grazing" did not extinguish native titlebeyond partial extinguishment by pastoral leases, despite absence of reservation of Aboriginal access,because:

• limited to grazing purposes;

• limitations and reservations in the leases, inter alia:

no compensation for improvements;

no interference with vegetation;

subject to determination at 6 month's notice;

• larger area involved.

The leases do not evidence a clear and plain intention to grant possession exclusive of Aboriginal people:Wik, although the leases would have extinguished the exclusivity of native title rights (627).

Lee J was in error insofar as:

• there was no right of Aboriginal access under s 106(2) LandAct;

• His Honour relied on lack of permanence in duration or contemplation of permanent improvements(619-621).

LEASES OF RESERVES UNDER S32 LAND ACT1933 (WA)

Leases of reserves for "business and garden area" and "tourist facility" from year to year whollyextinguished native title as they were "leases":

• granted possession exclusive of native title rights;

• in the form of a common law lease and leasehold interest;

• area not extensive;

• purpose of lease;

• not a licence;


• no reservation of Aboriginal access (631-634, 642-647 and see 652, Determination Schedule 2 (4)(ii).

Short duration, including determinable on 3 months notice, did not deny extinguishment because "it wasanticipated it would continue indefmitely" (633) and merely a response to the requirements to call forapplications under s32 (644 and see 652).

The power to lease reserve land in s 32 is for any purpose (633).

"Grazing leases" from year to year extinguished the exclusivity ofnative title rights but left "room for theco-existence on terms of reasonable user of native title rights" because:

• substantial area;

• less intense activity contemplated;

• right of public access to roads and tracks;

• heavily qualified rights of possession;

• limited purpose of grazing (640 and 654-655);

• short duration, determinable on 3 month's notice.

Leases of reserves to Aboriginal councils and corporations for benefit of Aboriginal people were withins 47A(I)(b)(i); extinguishment by the grant of prior interests is to be disregarded: s 47A(2) (657).

"PAST ACT" PROVISIONS OF NTA

Lease for "tourist facility" is a "commercial lease" within ss 246 and 229(3)(a). A lease "for a residential(government)" purpose is not within s 229(3)(a), and cannot be a Category A past act being a grant fromCrown to Crown (s 229(3)(d)(ii)). It is a CategoryD past act (653).

A year to year lease did not fulfill s 229(3)(c)(i) by a "quirk" but fell within s 229(3)(c)(ii) as it wasrenewed pursuant to a good faith "offer, commitment, arrangement or undertaking" when the lease wasexecuted (651).

FLORA & FAUNA LEGISLATION

The statutory declaration of property was only for passing control and management and did not manifest aplain and clear intention to wholly extinguish: Yanner (499).

Aboriginal exemption supports conclusion that there is no general extinguishment as to fauna (500).

But Aboriginal exemption clearly and plainly extinguished native title rights to fauna in nature reserves,despite rights to take fauna in such reserves (504).

Where reserves were created after enactment of Racial Discrimination Act 1975 (Cth), s 211 of NTAprotects native title rights from extinguishment. The RDA would protect the native title rights as denial ofsuch rights would be discriminatory (504).

(2000) 19 AMPLJ Case Notes 9S

Sections 104-106 of Conservation and Land Management Act 1984 and regulations under ss 44-46 of theWildlife Conservation Act impose "very stringent and extensive control over human activities withinnature reserves and wildlife sanctuaries" and "extinguishes exclusive native title rights to control accessand of possession and occupancy" (506-508).

OTHER LEGISLATION

Noongoora Burr Quarantine Area

The regulations prohibiting access were "regulatory in nature" and were not "directed to native title" but"to eradication of the burr" (509).

Aborigines Act 1905 (WA)

The prohibition of entry under the Act "was not intended to have the effect that native title rights wereabolished. Rather the purpose of the legislation was to regulate the exercise and enjoyment of native titlerights in a way that was beneficial to Aboriginal people".

