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SEAN BRENNAN[†]
[In Wurridjal v Commonwealth the High Court considered a constitutional challenge to one aspect of the federal intervention into remote Aboriginal communities in the Northern Territory. Plaintiffs from Maningrida argued that the imposition of a five-year lease over Aboriginal land in favour of the Commonwealth was an ‘acquisition of property’ for the purposes of s 51(xxxi) of the Constitution and that the relevant legislation failed to provide just terms. A majority of judges rejected two aspects of the Commonwealth’s demurrer. They accepted that the constitutional guarantee of ‘just terms’ applies to acquisitions effected by the territories power in s 122 of the Constitution. This has wider significance for territory residents and overturns the Court’s 1969 decision in Teori Tau v Commonwealth. A majority also agreed that the involuntary lease amounted to an acquisition of property. This reaffirmed the strength of property rights held by Aboriginal groups over more than 40 per cent of the Northern Territory. But the Commonwealth defeated the challenge due to majority acceptance of the third ground of the demurrer: the plaintiffs failed to establish an absence of just terms. However, the reasoning was case-specific and left unanswered questions about just terms for the culturally distinct property rights held by Aboriginal people.]
CONTENTS
In Wurridjal v Commonwealth
(‘Wurridjal’) three plaintiffs unsuccessfully sought to
challenge, on constitutional grounds, one aspect of the Commonwealth
government’s
Northern Territory Emergency Response
(‘NTER’).[1] The case saw
an important authority of the High Court of Australia denying rights protection
in Commonwealth territories overruled
by four judges. It also reinforced, in
statutory and constitutional terms, the strength of the property rights held by
Aboriginal
people under the Aboriginal Land Rights
(Northern Territory) Act 1976 (Cth)
(‘ALRA’). The High Court’s treatment of s 51(xxxi) of
the Constitution, dealing with the ‘acquisition of property’,
however, largely maintained the mystery surrounding the concept of ‘just
terms’.
The NTER is also known as the ‘Intervention’ and
was implemented across Aboriginal communities in the Northern Territory.
It was
launched by the Howard Coalition government in June
2007[2]
and maintained by the Rudd Labor government after it gained power at the
November 2007 federal election.
The Intervention consists of many legal,
administrative and financial measures. Some are intrusive and/or involuntary,
involving significant
incursions on the autonomous decision-making of Aboriginal
people and organisations. The Commonwealth has justified the extraordinary
nature of the measures on the basis that the levels of socioeconomic
disadvantage and violence against women and children in town
camps and remote
Aboriginal communities constitute a national
emergency.[3]
The plaintiffs in
Wurridjal challenged an aspect of the Intervention which involves
Commonwealth incursions on the land rights of Aboriginal people. The statutory
creation of a five-year lease in favour of the Commonwealth over the township of
Maningrida on the north coast of Arnhem Land was
said to involve an acquisition,
on other than just terms, of the property held by traditional Aboriginal owners,
in violation of
the constitutional guarantee contained in s 51(xxxi) of the
Australian
Constitution.[4] The plaintiffs
alleged that amendments to provisions regulating entry onto Aboriginal land
(‘the permit system’), which
widened public access, also resulted in
an unjust acquisition of property.
An application for a declaration that the
relevant parts of the Intervention legislation were constitutionally invalid was
heard by
the High Court in October 2008. The Commonwealth demurred to the
plaintiffs’ statement of claim, stating that, on the facts
pleaded, it
disclosed no cause of action. There were three grounds to the demurrer. Any one
of these three alternatives, if established,
constituted an absolute legal
barrier to the success of the plaintiffs’ claim.
In February 2009 a
majority of the Court rejected both the first and second grounds of the
Commonwealth demurrer. However, the Commonwealth
succeeded on the third ground
and costs were ordered against the plaintiffs. Five judges found, on an
assumption or actual finding
that there was an ‘acquisition of
property’, that the Intervention legislation provided ‘just
terms’. Or,
at least, that on the facts pleaded by the plaintiffs the
argument for the absence of just terms was not made out.
The ALRA confers strong property rights on Aboriginal people over
‘Aboriginal land’.[5] An
area deemed transferable or successfully claimed under the Act is granted in fee
simple to a Land Trust, which holds the communal
title for the benefit of those
Aboriginal people who have a traditional entitlement to use or occupy the land.
In July 2008 the High
Court said that, despite some statutory restrictions on
alienation, this form of Aboriginal communal freehold title is, ‘for
almost all practical purposes, … the equivalent of full ownership’
and includes a general right to exclude others from
entering the
area.[6]
The
ALRA offers a further level of protection to Aboriginal individuals and
groups with traditional interests in land. Section 71 gives statutory force to
an entitlement under Aboriginal tradition to enter upon Aboriginal land and use
or occupy it unless this
would interfere with the use and enjoyment of a legal
interest in the land held by someone else (‘s 71
rights’).[7]
The Land Trust, which holds the title for Aboriginal land, is incapable of
independent action. The ALRA makes the collective group of
‘traditional Aboriginal
owners’[8] the key
decision-makers for what happens on the land and gives other Aboriginal people
who are affected by a proposal (for example,
residents who are not traditional
owners for the area) a voice but not a final say. The Land Council for the area
has the responsibility
for ascertaining these views and directing the Land Trust
accordingly.
Legally, this tripartite structure works as follows. The Land
Trust cannot exercise its functions in relation to land ‘except
in
accordance with a direction given to it by the Land Council for the
area’.[9] The Land Council in
turn can direct action only when satisfied that the traditional Aboriginal
owners understand the proposed action
and consent to it (and any other affected
Aboriginal community or group has been consulted and has had an adequate
opportunity to
express its
view).[10] In other words, the
informed consent of traditional owners is central to decisions that have an
impact on Aboriginal land.
There are some situations where, in addition, the
view of the Commonwealth Minister with responsibility for Indigenous affairs is
relevant. For example, where the term of a lease of Aboriginal land to be
granted by a Land Trust exceeds 40 years, the Minister’s
consent is also
required.[11]
Consistent with the view of Aboriginal land title as full ownership, the
ALRA provides strong controls over entry by others upon Aboriginal
land.
The power of exclusion inherent to fee simple is reinforced by a
‘criminal trespass’ provision in s 70, which states that a
‘person shall not enter or remain on Aboriginal
land’,[12] subject to defined
exceptions. It is a defence to a prosecution under s 70 if the person enters in
accordance with the ALRA ‘or a law of the Northern
Territory.’[13] Section 73 of
the ALRA authorises the Legislative Assembly of the Northern Territory to
make ‘laws regulating or authorizing the entry of persons
on Aboriginal
land’.[14]
The Legislative
Assembly has enacted such a law — the Aboriginal Land
Act 1978 (NT) — which enables the traditional owners or the
relevant Land Council to issue a permit for entry onto Aboriginal
land.[15] Unless covered by a
statutory exception, entry without a permit is
illegal,[16] echoing the effect of s
70 of the ALRA.
Sacred sites — areas of particular cultural and
spiritual significance — enjoy strong legal protection in the Northern
Territory, both on and beyond Aboriginal land. One such form of protection is s
69 of the ALRA, which makes it an offence to ‘enter or remain on
land in the Northern Territory that is a sacred
site.’[17] It is a defence if
the person is performing functions in accordance with the ALRA or a law
of the Northern Territory.[18]
A Land Trust can dispose of its entire interest only to another Aboriginal Land Trust or by surrender to the Crown.[19] Under s 19, the Land Trust may, however, under prescribed conditions, create a lease (or other interest) over Aboriginal land in favour of third parties.[20] The informed consent of traditional owners is the key requirement and the Land Council must be satisfied that the terms of the lease are reasonable.[21] As noted earlier, in some circumstances leases also require the consent of the Minister.
One year before the Intervention the Commonwealth government, led by John
Howard, made a major change to the
ALRA,[22] designed to
encourage the creation of headleases over township areas. The government said
that headleases over Aboriginal townships,
with the capacity for subleasing
township blocks, would ‘make it easier for Aboriginal people to own their
own homes and for
businesses to operate in the Northern Territory on Aboriginal
land in the way that they operate in other parts of
Australia.’[23] Although the
idea was not entirely novel, the model was contentious. It involved the creation
of a headlease in favour of a government
entity, which would then make
subleasing and other decisions for the following 99 years with limited further
reference to the views
of traditional
owners.[24]
The Rudd Labor
government, elected in November 2007, maintained support for township
headleases, although it amended the legislation
to provide for the possibility
of shorter terms, between 40 and 99
years.[25]
The controversy generated by the 2006 amendments to the ALRA was dwarfed by that surrounding the Commonwealth Intervention a year later. The focus below is on the subset of Intervention measures that involved a direct impact on the ALRA itself and that were relevant to the plaintiffs’ constitutional challenge in Wurridjal.
The Intervention involved the involuntary creation of leases in favour of the
Commonwealth over township areas on Aboriginal land.
