No. P59 of
OF WESTERN AUSTRALIA
AND OTHERS ON BEHALF OF THE
MIRIUWUNG AND GAJERRONG PEOPLE AND OTHERS
No. P62 of 2000
GENERAL OF THE
AND OTHERS ON BEHALF OF THE
MIRIUWUNG AND GAJERRONG PEOPLE AND OTHERS
No. P63 of 2000
GENERAL OF THE
TERRITORY AND OTHERS
No. P67 of 2000
AND OTHERS ON BEHALF OF THE
MIRIUWUNG AND GAJERRONG PEOPLE AND OTHERS
PTY LTD AND BAINES RIVER CATTLE CO. PTY LTD
in support of application for leave to intervene and submissions
on the appeal.
CONSIDERATION OF WHETHER NOTICE SHOULD BE GIVEN TO ATTORNEYS GENERAL
IN COMPLIANCE WITH s 78B OF THE JUDICIARY ACT 1903
WHY LEAVE TO INTERVENE SHOULD BE GRANTED
STATEMENT OF ARGUMENT: THE ERRORS COMPLAINED OF IN THE FULL COURT
THE PRINCIPLES AND RULES OF LAW RELIED UPON
International treaties and the interpretation of Statutes
B. International treaties and the development
of the common law
C. International law and the Constitution
D. Relevant human rights norms
Equality before the law and racial non-discrimination
2. Rights of minorities
3. Relationship between principles of equality before
the law and rights of minorities
4. Freedom of religion
HOW THE PRINCIPLES AND RULES OF LAW APPLY TO THE FACTS
B. The "bundle of rights" approach and partial
C. The Full Court's approach to pastoral leases
D. The Full Court's approach to mining leases
E. The Full Court's approach to the right to maintain,
protect and prevent the misuse of cultural knowledge as an aspect
of native title
CONSIDERATION OF WHETHER NOTICE SHOULD BE GIVEN TO ATTORNEYS GENERAL
IN COMPLIANCE WITH s 78B OF THE JUDICIARY ACT 1903 (CTH)
1. By Notice of
a Constitutional Matter filed herewith, the Human Rights and Equal Opportunity
Commission ("the Commission") has given notice that
the above proceedings potentially involve a matter arising under the
Constitution or involving its interpretation within the meaning of section
78B of the Judiciary Act 1903 (Cth).
LEAVE TO INTERVENE SHOULD BE GRANTED
2. By Notice of
Motion filed 8 December 2000, the Commission seeks leave to intervene
at the hearing of these appeals pursuant to para 11(1)(o) of the Human
Rights and Equal Opportunity Commission Act 1986 (Cth) and para
20(1)(e) of the Racial Discrimination Act 1975 (Cth) ("RDA").
The issues raised by the appeals include the conceptualisation of native
title, principles in relation to extinguishment and the construction
of the Native Title Act 1993 (Cth) ("NTA"). These issues
directly concern the human rights of Aboriginal and Torres Strait Islander
3. As set out in
the affidavit of William Jonas filed 8 December 2000, the Commission,
its Aboriginal and Torres Strait Islander Social Justice Commissioner
and its Race Discrimination Commissioner have statutory functions in
relation to human rights, the human rights of Aboriginal persons and
Torres Strait Islanders, and racial discrimination.
4. The Commission
submits that the appeals involve issues of general principle and public
importance which may affect, to a significant extent, persons other
than the parties who are before it. The Commission
further submits that it has:
(a) a legitimate
concern in making submissions in relation to the human rights of
Aboriginal persons ;
(b) an interest
in the subject of litigation greater than a mere desire to have
the law declared in particular terms ;
(c) an ability
to make submissions which the Court might consider that it "should
have to assist it to reach a correct determination";
knowledge and expertise relevant to the issues the subject of the
(e) an ability
to make submissions which differ from those of the parties and are
likely to "assist the Court in a way in which the Court would
not otherwise have been assisted".
5. No practical
considerations militate against the granting of leave because:
(a) all parties,
interveners and applicants for leave to intervene have received
adequate notice of the Commission's intention to seek leave to intervene;
(b) all parties,
interveners and applicants for leave to intervene have received
adequate notice of the outline of submissions proposed to be made
by the Commission in the event that leave to intervene is granted;
(c) the scope
of the Commission's proposed intervention is strictly limited to
issues not addressed in the submissions of parties to the appeals.
OF ARGUMENT: THE ERRORS COMPLAINED OF IN THE FULL COURT
6. The Commission
seeks leave to challenge as erroneous in law the following findings
of Justices Beaumont and von Doussa in the Full Court in relation to
the conceptualisation of the common law of native title in the statutory
framework of the NTA:
(a) the common
law applies to protect only the physical enjoyment of rights and
interests that are of a kind that can be exercised on the land,
and does not protect purely religious or spiritual relationships
with land ;
(b) the rights
and interests which make up native title are aptly described as
a "bundle of rights" ;
(c) it is possible
for only some of these rights to be extinguished by the creation
of inconsistent rights by laws or executive acts; where this occurs,
there is partial extinguishment;
(d) in a particular
case, a bundle of rights that was so extensive as to be in the nature
of a proprietary interest may by partial extinguishment be so reduced
that the rights which remain no longer have the character of a proprietary
(e) a succession
of different grants may have a cumulative effect such that native
title rights and interests which survive one grant that brought
about partial extinguishment may later be extinguished by another
grant ; and
(f) the "right
to maintain, protect and prevent the misuse of cultural knowledge
of the common law holders associated with the determination area"
is a personal right and not a right which can be the subject of
a native title determination (para 666).
7. By reference
to relevant international human rights norms, the Commission supports
as correct in law the following findings of Justice North in the Full
Court relation to the conceptualisation of native title:
will only occur where there is "a fundamental, total or absolute"
inconsistency reflecting the intention of the Crown to remove all
connection of the Aboriginal people from the land in question. Where
there is a lesser degree of inconsistency, native title is not extinguished,
rather curtailed or impaired ;
(b) as a characterisation
of the relationship between Aboriginal people and land, the notion
that native title is a right to the land itself conforms more closely
to the traditional Aboriginal law than the notion that native title
consists of a bundle of rights ;
(c) the proper
question to ask when seeking to ascertain whether native title has
been extinguished is whether the Crown has shown a clear and plain
intention to abolish the underlying connection with the land
(d) there cannot
be "partial extinguishment" of native title by the restriction
or even abolition of some or even all of the rights or interests
dependent upon the existence of native title.
8. The Commission
submits that in enunciating the common law of native title within the
statutory framework of the NTA :
(a) the NTA,
relevantly section 223, may and therefore must be construed consistently
with relevant international human rights norms;
(b) in so far
as the NTA picks up, refers to or presupposes the common law, that
common law is no less developmental, nuanced or responsive to the
full range of factors influencing the common law from time to time
than it is in the areas of tort and contract. Those factors include
international human rights norms.
9. The result in
substance of applying such method is to exclude a statutory or common
law view of native title which exposes it to the degree of piece-meal
and accreting partial destruction as the majority of the Full Court
held. In particular, the Commission submits that the High Court should,
in conformity with norms in international human rights treaties to which
Australia is party:
the concept of extinguishment in order to ensure the greatest achievable
recognition of native title rights and interests arising from the
unique relationship of indigenous peoples with their country;
reject the governing conceptualisation of native title as a "bundle
of rights", hence the possibility of partial extinguishment
of only some of these rights in relation to a particular area;
(c) where unavoidable,
prefer the placement of a qualification upon, or the suspension
of, the exercise of particular native title rights and interests,
and thus keep to an absolute minimum the extinguishment of rights
and interests which have been established by the evidence;
to accommodate indigenous as well as non-indigenous rights and interests
in land, and avoid privileging non-indigenous over indigenous rights
the submission of the Commonwealth that proof of native title requires
establishing the maintenance of a continuing physical connection
since settlement, and that a spiritual connection is insufficient
to ground a determination of native title
to accommodate indigenous perspectives on law and country, and protect,
to the extent possible, religious or spiritual relationships with
land as capable of being the subject of a native title determination.
