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Editors --- "Re Waanyi People's Native Title Application [NO. 2] - Case Summary" [1996] AUIndigLawRpr 34; (1996) 1(1) Australian Indigenous Law Reporter 23

Re Waanyi People's Native Title Application [No 2]

National Native Title Tribunal (French J, President)

14 February 1995, Perth

Aborigines and Torres Strait Islanders -- Native title -- Land rights -- Whether prima facie case can be made out -- Positive native title case -- Nature of association with land -- Applicants part of cultural block -- Original owners killed or dispossessed -- Whether succession according to traditional laws and customs -- Extinguishment -- General principles -- Leasehold interests -- Pastoral licences and leases -- Whether issue of instrument necessary to effect grant of lease or licence -- Constitutional limitations on power of Queensland legislature -- Power to dispose of Crown lands -- Proviso relating to pre-existing contracts, promises and engagements -- Whether limitation on power -- Despatches and writings from Colonial Office -- Whether promise or engagement -- (CTH) Native Title Act 1993.

Real property -- Title -- Native title -- Land rights -- Whether prima facie case can be made out -- Positive native title case -- Nature of association with land -- Applicants part of cultural block -- Original owners killed or dispossessed -- Whether succession according to traditional laws and customs -- Extinguishment -- General principles -- Leasehold interests -- Pastoral licences and leases -- Whether issue of instrument necessary to effect grant of lease or licence -- Constitutional limitations on power of Queensland legislature -- Power to dispose of Crown lands -- Proviso relating to pre-existing contracts, promises and engagements -- Whether limitation on power -- Despatches and writings from Colonial Office -- Whether promise or engagement -- (CTH) Native Title Act 1993.

In June 1994, the Waanyi people of North Queensland lodged an application for a native title determination over an area of land near Lawn Hill about 250 kilometres northwest of Mt Isa (the `land'). The land was the subject of a lead zinc mining operation proposed to be carried out by CRA.

The Waanyi people claimed that the land was held by them under their customary law. Their claim was supported by evidence given by a consultant anthropologist who relied on results of research conducted over a period of 16 years. The evidence described a connection between the contemporary Waanyi people and the Lawn Hill area including the camping and water reserve within the land.

The Native Title Registrar refused to accept the application on the ground that, prima facie, the claim could not be made out.

The application was referred to the President of the Tribunal in accordance with s. 63 of the Native Title Act 1993 (Cth) (the `Act'). Because of the importance of the case, the State of Queensland, Century Zinc Ltd and CRA Exploration Pty Ltd were invited to make submissions.

Held, directing the Registrar not to accept the application:

Prima Facie Case for the Existence of Native Title

(1) Section 63 of the Act is to be construed according to the ordinary meaning of its words and having regard to the underlying purpose of the Act.

(2) The Presidential Member to whom an application is referred by the Registrar will apply the same test as the Registrar applies under s. 63(1)(a) in deciding whether or not he or she is of the same opinion as the Registrar.

(3) An applicant who is invited, under s. 63(3), to show the Presidential Member that a prima facie claim can be made out must show that evidence exists or can be obtained which is capable of establishing each of the elements of native title; it does not require production of the evidence itself.

(4) The nature and incidents of native title in a particular case are matters of fact to be ascertained by the evidence. Native title can be lost by abandonment of connection with the land or surrender to the Crown or extinction of the relevant tribe or group.

Mabo v. Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1; 107 ALR 1, applied.

(5) It is sufficient for an applicant to establish that the claimed land lies within a wider area with which they have the requisite connection.

(6) Physical presence on the land was not in issue in Mabo [No. 2]. The issue of physical presence is a question of mixed law and fact "to be answered in part by reference to Aboriginal traditional law and custom particularly where and to the extent that it deals with movement, relocation and dispossession".

