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Yarrow, David --- "Implications of the Wik Case for Natural Resource Management" [1997] IndigLawB 58; (1997) 4(3) Indigenous Law Bulletin 17


Implications of the Wik Case for Natural Resource Management

by David Yarrow

The decision of the High Court in the case of Wik Peoples v State of Queensland & Ors (the 'Wik case')[1] has implications beyond those arising from the survival of native title in respect of Queensland pastoral leases, although that issue also presents significant challenges for resource managers. The two central elements of the Wik case which impact upon natural resource management relate, first, to the finding that pastoral leases do not extinguish native title, and second, the operation of the test requiring a clear and plain statutory intention to extinguish native title rights and interests.

The majority of the High Court in the Wik case, consisting of Toohey, Gaudron, Gummow and Kirby JJ, held that the grant of the pastoral leases considered in the case did not necessarily operate to entirely extinguish native title because they did not confer exclusive possession.[2] This conclusion was reached having regard to the historical context in which pastoral lease tenure arose and, particularly, the legislative context of the provisions which authorised the grant of pastoral leases.[3] The majority also considered the legislative framework under which Crown land in Queensland was administered, rather than common law notions of leasehold tenure, as a primary consideration in determining the rights conferred by pastoral leases.[4]

The consequence of the majority judgment in the Wik case is that native title survives, to some extent, in relation to a pastoral lease granted under Queensland legislation such as the Land Act 1910 (Qld) and the Land Act 1962 (Qld) and, in all likelihood, under the pastoral lease legislation of other States and Territories, subject to the qualification that native title rights inconsistent with pastoral activities may not be exercised.

The majority of the High Court in the Wik case adopted the requirement of a clear and plain intention for the extinguishment of native title by legislation.[5] Furthermore, the finding by the majority that pastoral leases do not entirely extinguish native title rights may suggest that the High Court will not easily find a statutory intention to extinguish native title. This has implications for all legislation which may operate to impair the enjoyment of native title rights. It has yet to be determined whether a pastoral lease or other dealing inconsistent with native title operates to extinguish, or merely to impair native title rights for a period.[6]

Also, there may be other forms of statutory lease which do not operate to extinguish native title. An assessment of whether a statutory lease is capable of extinguishing native title will turn on the terms of the legislation under which it is granted, and the purpose and terms of the lease itself.

Natural resource management legislation and the Wik case

The potential for native title to survive, to some extent, on land subject to pastoral leases in Australia has a significant impact upon the management of natural resources on those lands, and upon the development of policy affecting those lands. It has always been the case that the use of a pastoral lease for non-pastoral purposes is prohibited without permission.[7] The Wik case means that the use of a pastoral lease for non-pastoral purposes may interfere with native title rights. Such an interference would be actionable.

Before the Native Title Act 1993 (Cth) (the 'NTA'), the processes for dealing with the 'owners' of land were largely developed on the assumption that the owner of an interest granted by the Crown was the only one with procedural rights. The NTA changed this position, giving procedural rights to native title holders, but it was not known until the Wik case whether native title also had to be considered on pastoral leases. Before the Wik case, third parties, such as mining companies or government agencies, only had to deal with pastoral lease holders, but now third parties have to consider the interests of native title holders and treat them (at least) in the same way as they would holders of pastoral leases or freehold. The general test for the validity of actions affecting native title, under the NTA, is whether the action could lawfully be done over freehold land (the 'freehold test').[8] As many pastoral leases may be subject to native title, the freehold test must be observed on those pastoral leases.

To avoid the restrictions on dealing with land that come from the freehold test, government agencies have in the past undertaken tenure history searches to (administratively) decide whether native title has been extinguished in the past. A tenure history search involves identifying land dealings that occurred for a parcel of land in the past, and deciding whether any of those dealings were capable of extinguishing native title. The Waanyi case[9] provides an example of the use of tenure history searches to assess the possible existence of native title.[10] Before the Wik case, pastoral leases of the past may have been relied upon as evidence of the extinguishment of native title. Other leases which, on the principles of the Wik case, do not extinguish native title, may also have been relied upon. It is clear from the Wik case that these leases have not entirely extinguished native title. Tenure history searches which show only these kind of leases do not support a conclusion that native title has been extinguished. Land dealings may be of questionable validity if they did not comply with the freehold test, but were done because a tenure history search showed that a pastoral lease had been granted in the past. The use of tenure history searches to decide whether native title has been extinguished in the past also ignores the possibility, referred to in the Wik case, that native title is merely suppressed for the term of a lease and not entirely extinguished.

