- This article is written based on the law and situation applicable as at 1 May 1993.
- T Treadgold, “Land Rights versus Miners”, Business Review Weekly, 7 August, 1992, p 46.
- Mabo v Queensland (1992) 175 CLR 1; 66 ALJR 408; (1992) 107 ALR 1.
- The expression “native title” was used by the High Court of Australia to describe the interests and rights of indigenous inhabitants in land. It is the term used for the concept which is often called “indigenous land ownership”.
- G Nettheim,”… as against the whole world”, Australian Law News, July 1992, p 9.
- Mabo v State of Queensland (1988) 166 CLR 186.
- This Act is discussed in detail later in this article.
- C Howard, “The Fall-Out from Mabo”, published by the Chamber of Mines and Energy of WA, August 1992.
- (1847) 1 Legge 312.
- Ibid 316. Bracketed words inserted by the author.
- Mabo v Queensland (1992) 66 ALJR 408 at 415.
- (1959) 102 CLR 54.
- Ibid 71.
- The landmark decision also called the Seas and Submerged lands Case (1975) 135 CLR 337.
- Ibid 439.
- (1971) 17 FLR 141.
- Ibid 244–245.
- (1823) 8 Wheat 543; 21 US 240.
- Ibid 574.
- Ibid 588.
- Ibid 574.
- Ibid 588.
- R H Bartlett, “Aboriginal Land Rights” [1992] AMPLA Yearbook.
- (1831) 5 Pet 1.
- (1832) 6 Pet 515.
- (1873) 86 US 591.
- (1941) 314 US 339.
- Oneida Indian Nation v County of Oneida (1974) 414 US 661.
- See n 16.
- See Lumb, R D, “The Mabo Case—Public Law Aspects”, Mabo: A Judicial Revolution (Uni of Q'ld Press, Brisbane, 1993) p 11.
- (1888) 14 AC 46.
- (1973) 35 DLR (3d) 145.
- Ibid 152.
- Ibid 200.
- (1985) 13 DLR (4th) 321.
- Ibid 335.
- [1847] NZPCC 387.
- Nireaha Amaki v Baker [1901] NZPCC 371.
- Te Renanga o Muriwhenua v Attorney General [1990] 2 NZLR 641.
- In re Southern Rhodesia [1919] AC 211 and Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399.
- Advisory Opinion on Western Sahara [1975] ICJR 12.
- The Case of Tanistry (1608) Davis 28 [80 ER 516]; Witrong and Blany (1674) 3 Keb 401 [84 ER 789]
- R H Bartlett, op cit, n23.
- Calder v Attorney General of British Columbia (1973) 34 DLR (3d) 145 at 218.
- Mabo v Queensland (1992) 66 ALJR 408 at 488 per Deane and Gaudron JJ.
- Ibid 429.
- Ibid.
- Ibid 451. Words in brackets supplied by the author.
- Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876 at 880; [1957] 2 All ER 785 at 788, per Denning LJ. Words in square brackets inserted by author.
- Mabo v Queensland (1992) 66 ALJR 408 per Brennan J at 428–429, and Deane and Gaudron JJ at 440.
- Ibid 440.
- Mabo v Queensland (1982) 66 ALJR 408 at 429.
- Ibid 486.
- Ibid 434.
- R H Bartlett, “The Source, Content and Proof of Native Title at Common Law”, Resource Development and Aboriginal Land Rights in Australia, Centre for Commercial and Resources Law of the University of Western Australian and Murdoch University (Perth, 1993) p 43.
- Tijani v Secretary, Southern Nigeria [1921] 2 AC 399; Guerin v The Queen (1985) 13 DLR (4th) 321.
- Tijani v Secretary, Southern Nigeria [1921] 2 AC 399, 403–404.
- Attorney General of Ontario v Bear Island Foundation [1985] 1 CNLR 1; Delgamuukw v The Queen (1991) 3 WWR 97.
- Attorney General of Ontario v Bear Island Foundation [1985] 1 CNLR 1, at 38.
- R H Bartlett, op cit, n 23.
- Mabo v Queensland (1992) 66 ALJR 408 at 452.
- Radical title vested in the Crown on establishment of Crown sovereignty. In New South Wales (then comprising all of eastern Australia) title vested when Captain Cook asserted sovereignty in 1780, or if the view of Deane and Gaudron JJ is preferred, at some later time when “actual occupation” occurred, accepted as being 7 February 1788: Mabo v Queensland (1992) 66 ALJR 408, per Deane and Gaudron JJ at 438. In Western Australia, title vested in the Crown in the early 1820s.
