[1993] FCA 465; (1993) 42 FCR 32

Aboriginal Land Rights - Mabo v The State of Queensland (No 2) discussed - whether Land Rights Act permits a grant of land to a Land Trust in respect of which there is valid and subsisting native title - whether the grant of land to a Land Trust under the Land Rights Act extinguishes native title in respect of that land - whether grant of land to a Land Trust is inconsistent with Racial Discrimination Act.

Aboriginal Land Rights (Northern Territory) Act 1976

Racial Discrimination Act 1975

Counsel for the Applicants: A J Sullivan QC, C McDonald

and L H Delaney

Solicitors for the Applicants: James Noonan

Counsel for First Respondent: I Barker QC, L Katz and E Willheim

Solicitors for First Respondent: Australian Government Solicitor

Counsel for Second Respondent: J J Spigelman QC and T F Robertson

Solicitors for Second Respondent: Goddard Dean and Co

THE COURT answers the questions raised in the Stated Case as follows:

1. For the purpose of s. 9(1) of the Racial Discrimination Act 1975 would

a grant of land under s. 12(1)(a) of the Aboriginal Land Rights

(Northern Territory) Act 1976 to a

Land Trust, the Aboriginals for whose benefit such land would be

held by such Trust being immediately before such grant entitled to

rights and privileges in relation to the land under native title

and some of them not consenting to such grant, amount to the doing

of an act involving a distinction, exclusion, restriction or

preference based on race, colour, descent or national or ethnic

origin which had the purpose or effect of nullifying or impairing

the recognition, enjoyment or exercise, on an equal footing, of

any human right or fundamental freedom in the political, economic,

social, cultural or any other field of public life?

2. For the purpose of s. 10(1) of the Racial Discrimination Act 1975, is

the Aboriginal Land Rights (Northern Territory) Act 1975

a law by reason of which 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 or a law by reason of which persons of a

particular race, colour or national or ethnic origin enjoy a right

to a more limited extent than persons of another race, colour or

national or ethnic origin?

3. If the answer to either of the preceding two questions is in the

affirmative, for the purpose of s. 8(1) of the Racial

Discrimination Act 1975, is the Aboriginal Land Rights (Northern

Territory) Act 1976 a

special - 3 - measure to which para. 4 of Article 1 of the

International Convention on the Elimination of All Forms of Racial

Discrimination applies?

If the answer to either of the preceding two questions had been in

the affirmative, this question would have been answered, yes. Question 4:

4. If the answer to the preceding question is in the affirmative, for

the purpose of s. 8(1) of the Racial Discrimination Act 1975, is the

Aboriginal Land Rights (Northern Territory) Act 1976

a measure in relation to which s. 10(1) of the

Racial Discrimination Act applies by virtue of sub-section 10(3)

of the Racial Discrimination Act 1975?

5. Is a grant of the Land pursuant to the provisions of the

Aboriginal Land Rights (North Territory) Act 1976

without the consent of the holders of the native title

unlawful?

THE COURT ORDERS THAT there should be no order as to costs of any party of the Stated Case.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

LOCKHART J This case raises questions relating to the interaction of the concept of native title to land in Australia (as expounded by the High Court in Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 ("Mabo (No 2)")), the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act") and the Racial Discrimination Act 1975 (Cth) ("the Racial Discrimination Act").

2. The Court sits as a Full Court pursuant to s. 25(6) of the Federal Court of Australia Act 1976 to consider a case stated by a judge of the Court.

3. The applicants claim to be traditional Aboriginal owners of certain land in the Northern Territory of Australia to the north-east of Uluru ("the land"). The second respondents also claim to be traditional Aboriginal owners of the land. The Aboriginal Land Commissioner found that both the applicants and the second respondents are the "traditional Aboriginal owners" of the land within the meaning of the Land Rights Act.

4. The land is part of the land which is the subject of a land claim under the Land Rights Act, known as the Lake Amadeus land claim. The first respondent, the Minister of State for Aboriginal and Torres Strait Islander Affairs, has taken the requisite statutory steps preparatory to recommending a grant of the land pursuant to the provisions of the Land Rights Act.

5. The applicants fear that the first respondent intends to recommend the land for grant to a Land Trust pursuant to the provisions of the Land Rights Act. They contend that such a grant would be an unlawful extinction, impairment, interference with or restriction of their native title to the land. They oppose the making of the grant.

6. Five questions are stated in the Case for consideration by this Full Court, namely:-

1. For the purpose of s. 9(1) of the Racial Discrimination Act, would

a grant of land under s. 12(1)(a) of the Land Rights Act to a Land

Trust, the Aboriginals for whose benefit such land would be held

by such Trust being immediately before such grant entitled to

rights and privileges in relation to the land under native title

and some of them not consenting to such grant, amount to the doing

of an act involving a distinction, exclusion, restriction or

preference based on race, colour, descent or national or ethnic

origin which had the purpose or effect of nullifying or impairing

the recognition, enjoyment or exercise, on an equal footing, of

any human right or fundamental freedom in the political, economic,

social, cultural or any other field of public life?

2. For the purpose of s. 10(1) of the Racial Discrimination Act, is

the Land Rights Act a law by reason of which 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 or a law by reason of which persons of a

particular race, colour or national or ethnic origin enjoy a right

to a more limited extent than persons of another race, colour or

national or ethnic origin?

3. If the answer to either of the preceding two questions is in the

affirmative, for the purpose of s. 8(1) of the Racial

Discrimination Act, is the Land Rights Act a "special measure" to

which para. 4 of Article 1 of the International Convention on the

Elimination of All Forms of Racial Discrimination ("the

Convention") applies?