Section 31 of the
Northern Territory National Emergency
Response Act 2007 (Cth) (‘NTNERA’)
granted the Commonwealth 64 such leases — over 26 communities on 18 August
2007 and a further 38 communities on 17
February 2008 (including the town of
Maningrida, the subject of the challenge in Wurridjal). Although commonly
called ‘five-year leases’, all 64 leases end five years after the
commencement of the NTNERA, including the ‘second-round’
leases like the one at
Maningrida.[26]
The breadth and
unilateral nature of the Commonwealth’s interest under s 31 leases
corresponds with the involuntary nature of their creation. The Commonwealth
obtained ‘exclusive possession and quiet
enjoyment’, subject to
certain statutory exceptions. One such exception was for existing rights and
interests in the land,
which were preserved by s 34. However, ‘preserved
rights’ were made terminable at the will of the Commonwealth
Minister.[27]
The terms and
conditions of a five-year lease can be set and later varied at the
Minister’s discretion.[28]
While traditional owners cannot terminate or vary such a lease, the Commonwealth
lessee may add or remove land, terminate the lease
and deal with its interest
(including by sublease).[29] A
sublease or other dealing by the Commonwealth dispenses with the normal
requirement for traditional owner consent under s 19(8) of the
ALRA.[30]
The government
rationale for five-year leases has shifted over time. The reason provided to
Parliament was to ensure ‘unconditional
access to land and assets …
to facilitate the early repair of buildings and
infrastructure.’[31]
Government websites subsequently referred to the promotion of ‘security of
tenure’, and the imposition of five-year leases
also became entangled with
the pre-existing public debate over long-term township headleases, promoted by
government as a precondition
for the investment of new public money in housing
and infrastructure.[32] Several High
Court judges concluded in Wurridjal that the leases were essentially
about the assertion of Commonwealth
control.[33]
The Intervention also involved major changes to the rules governing entry onto Aboriginal land. The permit scheme under Northern Territory legislation remained intact, but amendments to Commonwealth law had an overriding effect and also diminished the exclusionary effect of s 70 of the ALRA.[34] The key provision was a new s 70F of the ALRA, which authorised entry without a permit by any member of the public ‘on a common area that is within community land’ if their purpose is not unlawful.[35] The definition of ‘community land’ was applied to Maningrida and dozens of other Aboriginal communities. A ‘common area’ was defined as an area ‘generally used by members of the community concerned’, with the exception of buildings and sacred sites.[36]
It remains unclear whether the Commonwealth is obliged by statute to pay rent
to the traditional owners for the lease imposed on them
by the statutory force
of
s 31 of the NTNERA. The circuitous drafting of the provisions dealing
with rent was much debated during the Wurridjal
hearing[37] The Minister’s words in his
second reading speech in August 2007 were
ambiguou[38] and several observers at the time
said that the Commonwealth had preserved a discretion as to whether rent would
be paid[39]
In the High Court, the
Commonwealth submitted that there was indeed no binding legal obligation on it
to pay rent.[40] Amendments made in
2008 facilitated the negotiation of rent or other payments to traditional
owners, but did not remove the textual
ambiguity.[41]
There were similar
departures from customary practice in relation to property rights when it came
to the question of compensation.
Ordinarily, the holder of a fee simple
subjected to the temporary expropriation of control over their land, in pursuit
of Commonwealth
government policy objectives, would have an unambiguous and
upfront statutory entitlement to compensation. That entitlement, under
the Lands Acquisition Act 1989 (Cth), does not
depend on establishing that they have suffered what the Australian
Constitution regards as an acquisition of property but simply on the
factual demonstration that their property has been acquired by compulsory
process.[42]
The Intervention
legislation, however, expressly disapplied the Lands Acquisition
Act 1989 (Cth).[43]
Instead, the Commonwealth was made ‘liable to pay a reasonable amount of
compensation’ only if the operation of the relevant
parts of the
NTNERA ‘would result in an acquisition of property to which
paragraph 51(xxxi) of the Constitution applies from a person
otherwise than on just
terms’[44] — a markedly
higher legal standard for divestees to satisfy.
There are questions about the
good faith of the Commonwealth government’s approach to compensation.
Minister Brough offered
a public reassurance that just terms would be
paid,[45]
but in fact the legislation removed statutory compensation rights that would otherwise have applied. Compensation was made contingent on the satisfaction of several demanding constitutional requirements, but the Commonwealth has repeatedly argued in the High Court that there is no constitutional guarantee of just terms in any territory, and did so again in Wurridjal. It is difficult to imagine federal politicians adopting the same approach to suburban freehold blocks held by non-Indigenous Australians in pursuit of Commonwealth public policy objectives.
The first and second plaintiffs in the Wurridjal litigation, Reggie Wurridjal and Joy Garlbin, are senior members of the Dhukurrdji clan and traditional owners with common spiritual affiliations to four sacred sites on the Maningrida land subjected to a s 31 lease.[46] Maningrida is a coastal settlement located on a large area of Aboriginal land. The Arnhem Land Aboriginal Land Trust, also the subject of the Blue Mud Bay litigation in the High Court in 2008,[47] covers 89 872 square kilometres.[48] The s 31 lease disputed in Wurridjal relates to 10 square kilometres extending well beyond a built-up township area and including ‘approximately 160 houses for occupation by Aboriginal people, numerous commercial premises, land works, an airstrip, a school, a health clinic, a police station and other infrastructure supporting the community occupying the land.’[49] The area also included ‘sacred sites, an outstation, a sand quarry pit, a billabong and a ceremonial site.’[50]
In order to defeat the first ground in the Commonwealth’s demurrer, the plaintiffs asked the Court to overrule the decision in Teori Tau v Commonwealth (‘Teori Tau’)[51] and find that the just terms guarantee applied to a Commonwealth law directed at the Northern Territory and reliant on s 122 of the Constitution.[52] In the alternative, they said that their case came within a substantial exception to the ruling in Teori Tau that was accepted by a majority of judges in Newcrest Mining (WA) Ltd v Commonwealth (‘Newcrest’).[53] The content of these arguments is explored later.[54]
The plaintiffs argued that the Intervention legislation had three adverse
impacts which were intertwined: on the property interests themselves (in
particular, the fee simple and s 71 rights), on the economic interests of
traditional owners (such as income allegedly lost that would otherwise be due to
them) and on the governance arrangements in the ALRA under which
the landowners enjoyed valuable decision-making rights (over leasing and so on)
based on informed consent.
In the course of oral argument and written
submissions, the plaintiffs alleged that the s 31 lease conferring exclusive
possession on the Commonwealth:
• diminished the fee simple interest held by the Land Trust, said to include or be accompanied by the legal interests held by individual Aboriginal beneficiaries of the land grant;[55]
• reduced s 71 rights by making them ‘preserved rights’ terminable at will by the Minister or, alternatively, by subordinating them to the Commonwealth’s right of exclusive possession;[56]
• allowed the Commonwealth to override the criminal offence in s 69 of the ALRA, preventing entry onto sacred sites;[57] and
• put the Commonwealth in the shoes of the traditional owners as far as
rental income from leases to third parties on township land is
concerned (due to s 34(4) of the
NTNERA).[58]
The
plaintiffs said that collectively the five-year lease provisions and the changes
to the permit scheme reducing the power of traditional
owners to exclude third
parties from Aboriginal land effected an acquisition of property that attracted
the operation of s 51(xxxi).
By providing only a right to recover a ‘reasonable amount of
compensation’, ultimately determined, if necessary, by a
court,[59] the plaintiffs said that
the property was acquired in a way that did not discharge the
Commonwealth’s obligation of ‘just
terms’.
In an aspect of
the case that clearly troubled members of the Court during oral argument, the
plaintiffs’ case sought to identify
the loss as something broader and more
amorphous than the legal impacts listed above in Part III(A)(1)(b). Drawing on
the spiritual or non-material origins of the property entitlements in Aboriginal
tradition, as well as the suite of statutory
rights, powers, functions and
procedures spelt out in the ALRA, the plaintiffs sought to magnify the
loss, framing it as damage to the ‘underlying interest’ of
traditional owners.[60]
The
plaintiffs argued that the failure, in the process of acquiring exclusive
possession, to take into account the special nature
of the property spelled the
absence of just terms. But counsel for the plaintiff disavowed an argument that
certain property is unacquirable
by the
Commonwealth.[61] It appears the
plaintiffs’ case assumed that Aboriginal property rights are always
capable of acquisition under Commonwealth
law but that the statutory details of
the process may need attention beyond provision of reasonable monetary
compensation in order
to meet the obligation of providing just terms.
This
aspect of the argument appeared to combine two propositions about the particular
spiritual, cultural and statutory features of
Aboriginal property rights:
• ‘just terms’ for their acquisition may necessitate non-monetary forms of compensation; and
• ‘just terms’ for their acquisition may necessitate the imposition of procedural requirements to take account of their special character and value to the people concerned.
