Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia
[2023] FCAFC 75
•22 May 2023
FEDERAL COURT OF AUSTRALIA
Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75
File numbers: NTD 43 of 2019 Judgment of: MORTIMER CJ, MOSHINSKY AND
BANKS-SMITH JJDate of judgment: 22 May 2023
Catchwords: NATIVE TITLE – claim for compensation under Native Title Act 1993 (Cth) (NTA) – where the applicant, on behalf of the Gumatj Clan or Estate Group, contends that, in the period from 1911 to 1978, a number of grants or legislative acts took place in the Northern Territory which, if valid, would have been inconsistent with the continued existence of the claimants’ non-exclusive native title rights, and would have extinguished those non-exclusive native title rights at common law – where the applicant contends that the grants or acts purported to effect an acquisition of property within the meaning of s 51(xxxi) of the Constitution, and that they did not provide just terms within the meaning of that provision – where the applicant contends that, the NTA apart, the grants or acts were invalid by reason of the failure to provide just terms as required by s 51(xxxi) – where the applicant contends that each of the grants or acts falls within the definition of a “past act” in the NTA – where the applicant contends that, by operation of the NTA, the grant or act was effective to grant or vest the rights that it purported to grant or vest, and the claimants are entitled to compensation under the NTA in respect of the acquisition of property – where the Commonwealth contended that the applicant’s claim should fail on a number of bases – where separate questions considered and determined by a Full Court in the exercise of the Court’s original jurisdiction
NATIVE TITLE – extinguishment – pastoral leases granted between 1886 and 1903 – reservations of minerals – where the Commonwealth contended that the effect of those reservations was to vest title to minerals in the Crown and thereby to extinguish the claimants’ native title mineral rights (if established) – held: any native title mineral rights not extinguished
NATIVE TITLE – extinguishment – Mission Lease granted in 1938 – where the Commonwealth contended that the grant of the Mission Lease extinguished (or purported to extinguish) any native title rights in the claim area that then subsisted – where the Commonwealth contended that the legislative instrument provided for the grant of a common law lease and thus the lease conferred exclusive possession on the lessee – where the Commonwealth contended in the alternative that the Mission Lease was a statutory lease that granted rights that were inconsistent with the claimed non-exclusive native title rights – held: the Mission Lease did not extinguish or purport to extinguish the claimants’ claimed non-exclusive native title rights
CONSTITUTIONAL LAW – s 51(xxxi) of the Constitution – acquisition of property on just terms – where the Commonwealth contended that the just terms requirement contained in s 51(xxxi) does not apply to laws enacted pursuant to s 122 of the Constitution – where the Commonwealth submitted that Teori Tau v Commonwealth [1969] HCA 62; 119 CLR 564 is the binding authority on this question – where the Commonwealth submitted that Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 did not overrule Teori Tau – held: Wurridjal did overrule Teori Tau and the just terms requirement contained in s 51(xxxi) does apply to laws enacted pursuant to s 122
CONSTITUTIONAL LAW – s 51(xxxi) of the Constitution – acquisition of property on just terms – where the Commonwealth contended that the relevant grants and acts were not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power to grant interests in land and to appropriate to itself unalienated land – held: native title rights and interests are proprietary in nature and constitute “property” for the purposes of s 51(xxxi) – held: a grant or act that extinguishes native title rights and interests is capable of amounting to an acquisition of property within the meaning of s 51(xxxi)
Legislation: Constitution ss 51(xxxi), 55, 96, 111, 122
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 71
Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) s 44
Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth)
Federal Court of Australia Act 1976 (Cth) s 20(1A)
Fisheries Act 1952 (Cth)
Health Insurance Act 1973 (Cth) s 20
Health Insurance (Pathology Services) Amendment Act 1991 (Cth)
Judiciary Act 1903 (Cth) s 78B
National Parks and Wildlife Conservation Act 1975 (Cth) s 10
National Parks and Wildlife Conservation Amendment Act 1987 (Cth) s 7
Native Title Act 1993 (Cth) ss 4, 13A, 14, 15, 17, 18, 23A, 23B, 23C, 47A, 51, 51A, 53, 61, 66B, 223, 228, 238, 242
New Guinea Act 1920 (Cth)
Northern Territory Acceptance Act 1910 (Cth) ss 6, 10
Northern Territory (Administration) Act 1910 (Cth) ss 4U, 4X, 5, 9, 13, 21
Northern Territory National Emergency Response Act 2007 (Cth)
Northern Territory Self-Government Act 1978 (Cth) s 50
Papua and New Guinea Act 1949 (Cth)
Parliamentary Contributory Superannuation Act 1948 (Cth)
Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990 (Cth) s 24
Racial Discrimination Act 1975 (Cth) s 10
Remuneration Tribunal Act 1973 (Cth)
Sales Tax Assessment Act (No 1) 1930 (Cth)
Swimming Pools Tax Refund Act 1992 (Cth) s 4
Federal Court Amendment Rules 2007 (No 1) (Cth)
Federal Court Rules 1979 (Cth) O 20, r 3
Federal Court Rules 2011 (Cth) rr 30.01, 38.01
High Court Rules 2004 (Cth) r 27.07
Land Act 1910 (Qld)
Land Act1898 (WA) s 62
Land Act 1933 (WA) s 32
Mining Act 1980 (NT)
Northern Territory Crown Lands Act 1890 (SA) ss 5, 6, 8, 31, 33, 63, 78, 90
Northern Territory Crown Lands Consolidation Act 1882 (SA)
Northern Territory Land Act 1872 (SA)
Northern Territory Land Act 1899 (SA) ss 1, 23, 24, 25
Western Lands Act 1901 (NSW) s 23
Work Health Act 1986 (NT)
Aboriginals Ordinance 1918 (NT) ss 3, 4, 5, 6, 7, 12, 13, 14, 15, 16, 19, 19A, 20, 21, 67
Crown Lands Ordinance 1927 (NT) s 102
Crown Lands Ordinance 1931 (NT)
Minerals (Acquisition) Ordinance 1953 (NT) ss 3, 4
Mining Ordinance 1939 (NT) ss 7, 106, 107
Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968 (NT)
Social Welfare Ordinance 1964 (NT)
Welfare Ordinance 1953 (NT)
Australian Colonies Act 1861 (Imp)
New South Wales Constitution Act 1855 (Imp)
Queensland Constitution Act 1867 (Imp)
United States Constitution
Cases cited: Akiba v Commonwealth [2013] HCA 33; 250 CLR 209
Alcock v Commonwealth [2012] FCA 524; 203 FCR 114
Alcock v Commonwealth [2013] FCAFC 36; 210 FCR 454
Allpike v Commonwealth [1948] HCA 19; 77 CLR 62
American Dairy Queen (Q’ld) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65; 147 CLR 677
Attorney-General v Brown (1847) 1 Legge 312
Attorney-General (NT) v Chaffey [2007] HCA 34; 231 CLR 651
Attorney-General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38; 290 FCR 173
Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; 177 CLR 106
Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10; 176 CLR 480
Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334
Berwick Ltd v Gray [1976] HCA 12; 133 CLR 603
Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95
Bodney v Westralia Airports Corporation Ltd [2000] FCA 1609; 109 FCR 178
Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512
Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75
Commonwealth v WMC Resources Ltd [1998] HCA 8; 194 CLR 1
Commonwealth v Yarmirr [2001] HCA 56; 208 CLR 1
Congoo v Queensland [2014] FCAFC 9; 218 FCR 358
Cunningham v Commonwealth [2016] HCA 39; 259 CLR 536
Deakin v Webb [1904] HCA 57; 1 CLR 585
Dickenson’s Arcade Pty Ltd v Tasmania [1974] HCA 9; 130 CLR 177
Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust [2001] FCA 98; 109 FCR 488
Director of Public Prosecutions v Lawler [1994] HCA 10; 179 CLR 270
Director of Public Prosecutions (Cth) v JM [2013] HCA 30; 250 CLR 135
Esposito v Commonwealth [2015] FCAFC 160; 235 FCR 1
Federation Insurance Ltd v Wasson [1987] HCA 34; 163 CLR 303
Fejo v Northern Territory [1998] HCA 58; 195 CLR 96
Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; 273 FCR 350
Foster v Northern Territory of Australia [1999] FCA 1235
Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; 179 CLR 297
Goldsworthy Mining Ltd v Commissioner of Taxation (Cth) [1973] HCA 7; 128 CLR 199
Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900; 337 ALR 362
Health Insurance Commission v Peverill [1994] HCA 8; 179 CLR 226
Hepples v Commissioner of Taxation [1992] HCA 3; 173 CLR 492
Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002
ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; 240 CLR 140
JT International SA v Commonwealth [2012] HCA 43; 250 CLR 1
Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission [1977] HCA 55; 139 CLR 117
Kruger v Commonwealth [1997] HCA 27; 190 CLR 1
Lawson v Minister for Land and Water Conservation(NSW) [2003] FCA 1127
Living and Leisure Australia Ltd v Commissioner of State Revenue (Vic) [2018] VSCA 237; 108 ATR 736
Mabo v Queensland (No 1) [1998] HCA 69; 166 CLR 186
Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Minister for Primary Industry v Davey [1993] FCA 876; 47 FCR 151
Mutual Pools & Staff v Commonwealth [1994] HCA 9; 179 CLR 155
Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation [1992] HCA 4; (1992) 173 CLR 450
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; 260 CLR 232
Newcrest Mining (WA) Limited v Commonwealth [1997] HCA 38; 190 CLR 513
Northern Territory v Griffiths [2019] HCA 7; 269 CLR 1
O’Toole v Charles David Pty Ltd [1990] HCA 14; 171 CLR 232
Queanbeyan City Council v ACTEW Corporation Ltd [2011] HCA 40; 244 CLR 530
Queensland v Congoo [2015] HCA 17; 256 CLR 239
R v Ludeke; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation [1985] HCA 84; 159 CLR 636
R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; 158 CLR 327
Radaich v Smith [1959] HCA 45; 101 CLR 209
Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; 212 CLR 162
Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28
Spencer v Commonwealth [1907] HCA 82; 5 CLR 418
Telstra Corporation v Commonwealth [2008] HCA 7; 234 CLR 210
Teori Tau v Commonwealth [1969] HCA 62; 119 CLR 564
Theophanous v Commonwealth [2006] HCA 18; 225 CLR 101
Ure v Commonwealth [2015] FCA 241; 323 ALR 164
Ure v Commonwealth [2016] FCAFC 8; 236 FCR 458
Victoria v Commonwealth [1971] HCA 16; 122 CLR 353
Victoria v Commonwealth (Industrial Relations Act Case) [1996] HCA 56; 187 CLR 416
Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28; 121 CLR 177
Western Australia v Brown [2014] HCA 8; 253 CLR 507
Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47; 183 CLR 373
Western Australia v Ward [2002] HCA 28; 213 CLR 1
Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1
Wilson v Anderson [2002] HCA 29; 213 CLR 401
Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817; 105 FCR 39
Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309
Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422
Division: General Division Registry: Northern Territory National Practice Area: Native Title Number of paragraphs: 499 Date of hearing: 24-28 October 2022 Counsel for the Applicant: Mr A Moses SC with Mr K Anderson and Ms JD Alderson Solicitor for the Applicant: Bowden McCormack, Lawyers + Advisers Counsel for the First Respondent: Mr S Lloyd SC with Ms N Kidson KC and Ms C Klease Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr S Wright SC with Mr L Peattie Solicitor for the Second Respondent: Solicitor for the Northern Territory of Australia Counsel for the Twenty-Fifth, Twenty-Sixth, Twenty-Seventh and Twenty-Eighth Respondents: Mr T Wood Solicitor for the Twenty-Fifth, Twenty-Sixth, Twenty-Seventh and Twenty-Eighth Respondents: MinterEllison Counsel for the Twenty-Ninth and Thirty-Second Respondents: Mr SA Glacken KC with Mr G Hill SC and Ms J Wang Solicitor for the Twenty-Ninth and Thirty-Second Respondents: Northern Land Council Counsel for the Thirtieth Respondent: Ms E Longbottom KC Solicitor for the Thirtieth Respondent: Norton Rose Fulbright Australia Counsel for the Intervener: Ms R Webb KC with Ms C Taggart Solicitor for the Intervener: Crown Law, Queensland Counsel for the Third to Twenty-Fourth, Thirty-First and Thirty-Third Respondents: The remaining Respondents did not appear ORDERS
NTD 43 of 2019 BETWEEN: GALARRWUY YUNUPINGU (ON BEHALF OF THE GUMATJ CLAN OR ESTATE GROUP)
Applicant
AND: COMMONWEALTH OF AUSTRALIA
First Respondent
NORTHERN TERRITORY OF AUSTRALIA
Second Respondent
EAST ARNHEM REGIONAL COUNCIL (and others named in the Schedule)
Third Respondent
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Intervener
ORDER MADE BY:
MORTIMER CJ, MOSHINSKY AND BANKS-SMITH JJ
DATE OF ORDER:
22 MAY 2023
THE COURT ORDERS THAT:
1.The questions reserved for consideration be answered as follows:
(1)On the facts set out in the applicant’s statement of claim, does the whole of the applicant’s claim fail because:
a.the grant of a lease to the Methodist Missionary Society of Australia Trust on 1 July 1938 pursuant to the Aboriginals Ordinance 1918-1937 (NT) (Mission Lease) (identified in paragraph [171] of the statement of claim) validly extinguished any native title rights in the claim area that then subsisted; and
b.the grant was not invalid as a result of the legislation empowering the grant being required to, but failing to, comply with s 51(xxxi) of the Constitution because:
i.the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder); and, in any event,
ii.the grant was not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution notwithstanding that any subsisting native title rights in the claim area (if established) were extinguished by the grant, because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land and to appropriate to itself unalienated land.
