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Native Title Report 2002: Table of Tenures/Interests and their Affect on Native Title

Annexure
2: Table of Tenures and Interests and their Affect on Native Title

It is important to
note that most tenures and interests continue to affect native title even
after they have ceased. So, for instance, an area of land may currently
be unallocated crown land, but all previous tenures/interests in that
land will have permanently affected, and possibly extinguished, native
title rights (unless the land comes within the few exceptions under the
Native Title Act 1993 (Cwlth) (‘NTA’) – sections
47, 47A & 47B). The following table summarises tenures examined in
Miriuwung Gajerrong [1] and Wilson v Anderson.
[2]

Abbreviations:

Land Act – Land
Act 1933 (WA)

NTA – Native Title Act 1993 (Cth)

PEPA – Previous Exclusive Possession Act (s23B, NTA)

RIWIA – Rights in Water and Irrigation Act 1914 (WA)

RDA – Racial Discrimination Act 1975 (Cth)

State Validation Act – Titles (Validation) and Native Title (Effect
of Past Acts) Act 1995 (WA)

TENURE
OR INTEREST

EXTENT
OF EXTINGUISHMENT

BASIS
FOR EXTINGUISHMENT
Western
Australia

Pastoral Lease

Partial extinguishment
– loss of right to control access to land, [3]
right to control use of land also extinguished, [4]
right to burn off the land probably extinguished [5]
, and other rights may be extinguished (further findings required
by Federal Court). [6] Where native title rights
are not inconsistent with rights under pastoral lease, the pastoral
lease rights prevail over, but do not extinguish, the native title
rights. [7]

Common law
(inconsistency of incidents test). [8] Land
Act 1898 (WA); Land Act s106; State Validation Act
s12M.
Reserves
Crown’s
designation of land as a reserve for a public purpose, before 1975
(RDA)		 Partial
extinguishment – loss of right to make decisions about the use
of land, [9] right to control access to land also
extinguished, [10] but not necessarily extinguishing
of any other native title rights. [11]		 Common
law (inconsistency of incidents test). [12]

Land Regs 1882 (WA) rr29-34, Land Act 1898 (WA) ss39-46;
Land Act ss29-37; Permanent Reserves Act 1899 (WA).
Crown’s
creation of a reserve for ‘conservation of indigenous flora &
fauna’ under Land Act s29, before 1975 (RDA)		 Partial
extinguishment – loss of right to hunt or gather over land in
reserve, [13] loss of right to make decisions about
the use of land, [14] right to control access to
land also extinguished, [15] but not necessarily
extinguishing of any other native title rights. [16] 		common
law (inconsistency of incidents test). [17]

Land Act s29.
Where
reserve designated/created after 1975 (RDA) but before 1 Jan 1994
[18]		 Non-extinguishment
– the rights created by the reserve prevail over, but do not
extinguish, inconsistent native title rights which have full effect
when the reserve ceases. [19]		 RDA,
s10.

NTA Div 2 Part 2, ss19 (category D past act) & 238

State Validation Act s5.
Construction
or establishment of ‘public work’ on reserve commenced before
Dec 1996		 Complete
extinguishment – of native title in relation to the land/waters
on which the public work situated at completion. [20] 		NTA
s23B(7).

State Validation Act s12.
Vesting
of reserve under Land Act s33, before DEC 1996 [21]		 Complete
extinguishment. [22]

Vesting after 1975 (RDA) still results in complete extinguishment
but possible right to compensation may remain. [23]		 Common
law (vesting of fee simple extinguishes all native title). [24]
Land Act s33; State Validation Act s12I. NTA ss23B(2)(c),
23B(3) (vesting is a PEPA) RDA not invalidate vesting. [25]
Vesting
for the purposes of preserving the natural environment: NTA s23B(9A)		 Complete
extinguishment. [26]		 Common
law (vesting of fee simple extinguishes all native title). [27]
Land Act s33; State Validation Act s12I. NTA s23B(9A)
(protection from extinguishment by conservation reserves is annulled
common law prior extinguishment). [28]
Vesting
of reserve under Land Act in crown body (‘crown to crown
grant’)		 Complete
extinguishment. [29]		 Common
law (vesting of fee simple extinguishes all native title). NTA s23B(9C)(a)
(protection from extinguishment by ‘crown to crown grants’
is annulled by common law prior extinguishment). [30]
Lease
of Reserves under

Land Act s32

Leases of reserve
for ‘public utility’ or ‘tropical agriculture’

Depending on
the rights created in the lease, complete extinguishment:

– where the lease gave party rights equivalent to lessee of
land at general law, that extinguished native title [31]


– where the lease qualifies as a PEPA under the NTA that extinguished
native title. [32]

Land Act
s32.

