“Future Act”? - William Forster Chambers

Report
Could that be a “future act”?
Native title and proposals to do things in
relation to land or waters
by Sonia Brownhill
© August 2012
Client: We’re thinking of …
 building a:
 school
 power station
 boat ramp
 etc
 granting a:
 freehold title to ABC Pty Ltd
 Crown lease to XYZ Pty Ltd for [purpose]
 passing a law about doing things on or in relation to land or
waters
Thought we’d better ask our lawyers if
we can…
 Typical lawyers’ answers:
 More information please…
 That depends…
 Ummm…
 No longer!
 After today you will definitively say:
 The first thing that we need to consider is whether there are
any native title implications.
The Native Title Act 1993 (Cth)
 Section 3: Main objects:
 (b) to establish ways in which future dealings affecting native title may
proceed and to set standards for those dealings
 Section 4(3): One of 2 kinds of acts affecting native title
 “future acts”: mainly acts done after this Act’s commencement that
either validly affect native title or are invalid because of native title
 Section 4(4): As regards future acts, NTA deals with:
 (a) their validity;
 (b) their effect on native title; and
 (c) compensation for them
Part 2, Division 3:
“The future act regime”
 14 Subdivisions covering different “future acts”
 Section 24AA(2): To the extent that a future act affects native
title, it will be valid if covered by one of the Subdivisions,
and invalid if not.
What is an “invalid” future act?





Invalid freehold grant? Invalid lease?
Invalid law?
Invalid school? Invalid power station?
Invalid to the extent it affects native title
Native title holders could (potentially) assert & enforce, via
injunctive relief if necessary:
 [grant] native title rights to do things on the land (hunt, forage, live)
inconsistent with the rights of the grantee => grantee sues NTG
 [build] native title rights to prevent construction and/or use of the
school or power station
 [law] native title rights to do things on the land contrary to the law
which was intended to bind everyone
 DON’T GO THERE!!!
Subdivisions in future act regime
 3 relate to Indigenous Land Use Agreements (“ILUAs”)
 Native title holders agree the future act can be done
 When the agreement is registered, the future act can be validly
done
 Other 11 relate to different types of acts and/or different
types of affected land or waters
 BUT, s24AA(1):
 acts that do not affect native title are not “future acts” and the
future act regime does not deal with them
The operative provisions of
the future act regime say:
 This section applies to a future act if…
 If this section applies to a future act:
 the act is valid
 the act extinguishes native title OR
 the non-extinguishment principle applies
 native title holders are entitled to compensation for the act’s
effect on their native title
 certain procedural steps have to be taken before the act can be
done (eg notice, opportunity to be heard, right to negotiate,
etc)
Do we have a “future act”
 Section 233: An act is a future act in relation to land or waters if:
 it consists of the making, amendment or repeal of legislation; or
 it is any other act; and
 it is not a “past act” (ie things done in future b/c of entitlement to do
them created pre-1.1.94); and
 either:
 it validly affects native title to any extent; or
 it is to any extent invalid; and it would be valid to that extent if native title
did not exist; and if it were valid to that extent, it would affect the native title
 SAY, WHAT???
Critical elements of a “future act”
An “act”
2. Which “affects” native title
3. Which would be invalid to any extent because of the
existence of native title
1.
1. An “act”: defined in s226
 Includes:
 Making, amendment or repeal of legislation
 Grant, issue, variation, extension, renewal, revocation or suspension
of a licence, permit, authority or instrument
 Creation, variation, extension, renewal or extinguishment of any:
 interest in relation to land or waters
 “interest” is very broadly defined: s253
 legal or equitable right, whether under legislation, a contract, a trust or
otherwise
 Exercise of any executive power of the Crown in any of its capacities,
whether or not under legislation
 An act having any effect at common law or in equity
Do we have an “act”?
 Passing a law?
 Clearly
 Granting a freehold estate or a lease?
 Clearly
 Building a school or power station?
 Yep:
 Exercise of executive power of the Crown
 Creation of a legal right under contract – eg with builder
2. Which affects native title
1.
Is there (or might there be) native title?
 NNTT Register of Determinations:
 If is a determination of native title – definitely native title
 If is not a determination of native title – doesn’t mean no native title
 NNTT Register of claims:
 Claim or not is not determinative
 Claim is a reasonable indicator of risk
 Darwin region
 no native title because of “substantial interruption”: Risk v Northern Territory
[2006] FCA 404 and Quall v NTA [2009], [2011], [2012]
 Elsewhere in NT
 Previously wholly extinguished? Eg by freehold grant or public work. If yes
= no native title left to affect
 If not, good chance that some native title rights & interests subsist
2. Which affects native title, contd…
Does (or might) the act “affect” native title?
 Section 227: An act affects native title if it extinguishes the native
title rights and interests or if it is otherwise wholly or partly
inconsistent with their continued existence, enjoyment or
exercise.
 2 things:
2.
 the native title rights and interests and their enjoyment and exercise
 what will be done, as of right, on the land under the act
 Can they both be done unimpeded by the other, or will there be a
collision between the two or an impairment by one upon the
other?
2. Which affects native title, contd…
 Build a power station?





