Aboriginal people and the law - Legal Information Access Centre

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60 The Law Handbookno contemporary evidence to suggest that all, or most,of the cultural practices of the Larrakia people whichwere observed during the latter part of the nineteenthcentury continued to be practised. During the periodfrom WWII to 1970 the Larrakia people were removedfrom the claim area, Darwin, to Berrimah and required tohold a permit to enter their traditional lands. The FullCourt dismissed the appeal, holding that the applicantgroup had failed to show continuity in observance oftraditional law, and that the laws and customs had beentransmitted in a traditional way. Although Yorta Yortaaccepts that law and custom may adapt to the pressuresof colonisation and yet still be traditional, the claimgroup must demonstrate that observance of law andcustom continues to be observed and acknowledged inways that remain true to the pre-colonial system of law.Compulsory acquisition of Native TitleIn 2008 the High Court held that the Northern Territorygovernment's compulsory acquisition (extinguishmentunder s 24MD(2) of the Native Title Act of native titleland and rights “for any purpose whatsoever” was avalid exercise of executive power for the purpose ofleasing and disposing of that interest into private handsunder s 43 of the Crown Lands Act 1992 (NT). Kirby J (indissent) refused to take “a purely literal approach” tocompulsory acquisition “for any purpose whatsoever”and recounted previous High Court decisions recognisingthe “spiritual, cultural and social connection” inherentin native title. His Honour said that the decision inWard did not cast doubt on that principle or its significanceas a distinguishing feature of native title and alsothat the acquisition was required to be on just terms.Formerly, the Territory could only compulsorily acquireland for public purposes; however, the term “public” hadbeen removed. Kiefel J, who also disagreed with themajority, was unable to dismiss the relevance of otherpublic purpose cases without express words in thestatute confirming the abrogation of the previous law.On this point Kirby J said “legislation depriving individualsof established legal rights must be clear andunambiguous”. The majority, however, had found thatthe provision was not ambiguous (Griffiths v Minister forLands, Planning and Environment (2008) 235 CLR 232).The later case of Wurridjal v Commonwealth of Australia(2009) 237 CLR 309 did confirm that Territory laws forthe acquisition of property were required to makeprovision for just terms compensation.Bodney v BennellIn Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84the Full Court held that the FCA applied the wrong test indetermining whether the claimants had continued toacknowledge and observe traditional laws and customsfrom sovereignty to the present and also that continuityof connection to country could be established byevidence of continuity of a society. The trial judge hadfailed to consider whether the claimants could establishcontinuing connection to the area under claim. It wasnot enough for the trial judge to rely on the claimant'sestablished connection with the claim area of the singleNoongar claim as a whole (which was much larger thanthe claim in respect of Perth) to establish that aconnection with the Perth area observed by their ancestorsat the time of sovereignty had continued substantiallyuninterrupted since sovereignty.Purpose of the legislationThe purpose of the Native Title Act 1993,which was extensively amended in 1998, isto:• validate acts that were invalidated by thedecision in Mabo (No 2)• establish a process to determine the natureand extent of native title• regulate how native title can be dealtwith in the future• recognise and protect native title.Extinguishment of native titleThe Act confirms that previous exclusivepossession acts extinguish native title, andprevious non-exclusive possession acts extinguishnative title to the extent of anyinconsistency.Previous exclusive possession acts includecertain interests created before 23 December1996 (the date of the Wik decision), such as:• freehold estates• commercial leases• exclusive agricultural or pastoral leases• residential leases• community purpose leases• interests appearing in Sch 1 of the Act• any lease conferring a right of exclusivepossession.Acts that do not extinguish native titleInterests granted or created for the benefit ofAboriginal people, and those involving thecreation of national parks or involving aCrown-to-Crown grant, are not previousexclusive possession acts.
2 Aboriginal people and the law 61Disregarding extinguishmentWhere members of a claimant group occupyland over which a claim is made, and theland has been granted under legislation forthe benefit of Aboriginal and Torres StraitIslander people, the extinguishing effect ofpast grants must be disregarded under s 47(pastoral leases held by applicants), s 47A(reserve trusts, freehold land granted for thebenefit of Aboriginal people or Torres StraitIslanders), or s 47B (vacant crown land).Validation of past actsThe Native Title Act 1993 validates all pastCommonwealth acts (s 14), and permits thestates to validate their past acts without thethreat of invalidity because of inconsistencywith the Racial Discrimination Act 1975 (Cth)(s 19). Validation by the states must conformwith the principles in the Native Title Act.A past act is a grant of an interest before1 January 1994, or a legislative Act donebefore 1 July 1993 that would have beeninvalid with respect to native title due toinconsistency with the Racial DiscriminationAct 1993.Interests created by past actsThe interests created by past acts have beencategorised into four groups:• A – freehold, public works, andcommercial, agricultural or pastoral leases• B – other leases, except mining leases• C – mining leases• D – all others, including Crown reservationsand grants of Aboriginal land.Validation of interestsThe validation of each group of interests hasa different effect on native title (ss 15,229 – 232).• The validation of a category A interestextinguishes native title.• The validation of a category B interestextinguishes native title to the extent ofany inconsistency.• The validation of a category C or Dinterest puts native title on hold – nativetitle revives when the category C or Dpast act expires.“Intermediate period acts”The Native Title Act also provides for validationof “intermediate period acts” – actsbetween 1 January 1994 and 23 December1996 that would have been valid but for theexistence of native title (Div 2A).CompensationNative title holders are entitled to compensationfor any extinguishment and impairmentof native title arising from validation(ss 17, 20, 22D, 22G). The compensationmust be on “just terms” under ss 51 and 53of the Native Title Act and must not exceedthe amount that would be payable if theland were freehold, unless the compensationclaimants request compensation through thetransfer of property or the provision ofgoods and services or some combination ofmoney and other interests, s 51(6). It is adifficult question whether the “just terms”compensation could exceed the market valueof the freehold, because while s 51A providesthat the freehold value is a limit on theamount of compensation awarded, it is theConstitution that provides that the compensationmust be on just terms. Just termsrequires the compensation for compulsoryacquisition to be “fair and just” (Commonwealthv Tasmania – Tasmanian Dam Case(1983) 158 CLR 1). Before a determination ofcompensation is made, the Court must makea determination that native title had onceexisted in the area for which compensationis claimed, and has been extinguished in amanner that gave rise to a right to compensation– that is, if the grant was validated bythe Native Title Act, or was done by theCommonwealth, State or a Territory andengaged the requirement to give “just terms”compensation.Right to compensation?In Jango v Northern Territory of Australia [2006] FCA 318(31 March 2006), Justice Sackville of the Federal Court ofAustralia held that the traditional owners of the landsaround Uluru (Ayers Rock) had failed in the presentproceeding to prove they were the owners of native titlerights that had been extinguished or affected. On appeal,the Full Court of the Federal Court noted the necessityto prove continuity of the society and its traditional lawsand customs which had not been established by theevidence presented during the hearing. This was the firsttime a compensation application under the Native Title
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