A Land Trust embodies the collective interests of many individual traditional
owners. Commonly, land rights litigation with the government
involves the Land
Trust taking action against it on behalf of the communal owners, with the
regional Land Council acting as the instructing
solicitors.[62] That was not the
case in Wurridjal. The organisations responsible for the collective
interests of the traditional owners of the region as a whole, the Arnhem Land
Aboriginal
Land Trust and the Northern Land Council, were not plaintiffs but
respondent and respondent’s solicitors respectively. There
is always the
possibility that individuals within the group may take a view that diverges from
that expressed collectively through
the institutions recognised under the
ALRA and here, with independent legal representation, that view was
expressed in a statement of claim lodged with the High Court.
The Land Trust,
said by the Aboriginal plaintiffs to have been dispossessed of property
interests by Commonwealth law, itself refuted
much of that claim. Appearing in
the case awkwardly as a respondent, not a plaintiff, the Land Trust played a
dead bat on some issues
in the case and clearly held positions on others that
were diametrically opposed to the main respondent, the Commonwealth. But it
also
adopted positions contrary to the plaintiffs.
The Land Trust agreed with the
plaintiffs that the rights asserted in the case constitute
‘property’ and that ‘acquisitions’
in the constitutional
sense of the word had occurred contrary to the Commonwealth’s denial.
While generally abstaining from
the argument over whether the Intervention
legislation provided just terms, counsel for the Land Trust said he
unequivocally had
no argument with the plaintiffs’ proposition that just
terms for the loss of spiritual or cultural assets may require something
other
than purely monetary
compensation.[63]
The differences
from the plaintiffs — very important ones in the context of this case and
future litigation — were twofold.
First, as a matter of statutory
interpretation, the Land Trust did not share some of the plaintiffs’
pessimism about the legal
interaction of the Intervention legislation with the
ALRA. ‘In a nutshell’, counsel for the Land Trust said,
‘things are not as bad under this legislation as the plaintiffs
fear.’[64] The payment of rent
by the Commonwealth for a five-year lease was obligatory not
discretionary.[65] The Commonwealth
did not stand in the shoes of the traditional owners to receive rental income
from lessees as a result of s 34(4) of the
NTNERA,[66] nor did the
Commonwealth’s right of exclusive possession cancel out the criminal
penalty for entering a sacred site in s 69 of the
ALRA.[67] In particular, the
five-year lease did not wipe out the ability of individual Aboriginal people and
groups to exercise their s 71 rights. Those rights were instead preserved and
(unlike other ‘preserved rights’) were not terminable at will by the
Minister.[68]
Secondly, on the
constitutional front, the Land Trust insisted that the question of just terms
was hypothetical and the litigation
at best premature. Either the facts
necessary to put the constitutional question of just terms in issue were not
adequately pleaded
or the conduct of the Commonwealth had not reached a point
where the issue arose for judicial
determination.[69]
The Commonwealth demurred to the entire statement of claim, essentially
saying that legally there was no case to answer on the facts
pleaded by the
plaintiffs. On questions of statutory interpretation, it agreed with the
plaintiffs that the payment of rent for the
five-year lease was discretionary
not obligatory. It advocated a deceptively harsh interpretation of the impact on
s 71 rights — while nominally categorising them as ‘preserved
rights’, the Commonwealth’s interpretation emptied
that proposition
of significant practical content, allowing them to be easily
overridden.[70] However, even the
Commonwealth rejected the plaintiffs’ interpretation that a five-year
lease nullified the criminal penalty
for entry onto a sacred site.
On the
constitutional front, the Commonwealth chose to fight the s 51(xxxi) issues
tooth and nail.
The first ground of the Commonwealth’s demurrer concerned s 122 of the
Constitution. The Commonwealth’s starting point was that
Teori Tau was both correctly decided and remained authoritative:
if a law could be shown to rely on the territories power in s 122 (and
indisputably this one could) then s 51(xxxi) and its guarantee of just terms
simply did not apply.[71] In the
alternative (recognising the vulnerability of Teori Tau after the
majority decision in
Newcrest),[72] the
Commonwealth said that the decision in Newcrest should be reopened and
overruled. In its place, it proposed that if a Commonwealth law can be shown to
be essentially a territory
law rather than a ‘national’ law, then
the just terms requirement does not
apply.[73]
It was said that if
the Commonwealth acts like a local, not a national, government then it should
not be surprising to find that no
just terms guarantee applied, as it would look
just like a state government, which is also free of the
guarantee.[74] A glaring problem for
the Commonwealth in this respect was that the Intervention (including the title
of some of the impugned legislation
itself) referred to a ‘national
emergency’. Perhaps it was the equivalent of subliminal advertising that,
in support of the Commonwealth’s argument,
counsel for the Commonwealth
throughout the hearing (with the exception of the first reference) referred to
the legislation in shorthand
form as the ‘Emergency Response
Act’, omitting the constitutionally inconvenient word
‘national’.
The Commonwealth’s second ground of opposition in constitutional terms
was a denial that an ‘acquisition of property’
had taken place. It
claimed that, although the ALRA granted traditional owners a fee simple
interest, the Commonwealth ‘continues to have a significant controlling
role’
over decision-making and outcomes on Aboriginal
land.[75] The Intervention, with its
creation of a five-year lease, was just a statutory readjustment of the controls
exercised by the Commonwealth
on Aboriginal land.
This might seem an
extraordinary interpretation to place on a forced lease over a fee simple
interest, the strength of which had received
such a ringing endorsement from the
High Court little more than two months before the hearing in
Wurridjal.[76]
The ‘shared control’ argument was framed in order to pick up an aspect of s 51(xxxi) doctrine which has delivered victory for the Commonwealth in many acquisition of property cases since 1993, including the most recent s 51(xxxi) challenge before Wurridjal.[77] The idea is that a right, while (at least potentially) answering the description of ‘property’, may be ‘inherently defeasible’, most commonly because it owes its existence to statute. Therefore, when inherently foreseeable changes occur at the hands of the Commonwealth Parliament, an expectation of compensation is illogical or unreasonable. Viewed in their statutory context, the rights said to be at stake in Wurridjal belong in this category of inherent defeasibility, the Commonwealth claimed.
The third and final ground of the Commonwealth’s demurrer was that, even if s 51(xxxi) applies to Commonwealth legislation addressed to a territory and even if the Intervention legislation did effect an ‘acquisition of property’, the ability of affected parties to recover a ‘reasonable amount of compensation’ from the Commonwealth through court proceedings was sufficient to meet the obligation of ‘just terms’.
Before addressing the High Court’s conclusions on these three important questions of constitutional law — the s 122 issue, the ‘acquisition of property’ issue and the ‘just terms’ issue — the matters of statutory interpretation which shaped so much of the argument in Wurridjal will be briefly addressed.
The clearest point to emerge from the case on this front was that the s 71 rights held by Aboriginal people under the ALRA trump the exclusive possession conferred on the Commonwealth by a five-year lease created by the Intervention legislation.[78] Hence, fences put up in townships by the Commonwealth that impede the exercise of s 71 rights are legally problematic.[79] Although treated as ‘preserved rights’, s 71 rights, interestingly, are not terminable at will, as other preserved rights are under s 37 of the NTNERA.[80]
Kirby and Crennan JJ indicated that payment of rent by the Commonwealth on a five-year lease was obligatory, not discretionary, but other judges avoided committing themselves.[81] French CJ and Crennan J refuted the plaintiffs’ claim that the Commonwealth could succeed to rental outcome from Aboriginal land by standing in the shoes of traditional owners under s 34(4).[82] The answer to the question whether the Commonwealth’s right of exclusive possession under the five-year lease nullified the criminal sanction for entry on a sacred site contained in s 69 of the ALRA is unclear from the reasons of the Court.
One of the most significant outcomes in Wurridjal is that four judges of the High Court overruled the unanimous 1969 decision in Teori Tau.[83] The other three judges in Wurridjal declined the invitation to do so, though without endorsing its authority.[84]
A majority of the current Court accepts that just terms are required if a
Commonwealth law effects an acquisition of property in
a territory, even if
(setting aside s 51(xxxi) itself) there is no head of power to which the law can
be attributed beyond s 122.
Read from a vantage point 40 years on, the
decision in Teori Tau is unsatisfactory, with a subtext that
prompts unease. A subsidiary of the mining giant that was later to become Rio
Tinto found
copper on the island of Bougainville in Papua New Guinea in the
mid-1960s. Villagers in the area were unhappy with colonial rule
by Australia
and concerned about the looming construction of the massive Panguna copper mine.
