Pareroultja & Ors v Tickner

The applicants, Janice Pareroultja and others, sought special leave to appeal to the High Court of Australia against a decision concerning the interaction of common law native title with the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act) and the Native Titles Act 1993 (Cth) (the Native Titles Act), in light of the Racial Discrimination Act 1975 (Cth) (the Racial Discrimination Act). The respondents were the Minister for Aboriginal Affairs and the Northern Land Council.

The legal issues before the High Court involved whether the granting and management provisions of the Land Rights Act contravened section 10(3) of the Racial Discrimination Act, rendering them inoperative to the extent of the contravention. Further issues included whether the granting provisions of the Land Rights Act offended section 10(1) of the Racial Discrimination Act, and if so, whether this section constituted a "special measure" protected from challenge. The applicants also sought a construction of the Land Rights Act to exclude land with common law native title from the definition of "Crown land," arguing the Act was premised on an incorrect assumption about the existence of enforceable common law native title. Finally, the applicants contended that the Native Titles Act, enacted after the Full Federal Court's decision, introduced a statutory choice for native titleholders regarding the holding of their title, which was incompatible with the compulsory management scheme under the Land Rights Act.

The applicants' arguments were based on several alternative grounds. The primary argument was that the Land Rights Act's provisions contravened section 10(3) of the Racial Discrimination Act. An alternative argument under section 10(1) of the Racial Discrimination Act asserted that the Land Rights Act's granting provisions were not a "special measure." The applicants also sought a specific construction of the Land Rights Act, arguing that land subject to common law native title should be excluded from the definition of "Crown land," given the Act's apparent purpose and the subsequent recognition of native title. The most recent argument, not raised below, was that the Native Titles Act created a regime incompatible with the Land Rights Act by affording native titleholders a statutory choice in how their title is held, a choice absent in the Land Rights Act's compulsory management scheme. The Full Federal Court had apparently rejected the section 10(3) arguments on the basis of the "special measure" exception.