Native title and proposals to do things in relation to land or waters by Sonia Brownhill © August 2012 Could that be a “future act”?

Client: We’re thinking of … building a: school power station boat ramp etc granting a: freehold title to ABC Pty Ltd Crown lease to XYZ Pty Ltd for [purpose] passing a law about doing things on or in relation to land or waters

Thought we’d better ask our lawyers if we can… Typical lawyers’ answers: More information please… That depends… Ummm… No longer! After today you will definitively say: The first thing that we need to consider is whether there are any native title implications.

The Native Title Act 1993 (Cth) Section 3: Main objects: (b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings Section 4(3): One of 2 kinds of acts affecting native title “future acts”: mainly acts done after this Act’s commencement that either validly affect native title or are invalid because of native title Section 4(4): As regards future acts, NTA deals with: (a) their validity; (b) their effect on native title; and (c) compensation for them

Part 2, Division 3: “The future act regime” 14 Subdivisions covering different “future acts” Section 24AA(2): To the extent that a future act affects native title, it will be valid if covered by one of the Subdivisions, and invalid if not.

What is an “invalid” future act? Invalid freehold grant? Invalid lease? Invalid law? Invalid school? Invalid power station? Invalid to the extent it affects native title Native title holders could (potentially) assert & enforce, via injunctive relief if necessary: [grant] native title rights to do things on the land (hunt, forage, live) inconsistent with the rights of the grantee => grantee sues NTG [build] native title rights to prevent construction and/or use of the school or power station [law] native title rights to do things on the land contrary to the law which was intended to bind everyone DON’T GO THERE!!!

Subdivisions in future act regime 3 relate to Indigenous Land Use Agreements (“ILUAs”) Native title holders agree the future act can be done When the agreement is registered, the future act can be validly done Other 11 relate to different types of acts and/or different types of affected land or waters BUT, s24AA(1): acts that do not affect native title are not “future acts” and the future act regime does not deal with them

The operative provisions of the future act regime say: This section applies to a future act if… If this section applies to a future act: the act is valid the act extinguishes native title OR the non-extinguishment principle applies native title holders are entitled to compensation for the act’s effect on their native title certain procedural steps have to be taken before the act can be done (eg notice, opportunity to be heard, right to negotiate, etc)

Do we have a “future act” Section 233: An act is a future act in relation to land or waters if: it consists of the making, amendment or repeal of legislation; or it is any other act; and it is not a “past act” (ie things done in future b/c of entitlement to do them created pre ); and either: it validly affects native title to any extent; or it is to any extent invalid; and it would be valid to that extent if native title did not exist; and if it were valid to that extent, it would affect the native title SAY, WHAT???

Critical elements of a “future act” 1. An “act” 2. Which “affects” native title 3. Which would be invalid to any extent because of the existence of native title

1. An “act”: defined in s226 Includes: Making, amendment or repeal of legislation Grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument Creation, variation, extension, renewal or extinguishment of any: interest in relation to land or waters “interest” is very broadly defined: s253 legal or equitable right, whether under legislation, a contract, a trust or otherwise Exercise of any executive power of the Crown in any of its capacities, whether or not under legislation An act having any effect at common law or in equity

Do we have an “act”? Passing a law? Clearly Granting a freehold estate or a lease? Clearly Building a school or power station? Yep: Exercise of executive power of the Crown Creation of a legal right under contract – eg with builder

2. Which affects native title 1. Is there (or might there be) native title? NNTT Register of Determinations: If is a determination of native title – definitely native title If is not a determination of native title – doesn’t mean no native title NNTT Register of claims: Claim or not is not determinative Claim is a reasonable indicator of risk Darwin region no native title because of “substantial interruption”: Risk v Northern Territory [2006] FCA 404 and Quall v NTA [2009], [2011], [2012] Elsewhere in NT Previously wholly extinguished? Eg by freehold grant or public work. If yes = no native title left to affect If not, good chance that some native title rights & interests subsist

2. Which affects native title, contd… 2. Does (or might) the act “affect” native title? Section 227: An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. 2 things: the native title rights and interests and their enjoyment and exercise what will be done, as of right, on the land under the act Can they both be done unimpeded by the other, or will there be a collision between the two or an impairment by one upon the other?

2. Which affects native title, contd… Build a power station? Native title right of exclusive possession Native title right to live or camp on the land Native title right to hunt or forage Native title right to protect a sacred site Native title right of access Build a school? Native title right of exclusive possession Native title right to live or camp on the land Native title right to hunt, forage, have a ceremony, to access

2. Which affects native title, contd… Grant a freehold estate to ABC Pty Ltd What does grantee get? Real Property 101… Exclusive possession! High Court in Fejo v Northern Territory (1998) 195 CLR 96 at [43]: …the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which make up native title. An estate in fee simple is, for almost all practical purposes, the equivalent of full ownership of the land and confers the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination. It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title. Affect native title? Of course!