- Ibid per Brennan J at 430.
- This area is mentioned by Bartlett, op cit, n 55, p 48.
- Mabo v Queensland (1992) 66 ALJR 408 per Brennan J at 430 and 435, and per Deane and Gaudron JJ at 452.
- Ibid per Brennan J at 434.
- Ibid per Toohey J at 482.
- In Utemorrah v State of Western Australia and the Commonwealth of Australia (the Kimberley land claim being heard in the Supreme Court of Western Australia as at the time of writing) the claim covers approximately 260,000 square kilometres.
- For example, in the Utemorrah case the original Statement of Claim admitted that possession of the land was relinquished (involuntarily) in the 1940s and not resumed until November 1987.
- Mabo v Queensland (1992) 66 ALJR 408 at 430.
- Ibid per Brennan J at 413.
- Ibid per Brennan J at 413.
- R H Bartlett, “The Legal Implications of Mabo for Resource Development—Panel Discussion Statement”, Resource Development and Aboriginal Land Rights in Australia, Centre for Commercial and Resources Law of the University of Western Australia and Murdoch University, (Perth, 1993) p100.
- P van Hattem, “The Legal Implications of Mabo's Case for Resource Development: Panel Discussion Statement”, Resource Development and Aboriginal Land Rights in Australia, Centre for Commercial and Resources Law of the University of Western Australia and Murdoch University (Perth, 1993) p 107.
- Case of Mines of 1568 (1568) 1 Plow 310 [75 ER 472]
- As mentioned later in this article.
- As unalienated Crown land was described; eg in the Gold Fields Act 1855 (Vic) s 3.
- Mabo v Queensland (1992) 66 ALJR 408, per Brennan J at 427.
- Ibid 429 per Brennan J.
- Ibid 437.
- Ibid 429.
- Ibid.
- At Wilgie Mia near Cue in Western Australia, there is evidence of approximately 10,000 cubic metres of ochre having been extracted.
- Geological Survey (WA) advised the author they are aware of “scratchings” for ochre at two locations in Western Australia and of one in the Northern Territory.
- Incidentally, if the author is wrong in his conclusion that native title does not include minerals and petroleum, then it is clear that any native title to minerals and petroleum has been extinguished. The arguments of those who hold a contrary view are that the declarations of ownership made in the mining and petroleum legislation are general pronouncements and don't exhibit a “clear and plain intention” to extinguish native title. The author disagrees with this view. He believes there is a clear intention to extinguish any assertion to property in minerals or petroleum. For example, as in Western Australia “all gold, silver and any other precious metal… on or below the surface of any land in the State… is the property of the Crown” or “all other minerals… on or below the surface of any land in the State… are the property of the Crown” or “all other minerals… on or below the surface of any land in the States… are the property of the Crown” or “all petroleum on or below the surface of all land within this State… is and shall be deemed always to have been the property of the Crown”: Mining Act 1978 (WA) s 9; Petroleum Act 1967 (WA) s 9.
- It should also be noted that the Mining Act 1978 (WA) came into operation after the Racial Discrimination Act 1975 (CTH). To the extent that an argument might be raised invalidating or modifying s 9 based upon the Racial Discrimination Act (as to which, see later in this article), this argument must fail because s 9 merely repeats the substance of a similar provision in the Mining Act 1904 (WA).
- Mabo v Queensland (1992) 66 ALJR 408 per Brennan J at 434.
- Ibid per Brennan J at 431.
- Ibid.
- Ibid at 434.
- For a detailed discussion, see van Hattem, P. “The Extinguishment of Native Title”, Resource Development and Aboriginal Land Rights in Australia, op cit, n 55, p 62.
- Mabo v Queensland (1992) 66 ALJR 408, per Brennan J at 435.
- Coined by P van Hattem, “The Extinguishment of Native Title” op cit, n 90, p 64.
- Mabo v Queensland (1992) 66 ALJR 408 per Brennan J at 434.
- Ibid.
- Ibid.
- Ibid.
- For a range of views, see M A Stephenson, “A New Dimension to Land Tenure”, p 111, H Reynolds, “Native Title and Pastoral Leases”, p 129, Forbes, JRS, “Mabo and the Miners”, p 208—all in Mabo: A Judicial Revolution (Uni of Q'ld Press, 1993); P van Hattem, op cit, n 90, p 74.
- Ibid 435.
- Ibid 473.
