Native title "revived": provisions of the Native Title Act that provide for prior extinguishment to be disregarded.
Michael Ryan, CSO Senior Solicitor
Extinguishment of native title
It is a feature of native title that it is vulnerable to extinguishment by legislative and executive acts of State or Commonwealth governments. This has been clear from the outset of native title's recognition by Australian law. The primary means by which native title can be extinguished at common law was first identified in the Mabo decision, particularly in relation to grants of exclusive possession. This was later confirmed by the High Court in the Fejo decision (Fejo v Northern Territory of Australia  HCA 58). The permanent nature of extinguishment was also accepted by the High Court in Fejo. In that case the Court rejected the possibility that native title might revive in the event of a fee simple estate coming to an end.
Extinguishment at common law
The test for extinguishment of native title turns on whether certain native title rights are inconsistent with the actions of government in relation to land, including the creation of rights in third parties. The High Court's decision earlier this year in the case of Western Australia v Brown  HCA 8 clarified how this question of inconsistency is to be approached.
This case referred to a native claim brought by the Ngarla People in the Pilbara region of Western Australia some 1800km north of Perth. The Ngarla People's native title was recognised by consent determination in 2007. However, the Mount Goldsworthy area which was subject to mining leases held by BHP, was litigated separately. BHP and the State of Western Australia argued that the grant of BHP's mining leases wholly extinguished native title.
In 1964, Western Australia made an agreement with joint venturers about the development and exploitation of iron ore deposits at Mount Goldsworthy. Pursuant to the agreement, the State granted mining leases for iron ore joint venturers. The agreement required the joint venturers to allow the State and third parties access over the land, the subject of the mineral leases, provided that such access did not unduly prejudice or interfere with the joint venturers' operations.
In accordance with the agreement the joint venturers developed the Mount Goldsworthy Iron Ore Project: a mine, a town, and associated works were constructed and subsequently closed in 1982 and the town closed in 1992. The High Court held that the grant of the mineral lease did not extinguish the claimed native title rights and interests. Although the joint venturers could prevent others from using the land for mining purposes and could use any part of the land for extracting iron ore, the venturers did not have an unqualified right to exclude any and every one from access to the land.
The Court held that the joint venturers' rights under the mining leases were not inconsistent with the claim of native title rights and interests over the land:
"inconsistency is that state of affairs where 'the existence of one right necessarily implies the non-existence of the other'. And one right necessarily implies the non-existence of the other when there is logical antinomy between them." 
The enactment of the Native Title Act 1993 poses certain limitations upon the sovereign power to extinguish, in particular, by virtue of the operation of s. 109 of the Constitution, the States are precluded from extinguishing native title inconsistently with the Native Title Act. Importantly however, once extinguished the extinguishment of native title can be disregarded where the conditions set out in ss. 47, 47A or 47B of the Native Title Act are met. In essence these three provisions provide that the non-extinguishment principle applies where an application for a determination of native title is made under the Act and the land in question satisfies one of the following criteria:
- it is either subject to a pastoral lease held by the native title claimants themselves or
- it is subject to leases or freehold title held for the benefit of indigenous people or
- it is vacant crown land which is occupied by members of the claimant group.
Section 47 has been in place since the Act was first passed and allows any prior extinguishment of native title on a pastoral lease held by the native title claimants to be disregarded in the context of a native title determination application.
Sections 47A and 47B
Sections 47A and 47B were introduced by the 1998 amendments to the Native Title Act. Section 47A was recently considered by Justice Mansfield of the Federal Court in Adnyamathanha People's Native Title Claim No 3. The decision related to perpetual leases that had been granted in the 19th century extinguishing native title which were later acquired by the Indigenous Land Corporation in 2000 and then transferred to an Aboriginal Corporation shortly thereafter. The Native Title Determination Application was filed in 2010. Justice Mansfield found that although the perpetual leases themselves had not initially been granted under land rights legislation that subsequently because the perpetual leases vested in the Indigenous Land Corporation and then a further Aboriginal corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006, the requirements of s. 47A were satisfied. In NSW s. 47A may apply where land held by a Local Aboriginal Land Council is held for the benefit of Aboriginal people, and members of the claim group occupy the area.
Section 47B is a statutory mechanism to allow native title claimants who are in occupation of vacant crown land to overcome the effective past extinguishment and have their claim determined by the Court.
Vacant land is:
- Unalienated crown land
- not reserved or dedicated for public purposes or for a particular purpose.
In NSW the number of areas where s. 47B is likely to have application is quite limited. However there will be significant application in other areas of Australia, such as Western Australia.
Both ss. 47A and 47B require the native title claimant group to occupy the land in question but according to case law the test for occupation in this context does not require permanent residence on the land:—the land might be occupied even if people are only occasionally visiting the land. Whether an area is occupied according to the terms of ss. 47A and 47B will depend on the context of each individual claim.
Proposals for reform
At present the Native Title Act does not allow prior extinguishment of native title to be disregarded except in particular circumstances:
- pastoral leases held by native title claimants
- land held or reserved for the benefit of Aboriginal people or
- vacant Crown land
A proposed s. 47C to extend circumstances in which extinguishment can be disregarded has been mooted. There were two bills presented in the last federal parliament: one by the Greens whereby the parties could agree to disregard extinguishment anywhere. The Labor party introduced a bill for a more limited expansion: only related to the national parks estate. Unlike ss. 47, 47A and 47B where there is a trigger that immediately disregards prior extinguishment if the criteria are satisfied, the proposed s. 47C would only have applied to national park estate and only by agreement. In any case both bills lapsed.
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