4. If the answer to the question 3 is in the affirmative, for the

purpose of s. 8(1) of the Racial Discrimination Act, is the Land

Rights Act a measure in relation to which s. 10(1) of the Racial

Discrimination Act applies by virtue of sub-s. 10(3) of the Racial

Discrimination Act?

5. Is a grant of the Land pursuant to the provisions of the Land

Rights Act without the consent of the holders of the native title

unlawful?

7. Consideration of the questions must commence with the judgment of the High Court in Mabo (No 2). The judgments of their Honours reflect differences of opinion which on some issues are fundamental, yet on others reflect variances of emphasis. The decision is authority for the following principles:-

1. The common law of Australia rejects the proposition that, when the

Crown acquired sovereignty over territory which is now part of

Australia, it thereby acquired the universal and absolute beneficial

ownership of all the land therein.

2. The common law accepts that the antecedent rights and interests in

land possessed by the indigenous inhabitants of the territory survived

the change in sovereignty; and those antecedent rights and interests

thus constitute a burden on the radical title of the Crown. (Radical

title is a title adapted from feudal theory that was called a radical,

ultimate or final title).

3. The theory of terra nullius (a territory belonging to no-one) is

rejected by the common law of Australia.

4. The Crown's acquisition of sovereignty over the several parts of

Australia cannot be challenged in an Australian municipal court.

5. The common law of Australia recognizes a form of native title

which, in the cases where it has not been extinguished, reflects the

entitlement of the indigenous inhabitants, in accordance with their laws

or customs, to their traditional lands.

6. Native title to land survived the Crown's acquisition of

sovereignty and radical title. The rights and privileges conferred by

native title were unaffected by the Crown's acquisition of radical

title, but the acquisition of sovereignty exposed native title to

extinguishment by a valid exercise of sovereign power inconsistent with

the continued right to enjoy native title.

7. Where the Crown has validly alienated land by granting an interest

that is wholly or partially inconsistent with a continuing right to

enjoy native title, native title is extinguished to the extent of the

inconsistency. Thus native title has been extinguished, for example, by

grants of estates of freehold, but not necessarily by the grant of

lesser interests (eg. authorities to prospect for minerals).

8. Where the Crown has validly and effectively appropriated land to

itself and the appropriation is wholly or partially inconsistent with a

continuing right to enjoy native title, native title is extinguished to

the extent of the inconsistency. Thus native title to parcels of the

waste lands of the Crown that have been validly appropriated (whether by

dedication, setting aside, reservation or other valid means) and used

for roads, railways, post offices and other permanent public works which

preclude the continuing concurrent enjoyment of native title, has been

extinguished. Native title continues where the waste lands of the Crown

have not been so appropriated or used or where the appropriation and use

is consistent with the continuing concurrent enjoyment of native title

over the land (eg. land set aside as a national park).

9. Extinguishment of native title by the Crown by inconsistent grant

does not give rise to a claim for compensatory damages, at least to the

extent of the inconsistency. The refinements of this principle remain

to be determined.

10. Native title to particular land, its incidents and the persons

entitled thereto are ascertained according to the laws and customs of

the indigenous people who, by those laws and customs, have a connection

with the land. It is immaterial that the laws and customs have

undergone some change since the Crown acquired sovereignty, provided the

general nature of the connection between the indigenous people and the

land remains. Membership of the indigenous people depends on biological

descent from the indigenous people and on mutual recognition of a

particular person's membership by that person and by the elders or other

persons enjoying traditional authority among those people.

11. Native title to an area of land which a clan or group is entitled

to enjoy under the laws and customs of an indigenous people is

extinguished (a) if the clan or group, by ceasing to acknowledge those

laws and (so far as practicable) observe those customs, loses its

connection with the land or (b) on the death of the last of the members

of the clan or group.

12. Native title over any parcel of land can be surrendered to the

Crown voluntarily by all those clans or groups who, by the traditional

laws and customs of the indigenous people, have a relevant connection

with the land, but the rights and privileges conferred by native title

are otherwise inalienable to persons who are not members of the

indigenous people, to whom alienation is permitted by the traditional

laws and customs.

13. If native title to any parcel of the waste lands of the Crown is

extinguished, the Crown becomes the absolute beneficial owner.

14. The question of the validity of any purported exercise by the

Crown of the power to alienate or to appropriate to itself waste lands

of the Crown is left for resolution by the general law.

15. The power of alienation and the power of appropriation vested in

the Crown in right of a State are also subject to the valid laws of the

Commonwealth, including the Racial Discrimination Act. Where a power

has purportedly been exercised as a prerogative power, the validity of

the exercise depends on the scope of the prerogative and the authority

of the purported repository in the particular case.

8. The three basic questions which arise in this case are:-

(a) whether on its true construction the Land Rights Act permits a

grant of land to a Land Trust in respect of which there is a valid

and subsisting native title;

(b) whether the grant of land to land trusts under the Land Rights Act

extinguishes native title in relation to the land;

(c) if the Land Rights Act does permit a grant of land to a land

trust, whether its relevant provisions relating to the grant of

land are inconsistent with the Racial Discrimination Act and to

the extent of the inconsistency inoperative.

9. To answer these questions requires an examination of the interpretation, purpose and operation of the Land Rights Act.