Native title right of exclusive possession
Native title right to live or camp on the land
Native title right to hunt or forage
Native title right to protect a sacred site
Native title right of access
 Build a school?
 Native title right of exclusive possession
 Native title right to live or camp on the land
 Native title right to hunt, forage, have a ceremony, to access
2. Which affects native title, contd…
 Grant a freehold estate to ABC Pty Ltd
 What does grantee get? Real Property 101…
 Exclusive possession!
 High Court in Fejo v Northern Territory (1998) 195 CLR 96 at [43]:
 …the rights that are given by a grant in fee simple are rights that are
inconsistent with the native title holders continuing to hold any of the rights
or interests which make up native title. An estate in fee simple is, for almost
all practical purposes, the equivalent of full ownership of the land and confers
the lawful right to exercise over, upon, and in respect to, the land, every act
of ownership which can enter into the imagination. It simply does not permit
of the enjoyment by anyone else of any right or interest in respect of the land
unless conferred by statute, by the owner of the fee simple or by a
predecessor in title.
 Affect native title? Of course!
2. Which affects native title, contd…
 Grant of a Crown lease
 Exclusive possession?
 Hmmmm…
 Pastoral lease?
 Wik Peoples v Queensland (1996) 187 CLR 1: HC held that a grant pursuant to Qld statute of a
Crown lease for pastoral purposes did not confer a right of exclusive possession, and was not
otherwise necessarily inconsistent with native title rights
 Western Australia vWard (2002) 213 CLR 1: HC held that a grant pursuant to NT statute of a
Crown lease for pastoral purposes:
 is inconsistent with exclusive native title rights – the right to decide who may come onto the
land or make use of it
 is not inconsistent with non-exclusive native title rights – to access, hunt, forage, conduct
ceremonies
 Perpetual lease?
 Lease in perpetuity: Wilson v Anderson (2002) 213 CLR 401: HC held that a grant pursuant to
NSW statute of a Crown lease for grazing purposes did confer a right of exclusive possession,
and was necessarily inconsistent with native title rights – based on history and view that lease was
“in substance” a freehold
 Ward trumps Wilson in NT => PPLs are not inconsistent with non-exclusive native
title rights
2. Which affects native title, contd…
 Crown lease term for [X] purposes?
 Exclusive possession?
 Purpose: build public housing, operate a gas plant
 Purpose: manage a national park
 Territory Parks andWildlife Conservation Act s122 says nothing in this Act
limits right of Aboriginals who have traditionally used an area of
land/water from continuing to do so for hunting, food gathering (other
than for purposes of sale) and ceremonial and religious purposes
 NT Parks and Wildlife Commission manages parks, builds toilet blocks
and ranger stations, etc
 Exclusive native title – inconsistent
 Non-exclusive native title – tricky; best to assume inconsistency [get
some specialist advice]
2. Which affects native title, contd…
 Passing a law?
 Any native title to land is extinguished and instead holders have a statutory
“traditional usage right” which consists of A, B and C:
 Western Australia v Commonwealth (“the Native Title Act Case”) (1994-95) 183 CLR 373
 Obviously a law which affects native title
 No hunting on Crown land without a permit
 Possession of more than 5 snapper is an offence
 Could affect native title. But, s211, NTA:
 If a law says people can’t do classes of activity like hunting, fishing, gathering, cultural or
spiritual without a licence/permit, native title holders are not prevented from doing such
things without the licence/permit if doing for their personal, domestic or non-commercial
communal needs and in exercise or enjoyment of native title rights
 Drink driving is prohibited
 What native title right would be affected? None
 All motorised boats have to be registered
 What native title right would be affected? Right to fish? Or hunt? S211
 Not an act “in relation to land or waters”
3. Invalid to any extent because of the
existence of native title
 In absence of statute to the contrary, the Crown can extinguish native
title rights and interests
 Commonwealth statute: Racial Discrimination Act 1975
 Section 10(1): If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory,
persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by
persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law,
persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section,
enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
 The “right” that is to be enjoyed by all persons equally is the right to
security in the ownership or enjoyment of property, ie freedom from
arbitrary deprivation of the property
 States and Territories cannot validly make laws which are inconsistent
with (States) or repugnant to (Territories) the Racial Discrimination Act
3. Invalid to any extent because of the
existence of native title, contd…
 Section 10(1) has 2 kinds of operation:
 1. If the State/Territory law permits the extinguishment of
land titles, but only provides a right of compensation to nonnative title holders, s10(1) of the RDA will give the right to
compensation equally to native title holders and there is no
invalidity
 2. If the State/Territory law extinguishes only native title and
leaves other titles alone, s10(1) operates to “remove the
discriminatory burden” by invalidating the State/Territory law
 Grants: “law invalid” not for all time and all things; just as it permits the
extinguishing thing to happen
3. Invalid to any extent because of the
existence of native title, contd…
 Where the thing to be done will be on Crown land, you have the
second scenario because the only rights to be affected will be
native title rights, not all property rights equally => invalidity
 In theory: where the thing to be done will be on land in which
there are non-native title rights, native title holders will be
entitled to whatever rights non-native title holders have => no
invalidity
 But this almost NEVER happens – generally, the Crown does not
do things on land owned by others
 Rare exceptions: eg, grant of mineral titles – but there is a specific
regime for them under the Mineral Titles Act
 In absence of specialist advice, assume act will be invalid to an extent
b/c of existence of native title
Could that be a “future act”?
1.
Is it an “act”?

2.
invariably “yes”
Which “affects” native title?
 consider the native title rights and interests and how they are exercised
and enjoyed
 consider what will be done, as of right, on the land under the act
 can they both be done unimpeded by the other, or will there be a collision
between the two or an impairment by one upon the other?
3.
Which would be invalid to any extent because of the
existence of native title?
 invariably “yes”
The End
 Copies of slides available to take if you wish


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