...Extinguishment of native title and compensation...
The six majority judgments (Dawson J being the exception) agree that the acquisition of sovereignty delivers to the Crown the radical or underlying title to all land within the new colony. Such acquisition endows the Crown with the potential to, but does not itself automatically, extinguish any pre-existing native title. This approach is referred to by Toohey J. as the 'doctrine of continuity.' [172 CLR 1 at 183].
Native title is most commonly extinguished by the Crown either enacting legislation disclosing a clear and plain intention to extinguish native title or by granting interests in land which are inconsistent with the on-going exercise of native title, whereby native title is extinguished to the extent of the inconsistency. Thus, along with radical title comes the power to both:
'create and extinguish private rights and interests in land within the Sovereign's territory ...However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or the Executive. This requirement ... flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land...' Mabo v Queensland (1992) 175 CLR 1 per Brennan J at 63-64.
All the majority judgments agree that native title will only be extinguished if the legislature or executive show a clear and plain intent to do so.
It is only upon the extinguishment of any pre-existing native title that the Crown becomes the absolute owner of the land. Accordingly:
'Aboriginal rights and interests were not stripped away by the operation of the common law on first settlement by the British colonists, but by the exercise of a sovereign authority over land exercised recurrently by Governments. ... Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation.' Mabo v Queensland (1992) 175 CLR 1 per Brennan J. at 68-69.
This much is common ground amongst the six majority judgments. However, some significant differences exist between the judgments of Mason CJ, McHugh and Brennan JJ and those of Justices Deane, Gaudron and Toohey, primarily relating to whether extinguishment of native title gives rise to a right to compensation among native holders.
The approach of Justices Deane and Gaudron and Toohey.
In their joint judgment, Justices Deane and Gaudron hold that 'wrongful extinguishment' will found a right for compensatory damages. [175 CLR 1 at 119]. Unfortunately, the judgments do not set out clear criteria which can be used to distinguish legitimate from wrongful extinguishment. As Burton Phillips states, '[a]n area of uncertainty which would have benefited from a more detailed analysis by the High Court is the circumstances in which extinguishment of native title may be lawful and those in which it is wrongful.' ['Reconstructing the Rules for the Land Rights Contest' in 'Essays on the Mabo Decision' at p.13].
Implicit in the judgment is a distinction between extinguishment as a result of legislation which reveals a clear intention to extinguish native title and extinguishment as a result of the Crown granting an interest in land that is inconsistent with native title. There is no suggestion that the former amounts to wrongful extinguishment. Justices Deane and Gaudron appear to limit wrongful extinguishment to the situation where there has been a grant of an interest inconsistent with the native title without clear legislative authorization. Deane and Gaudron JJ state that, despite being 'wrongful', such grant will nevertheless be effective to diminish or extinguish native title. The Crown would then be liable for compensatory damages. [175 CLR 1 at 111].
Justice Toohey agrees that legislation evincing an intention to extinguish native title is effective to do so, as is an executive act where the legislation is clear that executive power encompasses extinguishment [175 CLR 1 at 195-196]. However, his judgment does not spell out whether executive acts without such legislative authorisation are effective and wrongful (as per Deane and Gaudron JJ) or simply of no effect. As regards legislative extinguishment, Justice Toohey suggests that the right to compensation is to be assumed unless the legislation rebuts that presumption in unequivocal terms [175 CLR 1 at 195]. Whilst the reasoning is elliptical, Toohey J conclusion is forthright:
'The traditional title of the Meriam people to the land in the Islands has not been extinguished by subsequent legislation or executive act and may not be extinguished without the payment of compensation or damages to the traditional titleholders of the Islands.' [175 CLR 1 at 216].
The approach of Mason CJ, McHugh and Brennan JJ.