PRINCIPLES AND RULES OF LAW RELIED UPON
TREATIES AND THE INTERPRETATION OF STATUTES
10. It is a long-established
presumption that a statute is to be interpreted and applied, as far
as its language admits, as not to be inconsistent with the comity of
nations and established rules of international law.
If the Legislature intends to effect inconsistency "it must express
its intention with irresistible clearness to induce a Court to believe
that it entertained it." More recently,
the High Court has apparently limited the operation of the presumption
to cases of ambiguity. Where there is ambiguity, the Court has held,
courts should favour a construction of a statute which accords with
the obligations of Australia under an international treaty.
This is because, the Court has said, a common sense approach suggests
that Parliament intended to legislate in accordance with its international
obligations. In more recent cases, the Court
has indicated that a narrow conception of ambiguity is to be rejected.
11. The better
approach, the Commission submits, is not to limit the operation of the
presumption to cases of ambiguity. Rather, wherever the language of
the statute is susceptible of a construction which is consistent with
the terms of the relevant international instrument and the obligations
which it imposes on Australia, that construction must prevail.
That is, where the text is susceptible of a construction consistent
with the terms of the international instrument and general international
law, then the Court must strain to adopt that construction.
12. Such an approach
is analogous with the presumption in favour of the validity of a statute.
Where the language of a statute is not so intractable as to be incapable
of being consistent with the presumption that Parliament did not intend
to pass beyond Constitutional bounds, then the presumption in favour
of validity must prevail. This approach accords in turn with section
15A of the Acts Interpretation Act 1901 (Cth).
13. The presumption
which the Commission contends ought be preferred is not only consistent
with older authority, long-established in Australia and elsewhere.
It also avoids, to the extent that the text of the statute allows, conflict
between domestic statutes and international treaty obligations which
Australia, in accordance with the principle of pacta sunt servanda,
is required to perform in good faith. The extent
to which Australia will be responsible in international law for violations
of obligations owed under international treaties and customary law is
14. Where a provision
of an international human rights instrument is transposed into a statute,
the prima facie legislative intention is that the transposed
text should bear the same meaning in the domestic statute as it bears
in the treaty. The same presumption applies where
Parliament has transposed only part of an international instrument,
or where the relevant domestic statute follows quite closely the language
of the international treaty. In Australia, treaties
are interpreted in accordance with articles 31 and 32 of the Vienna
Convention on the Law of Treaties. Reliance may
be placed on articles 31 and 32 in order to come to an interpretation
that is likely to be the same or similar to that which would be construed
by an international court or tribunal. In construing
the provisions of an international human rights instrument, Australian
courts give weight to the views of specialist international courts and
bodies such as the International Court of Justice, the European Court
of Human Rights and the human rights treaty bodies
established to supervise implementation by States parties of their obligations
under the provisions of particular human rights treaties.
15. The enumerated
principles are especially relevant to the construction of the NTA, sub-section
7(2) of which provides that ambiguous terms should be construed consistently
with the RDA. The RDA in turn makes provision for giving effect to the
International Convention on the Elimination of All Forms of Racial Discrimination
("CERD"), which treaty is set out in its entirety in
the Schedule of the Act. The strong presumption which arises, the Commission
submits, is that the NTA ought be construed in conformity with the provisions
of CERD and the interpretative jurisprudence of relevant international
bodies in relation to its provisions. Unless explicitly stated to the
contrary, Parliament ought be presumed to desire Australia to act in
conformity with international law.
16. The same interpretative
principles apply more generally to require the construction of particular
statutory provisions said to have extinguishing and other effects upon
native title rights and interests consistently with international human
TREATIES AND THE DEVELOPMENT OF THE COMMON LAW
17. In more recent
times, the function of the courts in developing the common law has been
freely acknowledged. It is now beyond dispute
that in appropriate cases, judges carry out their function by developing
and refining the common law. In the development
of the common law (and equity and administrative law), international
law is a legitimate and important influence, especially when international
law declares the existence of universal human rights.
Where the common law is uncertain, the Court should prefer an answer
in conformity with international norms. It would
be incongruous that Australia should adhere to international human rights
treaties such as the International Covenant on Civil and Political Rights
("ICCPR") if Australian courts did not, in some fashion,
recognise the entitlements contained therein.
In particular, Australia's accession in 1991 to the First Optional Protocol
to the ICCPR has brought to bear upon the development of the common
law the powerful influence of the Covenant and the international standards
it imports. To like effect, Australia's ratification
in 1975 of CERD and recognition in 1993 of that Convention's individual
18. The Commission
accepts that the common law of native title is not developed in order
to satisfy the obligations of international treaties.
It submits, however, that in the development of the common law of native
title, the Court ought strive to the extent possible to ensure conformity
between the common law and the onerous obligations which Australia has
assumed by becoming a party to multilateral human rights treaties. On
such an approach, the relationship between international and domestic
law is viewed as complementary rather than conflictual or parasitic.
19. To make such
a submission is merely to recognise that values of justice and human
rights (especially equality before the law) are just as much aspirations
of the contemporary Australian legal system as they are of the international
legal regime. In Mabo v Queensland (No 2),
in holding that an unjust and discriminatory doctrine which refused
to recognise the rights and interests in land of the indigenous inhabitants
could have no place in the contemporary law of this country, Brennan
J confirmed that the expectations of the international community in
this regard accord with the contemporary values of the Australian people.
His Honour held that it would be contrary both to international standards
and to fundamental values of the common law to entrench a discriminatory
rule, which because of the supposed position on the scale of social
organisation of the indigenous inhabitants of a settled colony, denied
them a right to occupy their traditional lands.
20. The Commission
submits that the singularity of the common law lies in the ability of
the courts to mould the law to correspond with the contemporary values
of society. This is not to say that responsibility for keeping the common
law consonant with contemporary values means that changes in the common
law are made whenever a judge thinks change desirable. Clearly, the
law must be kept in logical order and form, for an aspect of justice
is consistency in decisions affecting like cases and discrimination
between unlike cases on bases that can be logically explained.
The Commission submits that the development of the common law of native
title in conformity with Australia's international human rights obligations
would both achieve the objective of keeping the law in logical order
and form, and accord with the contemporary values of the Australian
LAW AND THE CONSTITUTION
21. It next arises
to consider whether any underlying principle can be derived from the
express provisions and structure of the Constitution as to the relevance
of international law as a limitation upon the exercise of legislative
and executive power, and hence for the interpretation of statutes and
development of the common law. One may start with covering clause 5,
which subjects the courts, judges and people of every State and of every
part of the Commonwealth to the Constitution.
22. The text and
structure of the Constitution show that the Commonwealth was brought
into existence as a nation with a capacity to conduct relations with
other nations and take its place in the international community of nations.
Section 61 vests the executive power of the Commonwealth in the Queen,
exercisable by the Governor General as the Queen's representative, and
extending to the execution and maintenance of the Constitution and laws
of the Commonwealth. The execution and maintenance of the Constitution
extends to matters deriving from the existence of the Commonwealth as
a nation, including the acquisition of rights and obligations upon the
international plane. It is beyond dispute that
the executive power in s 61 includes the treaty-making power.