(7) There was evidence available which was potentially capable of justifying a finding that native title existed over the land. The evidence showed that the Injilarija people (who had died out after the coming of Europeans) had occupied the area before the Waanyi people arrived. After the demise of the Injilarija people, it was possible for the Waanyi people to acquire rights and interest in the land according to their own traditional laws and customs and/or the laws and customs common to both themselves and the Injilarija. This occurred some time in the 1890s and since that time, the Waanyi people had maintained a connection with the land although that connection may not have extended to physical occupation in recent times.

Manner of Extinction of Native Title

(8) There is a distinction to be drawn between extinguishment of rights granted by and held from the Crown and the extinguishment of native title. Because the Crown is not competent to derogate from a grant once it is made, an interest validly granted by the Crown cannot be extinguished by the Crown without statutory authority.

(9) The exercise of a power to extinguish native title must reveal a "plain and clear intention" to do so.

Mabo v. Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1; 107 ALR 1, applied.

(10) It was common to all judgments in the Mabo case that valid freehold grants will completely
extinguish native title.

(11) It was common to the majority judgments that the grant of leasehold interests conferring rights of exclusive possession would extinguish native title.

Power of Queensland Legislature to Grant Leases and Extinguish Native Title

(12) There was no limitation on the power of the Queensland legislature to grant leases without reservations in favour of the Aboriginal inhabitants of the land which was the subject of the grant.

(13) Neither the Order in Council 1859 nor the Constitution Act 1867 (Qld) imposed any limitation on the power of the Queensland legislature to extinguish native title.

Was Native Title Extinguished by the Grant of a Pastoral Licence over the Land?

(14) Acting pursuant to the Pastoral Leases Act 1869 (Qld), the Executive Council granted a pastoral licence over the land on 13 September 1881. Licences granted under the Pastoral Leases Act 1869 (Qld) had indicia of proprietary rights and limited rights of protection against "unlawful occupation". However, the grant of the licence was not so completely inconsistent with native title rights as to do more than temporarily impair their employment. There was no evidence of a clear intention to permanently extinguish native title rights or interests.

Can a Reservation in Favour of Aboriginal People be Implied in a Pastoral Lease?

(15) On 13 September 1882, the Executive Council granted a lease over part of the land with effect from 1 July 1883. The lease, which was granted under the provisions of the Pastoral Leases Act 1869 (Qld), was in favour of the same person as the licence. The finding that no formal lease instrument had issued was immaterial to the existence of the lease.

(16) At the time the lease was granted, there was evidence of a standard form of reservation in leases of a similar nature. These took the form of providing for forfeiture of the lease if the lessee deprived indigenous people of the privileges reserved to them. The typical reservation was for free access to the land and the trees and water on it such as "will enable them to procure the animals, birds, fish and other food on which they subsist". Even though no lease instrument had been issued, it was accepted by all sides that the lease would have contained the typical reservation.

(17) However, the reservation was an exercise of an administrative discretion not authorised by the Pastoral Leases Act 1869 (Qld). The reservation was therefore extra-statutory, and, at the best, contractual only. A reservation in favour of aboriginal people was not an incident of the grant of the lease and therefore could not be implied into it in the same manner as, for example, a right to exclusive possession.

BP Refinery (Westernport) Pty Ltd v. Shire of Hastings [1977] HCA 40; (1977) 16 ALR 363; 52 ALJR 20; Codelfa Construction Pty Ltd v. State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337; 41 ALR 367, applied.

Was Native Title Extinguished by the Grant of a Pastoral Lease over the Land?

(18) The grant of a leasehold interest without any reservation in favour of indigenous people is inconsistent with the continuance of native title because it involves the unqualified right to turn indigenous people and others off the land. Any subsisting native title was therefore extinguished. The prima facie claim to native title was therefore not made out.

The decision is reported in (1995) 129 ALR 118.

See also [1995] AboriginalLawB 27; (1995) 3(73) Aboriginal Law Bulletin 10; (1995) 3(73) Aboriginal Law Bulletin 14.