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Annexure 2: Table of Tenures and Interests and their Affect on Native Title

It is important to note that most tenures and interests continue to affect native title even after they have ceased. So, for instance, an area of land may currently be unallocated crown land, but all previous tenures/interests in that land will have permanently affected, and possibly extinguished, native title rights (unless the land comes within the few exceptions under the Native Title Act 1993 (Cwlth) (‘NTA’) – sections 47, 47A & 47B). The following table summarises tenures examined in Miriuwung Gajerrong [1] and Wilson v Anderson. [2]

Abbreviations:

Land Act – Land Act 1933 (WA)
NTA – Native Title Act 1993 (Cth)
PEPA – Previous Exclusive Possession Act (s23B, NTA)
RIWIA – Rights in Water and Irrigation Act 1914 (WA)
RDA – Racial Discrimination Act 1975 (Cth)
State Validation Act – Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)

TENURE OR INTEREST

EXTENT OF EXTINGUISHMENT

BASIS FOR EXTINGUISHMENT
Western Australia

Pastoral Lease

Partial extinguishment – loss of right to control access to land, [3] right to control use of land also extinguished, [4] right to burn off the land probably extinguished [5] , and other rights may be extinguished (further findings required by Federal Court). [6] Where native title rights are not inconsistent with rights under pastoral lease, the pastoral lease rights prevail over, but do not extinguish, the native title rights. [7]

Common law (inconsistency of incidents test). [8] Land Act 1898 (WA); Land Act s106; State Validation Act s12M.
Reserves
Crown’s designation of land as a reserve for a public purpose, before 1975 (RDA) Partial extinguishment – loss of right to make decisions about the use of land, [9] right to control access to land also extinguished, [10] but not necessarily extinguishing of any other native title rights. [11] Common law (inconsistency of incidents test). [12]
Land Regs 1882 (WA) rr29-34, Land Act 1898 (WA) ss39-46; Land Act ss29-37; Permanent Reserves Act 1899 (WA).
Crown’s creation of a reserve for ‘conservation of indigenous flora & fauna’ under Land Act s29, before 1975 (RDA) Partial extinguishment – loss of right to hunt or gather over land in reserve, [13] loss of right to make decisions about the use of land, [14] right to control access to land also extinguished, [15] but not necessarily extinguishing of any other native title rights. [16] common law (inconsistency of incidents test). [17]
Land Act s29.
Where reserve designated/created after 1975 (RDA) but before 1 Jan 1994 [18] Non-extinguishment – the rights created by the reserve prevail over, but do not extinguish, inconsistent native title rights which have full effect when the reserve ceases. [19] RDA, s10.
NTA Div 2 Part 2, ss19 (category D past act) & 238
State Validation Act s5.
Construction or establishment of ‘public work’ on reserve commenced before Dec 1996 Complete extinguishment – of native title in relation to the land/waters on which the public work situated at completion. [20] NTA s23B(7).
State Validation Act s12.
Vesting of reserve under Land Act s33, before DEC 1996 [21] Complete extinguishment. [22]
Vesting after 1975 (RDA) still results in complete extinguishment but possible right to compensation may remain. [23]		 Common law (vesting of fee simple extinguishes all native title). [24] Land Act s33; State Validation Act s12I. NTA ss23B(2)(c), 23B(3) (vesting is a PEPA) RDA not invalidate vesting. [25]
Vesting for the purposes of preserving the natural environment: NTA s23B(9A) Complete extinguishment. [26] Common law (vesting of fee simple extinguishes all native title). [27] Land Act s33; State Validation Act s12I. NTA s23B(9A) (protection from extinguishment by conservation reserves is annulled common law prior extinguishment). [28]
Vesting of reserve under Land Act in crown body (‘crown to crown grant’) Complete extinguishment. [29] Common law (vesting of fee simple extinguishes all native title). NTA s23B(9C)(a) (protection from extinguishment by ‘crown to crown grants’ is annulled by common law prior extinguishment). [30]
Lease of Reserves under
Land Act s32

