Annexure 3: Summary of the Validation and Confirmation of Extinguishment Provisions in the Native Title Act 1993
In the High Court’s formulation of native title in Mabo (No 2), [1] delivered on 3 June 1992, it was made clear that in the past, governments could validly grant interests in land that would extinguish native title. These grants could be made without payment of compensation to native title holders. [2] At least that was as far as the common law was concerned. The Court did not need to consider the effect of the Racial Discrimination Act 1975 (Cwlth) (‘RDA’) on laws and grants after the RDA came into force on 31 October 1975. Laws and grants after that date may have been invalid if, for example, the grant extinguished native title in a discriminatory way. The effect of invalidity would have been quite dramatic: in some cases the holders of government-issued titles would not own the land they thought they owned.
In theory, the Government could have left these issues for the courts to decide on a case-by-case basis or, at the other extreme, legislated for blanket validation of all past government acts to do with land. The purpose of validation is to correct the legal effect of invalidity by reversing it in legislation. Another possible approach, although cumbersome and time-consuming, would have been to list all the laws and grants of interests in land made prior to the Mabo (No 2) decision, and explicitly validate them. Instead, the Labor government of the day decided to focus on the potentially invalid acts, defined in a general way, and leave any unresolved questions about the effect of valid acts on native title to the courts to resolve. The Native Title Act 1993 (Cwlth) (‘NTA’), gave effect to this broad policy approach and came into force on 1 January 1994. At a political level, this allowed the Government to calm anxiety about potentially invalid grants, but not resolve all outstanding legal questions against Indigenous interests. One of the critical outstanding legal questions was whether any native title rights survived on pastoral leases that covered approximately 40% of the Australian land mass. That question was resolved in favour of Indigenous interests in the Wik decision, delivered on 23 December 1996. [3] The High Court deciding that the grant of a pastoral lease did not necessarily extinguish all native title rights.
Following the Wik decision, the new Liberal-National Party coalition government, extended the validation provisions to the date of the Wik decision, arguing that the original NTA had been passed on the mistaken assumption that pastoral leases extinguished native title. [4] It also added a fairly comprehensive codification of what past government actions extinguish native title. [5] This new approach represented a reversal of the policy of leaving most unresolved questions to the courts to decide and, in effect, moved the government response closer to the blanket validation approach.
This history resulted in the present complexity of the provisions in the NTA that try to address historical legal uncertainties arising from Australia’s belated recognition of native title. The provisions are organised into three divisions:
1 The Past Act Validation Regime mainly dealing with invalid acts before the commencement of the NTA on 1 January 1994; [6]
2 The Intermediate Period Act Validation Regime, mainly dealing with invalid acts between the commencement of the NTA and the Wik decision on 23 December 1996; [7] and
3 The Statutory Extinguishment (Confirmation of Extinguishment) provisions dealing mainly with valid acts prior to the Wik decision on 23 December 1996. [8]
Note: the word ‘regime’ is used to indicate that the validation provisions try to deal comprehensively with the whole range of different government acts that might have different effects on native title from non-extinguishment to partial extinguishment to complete extinguishments. The Confirmation of Extinguishment provisions focus exclusively on partial or complete extinguishment.
This could be represented as follows: [9]
Figure 1: Validation Timeline
The significance of the Valid / Invalid Distinction and the RDA
Only invalid acts are drawn into the validation regimes to be codified into non-extinguishing, partially extinguishing or completely extinguishing acts. [10] Although it is widely acknowledged that the only reason a government act may have been invalid is a breach of the RDA, the RDA is not specifically mentioned in any of the relevant definitions of ‘past acts’ or ‘intermediate period acts’. This is no doubt an example of cautionary drafting just in case there is some other, yet to be formulated, legal argument that would result in invalidity apart from the RDA. But, for practical purposes, to find the scope of the validation regimes, breaches of the RDA must be considered. [11]
The relevant provision of the RDA states that if a particular race does not enjoy certain rights because of a particular law, the RDA will override that law so that the persons of the affected race will enjoy those rights to the extent that other races enjoy them. [12] The wording of this key provision has a number of consequences in relation to the extinguishment of native title under a law. [13]
The first is that laws that extinguish native title are not necessarily discriminatory if other peoples property rights are also extinguished to the same extent. It also means that some laws which have a discriminatory effect on native title rights will not become invalid, but will simply be supplemented by the RDA to bring them up to a non-discriminatory standard. An example of this is a law that allows for the extinguishment of land titles but only provides compensation for non-native title interests. The RDA has the effect of adding a right of compensation for native title holders. But the extinguishment of native title is still valid.