One of them, Teori Tau, sued the Commonwealth
in the High Court of Australia on
behalf of his kin. He alleged that ordinances made under Commonwealth law that
vested the minerals
of Papua New Guinea in the Crown or in the colonial
Administration of the Territory of Papua and New Guinea were invalid because
they involved an acquisition of property on other than just terms in
contravention of s 51(xxxi) of the
Constitution.[85] The parties
agreed that the Court should consider and answer a case stated on the legal
question whether the just terms guarantee
applied to Commonwealth laws about
Papua New Guinea.[86]
On 9
December 1969 a full bench of the High Court heard argument from the
plaintiff’s lawyer and then brought the case to a
halt without calling on
the lawyers for the Commonwealth, the Administration or the mining company.
‘The Judges left the Bench
for a short time to
consult.’[87] They returned
the same day and delivered a judgment of just over two pages in length. The
unanimous decision of the Court, delivered
by Barwick CJ, said that Commonwealth
laws for the government of the territories were free from the constraint of just
terms for
the acquisition of property contained in s 51(xxxi), regardless of
whether the territory was internal (such as the Northern Territory) or external
(such as Papua New Guinea).[88] The
grant of legislative power in s 122 of the Constitution is ‘plenary
in quality and unlimited and unqualified in point of subject
matter.’[89]
If the logic
of the decision was obvious and compelling, that might have deflected concerns
about the highest court of a colonial
power dispatching with such alacrity a
constitutional case pitting indigenous owners against a multinational mining
company. But
members of the Court, most conspicuously Barwick CJ himself,
adhered to a school of constitutional thought that regarded the territories
as
integrated with, not disjoined from, the rest of the
Commonwealth.[90] Teori
Tau did not sit well with that developing line of
cases.
Interestingly, it was a multinational mining company that persuaded
the High Court to break with the constitutional dogma of Teori Tau
in 1997.[91] But it was only a
partial break. The expansion of Kakadu National Park in the Northern Territory
in 1989 and 1991 over former Crown
land meant that mining could no longer take
place there, even though Newcrest Mining (WA) (‘Newcrest’) held
mining leases
in the area. Newcrest argued that the sterilisation of its mining
leases amounted to an acquisition of property on other than just
terms. The
Commonwealth relied on the unanimous full bench decision in Teori
Tau to argue that s 51(xxxi) had no application to a Commonwealth law
about land in the Northern
Territory.[92]
Three judges
accepted the authority of Teori Tau and applied it to reject
Newcrest’s
claim.[93]
In finding for Newcrest, three judges said that Teori Tau should
be overruled (two of them subsequently sat on the Wurridjal
hearing).[94] The mining company
succeeded because the other judge involved in Newcrest, Toohey J,
located a constitutional middle ground from which he found in their favour. That
alternative argument, shared with the
three judges who rejected the authority of
Teori Tau, proved to be the common denominator sufficient to
justify a court order in favour of Newcrest.
Toohey J decided not to overrule
the key proposition in Teori Tau, though he acknowledged the force
of the criticisms made of it in Gummow J’s
judgment.[95]
The Commonwealth’s legislative power in s 122 of the Constitution
was, he said, still unconstrained by s 51(xxxi) and the requirement for just
terms.[96] Instead (agreeing, as
Gummow and Kirby JJ did, with reasoning found in the judgment of Gaudron J),
Toohey J said that, if a law was
referable to both s 122 and another head of
power that was so constrained, then just terms would
apply.[97] He maintained that, in
the era of Northern Territory self-government, it was almost inevitable that
Commonwealth laws bearing on
the Territory would have an additional (s 51)
character beyond direct government of the
Territory.[98]
It
is surprising that the Commonwealth should seek to fight on this constitutional
turf in its defence of the Intervention legislation
in Wurridjal. The
government could have refrained from instructing its lawyers to urge that the
authority of Teori Tau be maintained, particularly after it was
substantially undermined in 1997. In fact, the Commonwealth went further and
sought to reopen
the ‘common denominator’ decision in
Newcrest. It went further still, (remarkably) by denying that the
Intervention legislation was additionally supported by the race power, rather
than by the power in s 122 alone, though it backed down somewhat in oral
argument on this
point.[99]
The
Commonwealth claimed that s 122 authorised Parliament to act as a national
legislature and as a local one analogous to a state Parliament. Its basic
argument was
that, in enacting the Intervention legislation, the Commonwealth
was acting in its role as a local legislature. The power in s 122 was being
exercised for local, Territory, purposes and in that guise, like a state, the
Commonwealth was not bound by a just terms
guarantee — this is part of the
‘proper content’ of s
122.[100] The Commonwealth claimed
compatibility with the characterisation principle enunciated by Mason CJ in
Mutual Pools & Staff Pty
Ltd v Commonwealth: that the just terms guarantee
in s 51(xxxi) applies to laws reliant on other heads of power ‘in the
absence of any indication of contrary
intention’.[101] The proper
content of s 122 includes this capacity to act like a state legislature
unencumbered by a just terms guarantee. Therefore the requirement of contrary
intention was satisfied.
The problem with the Commonwealth’s
characterisation argument was its circularity: ultimately it returned to a
dogmatic assertion
that the Commonwealth should be free to legislate for the
government of a territory without reference to just terms for the acquisition
of
property. The concept of contrary intention works in cases where it can be
justified by arguments based, for example, on
logic.[102] But for what
compelling and independent reason should citizens of an Australian territory be
denied a level of protection against
Commonwealth legislative power
available to citizens of an Australian state?
In Wurridjal, Gummow J
(writing jointly with Hayne J) adhered to his exhaustively argued position in
Newcrest that Teori Tau was
untenable.[103] Kirby J,
likewise, maintained his view expressed in Newcrest that Teori
Tau should be
overruled.[104]
French CJ
devoted a large proportion of his judgment to this first ground of the
Commonwealth’s demurrer. With textbook clarity,
balanced analysis and
persuasive force — signalling a preference for the carefully calibrated
legal realism of a kind practised
by former Chief Justice Sir Anthony Mason
— he too arrived at the conclusion that Teori Tau should be
abandoned. He began by placing the debate over Teori Tau in the
context of a wider constitutional question: are the territories an integral or a
disparate part of the Australian
Commonwealth?[105] In this
context, Teori Tau sat uncomfortably with the unmistakeable
trajectory of High Court decisions in the last 50 years towards greater
integration.
The Chief Justice reviewed the accepted grounds for overturning
High Court decisions and concluded that it called for a factor-based
approach as
well as ‘a strongly conservative cautionary
principle’.[106] The task
for an appellate judge is not so much the identification of ‘error’
as the making of well-reasoned ‘constructional
choices’.[107] French CJ
assembled a wide range of interpretive principles that encouraged a construction
of s 122 that subjected it to the restriction contained in s 51(xxxi). An
examination of the cases that might be thought to offer support for Teori
Tau revealed that virtually every reference to it was peripheral,
perfunctory or appeared in a dissenting
judgment.[108] He concluded that
Teori Tau was so isolated and marginalised by modern
constitutional developments that even the ‘cautionary principle’ in
favour
of existing authority could not save it from the persuasive
constructional arguments to the
contrary.[109]
Long ago, the High Court found that when the Commonwealth took possession and control (rather than title) of an area of land it was an ‘acquisition of property’, even when it was for defence purposes in the middle of a war and even though the property right of the divestee was no more than a week-to-week tenancy.[110] Here the Intervention legislation forcibly imposed a lease in favour of the Commonwealth, granting it ‘exclusive possession and quiet enjoyment’ for five years plus the capacity to sublease the land without reference to its owners.[111] The subject land was held by Aboriginal people under a fee simple title that the High Court says is the equivalent of full ownership.[112]
It is surprising, then, that in Wurridjal the Commonwealth denied,
in the second ground of its demurrer, that a s 31 lease on Aboriginal land
involved an acquisition of
property[113] and that the
argument attracted the support of a member of the High
Court.[114]
The Commonwealth’s denial was based on a ‘shared control’
interpretation of land ownership under the ALRA, outlined
earlier:[115] the role reserved by
statute for the Commonwealth Minister, in relation to leasing approvals, showed
the fee simple interest of a
Land Trust to be qualified from the start by the
potential for executive intervention (that is, ‘inherently
defeasible’).
In that context, a forced lease in favour of the
Commonwealth, in pursuit of its social policy objectives, did not involve an
acquisition
of property.
The Commonwealth’s argument was rejected by a
majority of the Court, who found that the five-year lease did effect an
acquisition
of the Land Trust’s
property.[116] Gummow and Hayne JJ
said that rights previously recognised as inherently defeasible — such as
workers’ compensation entitlements
and offshore petroleum exploration
licences — were qualitatively different from the fee simple title to
Aboriginal land under
the
ALRA.[117] The ongoing role
for the Minister was little different from the range of statutory controls
applied to other fee simple titles around
Australia.[118]
French CJ
acknowledged that the fee simple was subjected to close statutory regulation,
but he said that was mainly to protect, not
dilute, the interests of traditional
owners.[119] This, after all, was
an Act designed to promote justice and traditional
ownership.[120] While the stated
aims of s 31 leases might relate to improved housing for communities, for French
CJ there was no denying the abridgment of ownership rights involved.