23. Next, s 62
establishes the Federal Executive Council "to advise the Governor
General in the government of the Commonwealth". Section 62 combines
with s 64 for the executive power of the Commonwealth to be exercised
on the initiative and advice of the Federal Executive Council, whose
members shall be Ministers of State, and to limit to three months the
period in which a Minister may hold office without being or becoming
a senator or member of the House of Representatives.
Section 64 supplies democratic legitimacy, as Ministers of State, being
Members of Parliament, are accountable for their conduct, including
the outcome of their advice to the Governor General, to their respective
Houses of Parliament, and as a Government to the confidence of the popular
24. In other words,
ss 62 and 64 combine to provide for a system of responsible government.
On the one hand, leaving aside the most exceptional circumstances, the
Crown acts on the advice of its Ministers and, on the other hand, the
Ministers are responsible to the Parliament for the actions of the Crown.
The Parliament is, in the long run, in a position to control the Executive
Government. That the Crown acts on the advice
of its Ministers may be a convention, however it is a vital element
in the concept of responsible government which is accepted undeniably.
That Ministers are responsible to the Houses of Parliament generally
may also be a convention, but it is fundamental in a democracy and accepted
without demur. By reason of s 1, Parliament itself
comprises the Queen acting through the Governor General (s 2), as well
as the Houses. Thus, the repository of the executive (treaty-making)
power is also part of the Legislature, advised in both roles by certain
leading members of one or other of the elected Houses.
25. Nor can it
be disputed that the Constitution bespeaks an underlying commitment
to the rule of law. While the occasion has yet
to arise for consideration of all that may follow from Dixon J's statement
in The Communist Party Case that the rule of law forms an assumption
in accordance with which the Constitution is framed
, it is tolerably clear that government under the Constitution requires
lawful conduct by all organs of government. The text and structure of
the Constitution make clear that the nation was set up by, under and
with an instrument that requires lawful conduct. Covering clause 5 and
s 71 combine to institutionalise the rule of law, which includes an
expectation that all organs of government will act and have acted lawfully.
The Constitution makes no allowance for any organ of government to behave
unlawfully. Hence, the heavy onus on those asserting unlawful breach
of constitutional limits on legislative competence. The Executive is
bound to work under laws made by the Parliament. And the separation
of judicial power guards against unlawfulness in the exercise of legislative
and executive power.
26. The Commission
submits that it is but a small and logically compelling step to say
that lawfulness is supplied not only by national law, but also by international
law. International law is not an oxymoron. So long as the capacity of
the Commonwealth Parliament to legislate contrary to the requirements
of international law is fully recognised and conceded, the High Court
should continue to expect (that is, unless disallowed by explicit contrary
words) that the Commonwealth has exercised its legislative powers in
accordance with that law. To interpret the Constitution as intended
to set up a nation which could be an outlaw in the international community
of nations by reason of mere incidental implication would violate the
underlying value of a nation committed to the rule of law.
27. As has been
reasoned above, as an aspect of responsible government, the Constitution
presupposes lawful conduct in the exercise of legislative and executive
power. In the interpretation of a statute, the Constitution requires
the courts to have, as far as the words of the statute permit, the Executive
acting lawfully and the Legislature not requiring or permitting unlawful
conduct. Where a conflict can be avoided, it must be avoided. Concretely,
the Commission submits, this requires the interpretation of a statute,
where textually possible, in conformity with relevant international
as well as binding domestic law.
28. The common
law, as well, must of necessity conform with the Constitution.
It is settled that the development of the common law in Australia cannot
run counter to constitutional imperatives. Again, for the reasons set
out in the preceding paragraphs, the Commission submits that the common
law must be applied and developed, to the extent possible, to have the
Executive acting lawfully and the Legislature not requiring or permitting
HUMAN RIGHTS NORMS
29. The international
human rights norms which bear upon the issues before the Court and to
which, the Commission submits, the Court ought have regard in the application
of the enumerated principles of statutory interpretation and in the
development of the common law are the guarantees of equality before
the law and racial non-discrimination, the rights of minorities, and
freedom of religion.
Equality before the law and racial non-discrimination
30. Article 26
of the ICCPR guarantees the equality of all persons before the law and
the equal protection of the law. This guarantee is not infringed if
the criteria for a differentiation are reasonable and objective, and
the aim is to achieve a purpose which is legitimate under the Covenant.
Moreover, the principle of equality sometimes requires measures of positive
discrimination or affirmative action in order to diminish or eliminate
conditions which cause or help to perpetuate discrimination prohibited
by the Covenant.
31. Article 2 of
CERD contains a general obligation to pursue the elimination of racial
discrimination. Article 5(d) of CERD specifies obligations to prohibit
and to eliminate racial discrimination and to guarantee the right of
everyone without distinction as to race, color, or national or ethnic
origin, to equality before the law, including in the enjoyment of inter
alia (v) the right to own property alone as well as in association
with others; and (vii) the right to freedom of religion.
32. The international
legal approach to equality is one of substantive rather than formal
equality. Concretely, the Committee on the Elimination
of Racial Discrimination has confirmed that in their application to
indigenous peoples, the Convention's obligations require States inter
and respect indigenous distinct culture, history and language and
way of life as an enrichment of the State's cultural identity and
to promote its preservation;
that members of indigenous peoples are free and equal in dignity
and rights and free from any discrimination, in particular that
based on indigenous origin or identity;
indigenous peoples with conditions allowing for a sustainable economic
and social development compatible with their cultural characteristics;
that no decisions directly relating to the rights and interests
of indigenous peoples are taken without their informed consent;
that indigenous communities can exercise their rights to practise
and revitalise their cultural traditions and customs, to preserve
and practise their languages; and
and protect the rights of indigenous peoples to own, develop, control
and use their communal lands and territories and resources and,
where they have been deprived of their lands and territories traditionally
used or otherwise inhabited or used without their free and informed
consent, to take steps to return these land and territories. Only
where this is for factual reasons not possible, the right to restitution
should be substituted by the right to just, fair and prompt compensation.
Such compensation should as far as possible take the form of lands
33. It is noteworthy
that the UN Charter itself provides the legal foundation for the prohibition
of racial discrimination. There exists widespread
support for the view that the prohibition of racial discrimination has
not only attained the status of customary international law, but is
one of the least controversial examples of the class of jus cogens.
Jus cogens or peremptory norms of international law are overriding
principles of international law, distinguished by their indelibility
and non-derogability. They apply to all States
and cannot be set aside by treaty or by dissent.
Rights of minorities
34. Article 27
of the ICCPR provides that persons belonging to ethnic, religious or
linguistic minorities shall not be denied the right, in community with
the members of their group, to enjoy their own culture, to profess and
practise their own religion, or to use their own language. The jurisprudence
of the UN Human Rights Committee in relation to article 27 accepts that
culture manifests itself in many forms, including a particular way of
life associated with the use of land resources, especially in the case
of indigenous peoples. The protection of article
27 extends to traditional activities such as fishing and hunting and
the right to live in reserves protected by law. The enjoyment of article
27 rights may require positive legal measures of protection and measures
to ensure the effective participation of members of minority communities
in decisions which affect them.
35. In the case
of indigenous peoples, the UN Human Rights Committee has confirmed that
the "right to enjoy one's own culture in community" can not
be determined in abstract, but must be placed in context.
The Committee has found the expropriation of an indigenous Band's territories
for the purpose of granting leases for forestry and for oil and gas
exploration to threaten the way of life and culture of the Band, and
hence to constitute a violation of article 27.