These conceptualisations introduce some difficult questions for judges, for example how to choose the most appropriate non-native title property rights for the purposes of comparison with native title rights to see whether they have been treated equally or not. It may also be difficult to distinguish between those laws that can effectively be supplemented by the RDA to bring them up to standard, and those laws that simply do not have the mechanisms within them to make this kind of supplementation effective.
The clearest example of a law that cannot be supplemented by the RDA to bring it up to non-discriminatory standard, is a law that specifically targets native title rights and attempts to extinguish them or alter them in some way. The Queensland Coast Islands Declaratory Act 1985, which sought to outlaw native title claims, [14] and the Western Australian Land (Titles and Traditional Usage) Act 1993, which sought to replace native title with traditional usage rights, are two examples of this. [15]
The end result of these distinctions is that extinguishment of native title by legislation or acts done under legislation do not necessarily lead to invalidity. Further questions need to be asked and relevant comparisons need to be made before invalidity can be conclusively established. Thus it is probably true to say that the number of invalid acts is probably smaller than may have been originally imagined.
How do Validated Acts Affect Native Title?
Despite the uncertain scope of invalid acts, the validation regimes provide a reasonably comprehensive codification of what the legal effect of validation is on particular kinds of acts. This codification was based on legal opinion at the time, usually extrapolating from the reasoning of the Mabo (No 2) and Wik decisions, but it was also based on negotiations between the various interested parties during the political process leading to the original NTA and the 1998 amendments. From the perspective of the effect on native title, the codification in the Past Act Validation Regime could be represented broadly as follows:
| Examples | Relevant Definition in the NTA | |
| Complete extinguishment [16] |
• Freehold |
Category A
Past Act [17]
|
| Partial extinguishment [19] | Other leases (not included above or below) | Category B Past Act that is inconsistent with some but not all native title rights. [20] |
| Non-extinguishment [21] | Mineral exploration and mining leases | Category
C Past Act [22] Category D Past Act [23] |
One curiosity in this initial codification was the inclusion of pastoral leases in the category of acts that completely extinguish native title. [24] Subsequently, the High Court came to a different conclusion in the Wik decision. This means that there is a technical anomaly in relation to the survival of residual native title rights on pastoral leases. If the pastoral lease was invalid because of native title, the validation process extinguishes all native title. However, if the pastoral lease remains valid despite native title, the residual native title rights survive.
This assessment in 1993 about pastoral leases was less beneficial to Indigenous interests than the subsequent Wik decision. Other assessments have proven to be more beneficial in the light of subsequent judicial decisions. One is having a catch-all category (Category D) to which the non-extinguishment principle applies. [25] This means that all those acts which are not specifically identified in other categories will fall into category D. The non-extinguishment principle preserves native title to the maximum extent possible while allowing the exercise of competing rights granted under statute. [26] The other beneficial aspect is the list of exceptions to extinguishment. As would be expected, these included land granted to Indigenous people under land rights and other legislation designed to benefit Indigenous people. Another exception is known as ‘Crown to Crown grants’, that is land transferred from one arm of the government to another arm of the government, whether it be another department or a separate statutory authority. [27] Land in this category was dubbed ‘fake freehold’ by Indigenous interests who saw it as allowing governments to illegitimately extinguish native title even though no third party interest would be affected.
