Australian Local Government Association

Western Australia versus Ward

22 August 2002

The High Court of Australia's recent decision and the implications for local government.

Background

This case concerns applications for determination of Native Title rights and interests under the Native Title Act 1993 (Cth), in relation to land and waters in the Kimberley region of Western Australia and the Northern Territory. They were appeals from a decision of the Full Court of the Federal Court, which in turn was dealing with an appeal from a judge of the Federal Court.

One of the questions raised by this case relates to the relevant legislation at the time of the Federal Court appeals. The relevant legislation was amended between the time of the original application and the decision of the Full Court. The High Court has held that the Full Court of the Federal Court was bound to apply the law as it existed at the time of its decision. Essentially that was the Native Title Act 1993 (Cth) as amended at the time, the Racial Discrimination Act 1975 (Cth), and certain legislation of Western Australia and the Northern Territory. To the extent that the Full Court approached the matter differently, its decision has been reversed by the High Court.

Some matters raised by this case are to be remitted back to the Full Court of the Federal Court for decision, while others have been clearly resolved by the High Court.

Implications for Local Government

The aspects of the decision that have particular relevance to local government, especially in Western Australia, are summarised below. The following summary draws on the summary of the joint reasons of Gleeson CJ, Gaudron, Gummow and Hayne JJ at pages 183-189 of the judgement. The decision of Kirby J concurred generally with the decisions and the reasons of the joint judgement. Kirby J differs in his interpretation of some of the concepts mentioned in the Native Title Act 1993 (Cth) and reflected in the applicable State and Territory laws, from those advanced in the joint reasons. The decisions of McHugh J and Callinan J were in the minority.

Some aspects of the decision relating to mining leases, licences or permits are not included in the summary below because local government has no responsibility for such acts. The case did not consider matters affecting local government in the Northern Territory.

