29 August 1995
THE NATIVE TITLE ACT CASE
Western Australia v Commonwealth
In Western Australia v Commonwealth1 (the Native
Title Act case), the High Court unanimously
held that the substantive provisions of the Commonwealth Native
Title Act 1993 (the Native Title Act) were
valid. In related proceedings, the Court also unanimously
held that the provisions of the Western Australian Land
(Titles and Traditional Usage) Act 1993 (the Western
Australian Act) challenged by two groups of Western Australian
Aboriginal people and the Commonwealth, were invalid.
Both the Native Title Act and the Western Australian Act
were legislative responses to the earlier High Court decision
in Mabo v Queensland (No. 2) 2 (Mabo
(No. 2)) which recognised for the first time the traditional
native title rights of Australia's indigenous people. In Mabo
v Queensland (No. 1)3 the
Court held that native title holders enjoyed the protection
of the Racial Discrimination Act 1975 (the Racial
Discrimination Act). These decisions meant that native
title had to be accommodated within Australia's land management
systems. The Native Title Act and the Western Australian
Act each took a fundamentally different approach to achieve
This Briefing provides a short summary of the High Court
decision. The earlier decision of the High Court in Mabo
(No. 2) was discussed in Legal Practice Briefing No.
5, which was published on 30 July 1993. The Native Title
Act was discussed in Legal Practice Briefing No.
11, published on 29 April 1994. In particular, that Briefing
sets out how Commonwealth officers who take action in relation
to land or waters can comply with the Act.
Survival of Native Title
in Western Australia
In the Native Title Act case the High Court rejected
an argument that native title to any land within the limits
of Western Australia was extinguished upon the establishment
of the colony of Western Australia. The Court held that
the British Crown did not manifest an intention to assume
absolute beneficial ownership of all land in the colony
and to effect a general extinguishment of any native title
in relation to that land. The Crown's policy of settlement,
which required that land within the colony be surveyed
and made available for sale, could be implemented without
such a general extinguishment of native title.
It was well known that Aboriginal people were in occupation
of areas of land on the west coast of Australia. However,
their rights and interests in relation to the land were
ignored in the course of settlement of the colony (as the
land was regarded as terra nullius). Consequently,
the Court held, native title was extinguished only parcel
by parcel, as interests in land were granted or land was
appropriated for use by the Crown in a manner inconsistent
with the continued right to enjoy native title.
The decision of the Court confirms that the principles
applied in Mabo (No. 2) to the Torres Strait are
equally applicable to mainland Australia. It also indicates
that it will be difficult, if not impossible, to establish
that native title, or particular incidents of native title,
have been generally extinguished throughout a State or
Territory. General legislation enacted prior to Mabo
(No. 2) is unlikely to reveal a 'clear and plain intention'
to extinguish native title. While native title may have
been extinguished over particular parcels of land by inconsistent
grant or appropriation and use, there are still areas of
land where this has not occurred and to which Aboriginal
people or Torres Strait Islanders may have maintained a
The Validity of the Native
In summary, the Native Title Act:
- recognises native title rights and sets down some
basic principles in relation to native title in Australia;
- provides for the validation of past Commonwealth acts
which may be invalid because of the existence of native
title, and enables the States and Territories to do the
- provides for a future regime in which native title
rights are protected and conditions imposed on acts affecting
native title land and waters, and in particular provides
a special 'right to negotiate' for native title holders
and claimants in relation to mining and compulsory acquisition
for third parties; and
- provides a process by which native title rights can
be established and compensation determined, and by which
determinations can be made as to whether future grants
can be made or acts done over native title land and waters.
The core provisions of the Native Title Act were held
to be a valid exercise of the Commonwealth Parliament's
power to make laws with respect to 'the people of any race
for whom it is deemed necessary to make special laws' (Constitution,
s.51(xxvi)). In the Court's view, to be a 'special' law,
the law must have a differential operation on the people
of a particular race, such as by conferring a right or
benefit or imposing an obligation or disadvantage especially
on such people. Beyond this, the Court stated that it was
a matter for the Parliament to decide whether it was necessary
to enact the law.
The Court held that the Native Title Act was within
the 'races power' because it conferred a benefit on Aboriginal
people (or at least that group of Aboriginal people who
hold native title) by providing for the recognition and
protection of native title, and removing its vulnerability
at common law to extinguishment or impairment.
It was not necessary for the Court to consider whether
the Native Title Act was also supported by the external
affairs power (Constitution, s.51(xxix)).