So far, no distinction has been made between past acts and intermediate period acts. While the codification of extinguishing effects in the two regimes is broadly similar, it should be noted that the scope of invalid acts subject to the intermediate period acts regime is somewhat narrower than the past acts regime, and there are some differences in the codification of extinguishing effects that would be significant in a particular case. [28] For example, the Intermediate Period Acts Validation Regime does not apply to acts that took place on unallocated Crown land [29] and, following Wik, it provides that non-exclusive pastoral leases did not completely extinguish native title. [30]
An invalid act that is validated under either of the two validation regimes, and as a consequence completely or partially extinguishes native title, entitles the relevant native title holders to compensation. [31] The principles for calculating compensation vary. Depending on how the extinguishing act is characterised, the principle could be ‘just terms’ [32] or equating the lost native title rights with freehold title [33] or some other principle. [34]
Statutory Extinguishment of Certain Valid Acts
As explained above, the 1998 amendments to the NTA saw a move beyond concern with invalid acts to the much bigger project of codifying the extinguishing effect of most valid government acts prior to the Wik decision. The title of the new provisions, “confirmation of past extinguishment”, indicates a government intention not to legislate beyond existing legal principles. Inevitably, however, the codification involved finely balanced assessments and extrapolation from the few Court decisions then available, principally Mabo (No 2), Wik and the Fejo [35] decisions. This extrapolation from existing decisions became one of the most contentious aspects of the 1998 amendments.
The Government apparently adopted the view that the Wik decision had introduced a new distinction into Australian law: a lease granted under a statute that did not grant exclusive possession and, therefore, did not extinguish all native title rights, as opposed to a lease granted under statute that did grant exclusive possession and did extinguish all native title rights. Thus in the confirmation of extinguishment provisions there is a broad distinction made between ‘previous exclusive possession acts’ and ‘previous non-exclusive possession acts’. [36]
Some of the acts included in the definition of ‘previous exclusive possession acts’ were consistent with existent legal authority such as the extinguishing effect of a grant of a freehold estate (from the Fejo decision) and the extinguishing effect of the construction of public works (from the Mabo (No 2) decision). [37] Others were drawn from the previous codification embodied in the past act validation regime and included commercial leases, exclusive agricultural leases, exclusive pastoral leases, and residential leases. [38]
But the list went further. It included:
- an exhaustive
list of leases from all major States and Territories that were said
to grant exclusive possession. [39] The list was
compiled by negotiation between Commonwealth and State officials. None
had been subject to any judicial consideration of their effect on native
title. The government officials based their assessment principally on
an extrapolation from the Wik decision.
- community purpose
leases; [40]
- the vesting of
exclusive possession of land to a person under legislation, whether
exclusive possession is expressor implied; [41] and
- a definition of public work that extended the area of the public work to include any adjacent area that was necessary or incidental to the construction of the public work. [42]
As with the validation regime, there are some important exceptions made to these extinguishing acts, including beneficial land grants to indigenous people and the ‘Crown to Crown grants’. [43] A further exclusion from the definition of exclusive possession acts is areas established as parks for the preservation of the natural environment. [44]
Compensation to native title holders is limited to those cases where it could be demonstrated that the native title rights involved would not have been extinguished apart from the NTA, that is when assessments made in extrapolating from the Wik decision prove to be incorrect. [45]
The second major category in the confirmation of past extinguishment provisions, “previous non-exclusive possession acts”, concerned those agricultural and pastoral leases, like the lease in the Wik decision, that did not grant exclusive possession. [46] These provisions appear to be an attempt to codify the Wik decision. However, at the time these provisions were formulated there was a major dispute between Indigenous interests and the Commonwealth Government about the meaning of the Wik decision. The government was convinced that, according to Wik, native title rights that were inconsistent with the rights granted to the pastoralists under the lease would have been permanently extinguished leaving only some residual native title rights (the partial extinguishment view). Indigenous interests argued that the question of permanent extinguishment had not been resolved in Wik and that it was still open to view the inconsistent native title rights as being merely suspended for the duration of the pastoral lease (the suspension view). The final form of the relevant provisions, negotiated between the Government and Senator Harradine, seemed to suggest that this issue was left open for the courts to decide in future cases. [47] But in the Miriuwung Gajerrong decision the High Court seemed to interpret the provisions as a codification of the partial extinguishment view. [48] Thus, whatever the intention of the drafters of the relevant provisions, the effect of a “previous non-exclusive possession act” is to permanently extinguish inconsistent native title rights.