Answer: No
(2)If the answer to question (1) is “no”, on the facts set out in the applicant’s statement of claim, does the applicant’s claim insofar as it relates to the enactment of s 107 of the Mining Ordinance 1939 (NT) (1939 Ordinance) on 13 May 1939 (identified in paragraphs [190]-[191] of the statement of claim), which inter alia vested property in all minerals on or below the surface of land in the claim area in the Crown, fail because:
a.the vesting did not have any effect on native title in the claim area as any native title right in relation to minerals in the claim area (if established) had already been extinguished by the reservation of those minerals to the Crown in pastoral lease PL1095 granted on 26 January 1886, or pastoral lease PL1875 granted on 15 August 1896, or pastoral lease PL1991 granted on 13 October 1899, or pastoral lease PL2229 granted on 21 September 1903 (collectively, the pastoral lease reservations);
Answer: No
b.further and in the alternative, the vesting did not have any effect on native title in the claim area because all subsisting native title rights in the claim area (if established) had already been extinguished by the grant of the Mission Lease; and
Answer: No
c.in any event, for the reasons specified in paragraph 1(b) above.
Answer: No
(3)If the answer to question (1) is “no”, on the facts set out in the statement of claim, does the applicant’s claim insofar as it relates to the enactment of the Minerals (Acquisition) Ordinance 1953 (NT) on 22 April 1953 (identified in paragraph [213] of the statement of claim), fail:
a.because the said enactment did not have any effect on native title in the claim area as:
i.any native title right in relation to minerals in the claim area (if established) was extinguished by the pastoral lease reservations;
ii.further and in the alternative, all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease;
iii.further and in the alternative, any subsisting native title right in relation to minerals in the claim area (if established) was extinguished by the 1939 Ordinance; and
Answer:No
b.in any event, because the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder).
Answer: No
(4)If the answer to question (1) is “no”, on the facts set out in the statement of claim, does the applicant’s claim insofar as it relates to the grants of special mineral leases identified in paragraphs [232], [255] and [293] of the statement of claim, fail because the grants were not invalid as asserted in that:
a.none of the grants had any effect on native title in the claim area as all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease; and
Answer: No
b.in any event:
i.as per paragraph 1(b)(i) above, the Ordinances under which the special mineral leases were granted were not relevantly subject to the just terms requirement contained in s 51(xxxi) of the Constitution;
ii.none of these grants were capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution because native title (if established) was inherently susceptible to a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land.
Answer: No
2.Within 28 days, each party file and serve a short written submission on any further orders that they contend should be made by the Full Court.
3.Subject to order 2, the proceeding otherwise be referred back to a docket judge for case management.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
INTRODUCTION
[1]
THE PLEADED COMPENSABLE ACTS
[25]
Grant of the Mission Lease (SOC at [171]-[202])
[27]
Enactment of 1939 Ordinance (SOC at [190]-[202])
[31]
Enactment of the 1953 Ordinance (SOC at [213]-[231])
[34]
The special mineral leases (SOC at [232]-[278], [293]-[315], [462]-[478])
[37]
The way the compensable acts are said to engage the NTA
[40]
OUTLINE OF THE PARTIES’ CONTENTIONS
[43]
SUMMARY OF OUR CONCLUSIONS
[56]
Separate question 1
[57]
Separate question 2
[59]
Separate question 3
[62]
Separate question 4
[63]
RELEVANT ASPECTS OF THE NTA
[65]
RELEVANT HISTORICAL BACKGROUND
[72]
The period from 1863 to 1910
[74]
The period from 1911 onwards
[83]
THE PASTORAL LEASE RESERVATIONS ARGUMENT
[98]
Applicable principles
[99]
The Commonwealth’s submissions
[104]
Consideration
[106]
THE MISSION LEASE
[120]
The Commonwealth’s contentions
[126]
The position of the other parties
[139]
The operation and purposes of the Aboriginals Ordinance 1918
[141]
The NLC’s argument about s 13 of the Aboriginals Ordinance 1918
[157]
Consideration of the Commonwealth’s principal argument
[159]
Consideration of the Commonwealth’s alternative argument
[208]
Conclusion in relation to the Mission Lease
[225]
THE WURRIDJAL ARGUMENT
[227]
Overview
[227]
Background to the issue
[234]
The key constitutional provisions
[234]
Teori Tau
[236]
The judgments in Newcrest
[243]
The judgments in Wurridjal
[247]
The Commonwealth’s argument
[251]
Consideration
[257]
THE INHERENT DEFEASIBILITY ARGUMENT
[280]
Overview
[280]
The government respondents’ argument
[285]
Commonwealth
[285]
The other government respondents
[298]
Some brief points about s 51(xxxi)
[304]
The Mutual Pools line of authority
[320]
Mutual Pools
[322]
Peverill
[334]
Georgiadis
[347]
Later authorities
[361]
Davey
[362]
WMC Resources
[368]
Chaffey
[381]
Cunningham
[385]
Authorities said to involve non-statutory rights: Telstra and Esposito
[392]
Newcrest
[396]
The nature of native title
[444]
Why we reject the extension of the Mutual Pools line of authority to native title
[460]
Conclusion in relation to the inherent defeasibility argument
[478]
THE 1939 ORDINANCE
[481]
THE 1953 ORDINANCE
[488]
THE SPECIAL MINERAL LEASES
[494]
CONCLUSION
[498]
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
The applicant, Dr Yunupingu AM, on behalf of the Gumatj Clan or Estate Group of the Yolngu People, brought two applications under s 61 of the Native Title Act 1993 (Cth). One is a claimant application, seeking a determination of native title in favour of the Gumatj Clan or Estate Group. The second is a compensation application, seeking the payment of compensation for the alleged effects on native title of certain executive and legislative acts done after the Northern Territory became a territory of the Commonwealth in 1911, but prior to the coming into force of the Northern Territory Self-Government Act 1978 (Cth). In these reasons we shall call the group represented by the applicant the claimants. Dr Yunupingu passed away after judgment was reserved. The legal representatives for the claimants informed the Court that after ceremonial and sorry business is conducted, the claimants will authorise a new applicant, as s 66B of the NTA requires. Given the significant role played by Dr Yunupingu in these proceedings, in these reasons we have continued to refer to him as the applicant.
The two applications were filed in November 2019. The claim area is slightly different for each application; the compensation claim area is approximately 236 square kilometres. The claim area is located in the Gove Peninsula, in north-eastern Arnhem Land in the Northern Territory.
In the written submissions filed on behalf of the Northern Land Council and the Arnhem Land Aboriginal Land Trust (the NLC parties), the following uncontested background was given:
The case is the latest in a long campaign by Yolngu peoples for the recognition of their title. That includes Milirrpum v Nabalco (Gove Land Rights Case) where Blackburn J held that Yolngu society is founded on a government of laws, but concluded that the traditional rights and interests of the Yolngu clans in land on the Gove Peninsula within the Arnhem Land Reserve were not capable of recognition by the common law as property or, alternatively, had not survived the Crown’s acquisition of the radical title to the land in dispute. The decision of Blackburn J was the stimulus for the inquiry that led to the enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) by which Crown land comprising the Aboriginal reserves in the Northern Territory were restored to traditional control.
(Footnotes omitted.)
As the NLC parties’ submissions then observe, the legal conclusion of Blackburn J in Milirrpum v Nabalco Pty Ltd (Gove Land Rights Case) (1971) 17 FLR 141 was overturned in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1. Mabo (No 2) forms a critical part of the Commonwealth’s and the Northern Territory’s constitutional issues raised on the separate questions.
Given the active parties in these current proceedings, it should be noted that in the Gove Land Rights Case, Blackburn J recorded the first plaintiff, Milirrpum, as “a member of the Rirratjingu clan”, and another plaintiff, Munggurrawuy, as a member of the Gumatj clan. Other Yolngu clans were also represented by other plaintiffs in the Gove Land Rights Case. As we explain below, several representatives of the Rirratjingu Clan are respondents to these proceedings.
Mining in the claim area has a long history, the early stages of which are relevant to the issues to be decided by the Court on the present application, but the most well-known stage of which continues to the present day, having commenced in 1968, as described by Blackburn J in the Gove Land Rights Case at 149:
On 22nd February, 1968, the two defendants, the Commonwealth and Nabalco Pty. Ltd. (which I shall call “Nabalco”) entered into an agreement whereby the Commonwealth promised to grant a special mineral lease to Nabalco, for a term of forty-two years, of land included in the subject land. The purpose of the agreement was to enable Nabalco to mine the bauxite. The Commonwealth also promised to grant special purposes leases to Nabalco for the establishment of a township and for other purposes ancillary to Nabalco’s mining operations. The agreement was expressed to come into effect upon the coming into effect of an Ordinance approving it. Such an Ordinance, the Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968, was duly passed and came into effect on 16th May, 1968. Leases were duly granted, Nabalco commenced operations accordingly, and the writ in this action was issued on 13th December, 1968.
