Native title is a fragile thing. It was made that much more fragile by a ruling by the Full Federal Court yesterday. The ruling will make native title claims on vast areas of Australia … those which have been or are under pastoral leases … much more difficult.
But miners and pastoralists should not start cheering immediately. The court painted a restrictive, administrative role for the Native Title Tribunal. If Aboriginal claimants do not like its processes at any time, they can still go to court to seek declarations of their title.
This was the very spectre of expensive, delay-causing court actions done parcel-by-parcel that dismayed pastoralists and miners after the original Mabo decision came down. It led at least some of them to support Paul Keating’s Native Title Bill in the hope that endless litigation could be avoided. Yesterday’s decision, on that count, will give them no joy.
Two of the three judges on the court ruled that the effect of the Mabo judgment was that a pastoral lease, of itself, extinguished native title. There was no need for an inquiry into the facts of Aboriginal use of the land during the lease. The court ruled that at the end of the lease, the full title reverted to the Crown, not subject to native title.
This was provided the lease was for a period of some years (the exact number not specified, but certainly not a short period) and provided the pastoral lease gave exclusive rights over the land.
However, if the lease or the statute that created it gave specific rights to Aboriginal people, then native title might survive. Some Western Australian pastoral leases contained such provisions. Many in Queensland, South Australia and NSW did not, including the one the subject of yesterday’s judgment.
The judgment was not a final determination on native title in the case. Rather it was an appeal from a decision by the head of the tribunal Justice Robert French to reject the application for registration of a claim made in June last year. The claim was over 247 hectares in north-west Queensland by the North Ganalanja Aboriginal Corp and Bidanggu Aboriginal Corp on behalf of Waanyi people.
Its present economic significance is that it forms part of the $750 million mining proposal by Century Zinc Ltd. But the mining was not the issue here. Mining leases probably do not extinguish native title because they are often quite consistent with Aboriginal traditional use of the land. Nor do they grant exclusive occupancy. It was the exclusive occupancy granted by the pastoral lease which was the central to the reasons for extinguishment given by Justice French of the tribunal and Justice Donald Hill, who wrote the leading Federal Court judgment. They said this was the logical conclusion of the High Court’s Mabo ruling.
The miners get some joy though. About two thirds of Australia is farmed (466 million hectares), much of it on pastoral leases. Many of those pastoral leases on yesterday’s ruling will now be immune from native title claims. Mining searches, therefore, can go ahead at least in those parts of Australia with a much lesser fear of a claim for native title.
The important element of the case was that Aboriginal claimants over a lot of land that has been or is subject to or pastoral leases do not get past first base. Their applications will be rejected. The Act says that a claim must be accepted for registration unless prima facie the claim cannot be made out.
Once accepted for registration, the claim goes on a claims register. This at once prevents any further dealing in the land that might prejudice the native title. Thus it protects native title which has been very fragile … until the 1974 Racial Discrimination Act it was subject to automatic extinguishment by state freehold grants of Crown land and any Federal grant of land (subject to compensation since the 1994 Mabo case).
Further, once the claim is accepted for registration claimants to get legal and other help. If there are no counter claims the claimants are entitled to get full native title registered. If there are counter claims, the two (or more) sides must go into mediation with the tribunal. If the mediation is successful, the resulting native title agreed upon goes on to the register of title.
The tribunal does not and cannot determine title if disputing claimants do not agree. The matter then goes to court. This was confirmed by the court yesterday.
In any event, it is always open for claimants at any time to go to court to assert their title. This is because native title is a right recognised by common law and can be determined by the common-law courts.
The Federal Parliament and Government wanted the tribunal to be the exclusive place for issues of native title and wanted it at the same time to be easy, cheap and informal, but it had a constitutional difficulty.
If the final determination of rights is at stake, the Constitution demands it must be done by a person exercising the judicial power of the Commonwealth … that is a judge appointed until the age of 70. Moreover, such a judge must act judicially … not in an easy, informal and cheap way. So we have a tribunal which tries to get parties to agree and courts to deal with the matter if they can not.
The constitutional validity of this arrangement was upheld yesterday. Though constitutionally correct, the process remains awkward. Justice Malcolm Lee, dissenting on the point about whether the tribunal should have accepted the claim for registration, pointed out the problem.
Justice Lee argued that it would be better to accept for registration a much wider range of applications … virtually anything not hopelessly flawed. If you knocked back applications just because you had looked at some evidence and law and thought the thing most likely defective you would invite legal brawling at that early stage (as had precisely happened in this case). Justice Lee thought this would defeat the very purpose of the Act to have cheap resolution of claims. But he was in the minority.
Justice Lee said also that it was arguable the lease did not extinguish the title, but he was in the minority on that, too. I’d put yesterday’s score card at: Aborigines 0; miners 1; pastoralists 2 and lawyers 10.