The Land Rights Act

10. It is necessary to refer briefly to the history of the Act, its purpose and certain of its provisions, to understand the questions which are raised in this case. The Land Rights Act was enacted by the Parliament following the final report made by Mr Justice A E Woodward as Commissioner to inquire into and report upon, amongst other things, the appropriate means to recognize and establish the traditional rights and interests of Aboriginals in, and in relation to, land. The "stimulus for the inquiry" (R v Toohey; Ex parte Meneling Station Pty Limited [1982] HCA 69; (1982) 158 CLR 327 per Brennan J at 354) was the judgment of Blackburn J, then a judge of the Supreme Court of the Northern Territory, in Milirrpum v Nabalco Pty Limited (1971) 17 FLR 141. Blackburn J held that the traditional rights and interests of Aboriginals in land on the Gove Peninsula in the Northern Territory were not recognizable as rights of property at common law or in equity and not enforceable as proprietary rights under Australian law.

11. The Land Rights Act and the legislative scheme for making and processing land claims of Aboriginals have been considered by the High Court and this Court in a number of decisions. The High Court decisions include R v Toohey; Ex parte Attorney-General (NT) [1980] HCA 2; (1980) 145 CLR 374; R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170; Meneling Station; R v Toohey; Ex parte Stanton (1982) 57 ALJR 73; R v Carney; Ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365; R v Carney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395; R v Carney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426; Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24; and Mabo (No 2).

12. The long title of the Land Rights Act describes it as:

"An Act providing for the granting of

Traditional Aboriginal Land in the Northern

Territory for the benefit of Aboriginals, and

for other purposes."

The Land Rights Act provides for what Brennan J described in Meneling Station at 355 as "the restoration" of certain land within the Northern Territory to Aboriginal control, and the giving of statutory recognition to Aboriginal rights and interests in that land. The Act does not confer or authorize the Crown to confer proprietary rights upon particular Aboriginals beneficially. Land trusts are created to hold the title to an estate in fee simple in Aboriginal land. "Aboriginal land" is defined by s. 3(1) to mean:

"(a) land held by a Land Trust for an estate in

fee simple; or

(b) land the subject of a deed of grant held

in escrow by a Land Council;"

13. The grant of land under the Land Rights Act vests in an Aboriginal Land Trust proprietary rights which:

"unlike the traditional usufructuary rights

which Blackburn J held not to be property, are

recognized by the common law. Those proprietary

rights are carved out of the Crown's radical

title. Generally speaking, the title to land

which passes from the Crown under a deed of

grant executed and delivered to a Land Trust

under s. 12 neither impairs nor affects any

estate or interest outstanding in the hands of a

third person. Any such estate or interest must

be acquired before a recommendation is made

under s. 11(1) or must come to an end before

delivery of the deed under s. 12(1)(b):"

14. The Act provides for the grant of title to two classes of Crown land: the first class consists of land that substantially comprises the Aboriginal reserves in the Northern Territory; the second class consists of other areas of Crown land in respect of which the Aboriginal Land Commissioner has made a recommendation to the Minister pursuant to s. 50(1)(a) of the Act that that area be granted to a Land Trust (s. 11 and 12).

15. The functions of the Commissioner are set out in s. 50(1)(a), namely,

"on an application being made to the

Commissioner by or on behalf of Aboriginals

claiming to have a traditional land claim to an

area of land, being unalienated Crown land or

alienated Crown land in which all estates and

interests not held by the Crown are held by, or

on behalf of, Aboriginals:

(i) to ascertain whether those Aboriginals or

any other Aboriginals are the traditional

Aboriginal owners of the land; and

(ii) to report his findings to the Minister and

to the Administrator of the Northern

Territory, and, where he finds that there

are Aboriginals who are the traditional

Aboriginal owners of the land, to make

recommendations to the Minister for the

granting of the land or any part of the

land in accordance with sections 11 and 12."

16. The expression "unalienated Crown land" is defined in s. 3 as meaning:

"Crown land in which no person (other than the

Crown) has an estate or interest, but does not

include land in a town."

"Alienated Crown land" is defined in s. 3 as meaning:

"Crown land in which a person (other than the

Crown) has an estate or interest, but does not

include land in a town."

"Crown land" is defined in s. 3 as meaning:

"land in the Northern Territory that has not

been alienated from the Crown by a grant of an

estate in fee simple in the land, or land that

has been so alienated but has been resumed by,

or has reverted to or been acquired by, the

Crown, but does not include:

(a) land set apart for, or dedicated to, a

public purpose under an Act; or

(b) land the subject of a deed of grant held

in escrow by a Land Council."

17. Section 11 provides that where the Commissioner recommends to the Minister in a report made to him under s. 50(1)(a) that an area of Crown Land should be granted to a land trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, and where the Minister is satisfied that the land or a part of it should be granted to a land trust or that different parts of the land should be granted to different land trusts (para. (b)); the Minister shall establish a Land Trust or Land Trusts as the case may be to hold the land or part or parts of it for the benefit of the relevant Aboriginals (para. (c)). The section also requires the Minister, where land in respect of which a Land Trust has been or is proposed to be established is or includes alienated Crown land, to ensure that outstanding estates and interests are acquired by the Crown; and after any such acquisition has been effected and a Land Trust has been established, recommend to the Governor-General the grant of an estate in fee simple in that land to that Land Trust.

18. If the Minister does make a recommendation to the Governor-General under s. 11, the Governor-General may execute a deed of grant of an estate in the land in accordance with the recommendation of the Commissioner and deliver it to the grantee: s. 12(1)(a).

19. The Commissioner is bound to exercise the functions conferred on him by s. 50(1)(a) once a proper application has been made notwithstanding that the land or part of it may be alienated after the making of the land claim and before the Commissioner makes his recommendation to the Minister under s. 11(1)(a).