Accordingly, the confirmation of extinguishment provisions could be summarised as follows:
| Examples | Relevant Definition in the NTA | |
| Complete extinguishment [49] |
• Leases
listed in Schedule 1 |
Previous exclusive possession act [50] |
| Partial extinguishment [51] |
• Non-exclusive
pastoral leases [52] |
Previous non-exclusive possession act [54] |
Implementation by States and Territories
As outlined above, it is difficult, if not impossible, for the States to pass legislation effecting the extinguishment of native title without breaching the RDA. Accordingly, they must rely upon the NTA, a Commonwealth Act passed after the commencement of the RDA, to override the RDA. Both in relation to the validation regimes and the confirmation of extinguishment provisions, the NTA authorises the enactment of such legislation provided that it is drafted to the same effect as the Commonwealth provisions. In relation to validation and confirmation of extinguishment, the NTA makes a distinction between acts attributable to the Commonwealth and acts attributable to the States and Territories. [55] The provisions relating to Commonwealth acts take effect immediately; however, the validation of acts attributable to States and Territories and the confirmation of the extinguishing effects of State and Territory acts is only effected when particular States and Territories pass their own legislation in line with the requirements set out in the NTA. Typically, these requirements are that the key provisions are to the same effect as the provisions applicable to Commonwealth acts. [56] Most States and Territories have passed such legislation. [57]
Conclusion
The belated recognition of native title rights in Australia means that most government acts affecting native title have already taken place over the 200 years of colonial settlement prior to the Mabo (No 2) decision. Initially, the Government decided to focus on validating any invalid grants of land, but a subsequent Government expanded this approach to include a codification of all those government acts in the past that extinguished native title. This resulted in a complex, difficult to summarise, set of provisions in the NTA specifying the effect on native title of various past government acts. To find out the effect of any particular act, a checklist of enquiries has to be made to see which provisions of the NTA, if any, are engaged.
Assuming the relevant subsidiary legislation has been enacted by the particular State or Territory responsible for the act, the checklist of enquiries is as follows:
1 Did the act have a racially discriminatory effect on native title rights?
2 If so, is the consequence that the act is invalid by virtue of the RDA?
3 If it is an invalid act, does it fall within the past act regime or the intermediate period act regime?
4 Under either validation regime, is the act covered by any exception. If not, is it a Category A, B, C or D act? This categorisation will indicate whether the effect of the act on native title rights is to completely extinguish them, partial extinguish them or not extinguish them.
5 If the act is not invalid, and is not covered by any relevant exception, does it fall within the definition of a “previous exclusive possession act” or “previous non-exclusive possession act” in the confirmation of extinguishment provisions. The consequences are total extinguishment or partial extinguishment respectively.
6 If the act does not fall within the validation regimes or the confirmation of extinguishment provisions, the effect of the act on native title rights would have to be decided by the courts on general principles.
This could be represented as follows:
Figure 2: The scheme of the validation / statutory extinguishment regime
Further reading
Australian Government Solicitor Commentary on the Native Title Act 1993, Canberra.
Richard Bartlett Native Title in Australia, Butterworths, Sydney, 2000, chapters 13-17.
Commonwealth of Australia Native Title Amendment Bill 1997 Explanatory Memorandum, parts 2 and 3.