Crennan
J (effectively in dissent on this issue) resolved the Wurridjal
litigation in favour of the Commonwealth on this second ground in the demurrer.
She accepted that the fee simple interest was a ‘formidable
property
interest’[121]
but held that no acquisition of property took place with the grant of the
five-year lease at Maningrida. She accepted the shared
control model, blending
an inherent defeasibility analysis with a characterisation
approach.[122] In contrast to
French CJ, she interpreted the Intervention legislation as compatible with
the purposes of the
ALRA[123] and downplayed
its impact on existing property
rights.[124]
On
the additional question of changes to the permit scheme, Gummow and
Hayne JJ refrained from determining whether they amounted to a separate
acquisition of property, finding simply that the formula
used in the legislation
took care of any just terms obligations that might
arise[125] Crennan and Kiefel JJ both
found that there was no acquisition of property above and beyond that already
effected by the creation
of the five-year lease granting exclusive possession to
the Commonwealth[126]
French CJ found that
the changes to the permit scheme did effect an acquisition of property. He
treated the permit scheme as protective
of the legal right to exclude already
embedded in the fee simple
interest.[127] The importance of
that link to the exclusivity of possession evidently outweighed the statutory
basis to the permit scheme for the
purposes of s 51(xxxi) and the doctrine of
inherent defeasibility. The Chief Justice too, however, found that the
acquisition was not one above and beyond
that already effected by the
lease.[128] But he qualified that
finding by saying it applied ‘while the lease remains in
force.’[129] The implication
is that if the permit changes remain when the five-year lease expires there is
an embedded acquisition of property
in the Intervention legislation which will
take on stand-alone constitutional significance at that point.
The third ground of the Commonwealth’s demurrer asserted that ‘just terms’ were provided by s 60 of the NTNERA for any ‘acquisition of property’ effected by the five-year lease and by sch 4 item 18 of the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) for any acquisition resulting from changes to the permit scheme. The provisions in each Act were expressed in essentially the same terms. The relevant parts of s 60 were as follows:
(2) … if the operation of this Part, or an act referred to in paragraph (1)(b) or (c), would result in an acquisition of property to which paragraph 51(xxxi) of the Constitution applies from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(3) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in a
court of competent
jurisdiction for the recovery from the Commonwealth of such reasonable amount of
compensation as the court determines.
Although the interest held by the Land
Trust was expressed in the language of Anglo-Australian property law, it found
its origins
in the common spiritual affiliations and spiritual responsibilities
of the titleholders. Likewise, s 71 rights originate in Aboriginal tradition.
When some form of expropriation of such landed interests occurs, the notion of
‘compensation’
raises complex cross-cultural
questions.[130] In addition, when
the ALRA is examined closely, it reveals specially protective procedures
and constraints. The plaintiffs in Wurridjal drew attention, for example,
to the obligations to consult and obtain informed consent imposed on the Land
Council in favour of traditional
owners and other affected Aboriginal groups
under the
ALRA.[131]
These
cultural and statutory features take Aboriginal property rights under the
ALRA to some extent beyond the category of conventional fee simple
interests. Translating that distinctiveness into legally meaningful
propositions
in constitutional litigation is not straightforward. The plaintiffs had
difficulty crystallising the ‘non-financial
disadvantages’[132] accruing
to the traditional owners as a consequence of the acquisition of property in a
way that was comprehensible to the
Court.[133] These complexities
appear to have been compounded by the way in which facts were pleaded in the
plaintiffs’ statement of claim
and by the reality that most of their
arguments were ultimately ones of statutory
construction.[134]
It is also difficult to discern from the judgment and the transcript of oral
argument what form a provision such as s 60 should take, in the view of the
plaintiffs, in order for the just terms guarantee to be satisfied when
Aboriginal property rights
are
acquired.[135]
It was these
complexities which drove Kirby J, in his dissent, to conclude that a demurrer
proceeding was an inappropriate context
in which to resolve the question of just
terms in Wurridjal and that the matter should proceed to trial, where
arguable claims could be further refined and
clarified.[136] The majority of
judges took a different view and rejected the plaintiffs’ argument as to
the absence of just terms in the Intervention
legislation, based on the facts
pleaded in the statement of claim. In this respect the adoption of a demurrer
proceeding does not
seem to have served the interests of the plaintiffs.
As
noted earlier, the distinctiveness of Aboriginal property rights gave rise to
three discrete questions during oral argument:
1 Are some of the jeopardised interests simply uncompensable; and if so, are they thus unacquirable by the Commonwealth? (The plaintiffs’ counsel expressly disavowed such a submission as to lack of power.)
2 Do just terms for the acquisition of some interests necessarily entail some kind of non-monetary compensation, at least as an element of the compensatory package?
3 Do just terms imply a procedural element, and more specifically, in regard
to Aboriginal property rights, do they require that the
interests be
acknowledged in some way through the procedure by which the property is
acquired?
Ultimately, however, these issues received far less attention and
analysis in the judgment in Wurridjal than they did during the oral
hearings, and some doubt surrounds the precise implications of the High Court
decision on the ‘just
terms’ issue. The plaintiffs clearly failed to
establish that, on the facts pleaded, there was an absence of just terms in
the
framing of s 60 by reference to ‘reasonable compensation’. Whether
any stronger statement can be made about the precedential value of
Wurridjal is doubtful.
Crennan J abstained from determining the
‘just terms’
issue.[137] Kirby J dissented
and strongly preferred that the issue go to
trial.[138] Gummow,
Hayne[139] and Kiefel
JJ[140] endorsed the formula
adopted in s 60. French CJ also stated that s 60 ‘afforded just terms
for the acquisition of the Land Trust
property.’[141] But in
reaching his conclusion on the ‘just terms’ issue, the Chief Justice
expressly relied on the reasoning of Heydon
J.[142] On a close reading, Heydon
J’s judgment appears to be quite fact-dependent and case-specific. The
negatory form of much of
the judgment (it includes statements such as
‘there is no point in examining that
contention’;[143]
‘[t]he present case does not afford an occasion on which it is appropriate
to consider these issues raised by the
plaintiffs’;[144]
‘[t]here are two difficulties with these
contentions’)[145] restricts
its capacity to have binding legal consequence beyond the present case. Heydon J
also acknowledged the complex cross-cultural
questions raised by the concept of
just terms and that resolving some of these questions was not necessary given
the way the case
was pleaded in the demurrer
proceedings[146] — and he
was not alone in acknowledging that certain such questions remained for another
day.[147]
In short, the
implications for the future on the question of just terms for culturally
distinct property rights are clouded by considerable
uncertainty. The restricted
and somewhat artificial nature of demurrer proceedings, the facts pleaded (and
not pleaded), the legal
case argued and the way the reasoning was couched in
individual judgments all contribute to this uncertainty. Even if the
‘historic
shipwrecks
formula’[148] used in the
Intervention legislation can be considered, in general, as a formula sufficient
to achieve just terms, the decision in
Wurridjal left unexplored the
potential latitude of its
wording.[149]
It cannot
confidently be said that any particular argument regarding just terms by an
Aboriginal group dispossessed of their property
rights is precluded by the
finding in Wurridjal.
The significance of the Wurridjal decision begins with the fact that
four judges of the High Court overruled the unanimous decision in Teori
Tau and no judge raised their voice to defend it. Though one of the four
was in dissent on the result, the result in Wurridjal certainly
strengthens the idea that the Commonwealth legislative power to make laws for
the government of a territory in s 122 is constrained by the requirement of
just terms for the acquisition of property contained in s 51(xxxi). In that
sense Wurridjal continues a glacial move towards fuller constitutional
integration of the territories in the Commonwealth of
Australia.[150] The many hundreds
of thousands of Australians who live in a territory perhaps now share in full
with their fellow Australians interstate
one of the few rights protected by the
Constitution.[151]
The
second point concerns the evident strength of Aboriginal property rights under
the federal land rights regime in the Northern
Territory. The High Court
decision in the Blue Mud Bay litigation in July 2008
indicated that a fee simple interest under the ALRA was reinforced by
strong statutory protections and carried with it a powerful right to exclude
others.[152] The decision six
months later in Wurridjal confirms that Aboriginal land rights in the
Northern Territory attract constitutional protection under s 51(xxxi) and the
beneficial operation of the canons of statutory interpretation which have long
guarded property rights in the English and
Australian
courts.[153] The fee simple title
to Aboriginal land is far from the policy plaything of the Commonwealth
government, and the rights based in
tradition that are enjoyed by individual
Aboriginal people under s 71 of the ALRA are not easily abridged by
legislation. The Chief Justice, and possibly others in Wurridjal,
regarded the permit scheme as within the sphere of protection offered by s
51(xxxi).