The thirtieth respondent to the present proceedings, Swiss Aluminium Australia Limited (ACN 008 589 099), is the current lessee of one of the mineral leases granted pursuant to the Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968 (NT) (the 1968 Ordinance), described by Blackburn J in the extract above.
In broad outline, the applicant’s case is as follows. The applicant accepts that, by reason of the grant of a pastoral lease in respect of the claim area in 1886 (and three further pastoral leases in respect of the claim area in the years up to 1903), the claimants’ exclusive native title rights in respect of the claim area were extinguished. However, the applicant contends that the claimants continued to hold non-exclusive native title rights in respect of the claim area, including the right to access, take and use for any purpose the resources of the claim area. This is said to include resources below, on or above the surface of the claim area, such as minerals on or below the surface. The applicant then contends that, in the period from 1911 to 1978, a number of grants or legislative acts took place which, if valid: (a) may have been inconsistent with the continued existence of the claimants’ non-exclusive native title rights (either generally or in relation to minerals, depending on the particular grant or act); and (b) may have extinguished or impaired those non-exclusive native title rights at common law. The applicant contends that if the grants or acts had any extinguishing effect, then, the NTA apart, the grants or acts were invalid by reason of the failure to provide just terms as required by s 51(xxxi) of the Constitution. On this basis, the applicant contends that each of the grants and acts falls within the definition of a “past act” in the NTA. The applicant then contends that, by operation of the NTA, the grant or act was effective to grant or vest the rights that it purported to grant or vest, and the claimants are entitled to compensation under the NTA in respect of the acquisition of property.
It was clear that there were a number of complexities with the compensation application, including (but not limited to):
(a)The claimant application has not yet been determined and there are claims by other First Nations groups, and individuals, that the claim area, or parts of it, was land in which they held native title. In particular, such claims were made by Rirratjingu People and a group of 21 other Indigenous respondents who identify as Yolngu.
(b)The claimants allege that under traditional law and custom they had a right to take and use for any purpose the resources of the claim area, which included all minerals in the claim area, and that the claimants had native title rights in the airspace above the claim area.
(c)There are substantial objections, including constitutional objections, by the Commonwealth and the Northern Territory to the fundamental basis for the claimants’ compensation claim.
Since the claims were filed, the parties debated whether and how some of the central issues in the compensation application might be dealt with separately. This process was case managed by a Judge and a Judicial Registrar of the Court. Agreeing on a process took a long time.
Eventually, it was agreed that the applicant would file a statement of claim in both proceedings in March 2022. In response, it was agreed that the Commonwealth would file an interlocutory application in the compensation proceeding, seeking orders to facilitate a hearing of a demurrer against the applicant’s claims for compensation.
Neither the applicant nor any other party contended that a demurrer would be an inappropriate procedure to deal with some of the central issues in relation to the compensation application.
However, a demurrer is not a form of pleading for which the Federal Court of Australia Act 1976 (Cth) and the Court’s rules provide. Order 20 r 3 of the Federal Court Rules 1979 (Cth) as enacted provided that “[n]o proceeding by way of demurrer shall be brought on any pleading”. Order 20 r 3 was amended by the Federal Court Amendment Rules 2007 (No 1) (Cth), and the amended rule contained no express prohibition on demurrers. The current iteration of the Court’s rules, being the Federal Court Rules 2011 (Cth), likewise contains no such express prohibition. However, there is also no express provision for the pleading of a demurrer in the Court, and in this respect the Court’s procedure stands in contrast to that of the High Court of Australia, which expressly permits and prescribes processes in relation to the filing of a demurrer: High Court Rules 2004 (Cth) r 27.07.
The removal of a demurrer process reflected the changes in the Court’s rules to allow pleadings on questions of law. Thereafter, the processes for strike out and summary dismissal were available in respect of questions of law arising on the pleadings, as were the processes of separate questions (Federal Court Rules r 30.01) and case stated (r 38.01).
Notwithstanding the Court’s rules, the parties sought to use a demurrer process and the Court accepted the filing and service of the Commonwealth’s demurrer. On 20 April 2022, Jagot J made orders to incorporate the Commonwealth’s demurrer into the Court’s current processes by the use of separate questions stated under r 30.01 of the Federal Court Rules. This is the course some of the authorities suggest is appropriate: see, for example, Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1002; Alcock v Commonwealth [2012] FCA 524; 203 FCR 114; Alcock v Commonwealth [2013] FCAFC 36; 210 FCR 454; Ure v Commonwealth [2015] FCA 241; 323 ALR 164; Ure v Commonwealth [2016] FCAFC 8; 236 FCR 458.
Relevantly, the 20 April 2022 orders provided:
THE COURT ORDERS THAT:
1.By 4 pm on 29 April 2022, the Second Respondent (Commonwealth) is to file and serve a demurrer substantially in the form of annexure “A” to these orders.
…
Disposal of demurrer
3.For the purposes of determining the issues arising on the demurrer pursuant to rule 30.01 of the Federal Court Rules 2011 (Cth), the following questions are to be determined separately from any other questions in the proceeding (separate questions):
(a)Should ground 1 in the demurrer be allowed?
(b)If the answer to question (a) is no:
(i) should ground 2 in the demurrer be allowed?
(ii) should ground 3 in the demurrer be allowed?
(c)Should ground 4 in the demurrer be allowed?
…
ANNEXURE “A”
Demurrer
1.The Second Respondent, Commonwealth of Australia (Commonwealth), demurs to the whole of the Applicant's statement of claim, and says that the facts alleged do not show any entitlement to compensation under the Native Title Act 1993 (Cth) (NTA) because:
(a)the grant of a lease to the Methodist Missionary Society of Australia Trust on 1 July 1938 pursuant to the Aboriginals Ordinance 1918-1937 (NT) (Mission Lease) (identified in paragraph [171] of the statement of claim) validly extinguished any native title rights in the claim area that then subsisted; and
(b)the grant was not invalid as a result of the legislation empowering the grant being required to, but failing to, comply with s 51 (xxxi) of the Constitution because:
(i)the just terms requirement contained in s 51 (xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder); and, in any event,
(ii)the grant was not capable of amounting to an acquisition of property within the meaning of s 51 (xxxi) of the Constitution notwithstanding that any subsisting native title rights in the claim area (if established) were extinguished by the grant, because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power - derived from its radical title - to grant interests in land and to appropriate to itself unalienated land.
2.The Commonwealth demurs to the Applicant’s statement of claim insofar as it relates to the enactment of s 107 of the Mining Ordinance 1939 (NT) (1939 Ordinance) on 13 May 1939 (identified in paragraphs [190]-[191] of the statement of claim), which inter alia vested property in all minerals on or below the surface of land in the claim area in the Crown, and says that the facts alleged do not show any entitlement to compensation under the NTA because:
(a)the vesting did not have any effect on native title in the claim area as any native title right in relation to minerals in the claim area (if established) had already been extinguished by the reservation of those minerals to the Crown in pastoral lease PL 1095 granted on 26 January 1886, or pastoral lease PL 1875 granted on 15 August 1896, or pastoral lease PL 1991 granted on 13 October 1899, or pastoral lease PL2229 granted on 21 September 1903 (collectively, the pastoral lease reservations);
(b)further and in the alternative, the vesting did not have any effect on native title in the claim area because all subsisting native title rights in the claim area (if established) had already been extinguished by the grant of the Mission Lease; and
(c)in any event, for the reasons specified in paragraph 1(b) above.
3.The Commonwealth demurs to the Applicant’s statement of claim insofar as it relates to the enactment of the Minerals (Acquisition) Ordinance 1953 (NT) on 22 April 1953 (identified in paragraph [213] of the statement of claim), and says that the facts alleged do not show any entitlement to compensation under the NTA:
(a)because the said enactment did not have any effect on native title in the claim area as:
(i)any native title right in relation to minerals in the claim area (if established) was extinguished by the pastoral lease reservations;
(ii)further and in the alternative, all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease;
(iii)further and in the alternative, any subsisting native title right in relation to minerals in the claim area (if established) was extinguished by the 1939 Ordinance; and
(b)in any event, because the just terms requirement contained in s 51 (xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder).
4.The Commonwealth demurs to the Applicant’s statement of claim insofar as it relates to the grants of special mineral leases identified in paragraphs [232], [255] and [293] of the statement of claim, and says that the facts alleged do not show any entitlement to compensation under the NTA, because the grants were not invalid as asserted:
(a)none of the grants had any effect on native title in the claim area as all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease; and
(b)in any event:
(i)as per paragraph 1(b)(i) above, the Ordinances under which the special mineral leases were granted were not relevantly subject to the just terms requirement contained in s 51 (xxxi) of the Constitution;
(ii)none of these grants were capable of amounting to an acquisition of property within the meaning of s 51 (xxxi) of the Constitution because native title (if established) was inherently susceptible to a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land.
Due to the significance of the issues raised, the former Chief Justice made a direction under s 20(1A) of the Federal Court Act in respect of the hearing of the demurrer by a Full Court.
At the commencement of the hearing on the separate questions, we raised with the parties whether the order for separate questions should be reformulated to set out, in terms, the questions raised by the statement of claim (SOC) and the demurrer that the Full Court was to determine. After discussion with the parties, we formed the view that it was appropriate to restate the separate questions in this way. Accordingly, on 26 October 2022, the Full Court ordered that:
1.Paragraph 3 of the orders made on 20 April 2022 be amended to read as follows.
Pursuant to rule 30.01 of the Federal Court Rules 2011, the following questions are to be determined separately from any other questions in the proceeding (separate questions):
(1)On the facts set out in the applicant’s statement of claim, does the whole of the applicant’s claim fail because:
a.the grant of a lease to the Methodist Missionary Society of Australia Trust on 1 July 1938 pursuant to the Aboriginals Ordinance 1918-1937 (NT) (Mission Lease) (identified in paragraph [171] of the statement of claim) validly extinguished any native title rights in the claim area that then subsisted; and
b.the grant was not invalid as a result of the legislation empowering the grant being required to, but failing to, comply with s 51(xxxi) of the Constitution because:
i.the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder); and, in any event,
ii.the grant was not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution notwithstanding that any subsisting native title rights in the claim area (if established) were extinguished by the grant, because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land and to appropriate to itself unalienated land.
(2)If the answer to question (1) is “no”, on the facts set out in the applicant’s statement of claim, does the applicant’s claim insofar as it relates to the enactment of s 107 of the Mining Ordinance 1939 (NT) (1939 Ordinance) on 13 May 1939 (identified in paragraphs [190]-[191] of the statement of claim), which inter alia vested property in all minerals on or below the surface of land in the claim area in the Crown, fail because:
a.the vesting did not have any effect on native title in the claim area as any native title right in relation to minerals in the claim area (if established) had already been extinguished by the reservation of those minerals to the Crown in pastoral lease PL1095 granted on 26 January 1886, or pastoral lease PL1875 granted on 15 August 1896, or pastoral lease PL1991 granted on 13 October 1899, or pastoral lease PL2229 granted on 21 September 1903 (collectively, the pastoral lease reservations);
b.further and in the alternative, the vesting did not have any effect on native title in the claim area because all subsisting native title rights in the claim area (if established) had already been extinguished by the grant of the Mission Lease; and
c.in any event, for the reasons specified in paragraph 1(b) above.