Control of States' Legislative Power
The Native Title Act imposes restrictions on the operation
of State laws which affect native title, or which authorise
acts which affect native title. Western Australia argued
that this amounted to an attempt to control the exercise
by the States of their legislative powers, or to withdraw
legislative power from the States by purporting to directly
provide that State laws were invalid.
The Court rejected Western Australia's argument. It held
that the Commonwealth had legislative power to completely
control the extinguishment or impairment of native title.
It therefore also had power to specify the extent to which,
and the conditions on which, State laws could operate to
extinguish, impair or affect native title (or to authorise
acts which have that effect). In other words, the Commonwealth
had power to exclude the States completely from the field,
and so it could also exclude them partially.
The Court accepted that the Native Title Act does
not directly invalidate State laws. Rather, laws which
are inconsistent with the Native Title Act will
be inoperative to the extent of the inconsistency by force
of s.109 of the Constitution. Thus, a State law may only
extinguish or impair native title if it complies with the
Native Title Act, which defines the area within which State
laws in relation to native title may operate.
Impairment of State Functions
Western Australia also argued that the Native Title Act
infringed implied limitations on Commonwealth legislative
power which protect the continued existence of the States
within the federal system.
The Court held that the Native Title Act did not discriminate
against Western Australia or against the States as a whole.
In order to effectively protect native title, it was necessary
for the Native Title Act to apply to the legislative and
executive branches of the States, which had the power at
common law to extinguish or impair native title. The Court
acknowledged that the Native Title Act may in practice
have a greater effect or impact in Western Australia than
in other parts of the Commonwealth, due to the size of
the State and the fact that a greater proportion of it
may be subject to native title. However, this was a result
of the history and geography of Western Australia, and
the fact that what had previously been regarded as Crown
land might now be subject to native title. It did not indicate
that the Native Title Act discriminated against Western
The Court also held that the Native Title Act did not
impair the capacity of Western Australia to function as
a government. The limitations on Commonwealth legislative
power do not preserve State powers, but rather protect
the machinery of government and the capacity of the organs
of a State government to exercise their powers. In the
administration of its land and resource management laws,
the Western Australian Government was now required to take
account of the existence of native title and to comply
with the Native Title Act and the Racial Discrimination
Act. The Court concluded that, although the Native Title
Act may affect the ease with which a State exercised its
constitutional functions, it did not impair the State's
capacity to exercise those functions.
Section 12 of the Native Title Act provided that the common
law in respect of native title shall have the force of
a law of the Commonwealth. The Court held this section
invalid. The invalidity of s.12 does not affect the validity
of any other provision of the Native Title Act (in particular,
the conferral on the Federal Court of jurisdiction to hear
and determine applications concerning native title).
Section 53 of the Constitution
Section 53 of the Constitution provides that the Senate
may not amend Bills so as to increase any proposed charge
or burden on the people. Western Australia argued that
several amendments made to the Native Title Act in the
course of its passage through the Senate infringed this
provision. The Court affirmed the traditional view that
a law passed by the Parliament could not be invalidated
due to a failure to comply with s.53, which was a procedural
provision governing the internal relationship of the Houses
The Relationship Between the Native
Title Act and the Racial Discrimination Act
Section 7(1) of the Native Title Act provides that nothing
in the Act affects the operation of the Racial Discrimination
Act. Western Australia argued that as a result, the Native
Title Act itself is subject to the Racial Discrimination
Act, and that many of the provisions of the Native Title
Act were inconsistent with that Act and were therefore
inoperative. The Court did not accept the arguments.
Rather, the Court found that the Native Title Act was
not subject to the Racial Discrimination Act. Thus the
general provisions of the Racial Discrimination Act will
yield to the specific provisions of the Native Title Act
in order to allow those provisions a scope for operation.
Prior to the Native Title Act, the Racial Discrimination
Act operated generally to protect native title rights.
Now the Native Title Act protects those rights. The strong
implication is that acts which satisfy the Native Title
Act will generally not be affected by the Racial Discrimination
Invalidity of the Western
The key part of the challenge bought by Western Australian
Aboriginal groups to the validity of the Western Australian
Act related to section 7 of that Act, which purported to
compulsorily extinguish any native title in Western Australia
and substitute statutory 'rights of traditional usage'.
The Court was asked to determine whether this purported
extinguishment of native title was inconsistent with section
10(1) of the Racial Discrimination Act.