Thirdly, the case perpetuates the mystery surrounding the
constitutional concept of just
terms.[154]
A particular potential significance of the litigation in Wurridjal
was the light the High Court might have shed on the concept of just terms when
applied to the expropriation of Aboriginal property
rights. More than once the
Court has said that the belated recognition of traditional rights to land in
Australian law demands that
we ‘adjust ingrained habits of thought and
understanding’.[155] The
High Court has also repeatedly stated that traditional Aboriginal connection to
land has a strongly spiritual
dimension[156] — as the
statutory wording of the ALRA also emphasises. One might expect that at
least in the area of fair dealing and just terms for compulsory acquisition the
Court would
give due weight to its past emphasis on the spiritual dimension to
Aboriginal property rights and, also, consider whether the notion
of just terms
might conceivably extend beyond a focus on purely monetary compensation. The
Land Trust, while abstaining from an active
contribution to the oral argument in
Wurridjal over the content of ‘just terms’, signalled its
recognition that deep cross-cultural questions are involved — as
did
several members of the Court during the hearing in October 2008.
In the
judgment delivered in February 2009, Heydon J devoted the most sustained
attention to the issue of what might constitute just
terms in such
circumstances. His reasoning, however, did not concern itself with propositional
clarity about the outer boundaries
of the just terms concept. It was more
tightly (and negatively) focused on the legal arguments put forward and facts
pleaded by the
plaintiffs in this particular demurrer proceeding. It is
interesting that French CJ deferred to another member of the bench on an
issue that is of such constitutional importance to someone with French
CJ’s evident interest in Aboriginal affairs. Ultimately,
the brevity of
analysis in the Court’s reasons for judgment regarding the wording in s 60
is one of the most noticeable features of the case.
What explains the
apparent reluctance to spend time analysing the precise wording of the statutory
provisions on ‘reasonable
compensation’ and ‘just terms’
and assessing them against the admittedly sketchy and inconsistent case law on
this
issue[157] in light of the
particular race-specific and culturally distinct property rights at stake?
Perhaps the paucity of analysis on this
front lends some weight to
Kirby J’s dissenting view that arguable questions raised by the
plaintiffs’ case on this issue
should have been liberated from the
artificiality and constraints of the demurrer proceeding and left to a trial
where the full factual
matrix could have been
considered.[158] But the
plaintiffs’ lawyers had actively pursued a hearing on demurrer and, more
broadly, this case may simply not have been
the appropriate vehicle, or not the
appropriate vehicle at the time it was run, for the agitation of these issues.
One can assume
that this will not be the last time that the Court will be asked
to consider the very important constitutional question of what constitutes
just
terms when Indigenous property rights are compulsorily acquired.
[†] BA, LLB, LLM (ANU); Senior Lecturer, Faculty of Law, The University of New South Wales; Director of the Indigenous Legal Issues Project, Gilbert + Tobin Centre of Public Law, The University of New South Wales. I thank the referees and colleagues Keven Booker and Leon Terrill for comments on an earlier draft.
[2] Mal Brough, ‘National
Emergency Response to Protect Aboriginal Children in the NT’ (Press
Release, 21 June 2007)
<http://www.formerministers.fahcsia.gov.au/malbrough/mediareleases/
2007/Pages/emergency_21june07.aspx>.
[3] Ibid; Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 13–14 (Mal Brough, Minister for Families, Community Services and Indigenous Affairs and Minister Assisting the Prime Minister for Indigenous Affairs).
[4] Section 51(xxxi) provides that the Commonwealth Parliament has the power to make laws with respect to ‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws’. The High Court has repeatedly recognised its dual character as a grant of power and as a constitutional restriction on power (or guarantee): see, eg, Telstra Corporation Ltd v Commonwealth [2008] HCA 7; (2008) 234 CLR 210, 232 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ) (a unanimous Court), quoting Victoria v Commonwealth (1996) 187 CLR 416, 559 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ) (‘Industrial Relations Act Case’).
[5] See ALRA s 3(1) (definition of ‘Aboriginal land’).
[6] Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24, 63–4 (Gleeson CJ, Gummow, Hayne and Crennan JJ) (‘Blue Mud Bay’), quoting Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635, 656 (Deane, Dawson and Gaudron JJ).
[7] ALRA ss 71(1), (2).
[8] They are defined in ALRA s 3(1) as:
a local descent group of Aboriginals who:
(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and
(b) are entitled by Aboriginal tradition to forage as of right over that land.
[9] ALRA s 5(2)(a).
[10] ALRA s 23(3).
[11] ALRA s 19(7).
[12] ALRA s 70(1).
[13] ALRA s 70(2A)(h).
[14] ALRA s 73(1)(b).
[15] Aboriginal Land Act 1978 (NT) s 5.
[16] Aboriginal Land Act 1978 (NT) s 4.
[17] ALRA s 69(1).
[18] ALRA s 69(2A).
[19] ALRA ss 19(4)(b), (12).
[22] See Aboriginal Land Rights (Northern Territory) Amendment Act 2006 (Cth) sch1 pt 1.
[23] Commonwealth, Parliamentary Debates, Senate, 8 August 2006, 93 (Gary Humphries).
[24] For a detailed examination of the 2006 amendments and the surrounding controversy, see Sean Brennan, ‘Economic Development and Land Council Power: Modernising the Land Rights Act or Same Old Same Old?’ [2006] AUIndigLawRpr 65; (2006) 10(4) Australian Indigenous Law Reporter 1, 10–19. For a more recent analysis of the 2006 changes, see Leon Terrill, ‘The Days of the Failed Collective: Communal Ownership, Individual Ownership and Township Leasing in Aboriginal Communities in the Northern Territory’ [2009] UNSWLawJl 41; (2009) 32 University of New South Wales Law Journal 814.
[25] Indigenous Affairs Legislation Amendment Act 2008 (Cth) sch 1 item 3, amending ALRA s 19A(4).
[26] NTNERA s 31(2)(b).
[27] NTNERA s 37(1)(a). Some exceptions apply: s 37(2).
[28] NTNERA ss 36(1)–(2).
[29] NTNERA ss 35(4)–(5).
[30] NTNERA s 52(7).
[31] Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 14 (Mal Brough, Minister for Families, Community Services and Indigenous Affairs and Minister Assisting the Prime Minister for Indigenous Affairs).
[32] For example, the government
website on the Intervention at one point said that the ‘leases will assist
in establishing reformed
tenancy arrangements for better housing’: quoted
in Central Land Council, Submission No 37 to Northern Territory Emergency
Response Review, 25 August 2008, ‘NTER Measures’ (‘5 Year
Leases’) <http://www.nterreview.gov.au/subs/nter_review_report/
37_clc/37_CLC_5.htm>. NTNERA ss 37(6)–(9) permit a Land Trust to
bring a five-year Intervention lease to an end by entering into an ALRA
s 19A headlease: see Sean Brennan, ‘Submission to NTER Review’,
Submission No 183 to Northern Territory Emergency Response
Review, August 2008,
22 <http://www.gtcentre.unsw.edu.au/news/docs/Submission_NTER_
Review_Board.pdf>.
[33] See Wurridjal (2009)
237 CLR 309, 364 (French CJ), 400–2 (Kirby J), 466 (Kiefel J). The
Commonwealth’s current explanation blends a number of these rationales
together: see Department of Families, Housing, Community Services and Indigenous
Affairs, Five-Year Leases on Aboriginal
Townships (2009)
<http://www.facsia.gov.au/sa/indigenous/progserv/ntresponse/abou
t_response/housing_land_reform/Pages/five_year_leases_aboriginal_townships.aspx>.
[34] For a discussion of ALRA s 70, see above Part (II)(A)(3).
[35] ALRA s 70F(1). This was introduced by another part of the Intervention package: Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) sch 4 item 12.
[36] ALRA s 70F(20).
[37] See, eg, Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 1096–185 (French CJ, Gummow, Hayne, Crennan JJ and R Merkel QC). NTNERA s 62(1) says that the Commonwealth Minister ‘may, from time to time’, ask the Northern Territory Valuer-General to determine a reasonable amount of rent for a s 31 lease. NTNERA s 62(5) says that the Commonwealth ‘must’ pay the amount determined by the Valuer-General.
[38] See Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 13–14 (Mal Brough, Minister for Families, Community Services and Indigenous Affairs and Minister Assisting the Prime Minister for Indigenous Affairs).
[39] See, eg, Sean Brennan, Talia Epstein and Edwina MacDonald, ‘Inquiry into NT National Emergency Response Package 2007 — Supplementary Submission’, Submission No 40a to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Northern Territory National Emergency Response Bill 2007 and Related Bills, 11 August 2007, 2; Law Council of Australia, ‘Northern Territory National Emergency Response Legislation’, Submission No 52 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Northern Territory National Emergency Response Bill 2007 and Related Bills, 9 August 2007, [69]–[70]; Jennifer Clarke, ‘Who’d Be a Traditional Landowner?’, Submission No 54 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Northern Territory National Emergency Response Bill 2007 and Related Bills, 10 August 2007, 1.