Justice Brennan, with whom Mason CJ and McHugh agree, holds that there are two ways in which native title can be extinguished. Firstly, through a group's loss of connection with land by its members ceasing to observe their indigenous laws and customs. Secondly, by the Crown either enacting legislation disclosing a clear and plain intention to extinguish native title or by granting interests in land which are inconsistent with the on-going exercise of native title, whereby native title is extinguished to the extent of the inconsistency. Thus, along with radical title comes the power to both:
'create and extinguish private rights and interests in land within the Sovereign's territory ...However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or the Executive. This requirement ... flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land...' Mabo v Queensland (1992) 175 CLR 1 per Brennan J. at 63-64.
Justice Brennan does not explicitly consider the question of compensation for extinguishment. However, implicit in his judgment is the view that native title may be extinguished without the consent of native title holders and without the payment of compensation. It is presumably this absence of direct comment regarding the issue of compensation which prompted the following comment from Chief Justice Mason and Justice McHugh:
'neither of us nor Brennan J agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages.' [175 CLR 1 at 15].
The judgment of Dawson J
The majority had rejected Queensland's argument that annexation delivered to the Crown a proprietary interest in all land in the Murray Islands which precluded the existence of native title. They had likewise rejected the associated argument that any pre-existing native title rights can only continue if recognised by the Crown.
In stark contrast with the other six members of the Court, Dawson J holds that the acquisition of sovereignty extinguishes all pre-existing rights: 'if native interests in land are not recognised at all by the new sovereign, they will be extinguished at the time sovereignty is assumed.' [175 CLR 1 at 127] . Justice Dawson surveys the history of land 'settlement'. While accepting that '[t]here may not be a great deal to be proud of in this history of events' [175 CLR 1 at 145], it is nevertheless apparent to him that there is 'no basis ... for saying that native rights in the land were recognised or accepted.' [175 CLR 1 at 144]. Accordingly, Justice Dawson formed the view that all and any native title which may have existed at the time of settlement was extinguished by the acquisition of sovereignty. The only rights which revive are those which are recognised by the Crown. [see 175 CLR 1 at 129]. No such recognition occurred in the Murray Islands, or in any other part of Australia.
According to Dawson J native title is a misnomer. There is no 'title' but rather a mere permissive occupancy. The Crown may at any time withdraw its permission for such occupancy to continue. The Crown's intention to do so must be plain, but specific legislation is not required and nor is compensation. [see Dawson J, 175 CLR 1 at 138 and 159].
Summary.
The Court thus divided 4:3, with the majority ruling that the extinguishment of native title does not give rise to a right of compensation. The minority judgments are less than satisfactory in setting out the circumstances in which extinguishment is wrongful and thus compensable. Toohey J appears to be alone in holding that legislative extinguishment of native title is compensable unless the legislation excludes such compensation in unequivocal terms. While not completely clear, it appears that Toohey J should be read as agreeing with Deane and Gaudron JJ that grants of interests in land which are inconsistent with native title will, unless clearly authorized by legislation, 'involve a wrongful infringement by the Crown of the rights of the Aboriginal title-holders' [175 CLR 1 at 101] and give rise to a right to compensation.
The discussion of extinguishment and compensation needs also to encompass the Court's discussion of the Racial Discrimination Act and its comments regarding the fiduciary duty of the Crown.
Fiduciary Duty.
The plaintiffs sought a declaration that the State of Queensland was under a fiduciary obligation to protect the Meriam people's rights and interests in the Murray Islands. A fiduciary relationship usually arises in circumstances where 'one party has a special opportunity to abuse the interests of the other.' [Toohey J, 175 CLR 1 at 200].
It is only Toohey J who deals with the issue in any detail, finding that Queensland is under a fiduciary obligation to ensure that it does not abuse its power to extinguish the Meriam people's native title [175 CLR at 203]. More specifically:
'[t]he obligation on the Crown in this present case is to ensure that traditional title is not impaired or destroyed without the consent of or otherwise contrary to the interests of the titleholders ...If it did, it would be in breach of its duty and liable therefore.' [175 CLR 1 at 204].
Toohey J frames the scope of the obligation in surprisingly wide terms, stating that Queensland 'legislation will be a breach of that [fiduciary] obligation if its effect is adverse to the interests of the titleholders.' [175 CLR 1 at 205].
