Aboriginal Law Bulletin
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by Garth Nettheim
Three separate actions are listed for hearing together in September. Two of the actions are challenges to the validity of the Land (Titles and Traditional Usage) Act 1993 (WA) (the WA Act). The third is a challenge by the government of Western Australia to the application and validity of the Native Title Act 1993 (Cth) (the NTA).
During the course of "the Mabo Debate" in 1993, it became clear that the government of Western Australia would hot support the emerging proposals by the Commonwealth Government for a national legislative response to the High Court's decision in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (Mabo (No 2)). In the event, the WA government shortened debate to ensure enactment of. its own legislation prior to enactment of the Commonwealth Act. The WA Act commenced operation on 2 December 1993.[1] The NTA received the royal assent on 24 December 1993 with most provisions commencing operation on 1 January 1994.
The WA Act extinguishes native title throughout the State and substitutes statutory "rights of traditional usage" which are, in effect, subordinate to all other interests. The Act offers limited compensation for some effects on native title and for some future effects on statutory rights.
The NTA sets out to recognize and protect native title defined in approximate accord with the High Court's decision in Mabo (No 2). It validates "past acts" attributable to the Commonwealth which would be invalid because of the existence at the time of native title, and authorises State and Territory legislatures to validate past acts attributable to them, provided they do so in accordance with requirements in the NTA concerning the effect of validation on native title and compensation. It establishes federal processes (including the National Native Title Tribunal) for determination of native title and compensation, and it authorises States and Territories to establish complementary processes that conform to criteria in the NTA. The NTA also provides that "future acts" affecting land subject to native title shall treat such land and the title holders as though it were subject to freehold title, with an additional "right to negotiate" (but not a veto) in regard to mining proposals, in particular.
Shortly after enactment of the WA Act a constitutional challenge was filed for the Kimberley Land Council in the Melbourne registry of the High Court in the names of The Wororra Peoples (who are represented by Donny Woolagoodjah and Grace Umbagai) and The Yawuru Peoples (who are presented by Francis Dfaigween and Frank Sebastian) v The State of Western Australia (No M147 of 1993) (hereafter The Wororra Peoples v Ors v The State o f Western Australia).
The second challenge to the WA Act was filed by the Aboriginal Legal Service of Western Australia (Inc) in the Perth registry in the names of Teddy Bilfabu, Billy Gibbs,
Bobby Roberts, Patricia Fry, Nyeri Morgan, Brian Samson, Ditch Williams (who bring this action on their own behalf and on behalf of the Aboriginal people known as Martu) v The State of Western Australia (No P45 of 1993) (hereafter Biljabu & Ors v State of Western Australia). (See AboriginalLB 67/8).
The challenge to the NTA was filed in the Perth registry under the name of The State of Western Australia v Commonwealth of Australia (No P4 of 1994).
Both the firstnamed and the secondnamed plaintiffs are among the plaintiffs in current actions before the Supreme Court of Western Australia. In No 1282 of 1993 the Wororra Peoples claim native title rights in the West Kimberley region; in action No 2109 of 1993 (transferred from the Federal Court) the Yawuru peoples claim native title or possessory title in areas near Broome.[2] The Yawuru peoples lodged an application for a determination of native title under the NTA ss31 and 61 on 2 February 1994.
The plaintiffs’ first line of argument that the WA Act is inoperative or invalid relates to the Racial Discrimination Act 1975 (Cth) (the RDA). The WA Act is said to affect, on a discriminatory basis, the plaintiffs' rights and freedoms
(a) of movement and residence within the borders of Australia;
(b) of owning property alone as well as in association with others;
(c) to inherit;
(d) to be immune from arbitrary deprivation of property.
The RDA argument has two limbs. One is that the WA Act's provisions purport to authorise or permit conduct which is or would be unlawful by reason of s9 of the RDA, and are therefore inconsistent with s9 so as to be inoperative or invalid by reason of Constitution s109. The other limb is that the WA Act's provisions are laws within the meaning of sl0 of the RDA and, to the extent of that inconsistency, are inoperative or invalid by reason of Constitution s109.
The next line of argument relates to the purported application of the WA Act to the sea bed and its sub-soil within the territorial limits of WA. In the first place the Coastal Waters (State Title )Act 1980 (Cth) s4(2)(a) which purported to vest in WA certain rights, title and property in the sea bed beneath the coastal waters of WA and in the space above that sea bed, did so subject to the rights of any other person and, therefore, subject to the traditional native title, the possessory title, or other Aboriginal traditional rights claimed by the plaintiffs and their predecessors.