[40] Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 6644–65 (H C Bur-mester QC).
[41] Indigenous Affairs Legislation Amendment Act 2008 (Cth) sch 2 item 10, amending NTNERA s 62.
[42] Lands Acquisition Act 1989 (Cth) s 52.
[45] The Minister’s media release announcing the Intervention included the following statement: ‘The measures include: … Acquiring townships prescribed by the Australian Government through five year leases including payment of just terms compensation’: Brough, ‘National Emergency Response’, above n 2.
[46] Wurridjal (2009) 237 CLR 309, 371 (Gummow and Hayne JJ). The third plaintiff was the Bawinanga Aboriginal Corporation, an Aboriginal enterprise and outstation resource agency that does business on Maningrida land: at 397 (Kirby J).
[47] Blue Mud Bay (2008) 236 CLR 24.
[48] Wurridjal (2009) 237 CLR 309, 370 (Gummow and Hayne JJ).
[49] Ibid 460 (Crennan J).
[50] Ibid 435 (citations omitted).
[51] [1969] HCA 62; (1969) 119 CLR 564.
[52] The relevant words of s 122 provide that the Commonwealth Parliament ‘may make laws for the government of any territory’.
[53] [1997] HCA 38; (1997) 190 CLR 513.
[54] See below Part III(C)(1).
[55] Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 2521–690 (French CJ, Kirby, Hayne, Crennan, Kiefel JJ and R Merkel QC).
[56] Ibid 2781–801, 2988–98 (R Merkel QC).
[57] Ibid 2392–410.
[58] Ibid 800–36 (French CJ and R Merkel QC), 957–1004 (French CJ, Hayne J and R Merkel QC), 3756–63 (R Merkel QC).
[59] See below Part III(C)(3).
[60] See, eg, Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 2769–76 (R Merkel QC), where counsel for the plaintiffs said it is
not just the physical land and exclusive possession of it, but it is a physical possession that gives [the Commonwealth] the right to disregard the interests that exist under [the ALRA] in favour of the beneficial owners to have that land used, employed in their interest and in accordance with their wishes. We say that is something more than just the loss of the fee simple estate, but it is hard to precisely identify in terms of analysis of legal interests …
[61] Ibid 3490–1.
[62] The plaintiffs in Blue Mud Bay (2008) 236 CLR 24 and associated litigation were the Land Trust, the Land Council and named individuals acting on behalf of traditional land-owning groups.
[63] Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 4599–627 (Kirby J and B W Walker SC).
[64] Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 4056–7 (B W Walker SC).
[65] Ibid 4317–420 (Hayne, Heydon JJ and B W Walker SC).
[66] Ibid 4102–308 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel JJ and B W Walker SC).
[67] Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 4687–745 (Gummow, Hayne JJ and B W Walker SC).
[68] Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 4090–3 (B W Walker SC); ibid 4856–61 (B W Walker SC).
[69] Counsel for the Land Trust argued that the question of just terms was hypothetical (Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 4561–6 (B W Walker SC)), stating: ‘You need facts, we do not have them’ (at 4566). Several members of the Court also raised questions about the factual basis upon which the plaintiffs asserted that an unjust acquisition of their property had occurred. Gummow and Hayne JJ said that, although the question of the Commonwealth’s obligations to pay rent was ‘debated at some length during the oral hearing’, ‘[n]o complaint is made of a wrongful refusal by the Commonwealth to do so, or of the inadequacy of any rent that has been fixed under s 62’: Wurridjal (2009) 237 CLR 309, 388–9. Kirby J (perhaps advocating from the bench a pleading based on native title rights) said repeatedly, in his dissent, that the plaintiffs’ claims could be further refined or rendered legally arguable at trial and that this was a reason to dismiss the demurrer: at 391–5, 405. Crennan J observed that ‘the plaintiffs’ case was largely based on construing the challenged provisions’ and the statement of claim did not plead material facts in relation to particular issues: at 454–5; see also at 460. Counsel for the plaintiffs conceded that the rights of traditional owners had not been pleaded as the property of the two plaintiffs (as distinguished from the Land Trust): Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 2586–9 (R Merkel QC). He also conceded that facts were not pleaded in support of a claim that the Commonwealth acquired the right to rents and other incomes from Aboriginal land: at 1012–15 (Hayne J and R Merkel QC), 2341–4 (R Merkel QC), 4293–4 (Hayne J).
[70] See Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 6891–906 (H C Burmester QC), where the Commonwealth said that the legal creation of the five-year lease itself did not destroy s 71 rights. They were ‘preserved’ in that sense. But the s 71 rights could be overridden as soon as the Commonwealth chose to exercise any of its rights under the five-year lease. This was apart from the proposition that they were also terminable at the will of the Commonwealth Minister under s 37.
[71] The Northern Territory government intervened in the case and argued that the High Court should overrule Teori Tau [1969] HCA 62; (1969) 119 CLR 564: Wurridjal (2009) 237 CLR 309, 325–6 (M P Grant QC).
[72] For examination of this point, see below Part III(C)(1).
[73] Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 5801–57 (French CJ, Gummow J and H C Burmester QC).
[74] Ibid 5435–54 (Kirby J and H C Burmester QC).
[75] Ibid 6075–6 (H C Burmester QC).
[76] See above n 6 and accompanying text.
[77] Telstra Corporation Ltd v Commonwealth [2008] HCA 7; (2008) 234 CLR 210. See also A-G (NT) v Chaffey (2007) 231 CLR 651, where the appellant was the Northern Territory, not the Commonwealth.
[78] See Wurridjal (2009)
237 CLR 309, 366–7 (French CJ), 379–80 (Gummow and Hayne JJ),
456–7 (Crennan J), 468 (Kiefel J).
[79] Ibid 379 (Gummow and Hayne JJ).
[80] This is explicit in the judgments of French CJ (ibid 366–7), Gummow and Hayne JJ (at 379) and Crennan J (at 456) and may be implicit in that of Kiefel J (at 467–8). French CJ noted the possibility that the Commonwealth’s legislative drafting in this area could not be given an entirely coherent operation: at 367.
[81] Ibid 424 (Kirby J), 462–3 (Crennan J); cf at 342 (French CJ), 389 (Gummow and Hayne JJ).
[82] Ibid 340–1 (French CJ), 461–2 (Crennan J); cf at 388 (Gummow and Hayne JJ), saying that relevant facts were not pleaded.
[83] Ibid 357–9 (French CJ), 385–8 (Gummow and Hayne JJ), 418–19 (Kirby J).
[84] Heydon J declined to address the issue, preferring to resolve the case on the third ground in the Commonwealth’s demurrer (the ‘just terms’ issue): ibid 427. He also said that ‘in consequence of the approach of the plurality judgment in this case, there will in future be no doubt as to the relationship between ss 51(xxxi) and 122 of the Constitution’: at 429. Crennan J assumed, without deciding, that Teori Tau could be overruled in order to resolve the litigation by reference to the second ground in the demurrer (the ‘acquisition of property’ issue): at 437. Kiefel J decided that the just terms guarantee was potentially applicable because, applying the ‘common denominator’ position in Newcrest, the Intervention relied on powers beyond s 122. Her brief comments on Teori Tau did not commit her Honour to a view about its viability as a constitutional precedent: see at 469. For an explanation of the ‘common denominator’ finding in Newcrest, see below nn 93–8 and accompanying text.
[85] Teori Tau [1969] HCA 62; (1969) 119 CLR 564, 569 (Barwick CJ for Barwick CJ, McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ).
[86] Ibid.
[87] Ibid 568.
[88] Ibid 570–1 (Barwick CJ for Barwick CJ, McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ).
[89] Ibid 570.
[90] This idea was expressed both prior to Teori Tau (see, eg, Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 246–7 (Barwick CJ), 270 (Menzies J)) as well as subsequently (see, eg, Berwick Ltd v Gray [1976] HCA 12; (1976) 133 CLR 603, 608–9 (Mason J); Barwick CJ agreed: at 605).
[91] Newcrest [1997] HCA 38; (1997) 190 CLR 513.
[92] See ibid 522–3 (B J Shaw QC).
[93] Ibid 544–5 (Brennan CJ), 552, 558–60 (Dawson J), 575–6 (McHugh J).
[94] Ibid 565 (Gaudron J), 612–13 (Gummow J), 661 (Kirby J).
[95] Ibid 560.
[96] Ibid.
[97] Ibid 560–1.
[98] Ibid 561.
[99] Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 5797–801 (French CJ and H C Burmester QC), 5984–6005 (H C Burmester QC).
[100] Ibid 5888–96 (H C Burmester QC).
[101] [1994] HCA 9; (1994) 179 CLR 155, 169.