- Mason CJ and McHugh J agreed with the judgment of Brennan J, ibid 410.
- Deane and Gaudron JJ at 455, Toohey J at 490.
- Ibid 490 per Toohey J.
- Ibid 436.
- Ibid 410.
- Ibid 473.
- Ibid 455.
- Ibid 490.
- Ibid 436.
- One point of distinction which is regularly raised relates to the effect of s 106(2) of the Land Act 1933 (WA). This provides that, “The Aboriginal natives may at all times enter upon any unenclosed and unimproved parts of the land the subject of a pastoral lease to seek their sustenance in their accustomed manner”. In answer, the author suggests that these reservations of rights of entry are of little difference in effect from the special conditions attached to the sardine factory lease and that they don't prevent the extinguishment of native title. The special conditions attached to the lease precluded the lessees from interfering with “the use by the Murray Island natives of their tribal gardens and plantations” or with “the operations of the Murray Island natives who fish around [the] reefs”.
- Land Act 1933 (WA), s 103.
- Ibid s102.
- Land Act Regulations 1968, Form 20.
- Mabo v Queensland (1992) 66 ALJR 408 per Brennan J at 434.
- This is not a title granted under the current Queensland mining legislation (nor was it on 3 June 1992 when the judgment was delivered). However, it was for many years the principal exploration title in Queensland.
- Cudgen Rutile (No 2) Ply Ltd v Chalk [1975] AC 520.
- Mining Act 1978 (WA), ss 48 and 66.
- Mining Act 1978 (WA), s 85.
- Petroleum Act 1967 (WA), s 62.
- See Forbes, JRS, and Lang, AG, Australian Mining and Petroleum Laws (2nd ed) para [995], Thus it is arguable that a petroleum production licence could be construed as a lease notwithstanding it is called a “licence”.
- See ICI Alkali (Australia) Pty Ltd v Fed Comm of Taxation (1976) 11 ALR 324. See also A Gardner, “Exclusive Possession and the Legal Character of a Mining Lease under the Mining Act 1978 (WA)”, (1989) 8 AMPLA Bull 115.
- Mabo v Queensland (1992) 66 ALJR 408 at 499 (the formal Court order).
- Mabo v Queensland (1988) 166 CLR 186.
- The writer suggests that a grant made before the Act commenced in 1975 cannot now be attacked under the Act. Even a grant after 1975 could be immune if it is a renewal or substitution for an expiring title. Further, if there was a title over the ground at some earlier time, then the new grant could also be immune (because the grant of the earlier title extinguished native title). This point is especially relevant in relation to mining and petroleum titles many of which have been granted over ground which was formerly the subject of a mining or petroleum title. By way of illustration, much of the ground which has been the subject of gold mining operations in Western Australia over the last ten years was ground which was held under mining title around the turn of the century. Therefore, simply because the current title was granted after 1975, does not give rise to the consequences of the Racial Discrimination Act. The native title might have been extinguished 100 years ago.
- Mining Act 1978 (WA), s 123(4).
- Ibid s 123(7).
- Ibid s 123(1).
- Petroleum Act 1967 (WA), s 17(2).
- Ibid s 17(3).
- Ibid.
- Centenerary International Mining Ltd v Thomas (1989) 8 AMPLA Bull 16, The Shell Company of Australia Ltd v Langtree and Money (1989) 8 AMPLA Bull 52 and Brooks v Cotter(1990) 9 AMPLA Bull 125.
- As noted at n 68.
- In a subsequent native title case commenced in the Supreme Court (WA) in March 1993, Barunga v Commonwealth of Australia and others, the defendants include not only the State of Western Australia (and various named Ministers and statutory authorities) but also mining companies and pastoralists.
- On this subject, see P van Hattem, “The Extinguishment of Native Title” op cit, n 90, p 72.
- Western Desert Puntukurnaparna Aboriginal Corporation v BHP Minerals Ltd and CRA Exploration Ply Ltd (1993) 12 AMPLA Bull.
- See P van Hattem, op cit, n 132, p 69.
- Mining Act 1978, s 33(1).
- Ibid s 118.
- Mabo v Queensland (1992) 66 ALJR 408 at 430.
- Ibid.
- Ibid.
- Ibid 435.
- R H Bartlett, “Resource Development and the Extinguishment of Aboriginal Title in Canada and Australia” (1990) 20 UWALRev 453, 478.
- R H Bartlett, op cit, n 23.
Journal of Energy & Natural Resources Law
Volume 11, 1993 - Issue 3