LimuauonsAct 1935 (WA)

The application of the Crown Suits Act, and Limitation Act, to an application for a determination of nativetitle so as to extinguish native title, was rejected:

• the Limitation Act applies to actions in the Supreme Court, not applications under the NTA;

• the Limitation Act applies to common law tenures. Native title does not come within the defmition of"land" in s3;

• the Crown Suits Act applies to proceedings against the Crown. An application under the NTA is notsuch an action;

• it would be inconsistent with the object of the NTA to deny protection to such rights of "antiquity"(393).

DISSENTING JUDGMENT: NORTH J

PROOF OF CONNECTION

Agree with Beaumont and von Doussa JJ on proof (222-280). Adopt summary of argument (170-221)(682).

A law or act must demonstrate an intention to permanently and totally abrogate native title. Inconsistencymust be of such "high degree". Where no such fundamental inconsistency native title rights are curtailedor suspended but not extinguished (684).

The suspension or curtailment allows other interests to take effect and have priority and thereby satisfiesthe purpose of the concept of extinguishment. It is not necessary to extinguish native title unless theinterest is permanent and adverse to any native title right to land (689-693).

96 Case Notes (20QO) 19 AMPU

EXTINGUISHMENT: MUST BE PERMANENT AND TOTAL

. A law or act must demonstrate an intention to permanently and totally abrogate native title. Inconsistencymust be of such "high degree". Where no such fundamental inconsistency native title rights are curtailedor suspended but not extinguished (684).

The suspension or curtailment allows other interests to take effect and have priority and thereby satisfiesthe purpose of the concept of extinguishment. It is not necessary to extinguish native title unless theinterest is permanent and adverse to any native title right to land (689-693).

FULL RESPECT

Majority in Mabo recognised presumption that Crown would accord "full respect" to native title andensure equality (694-695).

Would be inconsistent with the basis of Mabo to hold that native title is extinguished where the otherinterest can be fully enjoyed if native title is suspended (696).

CLEAR AND PLAIN INTENTION

Clear and plain intention to extinguish is required of legislation or executive act: Mabo No.2, WA vCommonwealth.

Wik majority required clear and plain legislative intention (697-705). The requirement "always applies"and such may be "manifested" by inconsistency (847-848).

Brennan CJ in dissent in Wik did not deny requirement of clear and plain intention with respect toinconsistent grants, but meant only that actual intention was not relevant, and likewise in Fejo (706-709).

The requirement "recognises the serious consequences akin to expropriation" (710).

DEGREES OF INCONSISTENCY (711-738) (684)

Inconsistency must be absolute, total, complete or fundamental and permanent (711, 733).

Mabo did not indicate "necessary degree of inconsistency required or whether consequences short ofextinguishment may follow where the degree is limited" (720). The recognition of degrees ofinconsistency is found in Yanner (734) and Wik (723).

Toohey, Gummow and Kirby JJ in Wik require impossibility of co-existence (722-728).

References in Mabo and Wik suggest impairment of native title may fall short of extinguishment (736737). The High Court has not yet considered cases involving less than complete inconsistency exceptYanner. No doctrine has yet developed. There is "some support" for lesser inconsistency resulting in"suspension" (738).

SUSPENSION

Suspension was not rejected by the majority of the Court in Wik. Indeed the majority rejected theobjection of the minority as to suspension based on the Crown's reversion expectant (739-758).


Mineralogy and some of Brennan's comments in Wik support the concept of suspension, inasmuch as theyrecognise that private landholder's rights are not extinguished on account of inconsistency (759-760, 762763).

Similarly:

• town planning legislation does not extinguish (764);

• displacement of water rights does not extinguish underlying title: Thorpes (765-766).

In reference to Mineralogy the rights were recognised as inconsistent and for a five year term, yet nativetitle was not extinguished (761).

Native title is "a permanent right to land". "Only the grant of rights and interests which are permanentlyinconsistent" will extinguish native title (849).

REGULATION

Regulation by legislation is analogous to the grant of inconsistent rights which impair but do notextinguish native title: fanner. "The grant of a right to mine [for a limited period] is equivalent in effectto a regime of strict regulation which prevents the exercise of a countervailing right for a time". (775, also767).