[102] For example, powers over taxation and bankruptcy necessarily entail expropriations which will go uncompensated. Labels like ‘tax’ are not conclusive and there is room for reasonable judicial disagreement over the appropriate characterisation of an exaction at the margin — see Theophanous v Commonwealth [2006] HCA 18; (2006) 225 CLR 101, 126 (Gummow, Kirby, Hayne, Heydon and Crennan JJ) — but logically the legal category ‘tax’ has no content unless it can ultimately be divorced from the coverage of the just terms guarantee — see ibid 170–1 (Mason CJ), 187–8 (Deane and Gaudron JJ), 197–8 (Dawson and Toohey JJ). The same appeal to logic cannot be made on behalf of the Commonwealth’s argument that it be permitted to act on occasions as a ‘local’ legislature, like a state Parliament, free of the guarantee.
[103] ‘To preserve the authority of Teori Tau would be to maintain what was an error in basic constitutional principle and to preserve what subsequent events have rendered an anomaly. It should be overruled’: Wurridjal (2009) 237 CLR 309, 388.
[104] Ibid 418–19.
[105] See ibid 344–6.
[106] Ibid 352.
[107] Ibid 353.
[108] Ibid 348–50. This examination included those cases relied on by Brennan CJ, Dawson and McHugh JJ in Newcrest [1997] HCA 38; (1997) 190 CLR 513, namely, Trade Practices Commission v Tooth & Co Ltd [1979] HCA 47; (1979) 142 CLR 397, Clunies-Ross v Commonwealth (1984) 155 CLR 193, Northern Land Council v Commonwealth [1986] HCA 18; (1986) 161 CLR 1, Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Mutual Pools & Staff Pty Ltd v Commonwealth [1994] HCA 9; (1994) 179 CLR 155.
[109] Wurridjal (2009) 237 CLR 309, 359.
[110] Minister of State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261. In another pertinent and much-quoted authority, Dixon J said that s 51(xxxi)
is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but … extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property.
Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1, 349.
[112] See above n 6 and accompanying text.
[113] The Commonwealth even pleaded the possibility that the fee simple held by the Land Trust was not ‘property’ for the purposes of s 51(xxxi), despite the long, unbroken line of High Court authority giving the term a very wide interpretation: see Wurridjal (2009) 237 CLR 309, 362 (French CJ). For a recent discussion of the breadth of ‘property’ by a unanimous full bench, see Telstra Corporation Ltd v Commonwealth [2008] HCA 7; (2008) 234 CLR 210, 230–2 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ).
[114] For discussion of the judgment of Crennan J, see below nn 121–4 and accompanying text.
[115] See above Part III(A)(3)(b).
[116] Wurridjal (2009) 237 CLR 309, 364 (French CJ), 383 (Gummow and Hayne JJ), 467 (Kiefel J). Kirby J found that the s 31 lease effected an acquisition of the Land Trust’s property (at 420) and said that the claim by the first and second plaintiffs that they too had suffered an acquisition of property was arguable (at 423); cf at 430 (Heydon J).
[117] Ibid 382–3, citing A-G (NT) v Chaffey (2007) 231 CLR 651; Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1.
[118] Wurridjal (2009) 237 CLR 309, 382 (Gummow and Hayne JJ).
[119] Ibid 364.
[120] Ibid 363–4. The Chief Justice referred to: (a) the aims of land rights stated by the Woodward Royal Commission, the body which provided the statutory blueprint for the ALRA; and (b) the objects of the Act itself.
[121] Wurridjal (2009) 237 CLR 309, 459.
[122] Crennan J said that the fee simple ‘was always susceptible to an adjustment of the kind effected by the challenged provisions, in circumstances such as the existence of the present problems’: ibid 464; see also at 450–3. She also indicated that the kind of impact occasioned by the lease was not properly characterised as a law with respect to the acquisition of property: at 465. As to the imprecise doctrinal foundations of the inherent defeasibility concept, see Sean Brennan, ‘Native Title and the “Acquisition of Property” under the Australian Constitution’ [2004] MelbULawRw 2; (2004) 28 Melbourne University Law Review 28, 53–9.
[123] Wurridjal (2009) 237 CLR 309, 449.
[124] Ibid 460–1.
[125] Ibid 390–1.
[126] Ibid 463 (Crennan J), 467–8 (Kiefel J).
[127] Ibid 365.
[128] Ibid.
[129] Ibid.
[130] For a discussion of incommensurability and inevitability in the judicial valuation of Indigenous property rights, see Paul Burke, ‘How Can Judges Calculate Native Title Compensation?’ (Discussion Paper, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002) <http://www.aiatsis.gov.au/ntru/compensation.html> .
[131] Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 2599–610 (R Merkel QC). The Commonwealth was not required to assume these obligations in gaining possession and discretionary control over the land subject to a five-year lease.
[132] See ibid 3284–5.
[133] See above Part III(A)(1)(c).
[135] One suggestion made by counsel for the plaintiffs and noted in Heydon J’s judgment is ‘a provision guaranteeing a continuation of access by the traditional owners to the land for traditional purposes “side-by-side with the acquisition”’: Wurridjal (2009) 237 CLR 309, 433–4.
[136] Ibid 394–5.
[137] Ibid 437.
[138] Ibid 394–5.
[139] ‘The provision for payment of “reasonable compensation” determined, in the absence of agreement, by exercise of the judicial power of the Commonwealth, satisfies the requirement of “just terms” with respect to the Maningrida Five Year Lease’: ibid 389.
[140] Ibid 466.
[141] Ibid 364–5.
[142] Ibid 365.
[143] Ibid 427.
[144] Ibid 434.
[145] Ibid 433.
[146] Ibid 432–5; see also at 426–7.
[147] Ibid 390 (Gummow and Hayne JJ), 470–2 (Kiefel J).
[148] The phrase ‘historic shipwrecks formula’ is commonly used to describe such ‘insurance clauses’ against s 51(xxxi) invalidity as that contained in NTNERA ss 60(1)–(2). The phrase harks back to the use of such a clause in Historic Shipwrecks Act 1976 (Cth) s 21.
[149] For example, the phrase ‘recovery from the Commonwealth of such reasonable amount of compensation as the court determines’ (NTNERA ss 60(3), 134(3)) does not rule out a conclusion by that court that a non-monetary form of compensation is necessary in order to meet the underlying constitutional requirement of just terms.
[150] See Leslie Zines, ‘The Nature of the Commonwealth’ [1998] AdelLawRw 8; (1998) 20 Adelaide Law Review 83, 83–8; Leslie Zines, ‘“Laws for the Government of Any Territory”: Section 122 of the Constitution’ [1967] FedLawRw 4; (1966) 2 Federal Law Review 72. Cf Christopher Horan, ‘Section 122 of the Constitution: A “Disparate and Non-Federal” Power?’ [1997] FedLawRw 3; (1997) 25 Federal Law Review 97.
[151] Gummow J has described the just terms provision in s 51(xxxi) as an individual right: Newcrest [1997] HCA 38; (1997) 190 CLR 513, 613.
[152] Blue Mud Bay (2008) 236 CLR 24. The decision is analysed in Sean Brennan, ‘Wet or Dry, It’s Aboriginal Land: The Blue Mud Bay Decision on the Intertidal Zone’ [2008] IndigLawB 27; (2008) 7(7) Indigenous Law Bulletin 6.
[153] For example, four judges invoked the requirement for clear and plain language before a statute could be taken to diminish the property rights established under the ALRA, either generally or, at least, specifically in relation to s 71 rights: Wurridjal (2009) 237 CLR 309, 367 (French CJ), 379 (Gummow and Hayne JJ), 406–7 (Kirby J).
[154] Gummow J’s observation that s 51(xxxi) contains an individual right (see above n 151) is surely significant for the question of how the elusive concept of just terms should be interpreted. The utilitarian interpretation of ‘just terms’ in cases decided around World War II, which is where much of the High Court’s analysis of the term is to be found, would not survive the (appropriate) categorisation of s 51(xxxi) as an ‘individual right’. Compare, for example, the focus on the divestee in Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297, 310–11 (Brennan J), with the preparedness to offset this against the ‘interests of the community’ in Grace Brothers Pty Ltd v Commonwealth (1946) 79 CLR 269, 280 (Latham CJ). The utilitarian considerations in favour of government power are already well catered for in the numerous doctrinal obstacles to establishing that an acquisition of property has occurred.
[155] Wik Peoples v Queensland (1996) 187 CLR 1, 177 (Gummow J). See also Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351, 383 (Gummow J).
[156] See, eg, Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1, 64 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[157] ‘There is little judicial elaboration of what the phrase means’: Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1, 102–3 (Kirby J).
[158] This would also have had the consequence of relieving the plaintiffs of the costs order made against them and in favour of the Commonwealth. That order was harsh for a party that had secured both the overturning of a unanimous High Court authority in Teori Tau and a finding that an acquisition of property had occurred, a defeat on both counts for the Commonwealth.
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