The application of the clear and plain intention test for the extinguishment of native title by the majority in the Wik case has a potentially wider impact than the survival of native title on pastoral leases. The conservation and exploitation of all natural resources are, to varying degrees, regulated by legislation in Australia. Therefore, it is important to consider the effect of that legislation upon native title rights and interests and whether, for example, some natural resource management legislation has extinguished certain native title rights and interests. The requirement for legislation to express a clear and plain intention to extinguish native title means that legislation regulating natural resources must be closely scrutinised to determine if it does disclose a clear and plain intention to extinguish. The Supreme Court of Canada's treatment of the past regulation of resources, and its effect upon indigenous rights, is relevant. In R v Sparrow,[11] the Court stated that 'an aboriginal right should not be defined by incorporating the ways in which it has been regulated in the past'[12] Applying this in Australia means that native title in relation to natural resources may exist despite extensive regulation of those resources in the past.

An example of the regulation of natural resources is the Forestry Act 1959 (Qld), of which s45 contains the following declaration:

'[I]t is hereby declared that in addition to all forest products on State Forests, Timber Reserves, National Parks and Scenic Areas, the following shall at all times be presumed to be the absolute property of the Crown, unless and until the contrary is proved:
'(i) all forest products and quarry materials on all Crown lands;
'(ii) all forest products and quarry materials on all lands reserved for or dedicated to public purposes (including all roads)'.

The declaration is said to apply 'unless and until the contrary is proved'. Given that the majority in the Wik case did not find a clear and plain intention to extinguish native title by legislation which authorised the grant of pastoral leases, it is strongly arguable that the words 'unless and until the contrary is proved' protect native title rights to forest products in the areas to which s45 of the Forestry Act 1959 (Qld) applies.

The position of the regulation of water resources appears to be similar. In Queensland, the Water Resources Act 1989 (Qld) confers the right to the 'use, flow and control' of most onshore waters upon the Crown.[13] This raises the issue of whether that Act extinguishes native title rights to water. The clear and plain intention test for the extinguishment of native title supports the application of the line of authority in Thorpes Ltd v Grant Pastoral Company Pty Ltd[14] to native title rights to water. One issue considered in the case was whether the right of management of water resources of the Crown extinguished previously existing common law riparian rights.[15] It was held that the Crown's right to the use, flow and control of waters did not extinguish the common law riparian rights of owners but, rather, was a superior management right.[16] Common law riparian rights survived and can be enjoyed as long as they are not inconsistent with the way the Crown exercises its power of management from time to time. In the same way, native title rights will not be extinguished by management of water resources by the Crown and may be exercised not inconsistently with that management.

Native title rights are 'recognised and protected' by the NTA.[17] In the Native Title Act case,[18] the High Court interpreted this as meaning that native title cannot be extinguished in a manner contrary to the provisions of the NTA.[19] The High Court held that the provisions of the NTA which permit the extinguishment or impairment of native title constitute an exclusive code with which compliance is essential for the effective extinguishment or impairment of native title.[20] This underlines the need for compliance with the Native Title Act by leases which do not entirely extinguish native title, such as pastoral leases.

The NTA provides that the renewal of a pastoral lease is a permissible future act, and therefore valid.[21] Consequently, all existing pastoral leases may be validly renewed. However, the NTA does not permit the expansion of proprietary interests.[22] This means that a pastoral lease cannot be converted into freehold unless the conversion was otherwise a 'past act' under the NTA which was validated,[23] or unless native title holders consent to the grant of freehold[24] This stands in the way of the Queensland Government policy of adopting freehold as 'the most appropriate tenure' for grazing and agricultural pursuits.

Natural resource management policy documents

Prior to the Wik case, a number of national natural resource management policy documents purported to address Aboriginal and Torres Strait Islander interests. Such policy documents attempt to resolve competing priorities about natural resources within the community. The adequacy of these documents must now be questioned in light of the Wik case. It appears that the policy documents may contain assumptions about the possible extent of native title that are no longer justified in light of the Wik case.