Regulation, including severe restriction, does not extinguish native title. Indeed complete prohibitionmight not: fanner, Mason v Tritton. The exercise of the right is "impaired by being suspended" (771774).

EXCLUSIVE POSSESSION LEASES: SUSPENSION

Exclusive possession leases do "not extinguish native title where the duration of the lease is less than theduration of native title ... native title is suspended" (776).

Dicta in Mabo No.2, Wik and fanner is not consistent and principle dictates suspension (777-778).

The majority judgement has a "problem of principle" in being unable to explain the difference in resultbetween a short term and long term lease (779-780).

Suspension provides certainty where mere reliance on inconsistency does not (781).

PARTIAL EXTINGUISHMENT-BUNDLE OF RIGHTS

"Native title is a right to land based on an established Aboriginal connection to that land": fanner,Delgamuukw (785-788 & see 789-792).

"The underlying connection is the foundation for the exercise of various rights" and extinguishmentrequires "a clear and plain intention to abolish the underlying connection". "There cannot be partialextinguishment ... by the restriction or abolition of some or all of the rights and interests dependent uponthe existence of native title" (784).


"Native title may continue despite the regulation, even amounting to prohibition, of rights or interestswhich depend "on native title" (788 and 792).

PROPER APPROACH TO DEVELOPMENT OF THE LAW

"Acceptance of the notion of extinguishment [in Johnson v McIntosh] (US Set) was based principally onconsiderations of policy, namely the requirements for the safety and growth of the emerging nation"(800).

"The primary factors which gave birth to the concept do not apply in Australia (802) ... there is a need toappreciate the danger of being bound by the "medieval chains" ... the common law is capable of change inorder to meet contemporary situations" (804).

CHANGE AS A FEATURE OF THE HISTORY OF PROPERTY LAW

"Modification and change have characterised the development of property law" (804):

• doctrine of tenures, leading to fragmentation of interest (805-810);

• doctrine of estates and incorporation of leaseholds (810-816);

• leasehold without estates in 1999 (817);

• uses and trusts (818)..-

Property law development "is sufficiently flexible to accommodate the notion of the suspension of rightsand interests dependent upon the existence of native title" (820).

MINERALS

Grants

Agree with Lee J at 159 ALR 577-581 that the grants of mineral tenements "did not extinguish nativetitle" (822).

Resources

The determination refers to resources "in the widest sense", including minerals (826), based on the usesmade of the land "but also upon the concept in traditional law that the land including all its resources werepart of one meaningful interrelated system" (828).

It is not to the point that the modem means of exploitation may be different from traditional methods:Mabo, Brennan at 61, fanner Gummow at 277, Callinan 294.

The legislative declaration of property in mining and petroleum resources did not extinguish native title,but merely conferred "rights to control exploitation". The majority in fanner regarded the samereasoning as applicable to minerals and petroleum. The regime of the Mining Act confirms the "limitedmeaning of the concept of property in the Act". Drummond J in Wik is no longer correct (831-843).


LEE J'S APPROACH TO EXTINGUISHMENT

Agree (844) with Lee J's formulation including

• no partial extinguishment;

• adverse dominion;

• clear and plain intention;

• suspension;

• co-existence.

Agree with Lee J's detailed application of extinguishment principles and subsidiary issues (861).

ONUS CONCERNING EXTINGUISHMENT

Agree with majority (862).

ACTUAL USE

Reject State argument that Lee J held that actual use that was permanently inconsistent was required toextinguish native title. It provided an "additional circumstance" in which extinguishment would occur:Wik, Gummow, Gaudron JJ (850-852), Delgamuukw (853-855), as Lee J's pastoral lease considerationmakes clear (858-860).

Difference between Brennan J in Mabo and Lambert JA in Delgamuukw is one of emphasis. Brennan Jwas referring to "actual intention" (856-857).

RIGHT TO PROTECT CULTURAL KNOWLEDGE

Common law recognition of native title attaches to both secular and spiritual aspects of the Aboriginalconnection to the land, in accordance with traditional law: Yanner (866-868).

Bulun Bulun is distinguishable as a case where the "common law had been subsumed by statute" (869).

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