In the second place, it argued that the Coastal Waters (State Powers) Act 1980 (Cth) s5 purported to extend the legislative powers exercisable by WA to the making of laws applying to or in relation to the coastal waters of WA and to the sea bed and sub-soil beneath and the airspace above those waters. The powers so granted include the power to make laws in relation to the acquisition of interests in the sea bed and sub-soil beneath those coastal waters, but the Act imposes no obligation on the State to pay just terms to any person whose. interests are so acquired. It is argued that both Commonwealth Acts, insofar as they provide for or permit the acquisition of property from a person otherwise than on just terms, are beyond the powers of the Commonwealth Parliament by reason of Constitution s51(xxxi). Accordingly, they provide no legislative authority for the WA Act's provisions which purport to extinguish or impair native title and possessory title of the plaintiffs in the claimed sea areas, sea beds and the natural resources thereof without providing just terms, and the WA Act is, therefore, invalid in its application to the claimed off-shore areas.
The third line of argument against the validity of the WA Act relies on the NTA and refers (in Schedule C) to a large number of the provisions of the NTA as invalidating the WA Act and Regulations by reason of Constitution s109. In addition, the grant by the WA Minister for Lands of a special lease, for the purposes of a crocodile farm, over an area claimed by the Yawuru people was an impermissible future act pursuant to ss233, 235 and 236 of the NTA and is invalid by reason of s22 of the NTA.
Various declarations are claimed.
The amended Statement of Claim begins by asserting on behalf of the Martu that they were at, before and since acquisition of British sovereignty over WA, "a community or society linked by a commonality and complex of social, economic and cultural practices, customs, usages and beliefs", and that they had "a special and exclusive relationship with and connection to the Land in accordance with traditional customs, laws, practices and usages such that the Land comprised Martus traditional homeland". (Particulars are set out.)
The first line of argument is that s5 of the WA Act, in validating grants of title between 1975 and 1993 over land subject to native title, and s7, in extinguishing native title throughout the State, denied equality under the law on the basis of race, etc, with respect to rights to land and immunity from arbitrary deprivation of property. They were, therefore, inconsistent with sl0 of the RDA so as to be invalid by virtue of Constitution sl09.
The second line of argument focuses on the substitution, for native title, of statutory "rights of traditional usage". The substituted legal and administrative regime providing for the status, protection and extinguishment of, and compensation for, the rights of traditional usage "is inferior to that provided by the common law and statute law to the holders of other kinds of interests in or in relation to land". (Particulars are set out). The rights of traditional usage created by the WA Act are also said to be inferior to native title as protected by the RDA which existed immediately before the WA Act commenced operation. In consequence, the plaintiffs are denied equality before the law with respect to rights to land and with respect to immunity from arbitrary deprivation of property, so that the WA Act is inconsistent with s10 of the RDA and invalid by virtue of Constitution s109.
The third line of argument relies on the NTA and asserts inconsistency between s5 of the WA Act and ss10, 11 and 19 of the NTA, and between s7 of the WA Act and ss10, 11 and 22 of the NTA.
A declaration is sought that the whole of the WA Act is, or, alternatively ss5 and 7 of the W A Act are, invalid and of no effect.
The Wororra action refers specifically to off-shore interests which the plaintiffs claim and argues that the WA legislature lacks power to extinguish those interests because of limitations to be found in Commonwealth legislation as a matter of interpretation and/or because of limitations ("just terms") that the Constitution requires to govern Commonwealth legislation.
Both actions, Wororra and Bitjabu, argue that the WA Act is rendered ineffective by the RDA. It is worth noting that in Mabo v Queensland (Mabo (No 1))[3] the High Court held that Queensland legislation designed to extinguish native title without compensation was rendered ineffective by sl0 of the RDA.
Both actions also rely on provisions of the NTA as overriding the WA Act. The reach and the validity of the NTA are under challenge in the next action to be considered.
The Statement of Claim begins with arguments denying the applicability of the NTA to WA. If any such native title rights and interests as defined by s223(1) of the NTA existed in WA prior to European settlement, they came to an end upon European settlement; or by the establishment of WA as a self-governing colony; or by Federation; or by the date of commencement of the RDA; or by 1 July 1993; or by 2 December 1993; or by 1 January 1994.