The National Strategy for Ecologically Sustainable Development[25] (the 'NSESD') was developed, in part, as a response to the Report of the World Commission on Environment and Development,[26] better known as the 'Brundtland Report'.[27] The NSESD was the culmination of a series of sectoral reports prepared by 'working groups' comprising 'key-interest groups'.[28] The goal of the NSESD is to reconcile the often conflicting priorities of development and the environment.[29] The NSESD is significant because it was endorsed by the Council of Australian Governments,[30] making it a truly national strategy.

The NSESD provides the following strategy ('Strategy 22') for Aboriginal peoples and Torres Strait Islanders:

'Actions will focus on incorporating Aboriginal and Torres Strait Islander peoples' land, heritage, economic and cultural development and employment concerns in resource allocation decisions, and strengthening relevant consultative arrangements and the involvement of Aboriginal and Torres Strait Islander peoples in decision making processes related to ESD'.[31]

Given that the NSESD was endorsed on 7 December 1992,[32] the failure of Strategy 22 to consider the existing native title rights of Aboriginal peoples and Torres Strait Islanders, recognised in Mabo [No. 2] on 3 June 1992, is a significant shortcoming.

The Draft National Strategy for Rangeland Management[33] (the 'Draft Rangelands Strategy') is also relevant. Rangelands are lands where livestock is grazed on native vegetation, and rainfall is too low or erratic for agricultural cropping or for improved pastures.[34] The Draft Rangelands Strategy was developed to specifically address the ecologically sustainable development of rangelands.[35] In this way, the Draft Rangelands Strategy will implement a variety of policies for ecologically sustainable development, including the NSESD.[36]

Rangelands comprise 'arid and semi-arid areas and some high rainfall areas above the Tropics of Capricorn'.[37] They are made up of native grasslands, shrublands and woodlands, the tropical savanna woodlands, and the slopes and plains of northern New South Wales and southern Queensland.[38] Some 52% of Australia's rangelands are 'non-indigenous leasehold' land.[39] It can be expected that a significant proportion of this land is pastoral lease land where native title, if it otherwise survives, has not been entirely extinguished by the grant of a pastoral lease.

The strategies proposed in the Draft Rangelands Strategy about the interests in land of Aboriginal peoples (the Torres Strait not being part of the rangelands) differ significantly from those in the NSESD. Particularly, the rights of Aboriginal peoples, including their native title rights (although not directly mentioned) to the management of rangelands are recognised. Objective 5 of the Draft Rangelands Strategy concerns the recognition of the 'knowledge, rights and interests of indigenous peoples'.[40] The 'long-term goal' of this objective is as follows:

The rights, interests and responsibilities of indigenous peoples are recognised by all legal, administrative and operational aspects of rangeland management. Indigenous peoples in the rangelands are able to fully participate in regional planning for the ecoogically sustainable management of the rangelands'.[41]

The significance of this 'long-term goal' is apparent when the implications of the Wik case are understood. The legitimate interests of Aboriginal peoples extend to all of those aspects of rangelands management that may affect their native title rights, including native title rights that are not entirely extinguished by the grant of pastoral leases.

The Draft Rangelands Strategy doesn't propose any mechanism for resolving or accommodating assertions of native title. In this respect, it appears that the possible existence of native title over substantial areas of rangelands is not addressed by the strategy. However, as a result of the Wik case, it is apparent that Aboriginal people are significant stakeholders in the management of Australia's rangelands. The adequacy of the strategy in delivering effective management of rangelands must be questioned if it cannot acknowledge the need for cooperative management strategies with Aboriginal people, and the need for dispute resolution mechanisms where native title rights to management are asserted. The finalisation of the Draft Rangelands Strategy provides an opportunity to recognise and properly accommodate existing native title rights in Australia's rangelands. If a Final Rangelands Strategy fails to recognise native title rights, it will perpetuate the inadequacies of the NSESD.

Conclusion

The Wik case has important implications for natural resource management. The survival, to some extent, of native title in respect of land subject to pastoral leases changes the way third parties must deal with the 'owners' of that land. Pastoral lessees, however, are secure in the exercise of pastoral activities under their leases. The important consequence of the Wik case is that Aboriginal peoples and Torres Strait Islanders must now be recognised as significant stakeholders in natural resource management process.

When natural resource managers consider the management of pastoral leases and other land, they must consider the existence of native title. Existing policy documents which relate to land and natural resource management must recognise native title rights as existing rights. Policy documents which fail to do so will lack legitimacy when they purport to balance competing interests.

