Nettheim, Garth --- "Pareroultja and Others v Tickner and Others" [1994] AboriginalLawB 34; (1994) 3(68) Aboriginal Law Bulletin 28

• Pareroultja And Others V Tickner And Others

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Pareroultja and Others v Tickner and Others

High Court of Australia: Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ

No. S 156 of 1993

12-13 April 1994

by Garth Nettheim

The decision in the Full Federal Court in this litigation ((1993) [1993] FCA 465; 117 ALR 206) was noted in 3/64 AboriginalLB (October, 1993), 29. The decision of the High Court to refuse special leave to appeal was noted in a Stop Press in 3(67) AboriginalLB (April, 1994),17.

Briefly, some of the people for whose benefit an Aboriginal Land Commissioner had recommended a grant of title under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the 'Land Rights Act') sought orders against the other traditional owners and the Minister opposing the grant of title under the Act on the ground that such a grant would extinguish or impair their native title under thee common law principles declared in Mabo v Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1.

The Full Federal Court had held that a grant of statutory title would not be inconsistent with native title; that the Land Rights Act should not be construed as inapplicable to land subject to native title; that the Racial Discrimination Act 1975 (Cth) (the 'RDA') did not operate to prevent grants of statutory title under the later Land Rights Act in respect of land subject to native title; and that, even if the Land Rights Act was subject to the RDA, it would nonetheless survive as a "special measure" within s8 of the RDA.

Counsel for the applicants seeking special leave to appeal to the High Court advanced four main lines of argument:

(1) that the Land Rights Act, properly construed, simply does not apply to land in respect of which there is valid and subsisting common law native title; alternatively,

(2) the provisions of the Land Rights Act for the vesting of statutory title in a Land Trust and the conferral of management powers on a Land Council contravene the RDA s10(3) (about non-consensual management of the property of Aboriginal people) to which the "special measures" exemption in s8 does not apply; alternatively,

(3) the provisions of the Land Rights Act which authorise grants of statutory title over land which is subject to native title contravene the RDA sl0(1), and that the Land Rights Act can not be regarded as a "special measure" since the High Court determined, in Mabo (No.2), that Australian common law recognises and protects native title;

(4) that the effect of the Native Title Act 1993 (Cth) gives the common law holders of native title a choice whether to hold that title themselves or to have it held for them in trust by a prescribed body corporate; accordingly the earlier Land Rights Act must now be read as permitting a similar choice.

The case for the applicants was argued on 12 April. On the following day, the Chief Justice announced that the High Court proposed not to hear from counsel for the respondents. His Honour continued:

What I am about to say represents the views of the majority of the Court, Justices Deane and Gaudron dissenting.

This is an application for special leave to appeal from a unanimous judgment of the Full Court of the Federal Court answering questions in a case stated. Having considered the detailed arguments presented in support of the application, the Court has come to the conclusion that, in relation to the first three grounds of appeal, the proposed appeal does not enjoy sufficient prospects of ultimate success to warrant the grant of special leave.

In saying that, we are not to be taken as necessarily agreeing with the conclusion of the Full Court that the grant of an estate in fee simple to a Land Trust under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) is consistent with the preservation of native title to the land the subject of the grant.

With respect to the further ground based on the Native Title Act 1993 -(Cth), we do not consider that it would be appropriate, in the circumstances of this case, to grant special leave on this ground alone when the Court lacks the advantage of any consideration of the ground by the Federal Court, that aspect not being before the Federal. Court. In addition, there is the circumstance that, although the validityy of the Native Title Act is common ground between the parties, theree is a pending challenge to the validity of that Act.

The application for special leave is therefore refused.

So, while the decision of. the Full Federal Court stands as the final determination of the particular case, the High Court has expressly reserved its position. on the relationship between native title and statutory title under the Land Rights Act. It also declined to consider arguments about the relationship between the Land Rights Act and the NTA.

Issues as to the relationship between statutory title under other statutes, and native title at common law or under the NTA, are also likely to arise for adjudication in future proceedings.