• Because the applications for Native Title determination in this case were made under the Native Title Act 1993 (Cth) for rights defined in that Act, it is the statute that governs this application. The only present relevance of the Mabo (No. 2) and Wik decisions is for whatever light they cast on the Native Title Act 1993 (Cth).
• The Native Title Act 1993 (Cth) must be applied in the form in which it stands at the date of the determination by the Full Court. The State and Territory Validation Acts ² must also be considered.
• The Native Title Act 1993 (Cth) provides that there can be partial extinguishment or suspension of Native Title rights.
• Questions of extinguishment first require identification of the Native Title rights and interests that are alleged to exist.
• Whether Native Title rights and interests have been extinguished by a grant of rights to third parties or by an assertion of rights by governments requires comparison between the legal nature and incidents of the right granted or asserted by governments and the Native Title rights being asserted by the traditional owners. In other words, the two sets of rights and interests need to be compared for any inconsistencies. One set of rights arising from the rights of the Crown's radical title acquired at sovereignty; the other arising from the traditional laws acknowledged and customs observed by Aboriginal peoples or Torres Strait Islanders in relation to land or waters.
• To apply Part 2 of the Native Title Act 1993 (Cth) and the State and Territory Validation Acts to transactions taking place after 31 October 1975, it is necessary to consider the operation of the Racial Discrimination Act 1975 (Cth). In some cases the Racial Discrimination Act 1975 (Cth) is inconsistent with State legislation to the extent that the State legislation permitted transactions with land that would otherwise extinguish Native Title rights and interests. The Racial Discrimination Act 1975 (Cth) invalidates the State legislation to that extent.
• The absence of evidence of recent use of the land or waters, does not, of itself, require the conclusion that there can be no relevant connection as required by s223(1)(b) of the Native Title Act 1993 (Cth).
• In so far as claims to protection of cultural knowledge go beyond denial or control of access to land or waters, they are not rights protected by the Native Title Act 1993 (Cth). The law respecting confidential information, copyright or fiduciary duties may afford some protection to such rights.
• Pastoral leases in Western Australia extinguished the Native Title right to control access to, or the use to be made of, the land. The grant of a pastoral lease did not give right of exclusive possession.
• Native Title rights and interests, other than the rights mentioned above, probably continued unaffected by the grant of a pastoral lease. However, the High Court reaffirmed the principles laid down in Wik, that to the extent that rights and interests granted by a pastoral lease were not inconsistent with Native Title rights and interests, the rights and interests under the lease prevailed over, but did not extinguish, Native Title rights. (The High Court held similar findings in relation to pastoral leases in the part of the applications over land in the Northern Territory.)
• Resumption of land under s109 of the Land Act 1933 (WA) did not extinguish Native Title. The High Court held that resumption of land did not give the Crown any larger title to land than the radical title acquired at sovereignty.
• Reserving land in Western Australia under the Land Acts (WA) was inconsistent with the right to be asked permission to use or have access to the land. Reserving land before 31 October 1975 therefore extinguished that right, but did not otherwise extinguish Native Title. After 31 October 1975, account must be taken of the Racial Discrimination Act 1975 (Cth) and Part 2 of the Native Title Act 1993 (Cth) and of the State Validation Act. Reservation after that date (but before 23 December 1996) of land that had not been and was not the subject of a pastoral lease was inconsistent with the Racial Discrimination Act 1975 (Cth). By operation of the provisions of Part 2 of the Native Title Act 1993 (Cth) and the State Validation Act, reservation would, in effect, suspend the Native Title right to speak for country for so long as the land remained reserved.
• In the case of some parts of some reserves in Western Australia, the 'public works' provisions of the Native Title Act 1993 (Cth) and the State Validation Act may apply ³ . This would need to be ascertained by the facts in any particular circumstance.
• Vesting of land in a body or person under s33 of the Land Act 1933 (WA), before 31 October 1975, passed the legal estate of the land and thereby extinguished all Native Title rights and interests in the land. Because the vesting under this provision of a reserve in a body or person vests the legal estate in fee simple (freehold) to the land in that body or person and obliges them to hold the land on trust for the stated purposes, rights are vested in that person or body that are inconsistent with the continued existence of Native Title rights or interests to the land. Accordingly, if this occurred before the 31 October 1975, then Native Title was extinguished by that vesting. If it occurred after 31 October 1975 (but before 23 December 1996), other questions arise.
• The vesting of a reserve under s33 of the Land Act 1933 (WA) after 31 October 1975 (but before 23 December 1996) was valid, the relevant State legislation not being inconsistent with the Racial Discrimination Act 1975 (Cth) because it applies to all racial groups and there is no discrimination. Because vesting of land under s33 is a right of exclusive possession to the land it extinguished Native Title and in some but not all cases, it was a previous exclusive possession act. The extinguishing effect of previous exclusive possession acts are confirmed by Division 2 of Part 2 of the Native Title Act 1993 (Cth) and Part 2B of the State Validation Act. But the Racial Discrimination Act 1975 (Cth) provides the Native Title holders with a right of compensation for the rights that were lost upon vesting that occurred after 31 October 1975. The vesting of land under s33 after 31 October 1975 but before 23 December 1996 and which did not amount to a previous exclusive possession act (as, for example, vesting for the purposes of preserving the natural environment of an area) was, nonetheless, valid and effective to extinguish Native Title.
• Resumption of land in Western Australia under the Public Works Act 1902 (WA) before 31 October 1975 extinguished all Native Title rights and interests because the resumption notice directed that the land shall vest in the Crown for an estate in fee simple. Resumption after 31 October 1975 (but before 23 December 1996) was not inconsistent with the Racial Discrimination Act 1975 (Cth) and, in any event, was a previous exclusive possession act validated by the Native Title Act 1993 (Cth) and the State Validation Act.
• The grant before 31 October 1975 of leases of reserved land under s32 of the Land Act 1933 (WA) wholly extinguished Native Title rights and interests. Grants after 31 October 1975, to persons other than the Crown or a 'statutory authority', were previous exclusive possession acts and, where still in force on 23 December 1996, were 'relevant acts' within the definition in the State Validation Act and therefore wholly extinguished Native Title rights and interests.
• The evidence established no Native Title right to or interest in any mineral or petroleum. No question of extinguishment arises.
• The public right to fish is an 'other interest' within the meaning of s225(c) of the Native Title Act 1993 (Cth) and is, therefore, to be recorded in the determination. Any exclusive right to fish in tidal waters has been extinguished.

This is only a summary of the decision. The usual disclaimer applies.

Essentially, what this decision means is that applications for a determination of Native Title in Western Australia will need to be reviewed.

