Aboriginal people and the law - Legal Information Access Centre

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58 The Law HandbookExtinguishmentNative title is extinguished by legislationpassed by the States where there is a clearlegislative intention to that effect. This intentionmust be found by looking at the wordsof the relevant statute, and its purpose andcontext, to see whether the rights that thestatute vested in the Crown or authorisedthe Crown to grant to others were inconsistentwith all native title rights that mightsubsist in the land.Where the Crown does grant or vest suchan interest in land, native title is extinguishedto the extent of the inconsistency(see Extinguishment of native title at[2.360]). The recent decision of the HighCourt in Western Australia v Brown [2014]HCA 8 shows that the legislative provisionsmust be clearly inconsistent with any exerciseof native title rights to result inextinguishment. In that case, a mining companywas granted rights under the MountGoldsworthy mining lease and the Iron Ore(Mount Goldsworthy) Agreement Act 1964(WA) to construct a township to house mineworkers. Even though the land was intensivelydeveloped to create the township,there was held to be no inconsistency withall native title rights so as to bring abouttotal extinguishment. This conclusion wassupported by the requirement that the miningcompany had to permit the State andany other person to have access to the arealeased except where that access would undulyinterfere with the mining operations.That requirement pointed to an intention torecognise rights in third parties to haveaccess to the area of the lease. The fact thatsome areas might be so developed as toprevent access (by building houses andtownship facilities) did not mean that thelease as a whole had the effect of extinguishingrights, as it was the nature of the rightsgranted (and not the way in which theymight be exercised) which had to beconsidered. Karpany v Dietman [2013] HCA47 confirms that legislation to regulate aright is unlikely to result in extinguishmentbecause the regulation of a right assumesthat the right continues to exist.What kind of rights?In 2002, the High Court handed down its decision inWestern Australia v Ward (2002) 213 CLR 1, settling theargument as to whether native title rights were suigeneris rights and interests (that is, different from otherkinds), or merely a bundle of rights recognisable atcommon law. It found that native title was properlyrecognised as a bundle of rights and interests.The effect of this decision is debatable: at the very leastthe finding allows the court to determine native titlerights and interests as individual strands rather than asan indivisible whole. The decision in Akiba v Commonwealth[2013] HCA 33 suggests, however, that a broadlystated right (for example, to fish) cannot be cut down byseparating out the purposes for which the right might beexercised and finding partial extinguishment of the rightby legislation which impacts on the exercise of thatright. In that case a native title right to fish included aright to fish for non-domestic or commercial purposes,as State and Commonwealth laws prohibiting commercialfishing without a permit regulated only one aspectof the exercise of the native title right.[2.360] Under the Native TitleActThe legislative definitionNative title is defined in s 223 of the NativeTitle Act 1993 (Cth) as the communal, groupor individual rights and interests of Aboriginalpeoples or Torres Strait Islanders inrelation to land and waters, where:• the rights and interests are possessedunder traditional laws acknowledged, andtraditional customs observed, by thepeople concerned, and• the people have a connection with theland or waters by those laws and customs,and• the rights and interests are recognised bythe common law of Australia.The original Native Title Act also contained asection that provided that the common lawof native title (as developed in the Mabodecision) had effect as a law of theParliament, but that section was found to beunconstitutional in 1995 in the Native TitleAct case (WA v Commonwealth (1995) 183CLR 373) which held that the decision in
2 Aboriginal people and the law 59Mabo which held that the common lawcould not validly have the same effect aslegislation passed by Parliament. In 2002 theYorta Yorta case held that the statute stoodalone and had to be interpreted in its ownterms.The Yorta Yorta caseIn the 2002 Yorta Yorta case (Members of the Yorta ship of the lands and waters in question existed atYorta Aboriginal Community v Victoria (2002) 214 CLRthe time of annexation by the British, and422), the High Court held that the test to be applied to • the descendants of those people now have laws anddetermine whether native title existed and could be customs derived from those original laws andrecognised was to be found in the Native Title Act customs.(s 223). The effect of the decision is to make proof of native titleThe court also held that the test required applicants to very difficult for those Aboriginal people from the southdemonstrate that:east of Australia, where the effects of invasion have• a set of laws and customs in relation to the owner- been felt longest.Rights and interests recognised in a native areas, and can include the right to fish andtitle determination might include hunting to protect sites of cultural significanceand fishing rights (s 223(2)). Native title can (Yarmirr v Northern Territory; Commonwealth vexist in the seas and seabed in offshore Yarmirr (2001) 208 CLR 1).The High Court has made observations on the principlesto be applied in determining the effect of pastoral leaseson native title rights.WikIn Wik Peoples v The State of Queensland (1996) 187 CLR1, the High Court held by a majority of four to three thatbecause the pastoral leases in question were not trueleases as understood by the common law, and did notconfer a right to exclusive possession, they did notnecessarily extinguish native title. The court also ruledthat where the rights of pastoralists and those of nativetitle holders were in conflict, the rights of pastoralistswould prevail.Freehold and native titleIn Fejo v Northern Territory (1998) 195 CLR 96, the HighCourt made clear that a freehold interest extinguishesnative title, and that once extinguished native titlecannot revive.Must Aboriginal people live on their land?In Yarmirr, the majority of the High Court found thatAboriginal people did not necessarily need to live on ortravel to their lands to maintain the necessary connectionwith country for native title to be recognised.This is of particular importance for Aboriginal peoplefrom NSW, who have been removed from their traditionallands in the past. It is still necessary, though, thatapplicants for native title have maintained traditionallaw and custom in respect of the country they claim (DeRose v State of South Australia (No 2) (2005) 145 FCR290). Native title can still be recognised even if theWik and other casesgrantee of a pastoral or mining lease has the right toundertake extensive development on the area claimed,provided that the rights under the lease are not totallyinconsistent with all native title rights: Western Australiav Brown [2014] HCA 8.Right to hunt and fishIn Yanner v Eaton (1999) 201 CLR 351, the High Courtconfirmed that a native title right to hunt, given force inthe Native Title Act, would not be extinguished bylegislation seeking to assert ownership of wildlife as“property”. A similar conclusion was reached in Karpanyv Dietman in relation to laws regulating the right to fish,where prohibition on the right to take shellfish without apermit did not extinguish the traditional right to takethem.RiskRisk v Northern Territory of Australia (2007) 240 ALR 75concerned native title determination applications madeon behalf of three groups of the Larrakia peoples inrelation to land and waters in and around Darwin in theNorthern Territory. The claim area comprises manysections of land and waters within an overall area ofabout 30 square kilometres. The primary judge (Risk vNorthern Territory of Australia [2006] FCA 404) dismissedthe applications because he found the present society ofthe Larrakia peoples did not now possess the rights andinterests possessed at the time of sovereignty, becausetheir current laws and customs were not “traditional” inthe sense required by s 223(1) of the Native Title Act asexplained in Yorta Yorta. The judge found that there was
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