20. To understand the nature of the Commissioner's functions under s. 80 it is essential to understand the meaning of "traditional Aboriginal owners", an expression defined in s. 3(1) by a definition which involves reference to the expression "Aboriginal tradition" which itself is defined in the same sub-section. The definition of the latter expression is:

"'Aboriginal tradition' means the body of

traditions, observances, customs and beliefs of

Aboriginals or of a community or group of

Aboriginals, and includes those traditions,

observances, customs and beliefs as applied in

relation to particular persons, sites, areas of

land, things or relationships;"

As Brennan J observed in Meneling Station at 356 the relationship of particular Aboriginal groups with their "country" (a term customarily used to describe the land with which there is a traditional connection) invests the country of each group with a unique significance for that group. See also Tickner v Bropho, unreported, Full Federal Court, 30 April 1993.

21. The definition of "traditional Aboriginal owners" in s. 3(1) is in these terms:

"a local descent group of Aboriginals who -

(a) have common spiritual affiliations to a

site on the land, being affiliations that

place the group under a primary spiritual

responsibility for that site and for the

land; and

(b) are entitled by Aboriginal tradition to

forage as of right over that land."

22. I described the Act in Attorney-General (NT) v Hand, Minister for Aboriginal Affairs (1989) 25 FCR 345 in these terms at 357:

"The Land Rights Act is beneficial legislation,

recognising the importance of traditional land

to the Aboriginal people and their spiritual

affinity with it. It is an Act designed to

return to the Aboriginal people so much of their

traditional land as Australian society can make

available to them. The Act recognizes the

tension between the religious affinity of

Aboriginal peoples to their traditional lands

and the demands of a modern western society,

between an ancient people and a cosmopolitan

society. It is an attempt to do justice to the

Aboriginal people consistent with the good

government and progress of Australia for all its

people."

See also the Second Reading Speeches in the House of Representatives and the Senate on the Aboriginal Land Rights Bill which became the Act, Hansard 4 June 1976, 3081; 17 November 1976, 2779; 6 December 1976, 2613-4; 8 December 1976, 2799.

23. As mentioned earlier, Mabo (No 2) is authority for the proposition that the common law of Australia recognizes a form of native title which, except where it has been extinguished, reflects the entitlement of the indigenous inhabitants in accordance with their laws or customs to their traditional land which is preserved as native title. Native title has its origins in and is given its content by the traditional laws acknowledged by, and the traditional customs observed by, the indigenous inhabitants of the territory. The nature of native title must be ascertained by reference to the traditional laws and customs of the indigenous inhabitants of the land. Native title does not have the customary incidents of common law title to land, but it is recognized by the common law. It may not be alienated under the common law. If a group of Aboriginal people substantially maintains its traditional connection with the land by acknowledging the laws and observing the customs of the group, the traditional native title of the group to the land continues to exist. Once the traditional acknowledgment of the laws and observance of the customs of the group ceases, the foundation of native title to the land expires and the title of the Crown becomes a full beneficial title.

24. The possession of land under native title may be protected by representative action brought on behalf of the people concerned. As mentioned earlier, native title to land survived the Crown's acquisition of sovereignty and radical title. Native title may be extinguished by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title, so that native title is extinguished to the extent of the inconsistency. Native title may be extinguished by grants of estates of freehold or leasehold but not necessarily by the grant of lesser interests (eg. authorities to prospect for minerals). However, the extent to which native title over land may co-exist with leasehold tenure is not a question fully explored in Mabo (No 2). Much may depend on the nature and extent of the leasehold estate (e.g. a monthly tenancy or lease for 99 years) and inconsistency, if any, between native title and the lessor's reversionary interest.

25. Although Brennan J (with whose reasons for judgment Mason CJ and McHugh J agreed) referred to native title as "a proprietary" native title, it is a title of a quite different character to ordinary legal or equitable titles recognized by the common law and equity. Toohey J described native title at 178-9 and 195 and said that the use of the term "title" is a convenient expression but is artificial and is capable of being misleading since native "title" does not correspond to the concept of ownership as understood by the land law of England and by the later land law of Australia. The rights are "simply rights exercised by indigenous peoples in regard to land, sufficiently comprehensive and continuous so as to survive annexation" (at 179). Deane and Gaudron JJ described the title as personal, not constituting a legal or beneficial interest in actual land (at 89 and 110).

Grants of land to Land Trusts in respect of which native title exists.

26. In my opinion when grants of land to which there is native title are made to Land Trusts under the Land Rights Act, the native title is not extinguished; and such grants are not inconsistent with the continued existence of native title to the land. My reasons for this conclusion follow.

27. The Land Rights Act establishes detailed machinery to further the interests of the Aboriginal people including Land Trusts, Land Councils and grants of fee simple to Land Trusts. The Land Rights Act does not deprive traditional owners of traditional rights and benefits including native titles. It furthers the interest of the Aboriginal people; and I discern no inconsistency between that objective and the enjoyment of traditional Aboriginal titles by those who have the benefit of them. The establishment of Land Trusts and Land Councils is essentially a modern adaptation of traditional Aboriginal decision-making processes through their communities. The Land Rights Act was created to reflect the rights and obligations that arise from traditional title: Northern Land Council v Olney [1992] FCA 69; (1992) 34 FCR 470 and see Woodward J "Land Rights and Land Use: A View from the Sidelines" (1985) 59 ALJ 413.