Leases of reserve for ‘public utility’ or ‘tropical agriculture’

Depending on the rights created in the lease, complete extinguishment:
– where the lease gave party rights equivalent to lessee of land at general law, that extinguished native title [31]
– where the lease qualifies as a PEPA under the NTA that extinguished native title. [32]

Land Act s32.
RDA applies (but not PEPA because not ‘relevant interest’ under State Validation Act); NTA ss19 & 23B(2), Div 2 of Pt 2 State Validation Act s12I
Commercial leases in form of 21st schedule to Land Act Complete extinguishment. [33] Common law (terms of lease have lessee exclusive possession and thereby extinguished native title)
Post RDA; category A past act.
Resumptions
Resumption of land under Land Act s109 No extinguishment. Common law (resumption does not give Crown any greater title than radical title imposed by British sovereignty) [34]
Land Act s109.

Resumption of land and then vesting under Public Works Act 1902 (WA)

Complete extinguishment of all native title. [35] Vesting after 1975 (RDA) still results in complete extinguishment [36] but possible right of compensation remains. [37]

Common law.
Public Works Act 1902 (WA) ss18 & 34(2). Vesting not invalid under RDA because other interests equally effected but RDA operate to extend compensation (RDA s10; NTA ss23B, 23E, PEPA)
State Validation Act s12I. [38]
Rights in Water and Irrigation
Act 1914 (WA) ('RIWIA')
Vesting of control of waters in Crown, RIWIA s4 Partial extinguishment – loss of right of exclusive possession over waters. [39]
 Common law (inconsistency of incidents test).
By-laws before 1975 (RDA) under Part IV prohibiting removal of flora and fauna Partial extinguishment – loss of right to hunt fauna or gather flora. [40] Common law (inconsistency of incidents test).
By laws after RDA Non-extinguishment principle – where by-laws inconsistent with right to hunt fauna or gather flora those rights suspended while by laws are current. [41] By laws validated by NTA s19 and State Validation Act ss5&9
NTA s238 (native title rights protected from extinguishment by non-extinguishment principle).

Land reserved for requirements connected with ‘works’ as defined under RIWIA s2

Complete extinguishment. [42]

RIWIA s3(2) all land dedicated for purposes of RIWIA shall vest in Minister.
Mining
Mining Act 1904 (WA) Petroleum Act 1936 (WA) Court did not decide [43] but indicated partial extinguishment – loss of native title right to any minerals or petroleum as defined under those statutes. [44] Common law
Mining Act 1904 (WA) s117; Petroleum Act 1936 (WA) s9; Western Australia Constitution Act 1890 (Imp) s3; property in minerals and petroleum vested in Crown which extinguished native title.
Mining Lease Partial extinguishment – loss of right to control use of or access to land, [45] and other rights may be extinguished (need further identification of native title rights to determine extent of extinguishment). [46] Common law (mining lease grant right of exclusive possession for mining purposes).
NTA, not category C act because no invalidity by RDA.
General Purpose Lease Partial extinguishment – loss of right to control use of or access to land, and other rights may be extinguished (need further identification of native title rights to determine extent of extinguishment). [47]  
Argyle Mining Lease Undetermined – not necessarily inconsistent (and therefore extinguishing of) all native title interests, [48] mining lease does extinguish right to control use of and access to land, and other rights may be extinguished (need further identification of native title rights to determine extent of extinguishment). [49] Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA).
Prior extinguishment over area because of vesting of a reserve. [50]

Designated Area’ under Governor’s orders for control of access in diamond mining, Argyle Mining Lease, Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA) ss15&17

Complete extinguishment [51]

Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA), ss15&17.
Land Act
Permit to occupy under Land Act 1898 (WA) s16 Complete extinguishment [52] Common law (permit holder gained right to exclusive possession of land in perpetuity).
Land Act 1898 (WA) s16.
Special Lease under Land Act ss 62 & 116 Complete extinguishment [53] Common law. Land Act s116 (granted lessee right of exclusive possession. [54]
NTA s23B(2)(c)(iv) NTA (special lease for grazing amount to exclusive pastoral lease under NTA).