It will be necessary, in consultation with the Western Australia State Government, the relevant Native Title Representative Body and the claimants, to:

• ascertain whether in some parts of some reserves created under the various WA Lands Acts, public works were carried out prior to 1 Jan 1994 on those reserves. If so, the High Court has found that the 'public works' provisions of the Native Title Act 1993 (Cth) and the State Validation Act may apply. If those particular provisions do apply, then the public works have extinguished the Native Title rights and interests to the extent of the public works. If the public work was carried out on or after 1 January 1994 and before 23 December 1996, then it will be necessary to determine whether it was a permissible future act under the Native Title Act 1993 (Cth) as originally drafted and was therefore valid. If the public work was invalid because Native Title rights and interests were not taken into consideration it may have been validated as an intermediate period act by virtue of s 232(2)(e) of the Native Title Act 1993 (Cth).
• ascertain the status of particular lands vested in Council under s33 of the Lands Act 1933 (WA) before 1 January 1994. Because the High Court has held that such vestings extinguish Native Title rights and interests, such lands can no longer be included in an application for a determination of Native Title. If the vesting occurred on or after 1 January 1994 and before 23 December 1996, then careful analysis is necessary to ascertain whether the vesting extinguished Native Title.
• ascertain whether any council land holdings were, before 23 December 1996, compulsorily acquired under the Public Works Act 1902 (WA). If so, then they cannot now be included in an application for a determination of Native Title.
• ascertain whether any leases of land reserved under s32 of the Land Act 1933 (WA) and were still in force as at 23 December 1996. If so, then such lands can no longer be included in an application for a determination of Native Title because the High Court held that such leases were previous exclusive possession acts and therefore extinguished Native Title rights and interests.

Generally, if rights to compensation for the extinguishment, loss, diminution or impairment of Native Title rights and interests arise from acts that occurred prior to 23 December 1996, then the Commonwealth and State governments will be responsible for such compensation.

In addition, it is also important to note that the National Native Title Tribunal is making inquiries to find out how many areas of reserved land in WA are vested under s33 of the Land Act 1933 (WA).

Note also that, the National Native Title Tribunal advises that although not considered by the Court in this matter, s47, s47A or s47B of the Native Title Act 1993 (Cth) may, in some limited circumstances apply to areas currently or formally vested under s33 of the Land Act 1933 (WA) or to areas currently or formally subject to a lease under s32 of the Land Act 1933 (WA), in which case all prior extinguishment must be ignored for all purposes under the Native Title Act 1993 (Cth) and the non-extinguishment principle applies.

The decision also has implications for Local Government's future act responsibilities under the Native Title Act 1993 (Cth). If Native Title does not exist because of a valid previous exclusive possession act as defined in the Native Title Act 1993 (Cth) and enacted in complementary State validation legislation, then the future act provisions of the Native Title Act 1993 (Cth) do not apply.

Before jumping to conclusions about whether or not councils still have a responsibility to apply the relevant future act provisions of the Native Title Act 1993 (Cth), Councils need to keep in mind the risks associated with undertaking invalid future acts. The High Court's decision in Western Australia v Ward will reduce the extent to which the future act provisions of the Native Title Act 1993 (Cth) will apply to council activities. However, it does not go away - simply less land is affected by the issue. In certain, and more limited circumstances in Western Australia than was previously the case, it will still be necessary to apply the relevant future act processes. If the relevant processes are not followed an activity may be invalid, and councils may at some time in the future be exposed to an injunction and/or claims for damages and compensation. Councils need to be confident about the circumstances in which the Native Title processes need to be applied. Subject to the outcomes of Western Australia v Ward, the six-step action plan in the Australian Local Government Associations' Working with Native Title Guide and the material in the Native Title checklists recently circulated to local councils throughout Australia, are still a useful guide for councils in Western Australia.

It is also important to note, this decision does not alter local government's responsibilities for Aboriginal heritage protection on any land in its care, control and management, because Aboriginal heritage can exist on land subject to any form of tenure. The requirements of State and/or Commonwealth Aboriginal heritage protection must still be met irrespective of the extinguishment of Native Title rights and interests in any area.

What the decision means for other jurisdictions is a matter for each State and Territory government to consider.

For a more detailed summary of the decision, refer to the National Native Title Tribunal.

Ed Wensing
Consultant to ALGA on Native Title matters.