28. The machinery established by the Land Rights Act was discussed earlier, but should be considered further. Under the Land Rights Act the grant of land to a Land Trust must be preceded, amongst other things, by the report of the Commissioner to the Minister that the relevant area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land: s. 11(1)(a).

29. The Minister must be satisfied that the land should be granted to a Land Trust to be held for the benefit of Aboriginals who are the "relevant Aboriginals" in relation to that land or that part of the land: s. 11(1)(b)(i). The expression "relevant Aboriginals" in s. 11 in relation to an area of land is defined as meaning Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission.

30. The grant of land to a Land Trust is preceded by the Minister publishing a notice in the Gazette establishing the relevant Land Trust to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned: s. 4(1).

31. One of the functions of a Land Trust in which the title to the land is vested is to exercise its powers as owner of the land for the benefit of the Aboriginals concerned: s. 5(1)(b). Land Trusts are required to exercise their functions in relation to land held by them in accordance with directions of the Land Council: s. 5(2).

32. The functions of a land council include the following:-

. ascertaining and expressing the wishes and the opinion of

Aboriginals living in the area of the Land Council as to the

management of Aboriginal land in that area and as to appropriate

legislation concerning that land: s. 23(a);

. protecting the interests of traditional Aboriginal owners of, and

other Aboriginals interested in, Aboriginal land in the area of

the Land Council: s. 23(b);

. assisting Aboriginals in the taking of measures likely to assist

in the protection of sacred sites on land (whether or not

Aboriginal land) in the area of the Land Council: s. 23(ba);

. consulting with traditional Aboriginal owners of, and other

Aboriginals interested in, Aboriginal lands in the area of the

Land Council with respect to any proposal relating to the use of

that land: s. 23(c).

33. A grant of an estate in fee simple to a Land Trust under the Land Rights Act would ordinarily be made for the benefit of Aboriginals who have native title to the land. The Land Rights Act protects the interests of traditional Aboriginal owners: the relevant sections include ss. 4, 5(1)(c), 5(2)(a), 11, 23(a)-(c), 70 and 71. A grant of land in fee simple to a Land Trust under the Land Rights Act does not prevent Aboriginals having the benefit of native title from continued occupancy, use or possession of their land to the extent that it is in conformity with Aboriginal tradition governing the rights of the relevant Aboriginals with respect to that land: s. 71; cf. observations in Mabo (No 2) of Brennan J at 58, Deane and Gaudron JJ at 100 and Toohey J at 214. Also the customary decision-making processes of Aboriginal people are preserved by s. 77A.

34. The following passage from the judgment of Deane and Gaudron JJ in Mabo (No 2) at 111 makes the point:

"Thus, when Crown lands or waste lands are

transferred to trustees to be held upon trust

for Aboriginal interests, it would be presumed,

in the absence of clear and unambiguous words,

that the lands were intended to be held by the

trustees for the holders of the common law

native title to the extent necessary to enable

enjoyment of their rights of occupation and use."

35. The Land Rights Act provides protection to land held by Land Trusts. The grant of land to a Land Trust does not extinguish native title; it protects it. The relevant statutory provisions include the following:-

. Land held by a Land Trust may not be resumed, compulsorily

acquired or forfeited under any law of the Northern Territory: s.

67;

. Roads cannot be constructed without the consent of the relevant

Land Council and the consent of the traditional owners: s. 68;

. Subject to Aboriginal rights preserved by s. 71, trespass on land

held by a Land Trust attracts a penal sanction: s. 70;

. A miner's right does not apply to land held by a Land Trust: s.

36. The applicants claim to enjoy their traditional native title in conjunction with all other members of their clan or group, and to enjoy their traditional rights and interests on a communal basis. To the extent that traditional native title is enjoyed communally, Aboriginal people are entitled under the Land Rights Act, when grants have been made to Land Trusts, to exercise their traditional rights through the community decision-making processes which are established by and recognized under the Act. Deane and Gaudron JJ said at 109-110 that native title is a communal title and the rights under it are communal rights. See also Brennan J at 62. The mechanisms of the Land Rights Act, namely, Land Trusts and Land Councils, are completely consistent with this objective. It is true that there is no precise correspondence between the Aboriginal people whose wishes and opinions must be ascertained by a Land Council and Aboriginal people who enjoy native title. But a grant of fee simple to a Land Trust is not inconsistent with native title. Nor are the rights and obligations that flow from a grant to a Land Trust precisely identical with the incidents of native title. But precise correspondence is not necessary. This point is illustrated by the judgment of Brennan J in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 116 where his Honour said:

"Although there is no precise correspondence

between the rights and powers conferred on

Pitjantjatjaras by the Land Rights Act and the

traditional rights and obligations of

Pitjantjatjaras or of particular Pitjantjatjara

groups with respect to their clan territory or

'country', the rights and powers conferred upon

Pitjantjatjaras are sufficient to permit the use

and management of the lands in such a way as to

allow their traditional relationship with their

country to be enjoyed and their traditional

obligations in respect of their country to be fulfilled."

37. A Land Council must protect the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council and consult with them (s. 23(1)). "Aboriginal" is defined in s. 3(1) as a person who is a member of the Aboriginal race of Australia.

38. The Land Rights Act is directed to two groups of Aboriginal people: those who are defined as "traditional Aboriginal owners" and the wider group known as Aboriginals who are entitled to enter, occupy or use Aboriginal land to the extent that such entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land. The beneficiaries of land held by a Land Trust are the broader group of Aboriginals all of whom have a right to enter, occupy and use the land provided they satisfy the other requirements of s. 71.