The existence of native title does not present insuperable difficulties for resource managers. However, the assumptions of absolute ownership made in a variety of natural resource management legislation, such as the Forestry Act 1959 (Qld), are not reliable. Government agencies should begin the process of reviewing natural resource management legislation to ensure that native title holders receive the same treatment as the owners of freehold.


[1] . (1996) 141 ALR 129.

[2] Id at 181 per Toohey J, at 209 per Gaudron J, at 245 per Gummow J and at 281-2 per Kirby J.

[3] Id at 174-6 and 179-182 per Toohey J, at 195-204 per Gaudron J, at 222-6 and 241-7 per Common, J and at 265-9 and 281-4 per K rby J.

[4] Id at 174 per Toohey J, at 204 per Gaudron J, at 226 per Gummow j and at 279 per Kirby J.

[5] Id at 184 per Toohey J, at 208-9 per Gaudron J, at 233-4 per Gummow j and at 282-3 per Kirby J.

[6] Id at 190 per Toohey J, postscript on behalf of majority. Also see Wik: equality and the fallacy of "extinguishment" by Richard Bartlett in 1997 (4)1 Indigenous Law Bulletin 11.

[7] See, for example, Land Act 1962 (Qld) s6lC.

[8] Native Title Act 1993 (Cth) ss23 (permissible future acts) and 235 (definition of permissible future acts).

[9] North Ganalanja Aboriginal Corporation v State of Queensland (1996) 135 ALR 225.

[10] See especially id at 244 per Brennan CJ et al where a pastoral holding was relied upon by the Queensland Government as evidence of the extinguishment of native title.

[11] (1990) 70 DLR (4th) 385.

[12] Id at 401.

[13] Water Resources Act 1989 (Qld) s3 relevantly provides: The right to the use flow and control of water at any time-

'(a). in a watercourse that flows through or past the land of 2 or mom owners or occupiers or a lake or spring that is situated within or abuts the land of 2 or more owners or occupiers;

'(b). conserved by -

'(c). a weir or dam constructed in, on or over -

'(A). a watercourse that flows through or past the land of 2 or more owners or occupiers; '(B). a lake or spring that is situated within or abuts the land of 2 or more owners or occupiers;

'(ii). a barrage:

'(c). in an artesian bore, a subartesian bore or any other underground source of supply;

'vests, subject to the restrictions contained in this Act or until appropriated under this Act or any other Act, in the Crown'.

[14] [1955] HCA 10; (1955) 92 CLR 317.

[15] Riparian rights, at common law, are the rights to use water for domestic and other purposes to which the occupiers of the bank of a watercourse are entitled.

[16] Thorpes Led v Grant Pastoral Company Pty Led [1955] HCA 10; (1955) 92 CLR 317 at 331 per FulIagar J.

[17] Native Title Act 1993 (Cth) s11(1).

[18] Western Australia v Commonwealth [1995] HCA 47; (1995) 128 ALR 1.

[19] Id at 37 per Mason CJ et al.

[20] . Ibid.

[21] Native Title Act ss23(2) and 235(7).

[22] Id, s235(7)(c).

[23] 'Past acts' were validated by the Native Title Act 1993 (Cth) and complimentary State and Territory legislation eg. Native Title (New South Wales) Act 1994 (NSW), Native Title (South Australia) Act 1994 (SA) and Native Title (Tasmania) Act 1994 (Tas).

[24] Native Title Act 1993 (Cth) ss21 and 235(8)(c).

[25] Commonwealth of Australia, National Strategy for Ecologically Sustainable Development, Australian Government Publishing Service, Canberra, 1992.

[26] World Commission on Environment and Development, Our Common Future, Oxford University Press, Oxford, 1987.

[27] Commonwealth of Australia, supra, p 12.

[28] T Doyle and A Kellow, Environmental Politics and Policy Making in Australia, Macmillan Education Australia Pty Ltd, Melbourne, 1995, p 120.

[29] Id, p 70.

[30] Commonwealth of Australia, supra, p 14.

[31] Id, p 82.

[32] Id, p 14.

[33] Commonwealth of Australia, Draft National Strategy for Rangeland Management, Department of the Environment, Sport and Territories, Canberra, 1996.

[34] Id, p vi.

[35] Id, p 4.

[36] Id, p 5.

[37] Id, p 6.

[38] Ibid.

[39] Id, p 15.

[40] Id, p 35.

[41] Ibid.


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