Brennan J is far more circumspect, making no definitive finding and limiting his discussion of fiduciary duty to the circumstance which arose in the Canadian case of Guerin v The Queen where native titleholders surrendered their native title to the Crown in expectation of a grant of tenure. In that circumstance
'there may be a fiduciary duty on the Crown to exercise its discretionary power to grant a tenure in land so as to satisfy the expectation, but it is unnecessary to consider the existence or extent of such a fiduciary duty in this case.' [175 CLR 1 at 60].
Dawson J. is more definitive, ruling that in Australia there can be no general fiduciary relationship between the Crown and Australia's indigenous peoples. The judgment distinguishes the situation in Australia from that in the US and Canada where aspects of a fiduciary relationship have been recognised. The reasoning is clear. The existence of a fiduciary obligation 'is dependent upon the existence of some sort of aboriginal interest existing in or over the land' [175 CLR 1 at 167]. Accordingly, 'once it is accepted, as I think it must be, that aboriginal title did not survive the annexation of the Murray Islands, then there is no room for the application of any fiduciary trust or obligation ...' [175 CLR 1 at 166].
Given that the majority ruling that extinguishment of native title does not give rise to compensation, one expects that alternative bases for a right to compensation will be thoroughly explored by those whose native title has been unilaterally extinguished. However, with the exception of Toohey J, the approach of the High Court is of limited utility to those Aboriginal or Torres Strait Islander people who, may wish to found an argument for compensation for extinguishment of native title on the Crown's breach of fiduciary duty. It may be that the Racial Discrimination Act provides a more useful basis for such an argument.
The Racial Discrimination Act.
Justices Deane and Gaudron point to the Racial Discrimination Act (1975) as 'an important restraint' on the powers of the States and Territories to extinguish or diminish native title [175 CLR 1 at 112]. Brennan J states that the powers of the States and Territories to extinguish native title are ' subject to the valid laws of the Commonwealth, including the Racial decision in Mabo No 1, in which the Queensland Coast Islands Declaratory Act was struck down as invalid because of its inconsistency with the section 10 of the Racial Discrimination Act, provides a graphic illustration of the point.
Justice Toohey also emphasises the effect of the Racial Discrimination Act in protecting the rights of native title holders to compensation for acquisition of their lands:
'[o]rdinarily, land is only acquired for a public purpose on payment of just terms...The right to be immune from arbitrary deprivation of property is a human right ... and falls within s. 10(1) of the [Racial Discrimination] Act ...If the traditional title of the Meriam people may be extinguished without compensation, they do not enjoy a right that is enjoyed by other title holders in Queensland or, at least, they enjoy that right to a more limited extent. A law which purported to achieve such a result would offend s. 10(1) of the Racial Discrimination Act and in turn be inconsistent within the meaning of s. 109 of the Constitution. The Racial Discrimination Act would therefore prevail and the proposed law would be invalid to the extent of the inconsistency.' [175 CLR 1 at 214-216].
Interestingly, Mason CJ and McHugh J's clarificatory comment regarding the difference between the majority and minority positions regarding compensation is made 'subject to the operation of the Racial Discrimination Act 1975 (Cth)' [175 CLR 1 at 15]. Given the majority decision that the extinguishment of native title does not give rise to a claim for compensatory damages, this suggests that it may be the provisions of the Racial Discrimination Act which will provide the most effective means of delivering compensation to those whose native title is extinguished. Some support for this view comes from the following comment of Bartlett:
'[a]t common law confiscation of property is presumed to require the payment of compensation. Native title is not protected by such a presumption ... This limitation upon native title is a fundamental aspect of the compromise of the Aboriginal interest which the common law imposes in order to give paramountcy and validity to the interests of the settler society. The requirement of consultation and compensation attached to native title in Australia today arises, not from the common law, but from the Racial Discrimination Act 1975 of the Commonwealth.' Richard Bartlett, 'The Mabo Decision', Butterworths,1993.P.xx.