The Laws of Australia Volume 1 Aborigines and Torres Strait Islanders; 1.3 Land Law; Chapter 3 Native Title Legislation, Part B; the Scheme of Native Title Legislation, para. 95-117, Law Book Company, Sydney.
1 Mabo and or’s v Queensland (No 2) (‘Mabo No 2’) (1992) 175 CLR 1.
2 Mabo (No 2), op.cit., per Mason CJ and McHugh J at 15.
3 Wik Peoples v Queensland & o’rs (1996) 187 CLR 1.
4 Native Title Amendment Bill 1997 Explanatory Memorandum, chapter 4; House of Representatives Second Reading Speech, 4 September 1997 at p 7886-7888. Native Title Act 1993 (Cwlth) (‘NTA’), Part 2 Division 2A.
9 Note: for simplicity some ‘past acts”, like certain lease renewals, that extend beyond 1994 have been omitted and likewise with ‘intermediate period acts’: see ss228, 232A.. Also, some ‘future acts’ can occur on or after 1 July 1993: see s 233.
10 NTA, s228(2)(b) (in the definition of ‘past act’) and s232A(2)(c) (in the definition of ‘intermediate period act’).
11 See for example discussion of this point in Western Australia v Ward & o’rs [2002] HCA 28 (8 August 2002) (‘Miriuwung Gajerrong’), per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [98]-[135].
12 Racial Discrimination Act 1975 (Cwlth), s10(1).
13 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [104]-[134].
14 Mabo v Queensland (1988) 166 CLR 186. Also see discussion in Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [110]-[112].
15 Western Australia v The Commonwealth (1995) 183 CLR 373.
16 NTA, s15(1)(a) – (c), s19(1).
18 ibid., ss15(1)(c), 228, 230.
20 ibid., ss15(1)(c), 228, 230.
24 ibid., s229(3)(a) and s248.
25 ibid., ss15(1)(d), 232, 238.
27 ibid., ss229(3)(d)(i), 230(d)(i).
28 See NTA s22B (the effect of validation of intermediate period acts on native title) and s232A (the definition of ‘intermediate period act’).
30 ibid., ss22B, 232B(3)(c), 248A.
31 ibid., ss17, 18, 20, 22D, 22E, 22G.
32 ibid., ss18, 22E, 51(1) – (2).
33 ibid., ss20, 22G, 51(3), 240 (the definition of the similar compensable interest test). Note: strictly speaking the comparison is to ‘ordinary title’ which is defined in section 253 to include leased land in the Australian Capital Territory and the Jervis Bay Territory where residential blocks are typically leasehold interests.
35 Fejo v Northern Territory (1998) 195 CLR 96.
38 ibid., s23B(2)(c)(iii)-(v). Compare s229.
39 ibid., ss23B(2)(c)(i), 249C and Schedule 1.
43 ibid., ss23B(9) and 23B(9C).
47
For example, the relevant paragraph of s23G(1) states:
‘…(b) to the extent that the Act involves the grant of rights
and interests that are inconsistent with native title rights and interests
in relation to the land or waters covered by the lease concerned: (i)
if, apart from this Act, the Act extinguishes native title rights and
interests – the native title rights and interests are extinguished;
and (ii) in any other case – the native title rights and interests
are suspended while the lease concerned, or the lease as renewed, re-made,
re-granted or extended, is in force...’.
48 Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [4]-[13], [24], [41]-[45], [76], [190]-[195].
55 See NTA., ss19, 22F, 23E, 23I.
56 ibid., ss19, 22F, 23E, 23I.
57 See for example: Native Title Act 1994 (ACT); Native Title (New South Wales) Act 1994 (NSW); Validation of Titles and Actions Act 1994 (NT); Native Title (Queensland) Act 1993 (Qld); Native Title (Queensland) State Provisions Act 1998 (Qld); Native Title (South Australia) Act 1994 (SA); Native Title (Tasmania) Act 1994 (Tas); Land Titles Validation Act 1994 (Vic); Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).
19 March 2003.