The events and matters which brought such rights and interests, if they existed, to an end are those referred to in Annexure A; the course of settlement in WA and dealings in and use of land on and following European settlement; and the long course of non-recognition of such rights and interests by the legislature and government of WA, and the many acts and enactments inconsistent with the recognition of such rights and interests. (Annexure A is a five-and-a-half page list of letters, orders, instructions, circulars and legislation from 1828 up to 1990. Copies of these documents comprise some 6 volumes).
Accordingly, it is argued that there is no part of WA in which native title existed at the time that the NTA came into force.
It seems unlikely that the foundation documents governing the establishment of the colony of WA included an extinguishment of native title. In Mabo (No 2) the justices found no such intention in the foundation documents relating to the original colony of NSW. Likewise, the majority found nothing in the course of settlement in eastern Australia which achieved any wholesale extinguishment of native title, and it seems unlikely that the WA experience will yield a different result. The High Court also rejected any argument based on a history of non-recognition of native title, and only Dawson J held that some formal act of recognition was necessary for the survival of native title.
A line of argument going to validity of the NTA is based on discrimination against WA. It recites the general thrust of the WA Act and declares that no other State had enacted similar legislation. Accordingly, s223(3) of the NTA is said to single out and discriminate against WA: the subsection extends the NTA's definition of "native title" by providing that it includes any statutory rights and interests to which native title has been compulsory converted.
A further line of argument challenges the validity of ssll, 19 and 20 of the NTA which authorise States and Territories to validate past acts provided they do so in accordance with ssl5 and 16 and provided that compensation is payable. Also challenged are ss22, 23, 26, 28 and 43 of the NTA concerning future legislative acts. The grounds for challenge are that such provisions purport to control, regulate or impose conditions upon the exercise, or non-exercise, by States of their power to enact legislation; that they purport to declare the legal effect to bee given to laws of States; that they are in truth laws with respect to the legislative powers of States, not with respect to a head of Commonwealth legislative power; and that (to the extent to which they operate retrospectively) they purport to change, after the event, the legal operation of laws of the States.
Related arguments are raised about these provisions, and the NTA as a whole, which are said to be "directed at thee exercise by the State of its legislative and executive governmental power" and to be "aimed at the restriction or control of the State in respect of the appropriation of land for public purposes and the alienation and development of Crown lands". Data is provided in the Statement of Claim and in Annexure C about land grant activity, mining activity and so forth in the State to support the conclusion that the NTA, in its application to WA,
(a) imposes a special burden or disability on, and discriminates against WA; and
(b) is inconsistent with the continuance of WA as an independent polity within the contemplation of the Constitution, and with its capacity to function as such.
These several arguments (apart from the "characterisation" arguments) appear to rely on implications derived from the Constitution based particularly on Melbourne Corporation v Conunonwealth[4] and Queensland Electricity Commission v Commnonwealth.[5] In the latter case, Mason J (as he then was) offered the following summary of the Melbourne Corporation principle as developed through subsequent cases:
This review of the authorities shows that the principle is now well established and that it consist of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities; and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments....
Three comments should be made in relation to the prohibition as it has been expressed. First, the principle prohibits discrimination against a particular State as well as against the States generally. Discrimination against a particular State, at least so long as it involves the imposition of a special burden or disability on that State, by isolating it from the general law applicable to others, including other States, falls squarely within the principle. Secondly, ... the principle.... protects legislatures as well as executive governments. Thirdly, it does not follow that every law which deprives a State of a right, privilege or benefit which it enjoys will amount to discrimination in the sense already discussed. A law which deprives a State of a right, privilege or benefit not enjoyed by others so as to place the State on an equal footing with others, is not a law which isolates the State from the general law.[6]
Section 223(3) of the NTA serves to place WA on the same footing as other States in regard to the general law of Commonwealth protection for native title, so the principle concerning the singling out of a particular State may not be offended.
The NTA clearly does circumscribe closely how the States generally may legislate in terms of validating "past acts" and the manner in which "future acts" shall be dealt with. The wider aspect of the Melbourne Corporation principle appears to be of more limited concern than the effect of Commonwealth legislation on State legislative powers.