39. The Land Rights Act was intended to achieve, and does in fact achieve, the result of preserving land vested in a Land Trust for the benefit of Aboriginals who have common spiritual affiliations with the land or are entitled by Aboriginal tradition to forage as of right over the land.

40. When one examines the Land Rights Act and the rights that it confers upon persons who have the benefit of a land grant, it is apparent that, although the rights and obligations enjoyed or suffered by Aboriginal people entitled to the benefit of native titles will vary as between clans or groups and areas of land, it is the interests of the relevant Aboriginal people that are necessarily taken into account by the exercise of the various mechanisms established by the Land Rights Act for their benefit. I see no inconsistency between the Land Rights Act and a land grant issued under it and the subsistence of native title.

41. It is helpful to examine the circumstances in which native title may be extinguished as determined in Mabo (No 2). This examination reveals that none of those circumstances are to be found in the Land Rights Act. Native title will be extinguished by any of the following:-

. By an unqualified grant of an estate in fee simple or a lesser

estate which is inconsistent with the rights under common law of a

native title: Deane and Gaudron JJ at 89;

. An alienation of land by the Crown which is inimical to the

continuance of traditional title: Toohey J at 196;

. A Crown grant which vests in the grantee an interest in land which

is inconsistent with the continued right to enjoy a native title

in respect of the same land at least to the extent of the

inconsistency: Brennan J at 68-9;

. A dedication or reservation for an inconsistent purpose where

third party rights intervened or rights to native title are

terminated: Deane and Gaudron JJ at 90, 94 and 110.

42. The members of the High Court in Mabo (No 2) gave various examples of legislative and executive acts which would be consistent or partially consistent with the preservation of native title. They included the following:-

. The grant of an interest in land by the Crown which is not

inconsistent with the continued right to enjoy native title:

Brennan J at 68-9;

. A law which creates a regime of control that is consistent with

the continued enjoyment of native title: Brennan J at 64;

. A law which merely regulates enjoyment of native title: Brennan J

at 64;

. The transfer of Crown lands to trustees to be held upon trust for

Aboriginal interests: Deane and Gaudron JJ at 111;

. The vesting of lands in trustees intending to safeguard native

title: Deane and Gaudron JJ at 118;

. A law dealing specifically with land that was the subject of

traditional title which effects a reservation or grant to trustees

for the benefit of indigenous people: Toohey J at 196;

. The appointment of trustees to control reserves provided that the

trustees do not have a power to interfere with the rights and

interests of the native title holders: Brennan J at 66;

. A declaration that land is reserved not merely for the indigenous

inhabitants, but for the Aboriginal inhabitants generally: Brennan

J at 67;

. A law which reserves land from sale for the purpose of permitting

indigenous inhabitants and their dependants to enjoy their native

title: Brennan J at 66;

. The grant of an authority to prospect for minerals: Brennan J at

69;

. The reservation of land for a purpose which is consistent with the

continuing concurrent use of native title over the land (eg. a

national park): Brennan J at 70.

These examples support my opinion that the Land Rights Act is consistent with the preservation of native title.

43. Native titles may be extinguished by grants of freehold because such grants are inconsistent with the continued preservation of native title. A grant of an estate in fee simple to a Land Trust under the Land Rights Act is not however a grant that extinguishes native title; indeed the two co-exist harmoniously. Land is granted to Land Trusts under the Land Rights Act to preserve native titles and Aboriginal interests and is not inconsistent with the continued enjoyment of native title.

44. An intention to extinguish traditional native title is not to be inferred lightly. There must be a clear intention to do so, whether the relevant action be taken by the Legislature or the Executive. As Brennan J pointed out in Mabo (No 2) at 64 "This requirement ... flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land". See also per Toohey J at 195 and per Deane and Gaudron JJ at 111.

45. The construction for which the applicants contend, namely, that the Land Rights Act does not authorize the grant of land to a Land Trust in respect of which there is native title, would give the Act little or no practical operation. It is beneficial legislation and should be construed so as to give it, not a restricted operation, but a liberal interpretation: R v Toohey; Ex parte The Attorney-General for the Northern Territory [1980] HCA 2; (1980) 145 CLR 374 at 388-394; Attorney-General (NT) v Hand, Minister for Aboriginal Affairs (1989) 25 FCR 345 at 357.

46. The applicants argued that the construction of the Act for which they contended, namely, that the Land Rights Act does not permit a grant of land in respect of which there is a valid and subsisting native title, is supported by the fact that at the time the Act was passed, the Parliament acted on the basis (subsequently proved, so it was submitted, to be in error by Mabo (No 2)), that native title to land in Australia had been extinguished by white settlement, a doctrine said to have been expounded by Blackburn J in Milirrpum v Nabalco Pty Limited. Hence, the Parliament assumed that there was no native title in existence, so the Land Rights Act was never intended to encompass such title in the definition of "Crown land" or "unalienated Crown land" in s. 3 of the Act, with the consequence, so it was argued, that land over which native title existed is not available for grant to a Land Trust.

47. The definitions of "Crown land" and "unalienated Crown land" in s. 3(1) of the Act were set out earlier. Plainly land in relation to which a native title exists is "Crown land" and "unalienated Crown land" within the meaning of the Land Rights Act (s. 3(1)).

