Summary of Native Title - Property Law PDF

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Summary of Native Title for property law....

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Fragmentation of proprietary interests in land: Native Title The Native Title Act 1993 (Cth) 

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The Native Title Act 1993 (Cth) recognises native title (s 10).  It treats native title on an equal footing with freehold estates.  Native title holders cannot be treated less favourably than holders of other land interests.  Generally, they must agree to extinguishment, or they must be provided compensation. S 11 Provides that it cannot be extinguished contrary to the Act. S 223 ‘Native title’ is defined as  Common Law rights and interests 1. The express Native title or native title or native title rights and interests means that communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relations to land or waters, where (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 people 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  Hunting, gathering and fishing covered. 2. Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, fishing, rights and interests The act provides the machinery for determining Native title claims. S 61 Aboriginal claimants, commonwealth and state ministers and others affected may apply to the Federal Court of Australia for a determination of Native Title: s 61. S 81 contested claims will be determined by the Federal Court: s 81 S 86B However, they may be referred to the National Native Title tribunal for mediations. S 169 an appeal lies from the tribunal to the Federal Court on certain matters of Law. Pt 2 Div 3: Limitations are placed on the extent to which Future legislation or Grants can affect Native title.  Broadly, the situation is that Native Title holders cannot be treated less favourably than holders of other interests in land. S 20 They must agree to extinguishment, or their property must be acquired under compulsory acquisition legislation, which provides compensation. P 2 Div 3: In some cases, for example, the grant for mining leases, the legislation recognises the special relationship between Aboriginal people and their land by giving them a ‘right to negotiate’ before interest is granted.  This right does not give them right to veto over the land

The nature and incidents of native title 

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Native title generally refers to the activities of a hunter-gatherer society. There are other kinds of society among indigenous Australians. And it may be so expansive so as to amount to exclusive possession of land and full beneficial ownership Gummow J in Wik

 The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies…at the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein. Western Australia v Ward (2002) FACTS  The case concerned three separate native title claims  Application for a determination of native title.  This engaged the definition of ‘native title’ in s 223 of the NTA. LEGAL ISSUES  The definition of ‘native title’ in s 223 of the Native Title Act 1993 (Cth) and how it applied to this present case. Nature and incident of Native Title  A ‘spiritual’ connection does not equate with common law rights and interests.  However, s 223 of the Act requires courts to make exactly that connection.  The native title rights in s 223 are derived from traditional laws and customs, not from the common law. The statute recognises these rights and interests, but case law cannot elaborate on this, as it is founded in a wholly different culture.  The majority of the Court in Ward HCA gave emphasis to ideas of co-existence of native title with other rights and interests. In effect, the majority adopted reasoning that pointed to native title being understood more typically as a bundle of rights, rather than a title to land (beneficial user). 

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This case was determined under NTA and provided confirmation that the courts view Native Title as a ‘bundle of rights’ as opposed to title to land.  Rights include: hunting, gathering, fishing, ceremonial. The reasoning in Ward has been heavily criticised.  In Members of the Yorta Yorta Aboriginal Community v Victoria (note: the case is covered properly below), McHugh J quoted from the Second Reading speech of the Native Title Act to illustrate that Parliament’s intention was to have native title recognised as a common law right.  It also envisioned further development through case law.  In McHugh J’s opinion, neither of these have occurred due to the erroneous judicial interpretation of s 223.

What rights does the native title ‘bundle of rights’ contain? 

Besides fishing, gathering, and hunting as noted in the Native Title act, a growing body of case law provides many examples.

The Territorial Sea 

In Commonwealth v Yarmirr, the court considered whether native title could exist over the sea and seabed near Croker Island.  The Commonwealth argued that if the Crown’s radical title ended at a low-water mark, so too did native title, as native title could only operate to ‘burden’ radical title.

 It was held, firstly, that the Crown did not have radical title to the sea, but it did have ‘sovereign rights and interests’ over it. As native title was not a creature of common law, it could exist alongside as long as it wasn’t inconsistent or extinguished by the Commonwealth.  Secondly, it was held that common law rights that affected the sea brought upon settlement formed part of the local law. To that extent native title had been diminished (not extinguished), but they could still coexist with the general common law rights. Inland waters   

In Yanner v Eaton, the High Court held that hunting of estuarine crocodiles with harpoons was a valid exercise of native title. In Mason v Tritton, Kirby P held that native title could include a right to fish. In Gumana v NT, a fee simple precluded the NT government from issuing fishing licenses. On the issue of native title, it was held that the plaintiffs had a non-exclusive native title to fish and navigate the land, but any rights to exclude other Aboriginal groups form the land were extinguished by the common law public right to fish.