Native title is most commonly extinguished by the Crown either enacting legislation disclosing a clear and plain intention to extinguish native title or by granting interests in land which are inconsistent with the on-going exercise of native title, whereby native title is extinguished to the extent of the inconsistency. Thus, along with radical title comes the power to both:
'create and extinguish private rights and interests in land within the Sovereign's territory ...However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or the Executive. This requirement ... flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land...' Mabo v Queensland (1992) 175 CLR 1 per Brennan J at 63-64.
All the majority judgments agree that native title will only be extinguished if the legislature or executive show a clear and plain intent to do so.
It is only upon the extinguishment of any pre-existing native title that the Crown becomes the absolute owner of the land. Accordingly:
'Aboriginal rights and interests were not stripped away by the operation of the common law on first settlement by the British colonists, but by the exercise of a sovereign authority over land exercised recurrently by Governments. ... Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation.' Mabo v Queensland (1992) 175 CLR 1 per Brennan J. at 68-69.
This much is common ground amongst the six majority judgments. However, some significant differences exist between the judgments of Mason CJ, McHugh and Brennan JJ and those of Justices Deane, Gaudron and Toohey, primarily relating to whether extinguishment of native title gives rise to a right to compensation among native holders.
The approach of Justices Deane and Gaudron and Toohey.
In their joint judgment, Justices Deane and Gaudron hold that 'wrongful extinguishment' will found a right for compensatory damages. [175 CLR 1 at 119]. Unfortunately, the judgments do not set out clear criteria which can be used to distinguish legitimate from wrongful extinguishment. As Burton Phillips states, '[a]n area of uncertainty which would have benefited from a more detailed analysis by the High Court is the circumstances in which extinguishment of native title may be lawful and those in which it is wrongful.' ['Reconstructing the Rules for the Land Rights Contest' in 'Essays on the Mabo Decision' at p.13].
Implicit in the judgment is a distinction between extinguishment as a result of legislation which reveals a clear intention to extinguish native title and extinguishment as a result of the Crown granting an interest in land that is inconsistent with native title. There is no suggestion that the former amounts to wrongful extinguishment. Justices Deane and Gaudron appear to limit wrongful extinguishment to the situation where there has been a grant of an interest inconsistent with the native title without clear legislative authorization. Deane and Gaudron JJ state that, despite being 'wrongful', such grant will nevertheless be effective to diminish or extinguish native title. The Crown would then be liable for compensatory damages. [175 CLR 1 at 111].
Justice Toohey agrees that legislation evincing an intention to extinguish native title is effective to do so, as is an executive act where the legislation is clear that executive power encompasses extinguishment [175 CLR 1 at 195-196]. However, his judgment does not spell out whether executive acts without such legislative authorisation are effective and wrongful (as per Deane and Gaudron JJ) or simply of no effect. As regards legislative extinguishment, Justice Toohey suggests that the right to compensation is to be assumed unless the legislation rebuts that presumption in unequivocal terms [175 CLR 1 at 195]. Whilst the reasoning is elliptical, Toohey J conclusion is forthright:
'The traditional title of the Meriam people to the land in the Islands has not been extinguished by subsequent legislation or executive act and may not be extinguished without the payment of compensation or damages to the traditional titleholders of the Islands.' [175 CLR 1 at 216].
The approach of Mason CJ, McHugh and Brennan JJ.
Justice Brennan, with whom Mason CJ and McHugh agree, holds that there are two ways in which native title can be extinguished. Firstly, through a group's loss of connection with land by its members ceasing to observe their indigenous laws and customs. Secondly, by the Crown either enacting legislation disclosing a clear and plain intention to extinguish native title or by granting interests in land which are inconsistent with the on-going exercise of native title, whereby native title is extinguished to the extent of the inconsistency. Thus, along with radical title comes the power to both:
'create and extinguish private rights and interests in land within the Sovereign's territory ...However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or the Executive. This requirement ... flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land...' Mabo v Queensland (1992) 175 CLR 1 per Brennan J. at 63-64.