The purpose of s.10 of the Racial Discrimination Act is
to provide to persons of all races equality before the
law in their enjoyment of human rights. In this case the
relevant human rights were principally the right to own
property (including the right not to be arbitrarily deprived
of property) and the right to inherit property.4 The
Court considered the nature of the protection afforded
to native title by the Racial Discrimination Act, and concluded
that Aboriginal holders are secure in the possession and
enjoyment of native title to the same extent as the holders
of other forms of title are secure in the possession and
enjoyment of those titles.5
In the Court's view, if the holders of rights of traditional
usage had less security in the enjoyment of their title
than the holders of Crown titles (or less security than
holders of native title protected by the Racial Discrimination
Act), then they would enjoy their right to own property
to a lesser extent than the holders of those other titles.
The Court then examined the protection accorded to rights
of traditional usage under the Western Australian Act.
It concluded that rights of traditional usage under that
Act had much less protection than was accorded to native
title under the Racial Discrimination Act and less protection
than the general law confers on the holders of other forms
of title. The diminution in rights effected by the Western
Australian Act was inconsistent with the Racial Discrimination
Act and therefore by operation of s.109 of the Constitution,
the Western Australian Act has no legal operation.
The Court has established the security of enjoyment of
Crown titles as the benchmark for comparing the security
of enjoyment of native title under the Racial Discrimination
Act. Native title, despite its unique status, must therefore
be treated in the same way as Crown title. This is the
approach adopted by the Native Title Act.
The Court also held that the Western Australian Act was
inconsistent with the Native Title Act.
The High Court has confirmed the Commonwealth's constitutional
power to enact laws with respect to native title. It has
also confirmed the validity of the substantive provisions
of the Native Title Act recognising and protecting native
title, and imposing conditions on acts which may affect
A practical effect of the decision has been to increase
the workload of the Native Title Registrar and the National
Native Title Tribunal (NNTT) as governments, particularly
Western Australia, and others have begun to utilise the
processes established by the Native Title Act.
Applications may be made by persons claiming native title
(claimant applications), by others with an interest in
land (non-claimant applications), or may be for compensation.
Claims are made to the Registrar. If accepted, they are
notified, and the NNTT commences a mediation process in
an attempt to resolve differences between the parties.
Mediation of these claims is a principal function of the
NNTT. It is a complex process involving Commonwealth, State,
and local Governments, multiple industry interests (pastoral,
mining, forestry, fishing, tourism etc) conservation and
heritage issues, and Aboriginal groups other than applicants
who seek to assert a separate traditional association with
the land or waters subject to the application.
If mediation is unsuccessful, the claim is referred to
the Federal Court for determination.
The NNTT is also the 'arbitral body' for determining whether
acts attracting the 'right to negotiate' can proceed and,
if so, on what conditions. This function is activated by
a party to negotiations making a future act determination
application in circumstances where agreement has not been
reached. A related NNTT function is determining objections
to the application of expedited procedures to acts which
would otherwise attract the right to negotiate.
As at 28 July 1995 the NNTT had received 93 applications
for determination of native title nationally. It has accepted
37, and is considering for acceptance a further 45 claims.
Four claims have been referred to the Federal Court because
mediation has been unsuccessful, 5 have been rejected,
and 2 withdrawn. In addition there are 63 applications
nationally from non-claimants seeking to know the native
title status of land in which they have an interest.
The Court held that the Native Title Act validation
scheme must be followed by the States and Territories if
they are to remove doubts about the validity of acts done
prior to the commencement of the Native Title Act. It
also confirmed that there may have been such invalidity
arising from the Racial Discrimination Act. All States
and Territories, including Western Australia, have now
passed validating legislation in accordance with the Native
The High Court decision casts doubt on the validity of
some grants of interests over native title land made between
December 1993 and March 1995 in accordance with the Western
Australian Act. However, the decision does not itself invalidate
any grants. The validity of particular grants made in accordance
with the Western Australian Act will have to be determined
by further litigation in that State.
Commonwealth acts affecting native title land and waters
will be valid when done in accordance with the Native Title
Act. Acts affecting native title land which are not subject
to the Native Title Act (such as land held under grants
made under the Aboriginal Land Rights (Northern Territory)
Act 1976) 6will
probably have to be consistent with the Racial Discrimination
Act. Therefore Commonwealth officers, when taking decisions
or actions which affect land or waters, need to take care
that they consider any native title implications and comply
with the restrictions and processes of the Native Title
Act. These are more fully set out in Legal Practice
Briefing No. 11.
ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)
The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
the Legal Practice before any action or decision is taken
on the basis of any of the material in this briefing.