Cultural knowledge 

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In WA v Ward, the court affirmed that native title does not extend to the protection of intellectual property rights associated with the land - the law of intellectual propriety may offer suitable protection. The main difficulty was with the term ‘cultural knowledge’. It was held to be too imprecise to come under the ‘connection’ requirement in s 223 of the Native Title Act. Thus, it could not be a native title right.  In Foster v Mountford, a book containing Aboriginal tribal secrets was prevented from being published. The indigenous owners were in effect given a proprietary interests.

Minerals and petroleum 

The HC in Western Australia v Ward held that the relevant legislation had extinguished any possible native title rights to minerals with the possible exception of ochre. Also, the court held no traditional custom appeared to indicate rights over these commodities.

Is native title inalienable?  

As Mabo made it clear, native title is in general inalienable. This characteristics suggests its sui generis nature when compared with traditional property rights. There are two exceptions:  Native title may be surrendered to the crown  It may be acquired by a clan, group or member of an indigenous people in accordance with the laws and customs of that people..  Dale v moses dealt with this matter

Connection With the Land 

In Mabo (No 2), the court was divided as to the requirement of a ‘connection’ with the land for establishing a native title claim.  Brennan J: ‘traditional connection’

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 Deane and Gaudron JJ: ‘occupation or use’  Toohey J: ‘physical presence’ Later cases have not endorsed the need for physical presence or occupation S 223(1)(b) of the Native Title Act 1993 (Cth) reflects most closely Brennan J’s formulation. It requires that "the Aboriginal peoples … by [traditional] laws and customs, have a connection with the land or waters". The interpretation of this s 223 was considered in Members of the Yorta Yorta Aboriginal Community v Victoria:

Members of the Yorta Yorta Aboriginal community v Victoria (2002) HC FACTS  The claimants made a native title claim for certain areas of Victoria and NSW.  The primary judge made a determination that native title did not exist.  An appeal to the Federal Court was dismissed in favour of Victoria 2:1 (see here).  The claimants appealed to the High Court. LEGAL ISSUES  The meaning of ‘traditional’ in s 223 (1)(a).  The meaning of ‘connection’ in s 223 (1) (b).  The meaning of ‘recognition by the common law’ in s 223(1) (c). JUDGEMENT  All elements of the definition of native title in s 223 must be given full effect.  The native title rights and interests to which the Act refers are rights and interests finding their origin in pre-sovereignty normative law and custom (has to be from before colonisation). Traditional  ‘Traditional’ does not mean only that which is transferred from generation to generation. It is means law and custom which has existed before colonisation, and has been continually observed (without substantial interruption) change since colonisation.  If it was not observed since before colonisation, the ensuing rights will cease to exist.  A later attempt to revive those traditional laws and customs will not establish native title.  One has to look not merely at the present, but also at the relationship between the laws and customs now observed and those observed pre-sovereignty, and if they were traditional.  Change and interruption to traditional law and custom are not necessarily fatal to a native title claim. However, they may be significant.  The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Connection  Connection refers not to physical presence on the land but rather a connection to the land via traditional laws and customs.  Thus, the physical presence can be interrupted, whilst the abandonment of traditional laws cannot. Recognition  This has a negative operation - it means that indigenous rights and interests which may be ‘antithetical to the common law’ will not be recognised.  This is a requirement that ‘emphasizes the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty.’

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A number of cases have now acknowledged the question of connection to land. For instance, the Full Court in Ward v Western Australia observed  The connection can be maintained by the continued acknowledgement of traditional laws, and by the observance of traditional customs. Acknowledgement and observance may be established by evidence that traditional practices and ceremonies are maintained by the community, insofar as that it possible, off the land, and that the ritual knowledge including knowledge of the Dreaming which underlie the traditional laws and customs, continue to be maintained and passed down from generation to generation. Evidence of present members of the community, which demonstrates a knowledge of the boundaries to their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs.

The extinguishment of native title  

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Mabo, Brennan J in Mabo (no 2) held that a common law native title could be extinguished without the consent of Aborigines and without payment of compensation. As a general rule, a statutory provision that demonstrates a ‘clear and plain intention to extinguish’ native title will bring native title to an end. This can be expressed in three ways.  A legislative provision expressed to extinguish native title;  An inconsistent grant which vests in the grantee an interest in the land which is inconsistent with the right to enjoy a native title in respect of the same land necessarily extinguishes the native title. o The extinguishment of native title depends on the effect which the grant has on the right to enjoy native title.  Acquisition by the Crown of native title land. As a general rule, a statutory provision that demonstrates a ‘clear and plain intention to extinguish’ native title will bring native title to an end. However, a statute that merely regulates an activity does not necessarily demonstrate a clear and plain intention to extinguish native title. How exactly statutory provisions need to be expressed to extinguish native title is unresolved in Australia.