The Committee has confirmed that the rights protected by article 27
include the right of persons, in community with others, to engage in
economic and social activities which are part of the culture of the
community to which they belong. For example,
the use and control of fisheries can be an essential element of the
culture of an indigenous minority. The protection
of article 27 is not confined to traditional means of livelihood.
36. The Commission
notes support for the view that respect for the rights of minorities
is required by peremptory norms of international law.
Relationship between principles of equality before the law and rights
37. In international
jurisprudence, particular regimes for the preservation of the characteristics
and traditions of minorities are as accepted consistent with, and sometimes
required to achieve factual or substantive equality. According to the
Permanent Court of International Justice, "there would be no true
equality between a majority and a minority if the latter were deprived
of its institutions, and were consequently compelled to renounce that
which constitutes the very essence of its being as a minority".
The purpose of particular measures for the protection of minorities
is to maintain basic characteristics which distinguish minorities from
the majority of the population, and hence institute factual equality
between members of the minority group and other individuals.
38. The recognition
and protection of the distinct rights of indigenous peoples is also
implicit in the concept of equality. As noted above at para 32, the
Committee on the Elimination of Racial Discrimination has recognised
as aspects of the principle of equality the obligations of States to
ensure that no decisions directly relating to the rights and interests
of indigenous peoples are taken without their informed consent, as well
as to recognise and protect the rights of indigenous peoples to own,
develop, control and use their communal lands and territories and resources.
Freedom of religion
39. Article 18
of the ICCPR contains a guarantee of thought, conscience and religion.
In its General Comment on article 18, the UN Human Rights Committee
has adopted a broad interpretation of freedom of thought, conscience
or religion, encompassing freedom of theistic, non-theistic and atheistic
beliefs and freedom not to subscribe to any of these beliefs. The Committee
has made clear that the protection of article 18 is not confined to
traditional religions or to religions and beliefs with institutional
characteristics or practices analogous to those of traditional religions.
A UN Special Rapporteur on Religious Intolerance has described religion
as "an explanation of the meaning of life and how to live accordingly".
Pursuant to State reporting procedures, both the Committee on the Elimination
of Racial Discrimination and the Human Rights Committee seek information
concerning the protection of the religions of indigenous peoples.
THE PRINCIPLES AND RULES OF LAW APPLY TO THE FACTS
40. The Commission
submits that protection of the unique, subtle and highly particular
nature of native title is a reasonable and proportionate means to achieve
substantive equality , required as a matter of
international obligation to safeguard the characteristics of indigenous
minorities. Australia's international human rights obligations require
the conceptualisation of laws relating to native title not as prima
facie discriminatory special measures, but as measures necessary
to ensure the protection of distinct indigenous identities and safeguard
the particular relationship of indigenous peoples with their land. The
guarantee of freedom of religion, in conjunction with the prohibition
of discrimination, is jeopardised where the common law is so developed,
and the NTA so interpreted, as to deny the distinctive religious or
spiritual relationship of indigenous peoples with country as incapable
of being the subject of a native title determination.
41. The Commission
submits that given the choice, the High Court must prefer an interpretation
of the NTA and of statutory regimes conferring rights on non-indigenous
persons, and a development of the common law consistent with the enumerated
human rights standards, and hence maximises the recognition of native
title and its protection against extinguishment. In order to give effect
to the guarantee of equality, the rights of indigenous minorities, and
freedom of religion, the Court should resist approaches which would
effectively destroy rather than recognise and protect native title.
42. In particular,
the privileging of general property rights over native title rights
and interests will run foul of the guarantee of equality. Favouring
property rights of kinds held by non-indigenous people over those held
only by indigenous people, by treating the impairment of an aspect of
native title as the partial extinguishment of native title, is prima
facie inconsistent with Australia's obligations in relation to equality
and the rights of indigenous minorities. These obligations require that
the common law presumption against extinguishment of a proprietary interest
be extended to the recognition and protection of native title which
has been proven to exist in accordance with indigenous law and customs.
43. For the same
reasons, in order to give effect to human rights principles, back door
or de facto extinguishment which, according to the Commonwealth's submissions,
is not true extinguishment, rather the evidentiary impossibility of
establishing the fact of native title, should be rejected.
"BUNDLE OF RIGHTS" APPROACH AND PARTIAL EXTINGUISHMENT
44. The Commission
submits that in the governing conceptualisation of native title, the
so-called "bundle of rights" approach should be rejected and
the notion of a suspension or qualification of rights embraced. The
exposure of native title so readily to extinguishment, piece by piece,
runs counter to human rights norms in international treaties to which
Australia is a party and which the High Court can use in enunciating
the common law of native title in the statutory framework of the NTA.
Human rights norms require the conceptualisation of native title in
a manner which promotes its resilience, rather than its fragility and
susceptibility to extinction forever in the eyes of the law.
45. Moreover, an
approach grounded in human rights norms requires a contextualised approach
and the admission of the perspectives of indigenous people in the characterisation
of native title. On a human rights approach,
it is more correct to describe native title rights and interests as
"primarily a spiritual affair rather than a bundle of rights"
. To conceive of native title rights and interests as distinct, enumerable,
severable, and capable of compartmentalisation and fragmentation is
to deny the possibility of a unifying factor fundamental to those rights
such as the underlying connection to land.
46. However anodyne
the Hohfeldian bundle of rights metaphor may be in other areas of discourse
about ownership and title , it is clear from
the divergence of outcome as between the majority in the Full Court
and Justices Lee and North at first instance and dissenting in the Full
Court respectively that it has a greatly detrimental effect upon claimants
to native title. On the approach of the majority, pro tanto or partial
extinguishment, irrevocable in nature and cumulating towards an eventual
complete extinguishment is the fate of native title in the light of
legislatively sanctioned adverse rights being granted or exercised.
The holistic approach of Justices Lee and North, by contrast, allows
room for the regulation, control, curtailment, restriction, suspension
and postponement, rather than extinguishment of native title.
47. The Commission
submits that it is contrary to the guarantee of equality and prohibition
of discrimination on the grounds of race, religion, language and ethnic
origin where the law regards that which is the sum of the relationship
in the nature of title between indigenous people and the land as more
readily destroyed by a paramount grant than the nearest full equivalent
title (an estate in fee simple) of non indigenous persons. There is
manifest discrimination in the proposition that the creation of a right
or interest in a non-indigenous person for a shorter time should cause
otherwise longer lasting native title rights and interests of indigenous
people to be destroyed forever.
48. For example,
the Commonwealth's argument in relation to inconsistent leasehold grants
is presented in absolute terms which make no distinction between leases
for terms outlasting many generations and leases for a limited purpose
and a brief term, such as for several months for a construction purpose.
An argument which takes no account of substantive differences departs
from what the Commonwealth otherwise argues ought be a "case by
case", facts-based approach to the NTA.
jurisprudence requires a very thoroughgoing elimination of practical
enjoyment of the ownership of land before an acquisition of property
is held to have occurred for the purposes of s 51(xxxi) of the Constitution.
In relation to s 51 (xxxi), there are numerous situations in which a
diminution of rights or restriction of use will not amount to an acquisition
of property. To establish an acquisition, it
must be shown that the relevant person has been denied the substance
and reality of its proprietary interest or everything that made it worth
having. There are many measures which in one
way or another impair an owner's exercise of his or her proprietary
rights which involve no acquisition such as pl (xxxi) speaks of.
50. In general
property law, an example of the temporary displacement of rights dependent
on underlying freehold title which does not destroy the underlying title
can be seen in planning legislation. Such legislation does not have
the effect of extinguishing the underlying freehold title. Instead,
for the period of restrictions upon the rights of the freehold title
holder to use and enjoy the land in specific ways, the rights affected
are suspended, but the freehold title remains in existence.