Regard is not had to the extent of the governmental powers of the States; rather the principle requires the States to remain independent entities with a capacity to exercise whatever powers and functions are committed to them. ... There seems ... to be a distinction here between the preservation of the States as independent polities and the governmental powers they possess.[7]
A series of arguments are directed at s12 of the NTA which provides, subject to the Act, that "the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth". It is claimed that it is not directed to the exercise of a head of Commonwealth legislative power, but was enacted (i) to prevent the exercise by States of their power to legislate to alter the common law; (ii) to seek to render inoperative the WA Act. It is described as no more than a device to attract the operation of Constitution s109 to laws of the States, as delegating Commonwealth legislative power to courts, or as affecting the exercise of the judicial power of the Commonwealth.
There may well be a problem in giving effect to s12. While the Commonwealth Parliament may legislate with respect to native title, any blanket attempt to "freeze" or foreclose judicial development of residual common law principles could affect the separation of judicial power under the Constitution, and any attempt to designate the High Court as a delegate of Commonwealth legislative authority would also encounter difficulties.
The NTA is also challenged by reference to the RDA. Provisions of the NTA are claimed to discriminate in favour of indigenous Australians and, thus, against non-indigenous Australians, in ways which do not come within the "special measures" exception in s8 of the RDA, so that it is not a law with respect to external affairs within Constitution s51(xxix). An alternative argument turns on s7 of the NTA which provides that nothing in the Act affects the operation of the RDA, and argues again that because the NTA discriminates against non-indigenous Australians and is not a "special measure", the Act as a whole, or particular provisions, have no lawful operation.
There are elements in the NTA which are more difficult than others to characterise as a "special measure" within the RDA and the Convention on which it is based. But even if this is correct, it is unlikely that the Commonwealth would place reliance on the external affairs power as the constitutional basis for the NTA; it seems more likely to rely on the "race power" in Constitution s51(xxvi). The argument based on s7 of the NTA assumes that the RDA and the Convention have controlling force over the NTA. But s7 has no superior status as against other provisions of the Act; if those other provisions are interpreted as clearly inconsistent with the RDA they would, presumably, be given full force and effect.
While the NTA is attacked on characterisation grounds, both generally and in respect of particular provisions, a separate challenge is directed at s44 in the "right to negotiate" provisions which enacts a fall-back invocation of the corporations power, Constitution s51(xx). Of course, an Act may be a law with respect to corporations (or other matters) while also being a law about some other head of power.[8]
A final line of argument is based on Constitution s53, the third paragraph of which provides that the Senate may not amend any proposed law so as to increase any proposed charge or burden on the people. The Statement of Claim argues that s53 is contravened by Senate amendments which led to Part 9 of the Act (authorising agreements to offer financial assistance to States and Territories), Part 12 (requiring establishment of a Parliamentary Joint Committee on Native Title) and s56(5) (protection of native title from debt recovery processes, etc).
Section 53, along with ss54-56, relate to the respective powers of the Senate and the House of Representatives in relation to revenue legislation. The two Houses and their Clerks have adopted varying approaches to the scope of the third paragraph and it would require acceptance of a fairly extreme view of its meaning to lead to the conclusion that it is infringed by the amendments referred to. In addition, there is strong support for the proposition that the third paragraph of s53 is non-justiciable.[9]
Most of the arguments in the Western Australian Government's Statement of Claim are also incorporated in its Defences to the Statements of Claim in the Wororra Peoples and Biljabu actions to the extent that the latter place reliance on the NTA.
The Chief Justice of the High Court heard submissions from all parties in the three matters with a view to determining the questions to be stated to the Full Court. These were finally formulated as follows:
Matter Nos P4/1994, P45/1993 and M147/1993
1(a) If any communal, group or individual rights or interests of the nature referred to in sub-s.223(l) of the Native Title Act 1993 (Cth) ("the Act") existed in Western Australia at a time prior to European settlement in Western Australia, had such rights or interests come to an end by extinguishment or otherwise:(i) by the establishment of Western Australia as a colony, or
(ii) by the time of the establishment of Western Australia as a self-governing colony, or
(iii) by the time of Federation, or
(iv) by the time the Racial Discrimination Act 1975 (Cth) came into force, or
(v) by 1 July 1993, or
(vi) by 2 December 1993, or
(vii) by 1 January 1994?
1(b) If yes to any part of 1(a), was the consequence that at the time the Act came into force, there was no part of Western Australia in which "native title" or "nativetitle rights and interests" within the meaning of sub-s.223(l) of the Act were in being?