48. Although Mabo (No 2) decided that the land with which that case was concerned was not "Crown land" within the meaning of the Land Act 1962 (Qld), that was because the Land Act 1910 (Qld) s. 4 and the Land Act 1962 (Qld) s. 5 expressly exclude from the statutory definition of "Crown land" land "reserved for or dedicated to public purposes". The land in question had been reserved for "Aboriginal inhabitants of the State". Hence the exclusion applied: per Brennan J at 65-6; and Deane and Gaudron JJ at 117-8.

49. The words "estate or interest" in the definition of "unalienated Crown land" do not in my view include "native title". "Estate or interest" comprehend traditional common law, equitable and statutory titles. I need not repeat the earlier passages in my reasons for judgment where I described the characteristics of native title as expressed by members of the High Court in Mabo (No 2).

50. The short answer to the submission based on Milirrpum is that the Land Rights Act must be construed in accordance with its terms according to accepted canons of construction. Its interpretation inevitably leads to the conclusion which I have already mentioned, to the contrary of the submission. Further, it is plain that the Land Rights Act recognizes native title in the sense in which that expression was defined by the judges of the High Court in Mabo (No 2): see for example the definition in s. 3(1) of the expressions "Aboriginal tradition" and "traditional Aboriginal owners" and "traditional land claim"; also the definition of "sacred site" together with the operative provisions of the Act in which those expressions appear.

51. Nor can it be assumed that the Parliament acted on the basis of some kind of mistake as to the law with respect to the enforcement (or for that matter the existence) of native title. What Blackburn J held in Milirrpum was that the common law of Australia did not recognize native title as a proprietary right so as to render it enforceable in Australian courts. His Honour did not decide that communal native title did not exist.

52. Also, Blackburn J's judgment in Milirrpum was the subject of considerable comment, including critical comment, before the enactment of the Land Rights Act. I shall mention some of the relevant articles: J Hookey "The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Land in Australia?" (1972) 5 FL Rev 85; G. Lester and G. Parker "Land Rights: The Australian Aborigines Have Lost a Legal Battle But ...." (1973) 11 Alberta L Rev 189; LJ Priestley "Communal Native Title and The Common Law: Further Thoughts on the Gove Land Rights Case" (1974) 6 FL Rev 150; G Nettheim (Ed) "Aborigines, Human Rights and the Law", Sydney, 1974; D. Brown "Native Title to Land in Colonised Nations", (1972) 21 ICLQ 355. His Honour's judgment was also criticized by Hall J of the Supreme Court of Canada in Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145 at 218.

53. Although it is correct to say that Milirrpum represented the state of the law on this question at the time of the enactment of the Land Rights Act, it is incorrect to say that Parliament necessarily assumed its correctness or applicability.

54. For these reasons in my opinion the Land Rights Act permits a grant of land to be made to Land Trusts in respect of which there is a valid and subsisting native title; and the native title is not extinguished by such grant.

The Racial Discrimination Act

55. The applicants submitted that the provisions of the Racial Discrimination Act operated to prevent the making of grants of land under the Land Rights Act in respect of land to which there attached a valid and subsisting native title. It was argued that the provisions of the Land Rights Act and the power to make grants of land pursuant thereto are subject to the provisions of the Racial Discrimination Act which is an important restraint upon legislative power to extinguish or diminish common law native title. Arguments were put in particular with respect to s. 9(1), 10(1), 10(3)(a) and (b).

56. In my opinion, it is inconceivable that when Parliament enacted the Land Rights Act, a later Act, it intended that its operation or effect should be constrained by the earlier Racial Discrimination Act. The Land Rights Act is an Act of the Parliament dealing comprehensively with the particular subject matter reflected by its long title, namely, the grant of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals and for other purposes. A comprehensive code or scheme was enacted to achieve this end.

57. The Land Rights Act is essentially discriminatory in its nature; it confers rights and privileges upon Aboriginal Australians which are discriminatory as against non-Aboriginal Australians. That discrimination is the essence of the Act; it is the foundation on which it is structured. See Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 per Brennan J at 132.

58. There can be no room for the operation of the Racial Discrimination Act upon the act of issuing a land grant to a Land Trust under the Land Rights Act, because the Parliament has in terms authorized what is said to be the discriminatory act.

59. If provisions of the Land Rights Act do in fact conflict with provisions of the Racial Discrimination Act then the Land Rights Act prevails to the extent of any inconsistency: South Eastern Drainage Board (South Australia) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603; Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 67 ALJR 125 per McHugh J at 163; Pearce on Statutory Interpretation in Australia, 3rd ed, paras. 7.9-7.13.

60. It is unnecessary for me to consider the detailed arguments that were advanced with respect to the question whether there is any particular inconsistency between ss. 9 and 10 of the Racial Discrimination Act and the Land Rights Act.

61. I shall, however, deal with one argument that was raised by counsel for the respondents, namely, that if the Land Rights Act is to be read subject to the Racial Discrimination Act, then the Land Rights Act constitutes a "special measure" to which paragraph 4 of Article 1 of the International Convention On The Elimination Of All Forms Of Racial Discrimination applies. The consequence would be that Part II of the Racial Discrimination Act (which includes ss. 9 and 10) does not apply to the Land Rights Act. This argument is founded on s. 8(1) of the Racial Discrimination Act which provides that Part II (the relevant part dealing with racial discrimination) does not apply to or in relation to the application of "special measures" to which para. 4 of Article 1 of the Convention applies except certain measures which are irrelevant for present purposes.