51. Another example
in general law is the effect of statutes giving the Crown or a statutory
authority control over waterways. Again, the rights of the holder of
the freehold are overridden, but not extinguished.
From a human rights perspective, there can be no justification for a
discriminatory distinction between the continuation of freehold title
in such circumstances and the continuation of native title in circumstances
involving no "fundamental, total or absolute" inconsistency
reflecting the intention of the Crown to remove all connection of the
Aboriginal people from the land in question.
52. Similarly in
general property law, the notion of suspension of rights and interests
is well accepted, reflecting an idea which lies at the foundation of
the doctrine of estates. It would again be contrary
to the prohibition of discrimination to decline to extend the concept
of suspension of rights to the law of native title.
53. On an ordinary
approach to statutory interpretation, courts require very plain words
to reveal a legislative intention to abrogate rights of private property.
Courts are particularly astute to impose a strict construction where
the interference with property rights is expropriation. If there is
any doubt as to the way in which language should be construed, it should
be construed in favour of the party who is to be dispropriated rather
54. The effect
of the foregoing aspects of law in Australia applying to land generally
(that is, land not held under native title by indigenous people) is
that such title or ownership is not treated as extinguished (or expropriated,
or acquired, or destroyed) unless that is, effectively, the only possibility.
The effect of the decision of the majority in the Full Court is to depart
from the principle of "full respect" and to discriminate markedly
between native title and other title in the adoption of a bundle of
rights approach and the rejection of the possibility of suspension or
qualification of native title rights and interests. The effect of the
majority's decision is to disregard the different character of native
title rights, which ought not be seen for these purposes as merely a
bundle of severable rights, but rather as communal rights which derive
from the distinct underlying religious or spiritual relationship of
indigenous peoples with their country.
55. This case does
not present for decision the difficult question of private acts purportedly
pursuant to statutory authority, where the legislation has not itself
extinguished native title but the private acts achieve the same practical
result by denying the current probanda of native title. When such a
case is presented for decision, important considerations will include
the difference between indirect and direct achievement of a result and
fundamental legal policy such as the equity of the statute
, in particular section 223 of the NTA. From an international legal
perspective, issues of State responsibility and accountability arise
where there are human rights violations, which include indirect as well
as direct discrimination, irrespective of whether the perpetrator is
a State or private actor.
FULL COURT'S APPROACH TO PASTORAL LEASES
56. The application
of the majority's approach to extinguishment in relation to pastoral
leases in Western Australia which became enclosed or improved has a
"potentially dramatic impact" having regard to the magnitude
of the areas which can be treated as enclosed or which have been enclosed
in the past and the comparatively inconsequential character of the works
which can constitute enclosure. It falls for
the High Court to consider whether the particular outcomes of the principles
applied by the majority in the Full Court "weigh in favour of a
somewhat less draconian limitation on the ability of the common law
to recognise and protect native title rights and interests".
The Commission submits that given the choice, the High Court must prefer
interpretations of the relevant Western Australian statutes and regulations
which are consistent with the guarantee of equality and the rights of
minorities, and hence a less draconian approach to the recognition and
protection of native title in land subject to pastoral leases.
57. In concrete,
the High Court should uphold the finding of Justices Lee and North that
enclosure of and improvements to pastoral leases in Western Australia
were not such as to confer a right of possession exclusive of Aboriginal
people, and to the extent of any inconsistency between the rights of
pastoral leaseholders and native title rights and interests, did not
extinguish but had the effect of suspending native title rights and
FULL COURT'S APPROACH TO MINING LEASES
the majority's conclusions in relation to the extinguishing effect of
statutory provisions vesting ownership of minerals and petroleum in
the Crown and of various mining leases on native title rights and interests
are also of considerable impact. Again, the
Commission submits that in order to give effect to the guarantee of
equality and the rights of indigenous minorities, in the interpretation
of relevant Western Australian statutes, to the extent that they are
malleable, courts should resist approaches which would destroy rather
than recognise and protect native title.
59. As demonstrated
in the High Court's decision in Yanner v Eaton in relation to non-exclusive
governmental rights of control over fauna ,
in the acceptance by the majority in the Full Court below of non-exclusive
governmental rights over water, and in the approach of Justices Lee
and North, there is room for argument about the non-exclusive vesting
of minerals and petroleum in the Crown pursuant to s 3 of the Constitution
Act (WA), s 117 of the Mining Act 1904 (WA), s 9 of the Petroleum
Act 1936 (WA) and s 3 of the Minerals Acquisition Ordinance 1953
as the decisions of Justice Lee at first instance and Justice North
in the Full Court show, there is room for argument that the mining leases
granted pursuant to the scheme of the Mining Act 1978 (WA) and
Mining Regulations 1981 (WA) did not extinguish native title.
Where there is any doubt, the Court should strive to reach a finding
that the rights of native title holders and the rights of holders of
mining leases can be exercised concurrently. Where such a finding is
unavailable, the Court should construe the grant of a right to mine
as equivalent to a regime of strict regulation which, to the extent
of any inconsistency, impairs or suspends native title for the duration
of the mining operation.
FULL COURT'S APPROACH TO THE RIGHT TO MAINTAIN, PROTECT AND PREVENT
THE MISUSE OF CULTURAL KNOWLEDGE AS AN ASPECT OF NATIVE TITLE
61. Finally, the
Commission submits that in conformity with the guarantee of equality,
the rights of indigenous minorities, and freedom of religion, the "right
to maintain, protect and prevent the misuse of cultural knowledge of
the common law holders associated with the determination area"
ought be held to be a right which can be the subject of a native title
determination. That is, the Court should reject the approach of the
majority that the common law applies to protect only the physical enjoyment
of rights and interests that are of a kind that can be exercised on
the land, and does not protect purely religious or spiritual relationships
62. The approach
of Justices Lee and North, it is submitted, is consistent with the High
Court's previous recognition of the nature of Aboriginal connection
with land as primarily a spiritual affair.
As the Court has held, the spiritual, social and cultural connection
with the land is an important aspect of the socially constituted fact
of native title rights and interests that is recognised by the common
law. The majority's curtailment of native title
rights concerning cultural knowledge could foreclose correlative developments
in the realm of copyright law, intellectual property and indigenous
rights. Such curtailment is contrary to human
rights norms which require adequate recognition and protection of native
title in order to safeguard the distinct identities of indigenous peoples
and hence achieve substantive racial equality.
63. The adequacy
of that recognition and protection requires factually contextualised
appreciation of cultural knowledge in relation to the land and waters
in question, and in relation to the use of such land and waters, as
aspects of native title. In such a context,
the analogy with intellectual property suggested in paragraph 4.2 of
the Commonwealth's submissions is wrong (and may be contrasted with
the Commonwealth's rejection of analogies of native title with common
law or equitable estates in land ).
St James Hall
States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR
520 at 534.
2. Australian Railways Union v Victorian Railways
Commission (1930) 44 CLR 319 at 331 per Dixon J.
3. Kruger v Commonwealth of Australia (1996)
3 Leg Rep 14 per Brennan CJ.
4. Levy v State of Victoria (1997) 189 CLR 579
at 603 per Brennan CJ.
5. Levy v State of Victoria (1997) 189 CLR 579
at 604 per Brennan CJ.