2. Is the Act, in so far as it operates in and in relation to Western Australia by reason of sub-s.223(3), beyond the legislative powers of the Commonwealth and invalid?
3. Are ss.11, 19 and 20 of the Act, or any of them, beyond the legislative powers of the Commonwealth and invalid?
4. Is s.22 of the Act, in so far as it applies to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid?
5. Are the provisions of ss23, 26 and 28 of the Act, in so far as they apply to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid?
6. Are the provisions of s.43 of the Act, read with ss23, 26 and 28, in so far as they apply to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid?
7. Are the provisions of sub-s.211(2) of the Act beyond the legislative powers of the Commonwealth and invalid?
8. Is s.12 of the Act beyond the legislative powers of the Commonwealth and invalid?
9. Does the Act, in its application to Western Australia, impose a special burden or disability on and discriminate against Western Australia and/or is it inconsistent with the continuance of Western Australia as an independent polity within the contemplation of the Constitution and/or with its capacity to function as such and is the Act therefore beyond the legislative powers of the Commonwealth and invalid?
10. Is the Act a law with respect to the people of any race for whom it is deemed necessary to make special laws within the meaning of s.51 (xxvi) of the Constitution?
11. Do ss.12, 26-42, 45, 50, 51, 56(5), 201, 203, 211 and 240 of the Act have no lawful operation by reason of s.7 of the Act and the operation of the Racial Discrimination Act 1975 (Cth)?
12. Are the provisions of Subdiv.B of Div.3 of Pt 2, when read in the manner required by s44 of the Act, laws with respect to the corporations referred to in s.51(xx) of the Constitution?
13(a) Was the Act passed in accordance with s53 of the Constitution?
13(b) If no to 13(a), is the Act invalid? 14. If any provision or provisions of the Act is or are invalid, is it or are they severable and, if so, to what extent?
Matter Nos P45/1993 and M147/1993 Additional Questions
1. Are the provisions of the Land (Titles and Traditional Usage) Act 1993 (W.A.) ("the 1993 W.A. Act") or any of them inconsistent with the provisions of s.9 of the Racial Discrimination Act 1975 (Cth) and therefore invalid by reason of s.109 of the Constitution?
2. Are the provisions of the 1993 W.A. Act or any of them limited in effect or inoperative by reason of s.10 of the Racial Discrimination Act?
3. Are the provisions of the 1993 W.A. Act or any of them inconsistent with the
provisions of s.10 of the Racial Discrimination Act and therefore invalid by reason of s.109 of the Constitution?
4. Is the whole or any part of the 1993 W.A. Act and Regulations inconsistent with the Native Title Act 1993 (Cth), the Regulations and Determination No.1 thereunder, and invalid by reason of s.109 of the Constitution?
The proceedings are listed for hearing before the full High Court on 6-9,12-15 September.
This article is a summary version of a paper presented at the Native Title Legislation Conference, held on 16-17 June 1994 in Perth.
[1] For commentary see Richard Bartlett, "Political and Legislative Responses to Mabo" (1993) 23 WA Law Rev 352-354; Richard Bartlett, "Inequality Before the Law in Western Australia: The Land (Titles and Traditional Usages) Act" 3(65) Aboriginal Law Bulletin (December 1993) 7-9; Meredith Wilkie and Gary D Meyers, "The WA Land (Titles and Traditional Usage) Ad 1993: Content, Conflicts and Challenges" (1994) 24 WA Law Rev (forthcoming).
[2] For an account of the complex history of the Yawuru litigation see Case Note: Frauds Djaigueen & ors v Malcolm Douglas trading as Broome Crocodile Park; the State of Western Australia intervening 3(67) Aboriginal Law Bulletin (April 1994)16.
[3] .(1998)166 CLR 186.
[4] (1947) 74 CLR31.
[5] (1985)159 CLR 192.
[6] Ibid at 217 (emphasis added).
[7] L Zines, The High Court and the Constitution, (3rd ed, Butterworths,1993) 286.
[8] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 per Mason j at 150.153, Murphy j at 179-180, Deane j at 271-272.
[9] Northern Suburbs General Cemetery Reserve Trust vThe Commonwealth [1993] HCA 12; (1993) 176 CLR 555 per Mason CJ, Deane, Toohey and Gaudron JJ at 578.
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