Conditional purchase lease under Land Act 1898 (WA) s62

 

Undetermined – Full Federal Court found complete extinguishment on basis that the conditional lease was expected to pass into fee simple. The High Court disagreed [55] but ruled that native title on the particular land had been resolved because of a later tenure and so didn’t consider the effect of conditional purchase lease. [56]

  

Public right of fishing

 Partial extinguishment – loss of exclusive right to fish or control access to waters. Inconsistent with public right to fish.
Northern Territory
Pastoral leases Partial extinguishment – loss of right to control access and to make decisions about the land, [57] other rights may be extinguished (further findings required by Federal Court) [58] Common law (inconsistency of incidents test). [59]
Non-excl pastoral lease a previous non-exclusive possession act; Div 2B NTA. [60]

Keep River National Park

 Non-extinguishment [61] – the rights created by the national park prevail over, but do not extinguish, inconsistent native title rights which have full effect when the park ceases Granted after 1975; Category D past act; Not category B because Crown to Crown grant within s230(d)(i) NTA; special purpose lease and crown lease perpetual would otherwise extinguish native title completely.
New South Wales

Perpetual grazing lease under Western Lands Act 1901 (NSW)

Complete extinguishment. [62]

Exclusive possession pastoral lease; NTA Div 2B.

1 Western Australia v Ward & o’rs [2002] HCA 28 (8 August 2002) (‘Miriuwung Gajerrong’).

2 Wilson v Anderson and or’s [2002] 29 (8 August 2002).

3 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [192], [219].

4 ibid., at [468(10)].

5 ibid., at [194].

6 ibid., at [195].

7 ibid., at [193].

8 ibid., at [78] & [82].

9 ibid., at [219].

10 ibid., at [468(12)].

11 ibid., at [220]-[221].

12 ibid., at [78] & [82].

13 ibid., at [246].

14 ibid., at [248].

15 ibid., at [468(12)].

16 ibid., at [220]-[221].

17 ibid., at [78] & [82].

18 ibid., at [222].

19 ibid. at [222] & [247]-[248].

20 ibid., at [223].

21 ibid., at [256].

22 ibid., at [249], [256].

23 ibid., at [253].

24 ibid., at [256].

25 ibid., at [253]-[254].

26 ibid., at [248], [256] & [258].

27 ibid., at [258].

28 ibid., at [258].

29 ibid., at [261].

30 ibid., at [260]-[261].

31 ibid., at [369].

32 ibid., at [372].

33 ibid., at [374].

34 ibid., at [208].

35 ibid., at [204].

36 ibid., at [278].

37 ibid., at [278]-[279].

38 ibid., at [279]-[280].

39 ibid., at [263].

40 ibid., at [265].

41 ibid.

42 ibid., at [273] & [468(15)].

43 ibid., at [382] & [468(22)].

44 ibid., at [377],[384] & [385], but no final decision on this point because native title rights not established.

45 ibid., at [308]-[309], [468(17)].

46 ibid., at [296].

47 ibid., at [340], [468(18)].

48 ibid., at [333].

49 ibid., at [308]-[309], [328] & [468(18)].

50 ibid., at [324].

51 ibid., at [328].

52 ibid., at [349].

53 ibid., at [357].

54 ibid., at [357].

55 ibid., at [346].

56 ibid., at [350].

57 ibid., at [417] & [468(24)].

58 ibid., at [425].

59 ibid., at [422].

60 ibid., at [417].

61 ibid., at [448].

62 Wilson v Anderson, op.cit., per Gaudron, Gummow & Hayne JJ at [119].

19 March 2003.