(3)If the answer to question (1) is “no”, on the facts set out in the statement of claim, does the applicant’s claim insofar as it relates to the enactment of the Minerals (Acquisition) Ordinance 1953 (NT) on 22 April 1953 (identified in paragraph [213] of the statement of claim), fail:
a.because the said enactment did not have any effect on native title in the claim area as:
i.any native title right in relation to minerals in the claim area (if established) was extinguished by the pastoral lease reservations;
ii.further and in the alternative, all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease;
iii.further and in the alternative, any subsisting native title right in relation to minerals in the claim area (if established) was extinguished by the 1939 Ordinance; and
b.in any event, because the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the Northern Territory (Administration) Act 1910 (Cth) (and Ordinances made thereunder).
(4)If the answer to question (1) is “no”, on the facts set out in the statement of claim, does the applicant’s claim insofar as it relates to the grants of special mineral leases identified in paragraphs [232], [255] and [293] of the statement of claim, fail because the grants were not invalid as asserted in that:
a.none of the grants had any effect on native title in the claim area as all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease; and
b.in any event:
i.as per paragraph 1(b)(i) above, the Ordinances under which the special mineral leases were granted were not relevantly subject to the just terms requirement contained in s 51(xxxi) of the Constitution;
ii.none of these grants were capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution because native title (if established) was inherently susceptible to a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land.
The separate questions set out above arise by reason of the filing of the SOC and the demurrer. Although the separate questions assume a particular set of facts, the questions are not hypothetical for reasons explained by the High Court in Director of Public Prosecutions (Cth) v JM [2013] HCA 30; 250 CLR 135 at [32]-[34].
In these reasons, we will refer to the subject matter of the Court’s orders and reasons as the separate questions.
At the conclusion of the hearing, the Court informed the parties that it proposed to reserve its decision and deliver judgment, with answers to the separate questions set out in the Court’s orders, and publish reasons for those answers. The Court indicated it would then hear the parties on any further or other relief. All parties indicated they were content with that course.
The active parties on the separate questions included the Commonwealth, the Northern Territory, Swiss Aluminium and the Attorney-General for the State of Queensland. Queensland intervened in the proceeding in response to notices given by the Commonwealth pursuant to s 78B of the Judiciary Act 1903 (Cth) that the issues raised in the proceeding involved matters arising under the Constitution or involving its interpretation. In these reasons where we refer to the contentions made by the Commonwealth and the Northern Territory, we should be taken to be including the supporting submissions made by Queensland and Swiss Aluminium, except in relation to what we have described as the Wurridjal argument: Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309; see [46] below. On the Wurridjal argument, the Northern Territory and Swiss Aluminium did not support the Commonwealth. Queensland made no submissions on the Wurridjal argument.
The other active parties were the applicant, the NLC parties and four members of the Rirratjingu Clan – Bakamumu Alan Marika, Wanyubi Marika, Wurrulnga Mandaka Marika and Witiyana Matpupuyngu Marika (the Rirratjingu parties). The NLC parties supported the applicant’s position in relation to the separate questions. The Rirratjingu parties make their own claims to native title over parts of the claim area, but on the separate questions they supported the position of the applicant.
All parties made lengthy and detailed written submissions, and oral submissions were heard over five days. The Court is grateful for the comprehensive and detailed assistance provided by the legal representatives of all active parties.
THE PLEADED COMPENSABLE ACTS
In these reasons, we use the term “compensable acts” to describe the acts identified by the applicant as those for which the claimants may seek compensation, depending on the findings of the Court. It is a shorthand phrase used by the parties in their submissions. By our use of it, we do not imply that we have formed any views about the claimants’ entitlements to the compensation claimed in the proceeding.
There are four sets of compensable acts to which the separate questions are addressed. On our reading of the SOC, the answers are unlikely to exhaust all of the claims for compensation, nor exhaust the issues in dispute between the parties in terms of any entitlement of the claimants or any other group to compensation. The effect of the answers to the separate questions on the compensation claim as a whole is a matter on which the parties will have the opportunity to be heard after the publication of the Court’s orders and reasons.
Grant of the Mission Lease (SOC at [171]-[202])
By a lease dated 1 July 1938, the Administrator of the Northern Territory granted the Mission Lease to the Methodist Missionary Society of Australia Trust Association. Its commencement was backdated to 1 July 1936, which suggests the Missionary Society may have been in occupation of the land since that earlier date. The Mission Lease covered the whole of the claim area, and extended beyond it.
The Mission Lease was granted under s 14 of the Aboriginals Ordinance 1918 (NT).
As enacted, s 14 of the Aboriginals Ordinance 1918 provided:
(1.)The Administrator may grant to any aboriginal institution leases of any Crown Lands for any term not exceeding twenty-one years, at such rent and on such terms as he thinks fit.
(2.)The lease may confer a right of renewal, providing it can be shown to the satisfaction of the Administrator that the lands therein described are required for and applied to the use and entirely for the benefit of aboriginals or half-castes, or both.
The construction and operation of s 14 of the Aboriginals Ordinance 1918 was central to several of the arguments about the Mission Lease. The applicant’s primary position is that the grant of the Mission Lease had no effect on the claimants’ native title, and there was no purported acquisition of property because the lease did not confer rights of exclusive possession on the lessee. His alternative position is that if exclusive possession was conferred, then the Mission Lease, if valid, would have extinguished the claimants’ non-exclusive native title rights: SOC at [180]-[182].
Enactment of 1939 Ordinance (SOC at [190]-[202])
The Mining Ordinance 1939 (NT) (1939 Ordinance) was made under s 21 of the Northern Territory (Administration) Act 1910 (Cth).
Section 107 of the 1939 Ordinance provided:
Subject to the provisions of this Ordinance and the regulations, gold, silver and all other minerals and metals on or below the surface of any land in the Territory, whether alienated or not alienated from the Crown, shall be and be deemed to be the property of the Crown:
Provided that this section shall not apply in the case of land granted by the Crown in fee simple, in which case the ownership of gold and minerals shall depend on the terms of any reservation (if any) of gold or other minerals.
The applicant contends (in summary) that, if valid, s 107 would have been inconsistent with the claimants’ native title mineral rights (see [43] below) and would have extinguished those rights at common law: SOC at [190]-[202], [505].
Enactment of the 1953 Ordinance (SOC at [213]-[231])
The Minerals (Acquisition) Ordinance 1953 (NT) (1953 Ordinance) was made by the Northern Territory Legislative Council, pursuant to s 4U of the NT Administration Act (as amended), and assented to by the Governor-General, pursuant to s 4X of the NT Administration Act.
Section 3 of the 1953 Ordinance provided:
All minerals existing in their natural condition, or in a deposit of waste material obtained from any underground or surface working, on or below the surface of any land in the Territory, not being minerals, which, immediately before the commencement of this Ordinance, were the property of the Crown or of the Commonwealth, are, by force of this Ordinance, acquired by, and vested absolutely in, the Crown in right of the Commonwealth.
The applicant contends (in summary) that if s 107 of the 1939 Ordinance did not have the effect contended, then s 3 of the 1953 Ordinance, if valid, would have been inconsistent with the claimants’ native title mineral rights (see [43] below) and would have extinguished those rights at common law: SOC at [213]-[231], [507].
The special mineral leases (SOC at [232]-[278], [293]-[315], [462]-[478])
There were five special mineral leases in issue on the separate questions. The first special mineral lease was purportedly granted by the Commonwealth to the Commonwealth Aluminium Corporation Pty Ltd over part of the claim area on 17 November 1958. The second, third and fourth special mineral leases were purportedly granted by the Commonwealth to the Gove Bauxite Corporation Ltd over parts of the claim area on 11 March 1963. Each of the first four special mineral leases was purportedly granted pursuant to the 1939 Ordinance, as amended.
The fifth special mineral lease was SML11. It was purportedly granted by the Commonwealth to Swiss Aluminium and Gove Alumina Ltd over parts of the claim area on 30 May 1969, pursuant to the 1968 Ordinance. As noted above, SML11 is still held by Swiss Aluminium today.
The applicant contends that, if valid, each of the special mineral leases would have “diminished and impaired” the surviving native title rights of the claimants: SOC at [246]-[248], [270]-[272], [308]-[310].
The way the compensable acts are said to engage the NTA
In respect of each of the compensable acts, the applicant contends that each was a past act within the terms of s 228 of the NTA, although for the Mission Lease this is the applicant’s alternative argument. All of these acts occurred prior to 1975 and the commencement of the Racial Discrimination Act 1975 (Cth).
The contention by the applicant which is largely responsible for the wider significance of this case is the way in which he deploys the term “invalid” in s 228. He contends that the compensable acts are invalid because they were acts done under the authority of s 122 of the Constitution, the Territories power, and that an exercise of that power engages s 51(xxxi) of the Constitution. Since there was an acquisition of property, without just terms being provided, he contends that each compensable act falls within the terms of s 228(2)(b), because:
apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist.
It is in response to this argument that the Commonwealth raises the two constitutional arguments referred to below.
OUTLINE OF THE PARTIES’ CONTENTIONS
The applicant accepts that, by reason of the grant of a pastoral lease in respect of the claim area in 1886 (and three further pastoral leases in respect of the claim area in the years up to 1903), the claimants’ exclusive native title rights were extinguished. However, the applicant contends that the claimants continued to hold non-exclusive native title rights in respect of the claim area, including the right to access, take and use for any purpose minerals on or below the surface (which we will refer to as native title mineral rights).
Each of the four successive pastoral leases contained a reservation of minerals. The Commonwealth contends that the effect of those reservations was to vest title to minerals in the Crown and thereby to extinguish the claimants’ native title mineral rights (if established). This contention forms the basis of parts of separate questions 2 and 3. It should be noted that the Commonwealth’s contention in relation to the pastoral lease reservations concerns only the claimants’ native title mineral rights, as distinct from the claimants’ native title rights generally.
The positions of the applicant and the Commonwealth, respectively, in relation to the grant of the Mission Lease can be summarised as follows:
(a)The applicant’s primary case in relation to the Mission Lease is that it did not confer a right of exclusive possession on the lessee, was not inconsistent with the claimants’ non-exclusive native title rights, and did not purport to extinguish native title. However, in the alternative, the applicant contends that, if the Mission Lease did confer a right of exclusive possession on the lessee, then the grant, if valid, would have extinguished those native title rights and purported to effect an acquisition of property on other than just terms, contrary to s 51(xxxi) of the Constitution. On this alternative, the applicant contends that: the grant is a past act attributable to the Commonwealth for the purposes of the NTA; by operation of the NTA, the lease was effective to confer on the Missionary Society the rights as lessee provided for in the Mission Lease (including a right of exclusive possession) over the claim area; and the claimants are entitled to compensation from the Commonwealth in respect of the acquisition of property effected by the grant.
(b)The Commonwealth contends that the Mission Lease validly extinguished any native title rights in the claim area that then subsisted. This contention relates to the claimants’ native title rights generally, not only the claimants’ native title mineral rights. The Commonwealth’s contention has two (cumulative) limbs, which are reflected in paragraphs (a) and (b) of separate question 1. First, the Commonwealth contends that the grant of the Mission Lease extinguished (or purported to extinguish) any native title rights in the claim area that then subsisted. Secondly, the Commonwealth contends that the grant was not invalid as a result of the legislation empowering the grant being required to, but failing to, comply with s 51(xxxi) of the Constitution. Within the second limb, the Commonwealth advances two constitutional arguments:
(i)The Commonwealth contends that the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution, including the legislation and legislative instrument under which the Mission Lease was granted.