RDA applies (but not PEPA because not ‘relevant interest’
under State Validation Act); NTA ss19 & 23B(2), Div 2
of Pt 2 State Validation Act s12I
Commercial
leases in form of 21st schedule to Land Act		 Complete
extinguishment. [33]		 Common
law (terms of lease have lessee exclusive possession and thereby extinguished
native title)

Post RDA; category A past act.
Resumptions
Resumption
of land under Land Act s109		 No
extinguishment.		 Common
law (resumption does not give Crown any greater title than radical
title imposed by British sovereignty) [34]

Land Act s109.

Resumption
of land and then vesting under Public Works Act 1902 (WA)

Complete extinguishment
of all native title. [35] Vesting after 1975
(RDA) still results in complete extinguishment [36]
but possible right of compensation remains. [37]

Common law.

Public Works Act 1902 (WA) ss18 & 34(2). Vesting not
invalid under RDA because other interests equally effected but RDA
operate to extend compensation (RDA s10; NTA ss23B, 23E, PEPA)

State Validation Act s12I. [38]
Rights
in Water and Irrigation

Act 1914 (WA) ('RIWIA')
Vesting
of control of waters in Crown, RIWIA s4		 Partial
extinguishment – loss of right of exclusive possession over waters.
[39]

 Common
law (inconsistency of incidents test).
By-laws
before 1975 (RDA) under Part IV prohibiting removal of flora and fauna		 Partial
extinguishment – loss of right to hunt fauna or gather flora.
[40]		 Common
law (inconsistency of incidents test).
By
laws after RDA		 Non-extinguishment
principle – where by-laws inconsistent with right to hunt fauna
or gather flora those rights suspended while by laws are current.
[41] 		By
laws validated by NTA s19 and State Validation Act ss5&9

NTA s238 (native title rights protected from extinguishment by non-extinguishment
principle).

Land reserved
for requirements connected with ‘works’ as defined under
RIWIA s2

Complete extinguishment.
[42]

RIWIA s3(2)
all land dedicated for purposes of RIWIA shall vest in Minister.
Mining
Mining
Act 1904 (WA) Petroleum Act 1936 (WA)		 Court
did not decide [43] but indicated partial extinguishment
– loss of native title right to any minerals or petroleum as
defined under those statutes. [44] 		Common
law

Mining Act 1904 (WA) s117; Petroleum Act 1936 (WA) s9;
Western Australia Constitution Act 1890 (Imp) s3; property
in minerals and petroleum vested in Crown which extinguished native
title.
Mining
Lease		 Partial
extinguishment – loss of right to control use of or access to
land, [45] and other rights may be extinguished
(need further identification of native title rights to determine extent
of extinguishment). [46]		 Common
law (mining lease grant right of exclusive possession for mining purposes).

NTA, not category C act because no invalidity by RDA.
General
Purpose Lease		 Partial
extinguishment – loss of right to control use of or access to
land, and other rights may be extinguished (need further identification
of native title rights to determine extent of extinguishment). [47]		  
Argyle
Mining Lease		 Undetermined
– not necessarily inconsistent (and therefore extinguishing of)
all native title interests, [48] mining lease does
extinguish right to control use of and access to land, and other rights
may be extinguished (need further identification of native title rights
to determine extent of extinguishment). [49]		 Diamond
(Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA).

Prior extinguishment over area because of vesting of a reserve. [50]

Designated
Area’ under Governor’s orders for control of access in
diamond mining, Argyle Mining Lease, Diamond (Argyle Diamond
Mines Joint Venture) Agreement Act 1981 (WA) ss15&17

Complete extinguishment
[51]

Diamond
(Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA),
ss15&17.
Land
Act
Permit
to occupy under Land Act 1898 (WA) s16		 Complete
extinguishment [52]		 Common
law (permit holder gained right to exclusive possession of land in
perpetuity).