2. Which affects native title, contd… Grant of a Crown lease Exclusive possession? Hmmmm… Pastoral lease? Wik Peoples v Queensland (1996) 187 CLR 1: HC held that a grant pursuant to Qld statute of a Crown lease for pastoral purposes did not confer a right of exclusive possession, and was not otherwise necessarily inconsistent with native title rights Western Australia v Ward (2002) 213 CLR 1: HC held that a grant pursuant to NT statute of a Crown lease for pastoral purposes: is inconsistent with exclusive native title rights – the right to decide who may come onto the land or make use of it is not inconsistent with non-exclusive native title rights – to access, hunt, forage, conduct ceremonies Perpetual lease? Lease in perpetuity: Wilson v Anderson (2002) 213 CLR 401: HC held that a grant pursuant to NSW statute of a Crown lease for grazing purposes did confer a right of exclusive possession, and was necessarily inconsistent with native title rights – based on history and view that lease was “in substance” a freehold Ward trumps Wilson in NT => PPLs are not inconsistent with non-exclusive native title rights

2. Which affects native title, contd… Crown lease term for [X] purposes? Exclusive possession? Purpose: build public housing, operate a gas plant Purpose: manage a national park Territory Parks and Wildlife Conservation Act s122 says nothing in this Act limits right of Aboriginals who have traditionally used an area of land/water from continuing to do so for hunting, food gathering (other than for purposes of sale) and ceremonial and religious purposes NT Parks and Wildlife Commission manages parks, builds toilet blocks and ranger stations, etc Exclusive native title – inconsistent Non-exclusive native title – tricky; best to assume inconsistency [get some specialist advice]

2. Which affects native title, contd… Passing a law? Any native title to land is extinguished and instead holders have a statutory “traditional usage right” which consists of A, B and C: Western Australia v Commonwealth (“the Native Title Act Case”) ( ) 183 CLR 373 Obviously a law which affects native title No hunting on Crown land without a permit Possession of more than 5 snapper is an offence Could affect native title. But, s211, NTA: If a law says people can’t do classes of activity like hunting, fishing, gathering, cultural or spiritual without a licence/permit, native title holders are not prevented from doing such things without the licence/permit if doing for their personal, domestic or non-commercial communal needs and in exercise or enjoyment of native title rights Drink driving is prohibited What native title right would be affected? None All motorised boats have to be registered What native title right would be affected? Right to fish? Or hunt? S211 Not an act “in relation to land or waters”

3. Invalid to any extent because of the existence of native title In absence of statute to the contrary, the Crown can extinguish native title rights and interests Commonwealth statute: Racial Discrimination Act 1975 Section 10(1): If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. The “right” that is to be enjoyed by all persons equally is the right to security in the ownership or enjoyment of property, ie freedom from arbitrary deprivation of the property States and Territories cannot validly make laws which are inconsistent with (States) or repugnant to (Territories) the Racial Discrimination Act

3. Invalid to any extent because of the existence of native title, contd… Section 10(1) has 2 kinds of operation: 1. If the State/Territory law permits the extinguishment of land titles, but only provides a right of compensation to non- native title holders, s10(1) of the RDA will give the right to compensation equally to native title holders and there is no invalidity 2. If the State/Territory law extinguishes only native title and leaves other titles alone, s10(1) operates to “remove the discriminatory burden” by invalidating the State/Territory law Grants: “law invalid” not for all time and all things; just as it permits the extinguishing thing to happen

3. Invalid to any extent because of the existence of native title, contd… Where the thing to be done will be on Crown land, you have the second scenario because the only rights to be affected will be native title rights, not all property rights equally => invalidity In theory: where the thing to be done will be on land in which there are non-native title rights, native title holders will be entitled to whatever rights non-native title holders have => no invalidity But this almost NEVER happens – generally, the Crown does not do things on land owned by others Rare exceptions: eg, grant of mineral titles – but there is a specific regime for them under the Mineral Titles Act In absence of specialist advice, assume act will be invalid to an extent b/c of existence of native title

Could that be a “future act”? 1. Is it an “act”? invariably “yes” 2. Which “affects” native title? consider the native title rights and interests and how they are exercised and enjoyed consider what will be done, as of right, on the land under the act can they both be done unimpeded by the other, or will there be a collision between the two or an impairment by one upon the other? 3. Which would be invalid to any extent because of the existence of native title? invariably “yes”

The End Copies of slides available to take if you wish