(ii)The Commonwealth contends that, in any event, the grant was not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land and to appropriate to itself unalienated land.
The first constitutional argument concerns the relationship between s 122 and s 51(xxxi). The Commonwealth submits that the latter does not condition the former, as the High Court held in Teori Tau v Commonwealth [1969] HCA 62; 119 CLR 564. The Commonwealth contends that this Court is bound by Teori Tau and the later High Court decision of Wurridjal did not overrule Teori Tau. We shall describe this as the Wurridjal argument.
The second constitutional argument is independent of the first. Even if this Court is bound by Wurridjal to find that s 122 is conditioned by s 51(xxxi), the Commonwealth submits that native title rights are inherently defeasible, such that the requirement for just terms in s 51(xxxi) does not condition an exercise of legislative power which adversely affects or extinguishes those rights. The Commonwealth relies on the line of authority most clearly articulated in three cases in 1994; namely, Mutual Pools & Staff v Commonwealth [1994] HCA 9; 179 CLR 155, Health Insurance Commission v Peverill [1994] HCA 8; 179 CLR 226 and Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; 179 CLR 297.
The Commonwealth contends that there is authority, at least described as seriously considered dicta, that the concept explained in these cases applies to native title rights. That authority is a paragraph in the reasons of Gummow J in Newcrest Mining (WA) Limited v Commonwealth [1997] HCA 38; 190 CLR 513 at 613. Considerable time was spent in written and oral argument on this paragraph, how the other judgments in Newcrest should be understood as relating to it, its treatment in subsequent cases, and the weight that should be given to it. We shall describe this as the inherent defeasibility argument.
We note that there was a second argument about Newcrest to which some attention was paid in written and oral submissions. In substance, that argument concerned the accepted ratio in Newcrest that if an exercise of power was supported by s 122 and another power in s 51 of the Constitution, then the s 51(xxxi) protection was attracted. In light of our conclusions, it is not necessary to consider the application of this contention to the compensable acts.
We turn now to the parties’ contentions on the next compensable act, namely the 1939 Ordinance. The key provision of that Ordinance has been set out above. The applicant contends (in summary) that, if valid, the making of the 1939 Ordinance would have extinguished the claimants’ native title mineral rights at common law and that in the premises, the 1939 Ordinance purported to acquire property on other than just terms within the meaning of s 51(xxxi) of the Constitution. The applicant contends that the making of the relevant provision of the 1939 Ordinance was a past act attributable to the Commonwealth for the purposes of the NTA, and that the claimants are entitled to compensation under the NTA.
In relation to the 1939 Ordinance, the Commonwealth advances three contentions, which are reflected in separate question 2. These are:
(a)the vesting did not have any effect on native title in the claim area as any native title mineral rights in the claim area (if established) had already been extinguished by the reservations of minerals in the pastoral leases;
(b)further and in the alternative, the vesting did not have any effect on native title in the claim area because all subsisting native title rights in the claim area (if established) had already been extinguished by the grant of the Mission Lease; and
(c)in any event, the Commonwealth relies on the Wurridjal argument and the inherent defeasibility argument.
The key provision of the 1953 Ordinance has been set out above. The applicant’s primary contention in relation to the 1953 Ordinance is that, in light of the 1939 Ordinance, all minerals on or below the surface of the claim area were already the property of the Crown in right of the Commonwealth, and that the relevant provision of the 1953 Ordinance therefore had no extinguishing effect with respect to the minerals on or below the surface of the claim area.
In relation to the 1953 Ordinance, the Commonwealth advances several contentions, which are reflected in separate question 3. These are:
(a)the enactment did not have any effect on native title in the claim area as:
(i)any native title right in relation to minerals in the claim area (if established) was extinguished by the pastoral lease reservations;
(ii)further and in the alternative, all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease; and
(iii)further and in the alternative, any subsisting native title right in relation to minerals in the claim area (if established) was extinguished by the 1939 Ordinance; and
(b)in any event, the Commonwealth relies on the Wurridjal argument. There is no express reliance on the inherent defeasibility argument in relation to the 1953 Ordinance.
As to the five special mineral leases, the applicant pleads in respect of each lease that: the NTA apart, the grant of the lease was not inconsistent with the continued existence of the claimants’ non-exclusive native title rights and did not extinguish those rights; the doing of any activity permitted or required to be done by or under the grant of the lease, when done, prevails over but does not extinguish the claimants’ non-exclusive native title rights; and the grant of the lease was thereby inconsistent with the continued exercise of the claimants’ non-exclusive native title rights. By reason of this impairment, the applicant contends, in respect of each special mineral lease, that the grant of the lease, if valid, would have resulted in an acquisition of property within the meaning of s 51(xxxi) of the Constitution, and that this was on other than just terms. The applicant contends that the grant of each lease is a past act for the purposes of the NTA, and that the claimants are entitled to compensation.
In relation to the special mineral leases, the Commonwealth advances the following contentions (at this stage of the proceeding), which are reflected in separate question 4:
(a)the Commonwealth contends that none of the grants had any effect on native title in the claim area as all subsisting native title rights in the claim area (if established) were extinguished by the grant of the Mission Lease; and
(b)in any event, the Commonwealth relies on the Wurridjal argument and the inherent defeasibility argument.
SUMMARY OF OUR CONCLUSIONS
For the purpose of answering the separate questions, and only for that purpose, the Court has assumed that the applicant can prove at trial:
(a)a bundle of rights under traditional law and custom comprising the claimants’ non-exclusive native title rights;
(b)in particular, a right under traditional law and custom to take and trade in resources, including minerals (cf Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [382]); and
(c)that in respect of the whole claim area, these rights are held under traditional law and custom by the Gumatj Clan or Estate Group of the Yolngu People, and not any other group.
Separate question 1
In our opinion, the Mission Lease did not confer a right of exclusive possession, and therefore did not extinguish the claimants’ non-exclusive native title rights. Thus, the applicant has made out the primary position pleaded at [174]-[178] of his SOC. Further, we reject the Commonwealth’s first and second constitutional arguments because:
(a)the manner in which it dealt with the three separate grounds of the demurrer before it demonstrates that the High Court in Wurridjal overturned the principle it had earlier set down in Teori Tau;
(b)this Court is bound by Wurridjal to find that s 122 of the Constitution is conditioned by s 51(xxxi);
(c)it is therefore unnecessary to decide the alternative argument that the compensable acts were done pursuant to ordinances made under a statutory power sourced not only in s 122 of the Constitution, but also in a placitum of s 51 (eg, s 51(xxvi));
(d)aside from the obiter dicta of Gummow J in Newcrest, the authorities have confined the application of the concept of inherent defeasibility to rights created by statute;
(e)this Court is not bound by Gummow J’s obiter dicta, and should instead apply the weight of authority in native title law about the character of native title rights; and
(f)native title rights are not inherently defeasible in the sense that description has been applied in the authorities.
Separate question 1 should therefore be answered “No”.
Separate question 2
The reservations in the four pastoral leases constituted a withholding or keeping back of any rights that may exist in relation to minerals, to the Crown. That is the proper interpretation of the reservations. They were not the full assertion of beneficial ownership by the Crown in minerals in a way which was inconsistent with the continuation of the claimants’ native title mineral rights. Therefore, the claimants’ native title mineral rights (if established) continued after the grants of the pastoral leases, and separate question 2(a) should therefore be answered “No”.
Those rights were also unaffected by the grant of the Mission Lease, and separate question 2(b) should therefore also be answered “No”.
As noted above, we reject the Commonwealth’s two constitutional arguments. Separate question 2(c) should therefore be answered “No”.
Separate question 3
In light of our conclusions in relation to the pastoral lease reservations issue, the Mission Lease issue and the effect of the 1939 Ordinance, the answer to separate question 3(a) is “No”. Further, in light of our conclusion in relation to the Wurridjal argument, the answer to separate question 3(b) is “No”.
Separate question 4
As noted above, we conclude that the Mission Lease did not extinguish the claimants’ non-exclusive native title rights. Therefore, separate question 4(a) should be answered “No”.
As indicated above, we reject the Commonwealth’s two constitutional arguments. Separate question 4(b) should therefore be answered “No”.
RELEVANT ASPECTS OF THE NTA
Section 4 of the NTA sets out a helpful guide to what is a complex legislative scheme. Its terms are of some importance to various aspects of the parties’ arguments. It provides:
4 Overview of Act
Recognition and protection of native title
(1)This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.
Topics covered
(2)Essentially, this Act covers the following topics:
(a)acts affecting native title (see subsections (3) to (6));
(b)determining whether native title exists and compensation for acts affecting native title (see subsection (7)).
Kinds of acts affecting native title
(3)There are basically 2 kinds of acts affecting native title:
(a)past acts (mainly acts done before this Act’s commencement on 1 January 1994 that were invalid because of native title); and
(b)future acts (mainly acts done after this Act’s commencement that either validly affect native title or are invalid because of native title).
Consequences of past acts and future acts
(4)For past acts and future acts, this Act deals with the following matters:
(a) their validity;
(b) their effect on native title;
(c) compensation for the acts.
Intermediate period acts
(5)However, for certain acts (called intermediate period acts) done mainly before the judgment of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1, that would be invalid because they fail to pass any of the future act tests in Division 3 of Part 2, or for any other reason because of native title, this Act provides for similar consequences to past acts.
Confirmation of extinguishment of native title
(6)This Act also confirms that many acts done before the High Court’s judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency.
Role of Federal Court and National Native Title Tribunal
(7)This Act also:
(a)provides for the Federal Court to make determinations of native title and compensation; and
(aa)provides for the Federal Court to refer native title and compensation applications for mediation; and
(ab)provides for the Federal Court to make orders to give effect to terms of agreements reached by parties to proceedings including terms that involve matters other than native title; and
(b)establishes a National Native Title Tribunal with power to:
(i)make determinations about whether certain future acts can be done and whether certain agreements concerning native title are to be covered by the Act; and
(ii)provide assistance or undertake mediation in other matters relating to native title; and
(c)deals with other matters such as the keeping of registers and the role of representative Aboriginal/Torres Strait Islander bodies.
Sections 13A to 18 of the NTA provide for the validation of certain past acts and (by s 17) provide for an entitlement to compensation. Section 18 concerns the operation of s 51(xxxi) in certain circumstances. The resolution of the separate questions does not depend on any consideration of those provisions, and the parties did not address them in any detail, so we do no more than note them.
Section 47A of the NTA is applicable to much of the claim area. It is a beneficial provision, which permits the recognition of native title in certain circumstances by “disregarding” prior extinguishment for the purposes of a determination of native title. However, its operation was not a matter said by any of the parties to affect the answers to the separate questions.
Sections 51, 51A and 53 of the NTA concern the calculation and payment of compensation. Their presence in the legislative scheme is in our view of some relevance to the inherent defeasibility argument, but they are otherwise of no direct relevance to the answers to the separate questions.
The nature and operation of s 223(1) assumes some prominence in the parties’ arguments, especially the inherent defeasibility argument.
223 Native title
Common law rights and interests
(1)The expression native title, or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
Section 228 of the NTA defines a past act for the purposes of the compensation provisions. It relevantly provides:
228 Past act
Definition
(1)This section defines past act.
Acts before 1 July 1993 or 1 January 1994
(2)Subject to subsection (10), if:
(a)either:
(i)at any time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or
(ii)at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and
(b)apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist;
the act is a past act in relation to the land or waters.