6. State of Western Australia v Ward (2000)
170 ALR 159 at 188 para , per Beaumont and von Doussa JJ.
7. Ibid at 189-190 para .
11. Ibid at 321 para .
12. Ibid at 328 para .
13. Ibid at 353 para .
16. In particular s 223 which provides: "Common
law rights and interests
(1) The expression
native title or native title rights and interests means the communal,
group or individual rights and interests of Aboriginal peoples or
Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws
acknowledged, and the traditional customs observed, by the Aboriginal
peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws
and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia."
As to the relationship
between the common law and section 223 NTA, cf submissions of the Attorney-General
of the Commonwealth, paras 3.23, 4.1.
17. Submissions of the Attorney-General of the Commonwealth,
para 2.12; also ground of appeal 2.1 in appeal no P59 of 2000.
18. Leroux v Brown (1852) 12 C.B. 801; The
Zollverein (1856) Swab. 96; The Annapolis (1861) Lush. 295;
Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908)
6 CLR 309; Zachariassen v Commonwealth (1917) 24 CLR 166. See
also Maxwell on the Interpretation of Statutes 7th Ed, 1929,
19. Murray v Charming Betsy (1804) 2 Cranch
64, 118; also United States v Fisher (1805) 2 Cranch 390.
20. Chu Kheng Lim v Minster for Immigration, Local
Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan,
Deane and Dawson JJ.
21. Dietrich v The Queen (1992) 177 CLR 292
at 306-07 per Mason CJ and McHugh J; also Minister for Foreign Affairs
and Trade v Magno (1992) 112 ALR 529 at 534 per Gummow J.
22. Minister for Immigration and Ethnic Affairs
v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; also
Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow
and Hayne JJ. Generally A Simpson & G Williams, "International
Law and Constitutional Interpretation" (2000) 11 Public Law
Review 205 at 208; J Spigelman, "Access to Justice and Human
Rights Treaties" (2000) 22 Sydney Law Review 141 at 149.
23. Davies and Jones v Western Australia (1904)
2 CLR 29 at 43 per Griffith CJ; Federal Commissioner of Taxation
v Munro; British Imperial Oil Co Ltd v Federal Commissioner of
Taxation (1926) 38 CLR 153 at 180 per Isaacs J. Also Maxwell
on the Interpretation of Statutes 7th Ed, 1929, at 127.
24. Chu Kheng Lim v Minster for Immigration, Local
Government and Ethnic Affairs (1992) 176 CLR 1 at 14 per Mason CJ.
25. See authorities cited at footnote 18 above. Also
L Brilmayer, "Federalism, State Authority, and the Preemptive Power
of International Law"  The Supreme Court Review 295
at 309, 319.
26. Vienna Convention on the Law of Treaties 1969,
27. From the perspective of the international legal
regime, where responsibility arises, a State may not invoke the provisions
of its internal law as justification for its failure to perform its
treaty obligations: Vienna Convention on the Law of Treaties 1969, article
28. Applicant A v Minister for Immigration and
Ethnic Affairs (1997) 190 CLR 225 at 230-31 per Brennan CJ.
29. De L v Director General, NSW Department of
Community Services (1996) 187 CLR 640 at 675 per Kirby J.
30. Minister for Foreign Affairs and Trade v Magno
(1992) 112 ALR 529 at 535-36 per Gummow J; Applicant A v Minister
for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231 per
Brennan CJ and 251-256 per McHugh J.
31. Sir Anthony Mason, "International Law as
a Source of Domestic Law" in B Opeskin & D Rothwell, International
Law and Australian Federalism, Melbourne University Press 1997,
210 at 221.
32. For example Dietrich v The Queen (1992)
177 CLR 292 at 306 per Mason CJ and McHugh J; John Fairfax Publications
v Doe (1995) 37 NSWLR 81 at 90 per Gleeson CJ.
33. See as examples of references to the jurisprudence
of human rights treaty bodies Mabo v Queensland (No 2) (1992)
175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed);
Dietrich v The Queen (1992) 177 CLR 292 at 307 per Mason CJ and
McHugh J; Johnson v Johnson (2000) 174 ALR 655 at 665 para 
per Kirby J.
34. Dietrich v The Queen (1992) 177 CLR 292
at 319 per Brennan J.
35. The Hon Murray Gleeson AC, Boyer Lectures 2000:
The Rule of Law and The Constitution, ABC Books 2000, at 129; The
Hon Michael McHugh, "The Law Making Function of the Judicial Process"
(1988) 62 Australian Law Journal 15, 116.
36. Mabo v Queensland (No 2) (1992) 175 CLR
1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich
v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh
J, at 319-321 per Brennan J, at 360 per Toohey J; Environment Protection
Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 499
per Mason CJ and Toohey J; Minister for Immigration and Ethnic Affairs
v Teoh (1995) 183 CLR 273 at 288-289 per Mason CJ and Deane J. Cf
submissions of the Attorney-General of the Commonwealth, paras 3.8,
37. Ballina Shire Council v Ringland (1994)
33 NSWLR 680 at 687-88 per Gleeson CJ, at 699, 709-710 per Kirby P.
38. Dietrich v The Queen (1992) 177 CLR 292
at 321 per Brennan J.
39. Mabo v The State of Queensland (No 2) (1992)
175 CLR 1 at 42 per Brennan J.
40. See generally Sir Anthony Mason, "The Influence
of International and Transnational Law on Australian Municipal Law"
(1996) 7 Public Law Review 20; "The Rights of Indigenous
Peoples in Lands Once Part of the Old Dominions of the Crown" (1997)
46 International and Comparative Law Quarterly 812 at 829; "The
Role of the Judiciary in Developing Human Rights in Australian Law"
in D Kinley (Ed), Human Rights in Australian Law, Federation
Press 1998, at 28; also K Walker, "Treaties and the Internationalisation
of Australian Law" in C Saunders (Ed), Courts of Final Jurisdiction,
Federation Press 1996, at 204.
41. Western Australia v The Commonwealth (The Native
Title Act Case) (1995) 183 CLR 373 at 486.
42. See generally K Walker, fn 40, at 231-235.
43. Mabo v Queensland (No 2) (1992) 175 CLR
1 at 30 per Brennan J (with whom Mason CJ and McHugh J agreed).
44. Ibid at 42.
45. Dietrich v The Queen (1992) 177 CLR 292
at 320 per Brennan J.
46. New South Wales v The Commonwealth (1975)
135 CLR 337 at 469 per Mason J.
47. R v Burgess, Ex parte Henry (1936) 55 CLR
608 at 644-45 per Latham CJ.
48. Ibid; also Koowarta v Bjelke-Petersen (1982)
153 CLR 168 at 212 per Stephen J, at 237-38 per Murphy J.
49. Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520 at 558.
50. New South Wales v The Commonwealth (1975)
135 CLR 337 at 364-365 per Barwick CJ.
51. Ibid at 365.
52. F.A.I. Insurances Limited v Winneke (1982)
151 CLR 342 at 364 per Mason J.
53. P Lane, Lane's Commentary on the Constitution,
2nd Ed 1997, at 56, 447.
54. Sir Anthony Mason, "The Interpretation of
a Constitution in a Modern Liberal Democracy" in C Sampford and
K Preston, Interpreting Constitutions: Theories Principles and Institutions,
The Federation Press 1996, 13 at 29.
55. Australian Communist Party v The Commonwealth
(1951) 83 CLR 1 at 193 per Dixon J; Kartinyeri v The Commonwealth
(1998) 195 CLR 337 at 381 per Gummow and Hayne JJ.
56. Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520 at 566; Levy v Victoria (1997) 189 CLR 579
at 622 per McHugh J; also John Pfeiffer Pty Ltd v Rogerson (2000)
172 ALR 625 at 643-44 paras - per Gleeson CJ, Gaudron, McHugh,
Gummow and Hayne JJ.