62. The Convention was opened for signature on 21 December 1965 and entered into force on 2 January 1969. Approval was given to ratification by Australia of the Convention: s. 7 of the Racial Discrimination Act. Article 1(4) provides:

"Special measures taken for the sole purpose of

securing adequate advancement of certain racial

or ethnic groups or individuals requiring such

protection as may be necessary in order to

ensure such groups or individuals equal

enjoyment or exercise of human rights and

fundamental freedoms shall not be deemed racial

discrimination, provided, however, that such

measures do not, as a consequence, lead to the

maintenance of separate rights for different

racial groups and that they shall not be

continued after the objectives for which they

were taken have been achieved."

In Gerhardy v Brown at 133-137 Brennan J described four indicia of the concept of a "special measure" within the meaning of Article 1(4). First, he stated that the beneficiaries of a special measure are to be natural persons and not corporations. Second, his Honour said that the article refers to the several categories of race, colour, descent or national or ethnic origin mentioned in Article 1(1), in order to make Article 1(4) read symmetrically with Article 1(1). The manifest purpose of Article 1(4) is to exempt from the definition of "racial discrimination" those distinctions, exclusions, restrictions or preferences which are made for the sole purpose stated in that paragraph. It would not accord with the object of the Convention to construe the Article 1(4) exemption as limited to distinctions, etc. based on race or ethnic origin and to leave within the definition of racial discrimination those distinctions based on colour, decent or national origin. The third indicium was said by his Honour to be that the purpose of a legislative measure can be gleaned from its terms, its operation and the circumstances in which it applies, but international law does not require that these be regarded as the only sources from which the purpose or the measure can be collected. A "special measure" must have the sole purpose of securing advancement. The fourth indicium articulated by his Honour was that whilst the third indicium is concerned with the purpose of taking the measure, the fourth indicium is concerned with the need for the measure to be taken. The need must match the purpose.

63. In my opinion the Land Rights Act is a "special measure" as comprehended by Article 1(4) of the Convention. The Land Rights Act adopts:

"a number of measures to achieve its purpose,

but nevertheless has the sole purpose of

securing the advancement of the ethnic groups in

question:"

Gerhardy v Brown per Gibbs CJ at 88. In Gerhardy v Brown the Land Rights Act was not the subject of consideration; but the South Australian Act - the Pitjantjatjara Land Rights Act 1981 (SA) - was before the Court. It is in relevant respects analogous to the Land Rights Act. As Mason J said at 103:

"It is to be seen as a legislative measure which

seeks to convert the traditional land ownership

of the Pitjantjatjara people into a modern legal

framework approximating as closely as may be to

the central feature of traditional Aboriginal ownership."

See also the observations of Brennan J at 136. The High Court held that the relevant provisions of the Pitjantjatjara Land Rights Act 1981 (SA) answered the description of "special measures" within the meaning of s. 8(1) of the Racial Discrimination Act and that accordingly s. 19 of the South Australian Act was a valid law of the Parliament of South Australia.

64. It is plain that the Land Rights Act answers the description for the purposes of Article 1(4) of a measure taken for the sole purpose of securing adequate advancement of Aboriginal Australians, requiring their protection in order to ensure that they equally enjoy and exercise human rights and fundamental freedom with non-Aboriginal Australians.

65. I would answer the questions raised in the Stated Case as follows:

Question 1

1. For the purpose of s. 9(1) of the Racial Discrimination Act would

a grant of land under s. 12(1)(a) of the Lands Rights Act to a

Land Trust, the Aboriginals for whose benefit such land would be

held by such Trust being immediately before such grant entitled to

rights and privileges in relation to the land under native title

and some of them not consenting to such grant, amount to the doing

of an act involving a distinction, exclusion, restriction or

preference based on race, colour, descent or national or ethnic

origin which had the purpose or effect of nullifying or impairing

the recognition, enjoyment or exercise, on an equal footing, of

any human right or fundamental freedom in the political, economic,

social, cultural or any other field of public life?

Answer: No

Question 2

2. For the purpose of s. 10(1) of the Racial Discrimination Act, is

the Land Rights Act a law by reason of which 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 or a law by reason of which persons of a

particular race, colour or national or ethnic origin enjoy a right

to a more limited extent than persons of another race, colour or

national or ethnic origin?

Answer: No

Question 3

3. If the answer to either of the preceding two questions is in the

affirmative, for the purpose of s. 8(1) of the Racial

Discrimination Act, is the Land Rights Act a special measure to

which para. 4 of Article 1 of the International Convention on the

Elimination of All Forms of Racial Discrimination applies?

Answer:

If the answer to either of the preceding two questions had been in

the affirmative, this question would have been answered, yes.

Question 4:

4. If the answer to the preceding question is in the affirmative, for

the purpose of s. 8(1) of the Racial Discrimination Act, is the

Land Rights Act a measure in relation to which s. 10(1) of the

Racial Discrimination Act applies by virtue of sub-section 10(3)

of the Racial Discrimination Act?

Answer:

This question does not arise.

Question 5

5. Is a grant of the Land pursuant to the provisions of the Land

Rights Act without the consent of the holders of the native title

unlawful?

Answer: No.

66. As to costs, the applicants submitted that in the event of their being unsuccessful, as they have been, there should be no order as to the costs. The second respondents submitted that whatever may be the answer to the questions there should be no order as to costs of any party. The first respondent submitted that the usual rule should apply that costs follow the event.

67. The case raises questions of considerable public importance in this country. In my opinion, in all the circumstances there should be no order as to the costs of any party to the Stated Case.

O'LOUGHLIN J I have read a draft of the judgment that Lockhart J has written in this matter. I agree with the answers that he proposes to the questions in the case stated and with his conclusion that there should be no order as to costs.

WHITLAM J I also agree with the judgment of Lockhart J.