Grant of a Freehold estate 

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A grant of a freehold estate by the Crown to someone else demonstrates a clear and plain intention to extinguish native title. This is because the rights conferred by a fee simple are inconsistent with the rights or interests of native title (it is an inconsistent grant). This concept was discussed in Fejo v NT:  Facts: certain land was granted as a freehold estate, then vested back with the Crown. The claimants argued that their native title was merely suspended during the grant. As the estate was revested in the Crown, the native title holders reacquired their right to exercise it.  Held: The argument was unanimously rejected. The court's argument was the inconsistency of native title and the common law, which cannot be equated. o Native title did not owe its existence to the common law, it operates outside of it. o Since a freehold estate is a creature of the common law , it can have no interaction with native title.

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Thus, native title was extinguished entirely with the grant of the freehold estate.

Pastoral Leases 

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A pastoral lease is Crown land that government allows to be leased, generally for the purposes of farming (they are usually leased for long term periods). It is important to note that pastoral leases are not the same as normal common law leaseholds, and do not confer the rights to exclusive possession. The question arises whether the grant of land on the basis of a pastoral lease is an inconsistent grant which extinguishes native title rights. Wik Peoples v Queensland  Facts: the claimants claimed native title over land which had been the subject of grants of pastoral leases under the relevant legislation.  Held: Native title can coexist with pastoral leases. The position of the grantees of the leases depends on (a) the terms of the grant of the pastoral lease; and (b) the statute which authorised it. In case of inconsistency between statutory pastoral leases and native title, pastoral leases prevail. o Pastoral leases are different to normal leases in the sense that they do not confer rights to exclusive possession of the areas on the grantees. If there is no exclusive possession, then native title rights can coexist. Other laws regarding pastoral leases include:  Pastoral leases granted between the commencement of the Racial Discrimination Act 1975 (31 October 1975) and the Native Title Act 1993 (1 January 1994), which would have otherwise extinguished native title rights at common law, might have been invalidated by the Racial Discrimination Act.  s 229 (3) of the Native Title Act completely extinguishes native title interests by the grant of category 'A' interests - which include pastoral leases.  s 248 of the Native Title Act defines pastoral leases as leases that: o Permit the lessee to use the land or waters covered by the lease solely or primarily for:  Maintaining or breeding sheep, cattle or other animals; or  Any other pastoral purpose; or  Contains a statement to the effect that it is solely or primarily a pastoral lease or that it is granted solely or primarily for pastoral purposes.

Pastoral Leases conferring Rights of Exclusive possession 

Despite the general rule in Wik, later cases have construed the role of pastoral leases in different ways. The test seems to be the nature and effect of the pastoral lease.  For example, in Wilson v Anderson, a lease granted ‘in perpetuity’ followed by purchase was held to extinguish native title, as it was historically considered a substitute for the Crown grant of fee simple.

Western Australia v Ward LEGAL ISSUES  Pastoral Leases Conferring Rights of Exclusive Possession JUDGEMENT  A 'clear and plain intention' to extinguish native titles rights is determined objectively, by checking whether the rights conferred by the grant are inconsistent with alleged native

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title rights. A lease conferring the right to exclusive possession (ie, a lease which allows one to exclude others) would confer rights which are inconsistent with native titles rights, and thus extinguish it. When determining whether a lease confers exclusive possession, one does not simply determine automatically from the classification of the lease (ie, a 'pastoral lease'). The classification or 'name' of the lease is irrelevant - each lease is examined individually to determine whether it confers exclusive possession. In this case, the lease did not confer the rights to exclusive possession because the claimants could pass over the land and do all kinds of things. The lease did not allow the owner to take steps to exclude them from the land.  It should be noted that certain native titles rights were extinguished (since they were inconsistent with the rights of the grantee). These include the rights to control access to and to make use of the land. The court also considered the issues of mining leases and the public right to fish:  Do mining and petroleum leases extinguish native title rights? o Well, those things were never mentioned in aboriginal law so no native title right or interest with regards to mining was established in the first place. o Even if they can prove that such a native title right exists, it would have been extinguished by the statutes related to mining etc, since all those things are vested in the Crown.  Right to fish: o The claimants had, under customary law, exclusivity to fish (ie, they excluded other aboriginals etc). This right is now extinguished since the common law has always had a public right to fish and navigate over waters. The rights are inconsistent, and the common law prevails. In Ward, the dissent (Callinan J) questioned the practical utility of the ultra-complex body of case law that had grown out of recognition of native title rights.  The problem, according to him, was Australian courts’ artificial attempt to fit native title within property law. This created an unworkable situation where, rather than actually being granted compensation and redress, indigenous Australians were merely having their hopes ‘raised and dashed’ through rights that ‘amount to little more than symbols.’ Some other corollary decisions have been ruled regarding leases:  A native title right to permanent settlement can exist concurrently with pastoral leases, but the leaseholder can always exercise a right under his lease and extinguish that right without any problem.  Similarly, any improvements made in accordance with a pastoral lease’s terms will extinguish native title rights and interests. Non-exclusive native title remained over the claim area where improvements had not been made. De Rose v South Australia (No 2)

Leases containing reservations in F...