It was common ground for the purposes of the separate questions that if the applicant’s contentions about the 1939 Ordinance were correct (including because the Court rejected the Commonwealth’s arguments about the four pastoral leases), and the Court rejected the Commonwealth’s two constitutional arguments, then (at least) the 1939 Ordinance was a past act within s 228(2) (T407-408).
RELEVANT HISTORICAL BACKGROUND
In some of the following sections, there are titles to legislative instruments, provisions in those instruments or in statutes, and descriptions of powers and circumstances which resonate with the past injustices inflicted on First Nations Peoples in this country. The reproduction of them here is necessary because those are the historic facts relevant to the Court’s consideration of the parties’ arguments, but that reproduction should not occur without the Court expressly recognising the impact that the use of such terms and descriptions may have on First Nations Peoples, and the way those terms and descriptions may recall the trauma of their lived experiences, and those of past generations.
Some of the history of post-colonisation control of the Northern Territory and the claim area is set out by Blackburn J in the Gove Land Rights Case at 147-149. We have drawn on this in setting out the chronology below.
The period from 1863 to 1910
In July 1863, by Letters Patent under the Australian Colonies Act 1861 (UK), the whole of what is now the Northern Territory was annexed to the colony of South Australia.
On 1 January 1901, the Commonwealth of Australia was established under the Constitution. The area that is now the Northern Territory remained part of the (now) State of South Australia.
In the period 1886 to 1903, four pastoral leases were granted over the claim area. These are identified at SOC [113]-[163] and copies are attached to the SOC. The four pastoral leases are:
·Pastoral Lease No 1095 dated 26 January 1886, granted pursuant to the Northern Territory Land Act 1872 (SA) or the Northern Territory Crown Lands Consolidation Act 1882 (SA);
·Pastoral Lease No 1875 dated 15 August 1896, granted pursuant to the Northern Territory Crown Lands Act 1890 (SA) (the 1890 Crown Lands Act);
·Pastoral Lease No 1991 dated 13 October 1899, also granted pursuant to the 1890 Crown Lands Act; and
·Pastoral Lease No 2229 dated 21 September 1903 (the 1903 Lease), granted pursuant to the Northern Territory Land Act 1899 (SA) (the 1899 Land Act).
Each pastoral lease covered all of the claim area, although each also extended beyond it. In other words, the pastoral leases covered an enormous area of land and waters. As we have noted, all parties accepted that the pastoral leases extinguished any or any surviving exclusive native title rights in respect of the claim area.
Each pastoral lease contained a reservation of minerals and timber. Each reservation was expressed in different language, the differences being a matter the Commonwealth noted might be of some importance. The one which the Commonwealth identified as most favourable to its extinguishment argument about these reservations was in the 1903 Lease. The relevant part of that lease provided:
AND ALSO excepting and reserving out of this lease under His Majesty His Heirs and Successors all trees and wood standing and being on the said lands and all minerals metals (including Royal metals) ores and substances containing metals gems precious stones coal and mineral oils guano claystone and sand with full and free liberty of access ingress egress and regress to and for the said Minister and his agents lessees and workmen and all other persons authorised by him or other lawful authority with horses carts engines and carriages or without in over through and upon the said land to fell cut down strip and remove all or any trees wood or underwood or bark and to work or convert such trees word or underwood into charcoal and to dig try search for and work the said minerals metals (including Royal metals) ores and substances containing metals gems precious stones coal and mineral oils guano claystone and send [sic – sand] and to take the same from the said lands and to erect buildings and machinery and generally to do such other work as may be required…
When we explain our conclusions on the Commonwealth and Northern Territory’s arguments about the reservations in the pastoral leases, we use the 1903 Lease. This is because, if the Commonwealth and Northern Territory’s contentions are not correct in relation to this pastoral lease, it follows from the Commonwealth’s submissions that their contentions would not be correct for any of the four leases.
The Commonwealth and the Northern Territory contended the effect of these reservations was to extinguish any remaining non-exclusive native title in terms of a right to take and use resources for any purpose, including minerals.
The right to take and use resources for any purpose, including minerals, is relied upon heavily by the applicant in his pleadings in terms of the effects of the compensable acts. It appears that it is for the extinguishment of this right that particular compensation is sought.
In other words, the inclusion of the pastoral lease argument in the separate questions is because the Commonwealth and the Northern Territory contend that the pastoral lease reservations have such an extinguishing effect that, thereafter, no native title mineral rights over the claim area continued and therefore the later compensable acts did not “affect” the asserted native title mineral rights.
The period from 1911 onwards
On 1 January 1911, South Australia surrendered the Northern Territory under s 111 of the Constitution, which provides:
States may surrender territory.
The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.
The Commonwealth accepted that surrender by the Northern Territory Acceptance Act 1910 (Cth), which included in the recitals reference to s 122 of the Constitution. Section 6(1) of the NT Acceptance Act relevantly provided:
The Northern Territory is by this Act declared to be accepted by the Commonwealth as a Territory under the authority of the Commonwealth, by the name of the Northern Territory of Australia.
Section 10 of the NT Acceptance Act relevantly provided:
All estates and interests, held by any person from the State of South Australia within the Northern Territory at the time of the acceptance, shall continue to be held from the Commonwealth on the same terms and conditions as they were held from the State.
The NT Administration Act was enacted in 1910 to provide for the “Provisional Government of the Northern Territory”. Section 13 provided:
(1.)Until the Parliament makes other provision for the government of the Territory, the Governor-General may make Ordinances having the force of law in the Territory.
(2.)Every such Ordinance shall—
(a)be notified in the Gazette;
(b)take effect from the date of notification, or from a later date to be specified in the Ordinance;
(c)be laid before both Houses of the Parliament within fourteen days of the making thereof, or, if the Parliament is not then sitting, within fourteen days after the next meeting of the Parliament.
(3.)If either House of the Parliament passes a resolution, of which notice has been given at any time within fifteen sitting days after any such Ordinance has been laid before the House, disallowing the Ordinance, the Ordinance shall thereupon cease to have effect.
The NT Administration Act provided for the acquisition of land in the Northern Territory. Section 9 provided:
The provisions of the Lands Acquisition Act 1906 shall apply to the acquisition by the Commonwealth, for any public purpose, of any land owned in the Territory by any person:
Provided that, in determining the compensation to which the owner is entitled under that Act, the value of the land shall be taken not to exceed the unimproved value of the land, or the interest therein of the owner, at the date of the passing of this Act together with the value of his interest in the improvements on the land at the date of the acquisition of the land.
No party referred to this provision as having any relevance to the issues before the Court. In our opinion what s 9 establishes, at least, is that the exercise of federal legislative power in the enactment of the NT Administration Act, supported by s 122 of the Constitution, expressly included a power to acquire property, and to do so on just terms.
In 1918, the Aboriginals Ordinance 1918 was made under the NT Administration Act. This ordinance continued in force until its repeal in 1953 by the Welfare Ordinance 1953 (NT).
The effect of the Aboriginals Ordinance 1918 was relevantly described in Kruger v Commonwealth [1997] HCA 27; 190 CLR 1 at 49-53 (Dawson J) and 74-76 (Toohey J), and later in Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust [2001] FCA 98; 109 FCR 488, where Sackville J said at [41]:
In its original form, the Ordinance said nothing about entry into waters on or near an Aboriginal reserve. The Yirrkala Report, however, noted that (at par 26):
“Having proclaimed the Arnhem Land Reserve, the Government considered that the fact that the Aboriginal Ordinance ... provided that persons should not enter the reserves without permission indicated that it was the intention of the Ordinance to ensure that reserves should be used solely by Aborigines.”
(Emphasis added.)
Section 6 of the Aboriginals Ordinance 1918 provided:
(1.)The Chief Protector shall be entitled at any time to undertake the care, custody, or control of any aboriginal or half-caste, if, in his opinion it is necessary or desirable in the interests of the aboriginal or half-caste for him to do so, and for that purpose may enter any premises where the aboriginal or half-caste is or is supposed to be, and may take him into his custody.
(2.)Any person on whose premises any aboriginal or half-caste is, shall, on demand by the Chief Protector, or by any one acting on behalf of the Chief Protector on production of his authority, facilitate by all reasonable means in his power the taking into custody of the aboriginal or half-caste.
(3.)The powers of the Chief Protector under this section may be exercised whether the aboriginal or half-caste is under a contract of employment or not.
By s 7 of the Ordinance, the Chief Protector was made the guardian of “every aboriginal and of every half-caste child, notwithstanding that the child has a parent or other relative living”.
In 1931, the NT Administration Act was amended so that the power of the Governor-General to make ordinances in the Northern Territory was provided for in s 21 of the Act, in similar terms to s 13 of the Act as enacted, except that each ordinance was required to be laid before each House of Parliament within 30 sitting days of the making of the ordinance.
Their Honours describe native title as “inherently fragile”. A similar description – “inherently weaker” – is found in Mabo (No 2) at 194. We do not consider these descriptions are to be equated with the concept of inherent defeasibility employed in respect of some statutory rights. Rather, they are descriptions of how, in a post-European sovereignty world, the intersection between the two legal systems will play out. That was made clear in Ward at [91]:
An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of sovereign authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission or to use or have access to the land was inevitably confined, if not excluded. But because native title is more than the right to be asked for permission to use or have access (important though that right undoubtedly is) there are other rights and interests which must be considered, including rights and interests in the use of the land.
Post-colonisation, the language of “fragility” conveys no more than an acknowledgement that the Crown’s assertion and exercise of powers to control ownership of land will prevail over the rights of the native title holders, where a sufficiently clear intention by the Crown to grant rights inconsistent with native title is established. As counsel for the Rirratjingu parties said in oral submissions, native title is defeasible, just as common law property rights are, but this is a characteristic shared by many rights of a proprietary nature found to be protected by s 51(xxxi) against exercises of federal legislative power.
What is extinguished by a grant of rights intended to be inconsistent with native title in certain land is not the traditional laws and customs which give rise to the claimants’ native title. The normative systems of First Nations Peoples remain. Traditional laws and customs are not dependent for their existence on any recognition by the Crown. They have existed for generations prior to colonisation, they continue to exist, and they can be enforced as between First Nations Peoples. They can continue to have normative force amongst those who are bound by them. What (if anything) is extinguished is the title to certain land; the “title” is the nomenclature for what is recognised by Australian common law, and what may cease to be recognised by Australian law, with the corresponding effect or benefit that the burden on the Crown’s radical title is removed. As we explain below, that is why the analytical tool of inherent defeasibility is inapposite.
Why we reject the extension of the Mutual Pools line of authority to native title
In its summary outline of submissions, the NLC submitted (at [7]):
Laws that diminish native title confer an identifiable proprietary benefit on others. That is an acquisition of property within s 51(xxxi). To posit a different characterisation by reference to the common law concept of radical title dealing with when Great Britain acquired sovereignty by prerogative act is an artificial refinement distorting the principles upon which s 51(xxxi) depends.
We accept that submission. It is made good by the authorities to which we have referred, and the many other statements referred to in the submissions of the applicant, the NLC and the Rirratjingu parties.