Justice Brennan does not explicitly consider the question of compensation for extinguishment. However, implicit in his judgment is the view that native title may be extinguished without the consent of native title holders and without the payment of compensation. It is presumably this absence of direct comment regarding the issue of compensation which prompted the following comment from Chief Justice Mason and Justice McHugh:
'neither of us nor Brennan J agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages.' [175 CLR 1 at 15].
The judgment of Dawson J
The majority had rejected Queensland's argument that annexation delivered to the Crown a proprietary interest in all land in the Murray Islands which precluded the existence of native title. They had likewise rejected the associated argument that any pre-existing native title rights can only continue if recognised by the Crown.
In stark contrast with the other six members of the Court, Dawson J holds that the acquisition of sovereignty extinguishes all pre-existing rights: 'if native interests in land are not recognised at all by the new sovereign, they will be extinguished at the time sovereignty is assumed.' [175 CLR 1 at 127] . Justice Dawson surveys the history of land 'settlement'. While accepting that '[t]here may not be a great deal to be proud of in this history of events' [175 CLR 1 at 145], it is nevertheless apparent to him that there is 'no basis ... for saying that native rights in the land were recognised or accepted.' [175 CLR 1 at 144]. Accordingly, Justice Dawson formed the view that all and any native title which may have existed at the time of settlement was extinguished by the acquisition of sovereignty. The only rights which revive are those which are recognised by the Crown. [see 175 CLR 1 at 129]. No such recognition occurred in the Murray Islands, or in any other part of Australia.
According to Dawson J native title is a misnomer. There is no 'title' but rather a mere permissive occupancy. The Crown may at any time withdraw its permission for such occupancy to continue. The Crown's intention to do so must be plain, but specific legislation is not required and nor is compensation. [see Dawson J, 175 CLR 1 at 138 and 159].
Summary.
The Court thus divided 4:3, with the majority ruling that the extinguishment of native title does not give rise to a right of compensation. The minority judgments are less than satisfactory in setting out the circumstances in which extinguishment is wrongful and thus compensable. Toohey J appears to be alone in holding that legislative extinguishment of native title is compensable unless the legislation excludes such compensation in unequivocal terms. While not completely clear, it appears that Toohey J should be read as agreeing with Deane and Gaudron JJ that grants of interests in land which are inconsistent with native title will, unless clearly authorized by legislation, 'involve a wrongful infringement by the Crown of the rights of the Aboriginal title-holders' [175 CLR 1 at 101] and give rise to a right to compensation.
The discussion of extinguishment and compensation needs also to encompass the Court's discussion of the Racial Discrimination Act and its comments regarding the fiduciary duty of the Crown.
Fiduciary Duty.
The plaintiffs sought a declaration that the State of Queensland was under a fiduciary obligation to protect the Meriam people's rights and interests in the Murray Islands. A fiduciary relationship usually arises in circumstances where 'one party has a special opportunity to abuse the interests of the other.' [Toohey J, 175 CLR 1 at 200].
It is only Toohey J who deals with the issue in any detail, finding that Queensland is under a fiduciary obligation to ensure that it does not abuse its power to extinguish the Meriam people's native title [175 CLR at 203]. More specifically:
'[t]he obligation on the Crown in this present case is to ensure that traditional title is not impaired or destroyed without the consent of or otherwise contrary to the interests of the titleholders ...If it did, it would be in breach of its duty and liable therefore.' [175 CLR 1 at 204].
Toohey J frames the scope of the obligation in surprisingly wide terms, stating that Queensland 'legislation will be a breach of that [fiduciary] obligation if its effect is adverse to the interests of the titleholders.' [175 CLR 1 at 205].
Brennan J is far more circumspect, making no definitive finding and limiting his discussion of fiduciary duty to the circumstance which arose in the Canadian case of Guerin v The Queen where native titleholders surrendered their native title to the Crown in expectation of a grant of tenure. In that circumstance
'there may be a fiduciary duty on the Crown to exercise its discretionary power to grant a tenure in land so as to satisfy the expectation, but it is unnecessary to consider the existence or extent of such a fiduciary duty in this case.' [175 CLR 1 at 60].