57. Human Rights Committee, General Comment 18 (1989),
paras 10, 13 in Compilation of General Comments and General Recommendations
Adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev
4 (2000) at 103. See also Committee on the Elimination of Racial Discrimination,
General Recommendation XIV (1993), para 2 in Compilation of General
Comments and General Recommendations adopted by the Human Rights Treaty
Bodies, UN Doc HRI/GEN/1/Rev 4 (2000) at 143. While the decisions
or "views" of the UN human rights treaty bodies are not binding
on States, they are significant being those of a Committee composed
of experts from a wide range of countries: H Burmester, "Impact
of Treaties and International Standards" (1995) 17 Sydney Law
Review 127 at 145.
58. W McKean, "The Meaning of Discrimination
in International and Municipal Law" (1970) 44 British Yearbook
of International Law 178 at 185-186; G Triggs, "Australia's
Indigenous Peoples and International Law" (1999) 23 Melbourne
University Law Review 372 at 379-381; also Australian Law Reform
Commission, Recognition of Aboriginal Customary Laws, Report
No 31(1986) paras 150, 158.
59. Committee on the Elimination of Racial Discrimination,
General Recommendation on Indigenous Peoples, UN Doc CERD/C/51/Misc
13/Rev 4 (1997) paras 4-5.
60. Articles 1(3), 55 and 56.
61. I Brownlie, Principles of Public International
Law, Clarendon Press Oxford, 4th Ed, at 513; also American Law Institute,
Restatement of the Law (3rd): The Foreign Relations Law of the United
States, 1987, vol 2, para 702; Triggs, fn 58, at 379-381.
62. Article 53 of the Vienna Convention on the Law
of Treaties describes as a peremptory norm of international law "a
norm accepted and recognized by the international community of States
as a norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same
63. Sir Anthony Mason, "The Rights of Indigenous
Peoples in Lands Once Part of the Old Dominion" (1997) 46 International
and Comparative Law Quarterly 812 at 812.
64. Human Rights Committee, General Comment 23 (1994),
paras 6.2, 7 in Compilation of General Comments and General Recommendations
Adopted by the Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev
4 (2000) at 115.
65. Kitok v Sweden Communication No 197/1985,
UN Doc CCPR/C/33/D/197/1985 (1988), paras 9.2, 9.3, 9.8.
66. Lansmann v Finland Communication No 511/1992,
UN Doc CCPR/C/52/D/511/1992 (1994), para 9.3.
67. Ominayak v Canada Communication No 167/1984,
Report of the Human Rights Committee, UN Doc A/45/40 (1990), para 32.2.
68. Mahuika v New Zealand Communication No
547/1993, UN Doc CCPR/C/70/D/547/1993 (2000), para 9.3.
69. Lansmann v Finland Communication No 511/1992,
UN Doc CCPR/C/52/D/511/1992 (1994), para 9.3. In relation to extinguishment,
the Human Rights Committee has called on the United States to take steps
to ensure that previously recognised aboriginal Native American rights
cannot be extinguished: Human Rights Committee, Concluding Observations
of the Human Rights Committee: United States of America UN Doc CCPR/C/79/Add
50 (1995), para 302. More recently, the Committee has recommended that
Canada abandon the practice of extinguishing inherent aboriginal rights
as incompatible with the ICCPR: Human Rights Committee, Concluding
Observations of the Human Rights Committee: Canada UN Doc CCPR/C/79/Add
105 (1999), para 8.
70. Arbitration Commission of the Conference of the
European Community on Yugoslavia ("the Badinter Commission")
Opinion No 2, (1992) 92 International Law Reports 167. The Badinter
Commission's five members were presidents of European national constitutional
courts. In reports concerning the indigenous peoples of Ecuador, Brazil
and Nicaragua, the Inter-American Commission on Human Rights has cited
the cultural rights guarantee in article 27 of the ICCPR as contemporary
international law: Report on the Human Rights Situation in Ecuador,
OEA/Ser L/V/II.96 (1997) at 103-104; Case 7615 (Brazil), OEA/Ser L/V/11.66,
Doc 10, Rev 1 (1985), at 24, 31; Report on the Situation of a Segment
of the Nicaraguan Population of Miskito Origin, OEA/Ser L/V/II.62
Doc 10, Rev 3 (1983),OEA/Ser L/V/II.62 (1984) at 76-78.
71. Minority Schools in Albania (1935) PCIJ
Ser A/B No 64, p 17; also South West Africa Second Phase, Judgment,
 ICJ Rep 6 at 303-4, 305 per Tanaka J; UN Sub-Commission on Prevention
of Discrimination and Protection of Minorities, The Main Types and
Causes of Discrimination, UN Sales No 49.XIV.3 (1949), paras 6-7;
Special Rapporteur F Capotorti, Study on the Rights of Persons Belonging
to Ethnic, Religious and Linguistic Minorities UN Sales No E.91.XIV.2
(1977), reprinted United Nations Human Rights Study Series No 5
(1991), para 239; also UN Doc E/CN 4/52 (1947), Section V; A Bayefsky,
"The Principle of Equality or Non-Discrimination in International
Law" (1990) 11 Human Rights Law Journal 1 at 27; Triggs,
fn 58, at 379-381.
72. Human Rights Committee, General Comment No 22
(1993) in Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 4, 2000,
paras 1 & 2. See also T van Boven, Elimination of All Forms of
Intolerance and Discrimination Based on Religion or Belief, UN Doc
E/CN 4/Sub 2/1989/32 (1989), para 5; E Odio Benito, Elimination of
All Forms of Intolerance and of Discrimination Based on Grounds of Religion
or Belief, UN Doc E/CN 4/ Sub 2/1987/26, para 13, reprinted United
Nations Human Rights Study Series No 2, UN Sales No E.89.XIV.3 (1989);
A Krishnaswami, Study of Discrimination in the Matter of Religious
Rights and Practices, UN Doc E/CN 4/Sub 2/200/Rev 1 at 1, UN Sales
No 60.XIV.2 (1960) reprinted (1978) 11 New York University Journal
of International Law and Policy at 227.
73. Odio Benito, ibid, para 19.
74. Ibid, at 68. As to the characterisation of Aboriginal
belief-systems as religions, see M Charlesworth, "Introduction"
in M Charlesworth (Ed) Religious Business: Essays on Australian Aboriginal
Spirituality, Cambridge University Press 1998 xiii at xv; W E H
Stanner, "Some Aspects of Aboriginal Religion" written 1976,
reproduced in Charlesworth, ibid, at 1.
75. The decisions in Street v Queensland Bar Association
(1989) 168 CLR 461 at 513-514 per Brennan J, 570-71, 573 per Gaudron
J and Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR
436 at 478 per Gaudron and McHugh JJ support a non-formalistic, substantive
understanding of equality.
76. Such submission goes in effect no further than
the existing presumption against the interpretation of a statutory instrument
in a manner inconsistent with religious equality and religious freedom.
The preservation of religious equality has always been a matter of fundamental
concern to the people of Australia and finds its place in the Constitution,
s 116: Canterbury Municipal Council v Moslem Alawy Society Ltd
 1 NSWLR 525 at 544 per McHugh JA; also Bennion, Statutory
Interpretation, 3rd Ed, section 275.
77. Cf submissions of the Attorney-General of the
Commonwealth, para 3.23.