This proposition is also made good by Northern Territory v Griffiths [2019] HCA 7; 269 CLR 1 (Griffiths HCA) at [75]:
The point made in both the Native Title Act Case and Ward was that, although native title rights and interests have different characteristics from common law land title rights and interests, and derive from a different source, native title holders are not to be deprived of their native title rights and interests without the payment of just compensation any more than the holders of common law land title are not to be deprived of their rights and interests without the payment of just compensation. Equally, native title rights and interests cannot be impaired to a point short of extinguishment without payment of just compensation on terms comparable to the compensation payable to the holders of common law land title whose rights and interests may be impaired short of extinguishment. There was no suggestion in either the Native Title Act Case or Ward that the nature and incidents of particular native title rights and interests are irrelevant to their economic worth or to the determination of just compensation for extinguishment or impairment.
As the NLC submitted, the premise in Griffiths HCA was that native title was “acquired”: that is, the Northern Territory received a benefit because the claimants’ native title was “cleared” as a burden on the Territory’s radical title to the land, which in turn was taken into account by placing the Territory in the position of the hypothetical purchaser for the purposes of the test in Spencer v Commonwealth [1907] HCA 82; 5 CLR 418: see Griffiths HCA at [32], [85], [104] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), [245] (Gageler J), [281]-[283] (Edelman J). The fact that compensation in Griffiths HCA was payable under the NTA (as it is claimed to be here) is irrelevant – the “native title” involved is the same native title as that identified in Mabo (No 2).
The nature of native title has been recognised in at least two decisions of the High Court concerning s 10 of the RDA.
In the Native Title Act Case at 437, the plurality said:
Where, under the general law, the indigenous “persons of a particular race” uniquely have a right to own or to inherit property within Australia arising from indigenous law and custom but the security of enjoyment of that property is more limited than the security enjoyed by others who have a right to own or to inherit other property, the persons of the particular race are given, by s 10(1), security in the enjoyment of their property “to the same extent” as persons generally have security in the enjoyment of their property. Security in the right to own property carries immunity from arbitrary deprivation of the property. Section 10(1) thus protects the enjoyment of traditional interests in land recognised by the common law.
(Emphasis added, footnotes omitted.)
And in Mabo v Queensland (No 1) [1998] HCA 69; 166 CLR 186, Brennan, Toohey and Gaudron JJ said at 219:
… because s. 10(1) of the Racial Discrimination Act clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community.
(Emphasis added.)
We consider the existing authorities, and in particular Griffiths HCA, support the straightforward proposition as put by the NLC and extracted at [460] above. The authorities demonstrate what a large and significant step it would be to apply to native title the conceptual tool of “inherent defeasibility” or “inherent susceptibility”, currently only ever applied to certain kinds of statutory rights. The whole framework of the NTA, not just the compensation provisions, is built on the premise that native title is understood as proprietary in character and as capable of being acquired. Its acquisition is assumed to be compensable, and it can be valued in monetary terms, as the foundations of both the NTA and the decision in Griffiths HCA demonstrate.
It is not necessary to descend into any further detail, despite the twists and turns in the dense and complex submissions of the government respondents in particular. The contentions of the government respondents do not represent the present law. We decline the invitation to extend the conceptual tool of inherent defeasibility or inherent susceptibility from some statutory rights to native title.
A further problem with the government respondents’ approach is this notion of what characteristics native title had “at its inception”. That is a question posed in the Mutual Pools line of authorities, because the universe of discourse in those authorities are rights that Parliament created, and whose nature and content Parliament determined. In contrast, a question about “inception” in respect of native title is meaningless. The inception of native title is in pre-colonisation times, in “time immemorial”. Native title did not arise or originate on colonisation. The colonisers brought their own legal system and imposed it. Before they arrived in Australia, there were normative systems already in place and in use, and those systems provided, amongst other matters, for the existence and allocation of rights and interests in land and waters. The legal system brought by the colonisers, the common law, was able to recognise the normative systems already in place. That is what Mabo (No 2) establishes. As the NLC submits (see its outline at [7] and [8]), the very adoption of the noun “title” both in Mabo (No 2) and by the federal Parliament in the NTA resonates with a matter that falls within s 51(xxxi).
The government respondents submit that the States can acquire property without affording just terms, and that the present argument could not be run against a State. That may be so, but that does not signal any incongruity that demands a different answer to the separate questions. Section 51(xxxi) is a direct and indirect limit on federal legislative power. Its intersection with the extinguishment and acquisition of native title rights only arises if there is an inconsistent grant or act dependent for its authority on federal legislative power. That is the same for any other kind of exercise of federal legislative power affecting proprietary rights. The NTA apart, the legislative powers of the States are not limited in the same way, but that is simply a consequence of the federal compact. It is not an incongruity.
Further, we do not accept the Commonwealth’s contention that when it exercised sovereign power in the Northern Territory it did so not as a national government in a federal system; rather it was “essentially performing the role of a State (as is illustrated by the fact that, in the case of the Northern Territory, the Commonwealth “stepped into the shoes” of the South Australian government)”. The NT Administration Act was an exercise of power under s 122 of the Constitution. It was subject to s 51(xxxi). There is a clear distinction between the kind of legislative power exercised over the Northern Territory as between the Commonwealth and South Australia.
The government respondents sought to make a distinction between acts of expropriation (such as compulsory acquisition) and acts of appropriation (extinguishing native title to create rights for the Crown), apparently suggesting (as our summary of their arguments above extracts) that expropriation/compulsory acquisition under a federal law could give rise to an entitlement to compensation on just terms, but only as it would for any other property interests holder. In its written reply the Commonwealth contended (at [181]):
the terms “appropriation” and “expropriation” are used by the Commonwealth to demarcate which extinguishing acts engage the inherent susceptibility of native title (appropriations), and which do not (expropriations). They are convenient labels to explain the consequences of the inherent susceptibility doctrine.
Long and complex submissions were made on all sides about this matter, including speculation about what Brennan J meant in Mabo (No 2) at 56 when his Honour said:
We are not concerned here with compensation for expropriation but we are concerned with the survival of private rights and interests in land and their liability to be extinguished by action of the Crown.
The government respondents contend this is a reference to statutory compensation for compulsory acquisition. They contrasted this with one of Brennan J’s central propositions at 68-69 of Mabo (No 2):
Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished to parcels of the waste lands of the Crown that have been validly appropriated for use (whether by dedication, setting aside, reservation or other valid means) and used for roads, railways, post offices and other permanent public works which preclude the continuing concurrent enjoyment of native title. Native title continues where the waste lands of the Crown have not been so appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of native title over the land (e.g., land set aside as a national park).
Ms Kidson explained the Commonwealth position orally in the following way:
It’s all about whether the property has, effectively, been destroyed and, therefore, the Commonwealth is taking a point of form over substance. But the whole reason why we make that distinction – and it’s the distinction which, we say, comes from the judgment of Brennan J – it’s because we say that, when you’re trying to identify whether property, for the purposes of section 51(xxxi), is inherently defeasible, you have to identify what it is inherently defeasible to. You have to identify what is the contingency for the condition or the peril that that property is subject to. So the distinction we have made between what we’ve called appropriation and expropriation is a distinction between what we apprehend to be the exercises of power or the contingency that native title was made subject to as of time of recognition.
And we say there is a significant difference between those two types of powers and a significant difference between the underlying basis for them, that appropriation is the right of the Crown or, rather, is the power of the Crown to create rights – to create rights either for itself or to dispose of them to others. But it’s a power of creation out of something which was not otherwise there. Expropriation is exercising a power to bring known, existing rights to an – I shouldn’t say “known”, existing rights to an end. And when one conceptually thinks of sovereign power – as we say, [emerges] from Mabo, as there being a particular sovereign power embodied in the radical title, then that’s a power of creation. It’s a power of creating rights [out] of the radical title.
The distinction made by the government respondents does appear to involve an acceptance that s 51(xxxi) conditions one kind of sovereign power if exercised over native title rights – compulsory acquisition; but not another kind – the “creation” (to use senior counsel’s term) of (for example) third party rights in Crown land. With respect, accepting s 51(xxxi) is engaged in one kind of exercise of power, but not in another, appears incompatible with the Mutual Pools line of cases which made no such distinction. But perhaps this simply highlights that those cases were not dealing with interests in land, and therefore how difficult it is to conceive of an interference with title in land by a grant relying on federal legislative authority that does not attract s 51(xxxi).
We do not consider this “expropriation/appropriation” distinction is one reflected in the law as it stands.
Conclusion in relation to the inherent defeasibility argument
For these reasons, we reject the Commonwealth’s contention, reflected in separate questions 1(b)(ii) and 2(c), that the relevant grants and acts were not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution because native title is inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land and to appropriate to itself unalienated land. In our view, consistently with the authorities on s 51(xxxi), native title rights and interests are proprietary in nature and constitute “property” for the purposes of s 51(xxxi). Further, a grant or act that extinguishes native title rights and interests is capable of amounting to an acquisition of property within the meaning of s 51(xxxi). To hold otherwise would be contrary to the principles established by the long line of authorities on s 51(xxxi) and inconsistent with the important protection afforded by s 51(xxxi). It would also be inconsistent with the authorities of this Court and the High Court about the nature of native title.
For the same reasons, we reject the Commonwealth’s contention, reflected in separate question 4(b)(ii), that the relevant grants were not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution because native title (if established) was inherently susceptible to a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land.
We therefore reject the Commonwealth’s second constitutional argument.
THE 1939 ORDINANCE
As noted above, the 1939 Ordinance was made under s 21 of the NT Administration Act. The 1939 Ordinance created a consolidated scheme with respect to mining for gold and other minerals in the Northern Territory commencing on 1 August 1940. The 1939 Ordinance repealed the South Australian mining legislation, which had continued to operate pursuant to s 5 of the NT Administration Act, and various amending mining ordinances enacted after the Northern Territory’s surrender to the Commonwealth. The critical provision of the 1939 Ordinance for present purposes is s 107, which has been set out above. For ease of reference we set it out again:
Subject to the provisions of this Ordinance and the regulations, gold, silver and all other minerals and metals on or below the surface of any land in the Territory, whether alienated or not alienated from the Crown, shall be and be deemed to be the property of the Crown:
Provided that this section shall not apply in the case of land granted by the Crown in fee simple, in which case the ownership of gold and minerals shall depend on the terms of any reservation (if any) of gold or other minerals.
(Emphasis added.)
Section 107 is located in Pt VII, which deals with mining on private land. Section 106 sets out certain definitions that apply in Pt VII “unless the contrary intention appears”. Although s 106 includes a definition of “minerals”, comprising a list of specific minerals identified by name, the Commonwealth submits, and the applicant appears to agree (see the SOC at [194(a)], [195(a)], [219]), that a contrary intention does appear in s 107 and that the general definition of “minerals” in s 7 of the 1939 Ordinance applies instead. That definition is in the following terms:
“minerals” means all minerals other than gold, and all precious stones;
The applicant’s pleading in relation to the 1939 Ordinance appears at [190]-[202] of the SOC. In addition to setting out the substance of s 107, the applicant pleads that at the time of the making and coming into effect of the 1939 Ordinance, none of the claim area had been the subject of a grant by the Crown in fee simple. The applicant pleads (at [194]) that the 1939 Ordinance, and in particular s 107, purported to vest in the Commonwealth title to all minerals on or below the surface of the claim area, and did not provide any entitlement to compensation in respect of that vesting. The applicant pleads that, if valid, the making of the 1939 Ordinance, and in particular s 107, would have been inconsistent with the claimants’ native title mineral rights in the claim area, and would have extinguished those rights at common law. The applicant pleads that, in the premises, s 107 of the 1939 Ordinance purported to acquire property on other than just terms, within the meaning of s 51(xxxi) of the Constitution. This forms the foundation for the applicant’s pleading that: but for the operation of the NTA, the making of s 107 of the 1939 Ordinance would have been invalid by reason of the claimants’ native title rights and s 51(xxxi) of the Constitution; the NTA apart, the making of s 107 would have been valid if native title did not exist; the making of s 107 is a “past act” attributable to the Commonwealth for the purposes of the NTA; by operation of s 14 of the NTA, the making of s 107 is valid and taken always to have been valid; by operation of ss 15 and 238 of the NTA, the making of s 107 was effective to vest in the Commonwealth title to all minerals on or under the claim area; and, pursuant to ss 17 and 18 of the NTA, the claimants are entitled to compensation from the Commonwealth in respect of the acquisition of property effected by s 107.