Dawson J. is more definitive, ruling that in Australia there can be no general fiduciary relationship between the Crown and Australia's indigenous peoples. The judgment distinguishes the situation in Australia from that in the US and Canada where aspects of a fiduciary relationship have been recognised. The reasoning is clear. The existence of a fiduciary obligation 'is dependent upon the existence of some sort of aboriginal interest existing in or over the land' [175 CLR 1 at 167]. Accordingly, 'once it is accepted, as I think it must be, that aboriginal title did not survive the annexation of the Murray Islands, then there is no room for the application of any fiduciary trust or obligation ...' [175 CLR 1 at 166].
Given that the majority ruling that extinguishment of native title does not give rise to compensation, one expects that alternative bases for a right to compensation will be thoroughly explored by those whose native title has been unilaterally extinguished. However, with the exception of Toohey J, the approach of the High Court is of limited utility to those Aboriginal or Torres Strait Islander people who, may wish to found an argument for compensation for extinguishment of native title on the Crown's breach of fiduciary duty. It may be that the Racial Discrimination Act provides a more useful basis for such an argument.
The Racial Discrimination Act.
Justices Deane and Gaudron point to the Racial Discrimination Act (1975) as 'an important restraint' on the powers of the States and Territories to extinguish or diminish native title [175 CLR 1 at 112]. Brennan J states that the powers of the States and Territories to extinguish native title are ' subject to the valid laws of the Commonwealth, including the Racial decision in Mabo No 1, in which the Queensland Coast Islands Declaratory Act was struck down as invalid because of its inconsistency with the section 10 of the Racial Discrimination Act, provides a graphic illustration of the point.
Justice Toohey also emphasises the effect of the Racial Discrimination Act in protecting the rights of native title holders to compensation for acquisition of their lands:
'[o]rdinarily, land is only acquired for a public purpose on payment of just terms...The right to be immune from arbitrary deprivation of property is a human right ... and falls within s. 10(1) of the [Racial Discrimination] Act ...If the traditional title of the Meriam people may be extinguished without compensation, they do not enjoy a right that is enjoyed by other title holders in Queensland or, at least, they enjoy that right to a more limited extent. A law which purported to achieve such a result would offend s. 10(1) of the Racial Discrimination Act and in turn be inconsistent within the meaning of s. 109 of the Constitution. The Racial Discrimination Act would therefore prevail and the proposed law would be invalid to the extent of the inconsistency.' [175 CLR 1 at 214-216].
Interestingly, Mason CJ and McHugh J's clarificatory comment regarding the difference between the majority and minority positions regarding compensation is made 'subject to the operation of the Racial Discrimination Act 1975 (Cth)' [175 CLR 1 at 15]. Given the majority decision that the extinguishment of native title does not give rise to a claim for compensatory damages, this suggests that it may be the provisions of the Racial Discrimination Act which will provide the most effective means of delivering compensation to those whose native title is extinguished. Some support for this view comes from the following comment of Bartlett:
'[a]t common law confiscation of property is presumed to require the payment of compensation. Native title is not protected by such a presumption ... This limitation upon native title is a fundamental aspect of the compromise of the Aboriginal interest which the common law imposes in order to give paramountcy and validity to the interests of the settler society. The requirement of consultation and compensation attached to native title in Australia today arises, not from the common law, but from the Racial Discrimination Act 1975 of the Commonwealth.' Richard Bartlett, 'The Mabo Decision', Butterworths,1993.P.xx.
Keywords: Brennan, Chief Justice Gerard, Canada, crown land, Dawson, Justice, Deane, Sir William, extinguishment, Gaudron, Justice Mary, Guerin v The Queen, High Court of Australia, International Court Case, Mabo judgement, Mabo v Queensland No.1, Mabo v Queensland No.2, Mason, Chief Justice Anthony, native title, Queensland Coast Islands Declaratory Act , 1985 , Racial Discrimination Act, sovereignty, Toohey, Justice , United States of America, 1992
Author: Kenna, Jonathan