Land Act 1898 (WA) s16.
Special
Lease under Land Act ss 62 & 116		 Complete
extinguishment [53]		 Common
law. Land Act s116 (granted lessee right of exclusive possession.
[54]

NTA s23B(2)(c)(iv) NTA (special lease for grazing amount to exclusive
pastoral lease under NTA).

Conditional
purchase lease under Land Act 1898 (WA) s62

 

Undetermined
– Full Federal Court found complete extinguishment on basis
that the conditional lease was expected to pass into fee simple.
The High Court disagreed [55] but ruled that
native title on the particular land had been resolved because of
a later tenure and so didn’t consider the effect of conditional
purchase lease. [56]

  

Public right
of fishing

 Partial
extinguishment – loss of exclusive right to fish or control access
to waters.		 Inconsistent
with public right to fish.
Northern
Territory
Pastoral
leases		 Partial
extinguishment – loss of right to control access and to make
decisions about the land, [57] other rights may
be extinguished (further findings required by Federal Court) [58] 		Common
law (inconsistency of incidents test). [59]

Non-excl pastoral lease a previous non-exclusive possession act; Div
2B NTA. [60]

Keep River
National Park

 Non-extinguishment
[61] – the rights created by the national
park prevail over, but do not extinguish, inconsistent native title
rights which have full effect when the park ceases		 Granted
after 1975; Category D past act; Not category B because Crown to Crown
grant within s230(d)(i) NTA; special purpose lease and crown lease
perpetual would otherwise extinguish native title completely.
New
South Wales

Perpetual grazing
lease under Western Lands Act 1901 (NSW)

Complete extinguishment.
[62]

Exclusive possession
pastoral lease; NTA Div 2B.


1
Western Australia v Ward & o’rs [2002] HCA 28 (8 August
2002) (‘Miriuwung Gajerrong’).

2
Wilson v Anderson and or’s [2002] 29 (8 August 2002).

3
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [192], [219].

4
ibid., at [468(10)].

5
ibid., at [194].

6
ibid., at [195].

7
ibid., at [193].

8
ibid., at [78] & [82].

9
ibid., at [219].

10
ibid., at [468(12)].

11
ibid., at [220]-[221].

12
ibid., at [78] & [82].

13
ibid., at [246].

14
ibid., at [248].

15
ibid., at [468(12)].

16
ibid., at [220]-[221].

17
ibid., at [78] & [82].

18
ibid., at [222].

19
ibid. at [222] & [247]-[248].

20
ibid., at [223].

21
ibid., at [256].

22
ibid., at [249], [256].

23
ibid., at [253].

24
ibid., at [256].

25
ibid., at [253]-[254].

26
ibid., at [248], [256] & [258].

27
ibid., at [258].

28
ibid., at [258].

29
ibid., at [261].

30
ibid., at [260]-[261].

31
ibid., at [369].

32
ibid., at [372].

33
ibid., at [374].

34
ibid., at [208].

35
ibid., at [204].

36
ibid., at [278].

37
ibid., at [278]-[279].

38
ibid., at [279]-[280].

39
ibid., at [263].

40
ibid., at [265].

41
ibid.

42
ibid., at [273] & [468(15)].

43
ibid., at [382] & [468(22)].

44
ibid., at [377],[384] & [385], but no final decision on this point
because native title rights not established.

45
ibid., at [308]-[309], [468(17)].

46
ibid., at [296].

47
ibid., at [340], [468(18)].

48
ibid., at [333].

49
ibid., at [308]-[309], [328] & [468(18)].

50
ibid., at [324].

51
ibid., at [328].

52
ibid., at [349].

53
ibid., at [357].

54
ibid., at [357].

55
ibid., at [346].

56
ibid., at [350].

57
ibid., at [417] & [468(24)].

58
ibid., at [425].

59
ibid., at [422].

60
ibid., at [417].

61
ibid., at [448].

62
Wilson v Anderson, op.cit., per Gaudron, Gummow & Hayne JJ
at [119].

19
March 2003.