There is no issue in relation to the purported effect of the 1939 Ordinance that requires determination for the purposes of answering the separate questions. The Commonwealth’s position is that, if it is not successful in relation to separate question 1 (which relates to the Mission Lease, discussed above), then the applicant’s claim for compensation based on the 1939 Ordinance should fail for three reasons:
(a)first, because the 1939 Ordinance did not have any effect on any native title mineral rights in the claim area because any such rights had already been extinguished by the reservation of minerals in the four pastoral leases granted between 1886 and 1903 (we have discussed and rejected this contention above);
(b)secondly, the just terms requirement in s 51(xxxi) of the Constitution does not apply to s 107 of the 1939 Ordinance because it is a law made under the NT Administration Act, being a law enacted under s 122 of the Constitution (this is the Wurridjal argument, which we have rejected); and
(c)thirdly, the vesting in the Commonwealth of property in all minerals in the claim area by s 107 of the 1939 Ordinance was not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) of the Constitution because the enactment of s 107 was the exercise of a sovereign power to which native title was inherently susceptible (this is the inherent defeasibility argument, which we have rejected).
It follows that, subject to the Commonwealth’s arguments outlined above, it is common ground between the applicant and the Commonwealth that s 107 of the 1939 Ordinance, if valid, would have extinguished any native title rights in relation to the minerals held by the claimants.
We note that the NLC parties adopt a different position to the applicant in relation to the purported effect of s 107 of the 1939 Ordinance. At [145] of the NLC parties’ submissions, they contend that the legislative measures taken with respect to minerals (including s 107 of the 1939 Ordinance) were not inconsistent with the claimed non-exclusive native title right to access, take and use for any purpose the resources of the claim area, including mineral resources. They submit that there is no distinct claimed native title right to own property in mineral resources, or to control the use and enjoyment of such resources by others, that would be inconsistent with the vesting of property in minerals in the Crown in right of the Commonwealth by s 107 of the 1939 Ordinance. We do not consider it necessary or appropriate to determine this issue in the course of considering the separate questions. In circumstances where there is no issue as between the applicant and the Commonwealth as to the purported effect of s 107 of the 1939 Ordinance, and the separate questions do not raise any issue about this, it is not necessary or appropriate to determine this issue. Rather, as indicated above, we proceed for present purposes on the basis that, if valid, s 107 of the 1939 Ordinance would have extinguished any native title mineral rights. We do not consider this to foreclose the argument raised by the NLC parties being considered at a later stage of the proceeding.
Accordingly, given our conclusion on the pastoral lease reservations issue, separate question 2(a) should be answered “No”. Given our conclusion on the Mission Lease, separate question 2(b) should be answered “No”. Given our conclusions in relation to the Commonwealth’s two constitutional arguments, separate question 2(c) should be answered “No”. The effect of these conclusions is that the applicant’s argument that the 1939 Ordinance was a “past act” within the meaning of s 228(2) of the NTA remains available.
THE 1953 ORDINANCE
As noted above, the 1953 Ordinance was made by the Northern Territory Legislative Council pursuant to s 4U of the NT Administration Act (as amended). The critical provision for present purposes is s 3 of the 1953 Ordinance. Although this has been set out above, we set it out here for ease of reference:
All minerals existing in their natural condition, or in a deposit of waste material obtained from any underground or surface working, on or below the surface of any land in the Territory, not being minerals, which, immediately before the commencement of this Ordinance, were the property of the Crown or of the Commonwealth, are, by force of this Ordinance, acquired by, and vested absolutely in, the Crown in right of the Commonwealth.
Section 4 of the 1953 Ordinance provided that the Commonwealth was liable to pay compensation to a person who had an interest in minerals acquired under s 3, in an amount agreed or determined by the Supreme Court of the Northern Territory, but a person was not entitled to such compensation unless, within six months of the commencement of the 1953 Ordinance, they lodged a written claim with the Administrator specifying (among other things) the nature of their interest in the minerals and the amount of compensation claimed.
The applicant’s pleading in relation to the 1953 Ordinance is at [213]-[231] of the SOC. The applicant pleads that, in light of the pleadings relating to the 1939 Ordinance, all minerals on or below the surface of the claim area were already the property of the Crown in right of the Commonwealth immediately before the commencement of the 1953 Ordinance, and that s 3 of the 1953 Ordinance therefore had no operation with respect to the minerals on or below the surface of the claim area. Then, at [218] of the SOC, the applicant pleads that, if and to the extent that any minerals on or below the surface of the claim area were not the property of the Crown in right of the Commonwealth immediately prior to the commencement of the 1953 Ordinance, then [219]-[231] of the SOC apply. In those paragraphs, the applicant makes similar allegations to those advanced in relation to the 1939 Ordinance. Thus, the applicant’s claim for compensation based on the 1953 Ordinance is in the alternative to his claim based on the 1939 Ordinance.
The Commonwealth contends that the 1953 Ordinance effected no extinguishment of native title, because:
(a)all native title in the claim area had already been extinguished by the Mission Lease; or
(b)any native title mineral rights had been extinguished by the reservations in the pastoral leases; or
(c)any native title mineral rights had been extinguished by s 107 of the 1939 Ordinance.
We have rejected the contentions in (a) and (b) above. In relation to the contention in (c), in light of the conclusions we have reached in relation to the 1939 Ordinance, including in relation to the Commonwealth’s two constitutional arguments, the Commonwealth has not established that any native title mineral rights had been extinguished by s 107 of the 1939 Ordinance. In other words, the argument that the 1939 Ordinance did not validly extinguish the claimants’ native title mineral rights remains open to the applicants. Separate question 3(a) should therefore be answered “No”.
It follows from our conclusion in respect of the Wurridjal argument that separate question 3(b) should be answered “No”.
THE SPECIAL MINERAL LEASES
A brief description of the special mineral leases has been set out above. The applicant’s contentions in relation to the special mineral leases have also been summarised above.
The Commonwealth’s primary position is that the applicant’s claim for compensation based on the special mineral leases should fail because all native title in the claim area was extinguished by the grant of the Mission Lease. We have rejected this argument above. The Commonwealth’s next contention is that these claims should fail because neither of the Ordinances under which the special mineral leases were granted (that is, the 1939 Ordinance and the 1968 Ordinance) were subject to the just terms requirement in s 51(xxxi) of the Constitution. This is the Wurridjal argument, which we have rejected. The Commonwealth’s third contention is that, in any event, native title was inherently susceptible to valid Crown grants of this kind, with the consequence that none of the grants of the special mineral leases were capable of amounting to an acquisition of property within the meaning of s 51(xxxi). This is the inherent defeasibility argument, which we have rejected.
The Commonwealth notes in its outline of submissions that, if the demurrer is not upheld (or, it would follow, if the Commonwealth is unsuccessful in relation to the separate questions), then at an appropriate time, the Commonwealth will also contend that the pleaded effect of the grants of the special mineral leases on the enjoyment or exercise of the non-exclusive native title rights did not amount to an “acquisition of property” within the meaning of those words in s 51(xxxi) of the Constitution. That issue is not before the Court now because the Commonwealth and the applicant were unable to reach agreement on a form of pleading that the Commonwealth considered could support a demurrer on that point.
It follows that separate questions 4(a) and 4(b) should each be answered “No”.
CONCLUSION
It follows from our conclusions that the separate questions are to be answered:
(1)Separate question 1 – No;
(2)Separate question 2:
(a)Separate question 2(a) – No;
(b)Separate question 2(b) – No;
(c)Separate question 2(c) – No.
(3)Separate question 3:
(a)Separate question 3(a) – No;
(b)Separate question 3(b) – No.
(4)Separate question 4:
(a)Separate question 4(a) – No;
(b)Separate question 4(b) – No.
We will also make an order giving the parties the opportunity to file short written submissions on any further orders that they contend should be made by the Full Court. It may be that these matters can be determined on the papers. The parties can indicate in their submissions if they consider it necessary for there to be a further hearing before the Full Court. Depending on the submissions, we may give the parties the opportunity to file responding submissions.
I certify that the preceding four hundred and ninety-nine (499) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Mortimer and Justices Moshinsky and Banks-Smith. Associate:
Dated: 22 May 2023
SCHEDULE OF PARTIES
NTD 43 of 2019 Respondents
Fourth Respondent:
LAYILAYI BURARRWANGA
Fifth Respondent:
MILMINYINA VALERIE DHAMARRANDJI
Sixth Respondent:
LIPAKI JENNY DHAMARRANDJI (NEE BURARRWANGA)
Seventh Respondent:
BADINGA WIRRPANDA (NEE GUMANA)
Eighth Respondent:
GENDA DONALD MALCOLM CAMPBELL
Ninth Respondent:
NAYPIRRI BILLY GUMANA
Tenth Respondent:
MARATJA ALAN DHAMARRANDJI
Twelfth Respondent:
RILMUWMURR ROSINA DHAMARRANDJI
Thirteenth Respondent:
WURAWUY JEROME DHAMARRANDJI
Fourteenth Respondent:
MANYDJARRI WILSON GANAMBARR
Fifteenth Respondent:
WANKAL DJINIYINI GONDARRA
Sixteenth Respondent:
MARRPALAWUY MARIKA (NEE GUMANA)
Eighteenth Respondent:
GUWANBAL JASON GURRUWIWI
Nineteenth Respondent:
GAMBARRAK KEVIN MUNUNGGURR
Twentieth Respondent:
DONGGA MUNUNGGURRITJ
Twenty First Respondent:
GAWURA JOHN WANAMBI
Twenty Second Respondent:
MANGUTU BRUCE WANGURRA
Twenty Third Respondent:
GAYILI BANUNYDJI JULIE MARIKA (NEE YUNUPINGU)
Twenty Fifth Respondent:
BAKAMUMU ALAN MARIKA
Twenty Sixth Respondent:
WANYUBI MARIKA
Twenty Seventh Respondent:
WURRULNGA MANDAKA GILNGGILNGMA MARIKA
Twenty Eighth Respondent:
WITIYANA MATPUPUYNGU MARIKA
Twenty Ninth Respondent:
NORTHERN LAND COUNCIL
Thirtieth Respondent:
SWISS ALUMINIUM AUSTRALIA LIMITED (ACN 008 589 099)
Thirty First Respondent:
TELSTRA CORPORATION LIMITED
(ABN 33 051 775 556)Thirty Second Respondent:
ARNHEM LAND ABORIGINAL LAND TRUST
Thirty Third Respondent:
AMPLITEL PTY LTD
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