78. K Barnett, "Western Australia v Ward: One
Step Forward and Two Steps Back: Native Title and the Bundle of Rights
Analysis" (2000) 24 Melbourne University Law Review 462
79. State of Western Australia v Ward (2000)
170 ALR 159 at 353 para , per North J; R v Toohey; Ex parte
Meneling Station Pty Ltd (1982) 158 CLR 327, per Brennan J at 358;
Yanner v Eaton (1999) 166 ALR 258 at 269-270 paras -
per Gleeson CJ, Gaudron, Kirby and Hayne JJ; Delgamuukw v British
Colombia  3 SCR 1010, paras 82, 112, 148-149.
80. R v Toohey; Ex parte Meneling Station Pty Ltd
(1982) 158 CLR 327, per Brennan J at 358; Yanner v Eaton (1999)
166 ALR 258 at 269-270 paras - per Gleeson CJ, Gaudron, Kirby
and Hayne JJ.
81. H Wooten, "The Rights and Recognition of
Indigenous People-Consequential Land Management Impacts on the Environment,
and on the Recognition of Native Title, in G Meyers (Ed), Implementing
the Native Title Act: First Steps, Small Steps, National Native
Title Tribunal, 1996, 60 at 71. The authoritative UN study on indigenous
peoples describes the relationship in the following terms:
communities have, and uphold, a complete code of rules of various
kinds which are applicable to the tenure and conservation of land
as an important factor in the production process, the foundations
of family life and the territorial basis for the existence of peoples
as such. The whole range of emotional, cultural, spiritual and religious
considerations is present where the relationship with land is concerned
The lands form part of their existence.
Cobo, Study of the Problem of Discrimination Against Indigenous Populations,
UN Doc E/CN 4/Sub 2/1983/21/Add 4. More recently, a UN Rapporteur has
identified the following elements unique to indigenous peoples' relationship
with their lands:
(i) a profound
relationship exists between indigenous peoples and their lands, territories
and resources; (ii) this relationship has various social, cultural,
spiritual, economic and political dimensions and responsibilities;
(iii) the collective dimension of this relationship is significant;
and (iv) the intergenerational aspect of such a relationship is also
crucial to indigenous peoples' identity, survival and cultural viability.
Erica Irene Daes,
Indigenous People and their Relationship to Land: Final Working Paper,
UN Doc E/CN 4/Sub 2/2000/25, para 19. The Special Rapporteur concluded
peoples have a distinctive and profound spiritual and material relationship
with their lands and with the air, waters, coastal sea, ice, flora,
fauna and other resources. This relationship has various social, cultural,
spiritual, economic and political dimensions and responsibilities.
title by which indigenous land is in many cases held, is often subject
to the illegitimate use of State power to extinguish such title, in
contrast to the legal protection and rights that, in most countries,
protect the land and property of other citizens. This single fact
probably accounts for the overwhelming majority of human rights problems
affecting indigenous peoples."
paras 117, 122
example Minister of State for the Army v Dalziel (1943-44) 68
CLR 261 at 285 per Rich J.
83. The Commission does not accept that "the
principle that native title can be particularly extinguished is well
established by this Court": submissions of the Attorney-General
of the Commonwealth, para 3.3. In particular, in Mabo (No 2)
Brennan J's discussion of partial extinguishment was in a geographical
rather than conceptual sense: (1992) 175 CLR 1 at 69. In Wik Peoples
v Queensland Toohey J was not concerned with partial extinguishment,
rather with the yielding of native title to the extent of inconsistency:
187 CLR 1 at 133.
84. Submissions of the Attorney-General of the Commonwealth,
85. For example, submissions of the Attorney-General
of the Commonwealth, paras 2.3, 2.14, 3.16.
86. Lane's Commentary on the Australian Constitution
(2nd Ed) at 316-318.
87. Bank of NSW v The Commonwealth (1948) 76
CLR 1 at 349; Newcrest Mining (WA) Ltd v The Commonwealth (1997)
190 CLR 513, at 530, 633-634; Minister of State for the Army v Dalziel
(1994) 68 CLR 261 at 286; also Commonwealth of Australia v State
of Western Australia (1999) 196 CLR 392 at 433 para  per Gummow
J, at 480, 485 paras ,  per Hayne J.
88. Trade Practices Commission v Tooth & Co
Ltd (1979) 142 CLR 397, per Stephen J at 415.
89. Thorpes Ltd v Grant Pastoral Co Pty Ltd
(1955) 92 CLR 317 at 331; also State of Western Australia v Ward
(2000) 170 ALR 159 at 348 para .
90. State of Western Australia v Ward (2000)
170 ALR 159 at 328, 353 paras ,  per North J.
91. State of Western Australia v Ward (2000)
170 ALR 159 at 358, 360 paras ,  per North J.
92. Bennion, Statutory Interpretation, 3rd
Ed, section 278; Clissold v Perry (1904) 1 CLR 363 at 373; Greville
v Williams (1906) 4 CLR 64; Wade v New South Wales Rutile Mining
Co Pty Ltd (1970) 121 CLR 177 at 181, 182.
93. Methuen-Campbell v Walters  QB 525
at 542; Stile Hall Properties Ltd v Gooch  1 WLR 62 at
65; Chilton v Telford Development Corpn  1 WLR 872; also
Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 111;
Wik Peoples v Queensland (1996) 187 CLR 1 at 155.
94. Compare New Zealand jurisprudence which maintains
in relation to extinguishment the equal status of native title with
other interests: Te Runanganui o Te Ika Whenua Inc Society v Attorney-General
 2 NZLR 20 at 24.
95. See W Gummow, Change and Continuity: Statute,
Equity and Federalism, Oxford University Press 1999, at 18-22.
96. For example, article 2(d) CERD; article 2 ICCPR;
American Law Institute, Restatement of the Law (3rd): The Foreign
Relations Law of the United States, 1987, vol 2, para 702.
97. R S French, "The Evolving Common Law of Native
Title", paper delivered at University of Western Australia, 19
September 2000, at 12. On the potentially "dramatic impact"
of the majority's approach on the extent to which native title may have
survived over current or former pastoral leases in Western Australia,
see also D Bennett SG QC, "Native Title and the Constitution",
Native Title in the New Millennium Representative Bodies Legal Conference,
Melbourne, 16-20 April 2000, at 20.
98. R S French, ibid.
99. Prior to 1933, within the meaning of reservations
in favour of Aboriginal peoples pursuant to grants under the Land
Regulations 1882 (WA), Land Regulations 1887 (WA)
and Land Act 1898 (WA); and after 1933 within the meaning of
s 106(2) of the Land Act 1933 (WA).
100. R S French, fn 97 at 12.
101. Yanner v Eaton (1999) 166 ALR 258.
102. Under the NTA mining leases are excluded from
the categories of interests which extinguish native title: in relation
to past acts ss 13A, 228, 231, 15(1)(d); in relation to future acts
103. State of Western Australia v Ward (2000)
170 ALR 159 at 321 para . Cf submissions of the Attorney-General
of the Commonwealth, para 2.12.
104. R v Toohey; Ex parte Meneling Station Pty
Ltd (1982) 158 CLR 327, per Brennan J at 358; Yanner v Eaton
(1999) 166 ALR 258 at 269-270 paras - per Gleeson CJ, Gaudron,
Kirby and Hayne JJ.
105. Yanner v Eaton (1999) 166 ALR 258 at
269-270 per Gleeson CJ, Gaudron, Kirby and Hayne JJ, at para 72 per
Gummow J. Cf submissions of the Attorney-General of the Commonwealth,
106. B Horrigan & S Young, "Western Australia
v Ward: Rolling Back Native Title in the Kimberlys" (2000) 14 (9)
Australian Property Law Bulletin 85 at 89.
107. Cf submissions of the Attorney-General of the
Commonwealth, para 4.1.
108. Submissions of the Attorney-General of the Commonwealth,