Western Australia v Commonwealth

The State of Western Australia contains large tracts of unalienated Crown land which might be claimed to be subject to native title. The Parliament of that State enacted the Land (Titles and Traditional Usage) Act 1993 WA (the WA Act) which purports to extinguish native title and replace it with statutory rights of traditional usage within a regime prescribed by that Act (s 7). Although under the common law native title is defeasible by legislation or by the lawful exercise of the power of the Crown to grant interests in land inconsistent with the continued right of Aborigines to enjoy native title, the effect of an exercise of legislative or executive power by a State or Territory to extinguish native title was limited by the enactment by the Commonwealth Parliament in 1975 of the Racial Discrimination Act 1975 Cth. By force of s 109 of the Constitution, that Act precludes both a bare legislative extinguishment of native title and any discrimination against the holders of native title which adversely affects their enjoyment of their title in comparison with the enjoyment by other title holders of their title. That was the effect of Mabo v Queensland [2] (hereafter Mabo [No 1]) which held the Queensland Coast Islands Declaratory Act 1985 Q to be invalid. However, the WA Act was not merely a legislative extinguishment of native title in Western Australia; as indicated, it purported to confer certain statutory rights in replacement of native title. The relevant provisions of the WA Act will presently be considered. It came into operation on 2 December 1993.

Shortly afterwards, on 1 January 1994, the operative provisions of a Commonwealth law, the Native Title Act 1993 Cth, commenced. That Act selected 1 July 1993 as the date on and after which native title could be extinguished by the enactment of a law provided it satisfied the conditions prescribed by the Native Title Act (s 11). The WA Act did not satisfy those conditions and Western Australia conceded that it is inconsistent with the Native Title Act, provided the latter Act is valid and that it operates within Western Australia.

The operation within Western Australia of both the WA Act and the Native Title Act depends on the existence of land subject to native title in that State. If there were no native title land in existence in Western Australia when the WA Act came into operation, there would be no native title holders in whom statutory rights of traditional usage created by the WA Act might vest. Nor would there be any native title land upon which the Native Title Act might fasten. The provisions of the Native Title Act affecting native title would have no practical operation in Western Australia except to the extent that an extended definition of native title (s 223(3)) in the Native Title Act was satisfied by the statutory rights conferred by the WA Act.

The primary submission of the State of Western Australia is that native title came to an end upon the establishment of the Colony of Western Australia by reason of the steps taken to establish the Colony. Alternatively, the State submits that native title in Western Australia was wholly and irrevocably extinguished by the WA Act. The Commonwealth submits that native title survived the establishment of the Colony of Western Australia. The Commonwealth also supports the submission of other parties, representing the Wororra, Yawuru and Martu Peoples, that the WA Act is invalid for inconsistency with the Racial Discrimination Act [3] . If these arguments be correct, common law native title survived and existed when the Native Title Act commenced. Moreover, the Commonwealth submits that racially discriminatory action, whether legislative or executive, which would otherwise have been effective to extinguish native title in or over particular parcels of land, was ineffective if the action were taken after 31 October 1975 by reason of the Racial Discrimination Act which came into force on that day unless the validity of the action is saved by particular provisions of the Native Title Act.

On the assumption that the Native Title Act is valid, the Commonwealth submits that the WA Act is an inconsistent law of the State which, by reason of s 109 of the Constitution, has no valid operation. This submission is put at the forefront of the Commonwealth's attack on the WA Act. But if the WA Act is inoperative because of inconsistency with the Racial Discrimination Act, a supervening inconsistency with the Native Title Act - which would have to flow from a retrospective operation of that Act - would produce no change in the legal situation. Of course, if the Native Title Act be construed as repealing any provision of the Racial Discrimination Act with which the WA Act is inconsistent, the question would be whether the WA Act is inconsistent with the Native Title Act as from the time when its provisions repealed the relevant provision of the Racial Discrimination Act. It is conceded that the WA Act and the Native Title Act are inconsistent or, more precisely, would be inconsistent if they both applied to common law native title at the same time. If the WA Act effectively extinguished common law native title in Western Australia, the question whether the Native Title Act was capable of reviving that title retrospectively will arise. If the WA Act did not effectively extinguish common law native title in Western Australia by reason of inconsistency with the Racial Discrimination Act, the date on which the WA Act became inconsistent with the Native Title Act rather than with the Racial Discrimination Act is immaterial.

These submissions raise for determination two issues depending on events anterior to the enactment of the Native Title Act:

1. Whether, at the time when the Racial Discrimination Act 1975 came into force (ie 31 October 1975), native title existed in Western Australia pursuant to the common law as declared by this Court in Mabo [No 2].

2. Whether, given the effect of the Racial Discrimination Act as defined in Mabo [No 1], the WA Act, when enacted, was inconsistent with the Racial Discrimination Act in so far as it purported to extinguish native title generally and to confirm retrospectively the extinguishing of native title to land the subject of Crown grants.

The State submits that, however these issues be decided, the Native Title Act is invalid as beyond the legislative powers of the Parliament. The Commonwealth relies upon the powers conferred by s 51(xxvi) (the races power) and by s 51(xxix) (the external affairs power) of the Constitution to support the Native Title Act. The State denies that the Native Title Act has the character of a law with respect to either of the subjects specified by those paragraphs. Those are not the only grounds of invalidity advanced by the State. The State submits that, even if the Native Title Act is prima facie supportable by either of those powers, that Act, in its impact on Western Australia, exceeds the limits on the legislative powers of the Commonwealth implicit in the federal structure of the Constitution [4] . These submissions give rise to two further issues, namely:

3. Whether viewed as a whole, (leaving aside particular objections to validity raised in the issue numbered 4 hereafter), the Native Title Act falls within the prima facie scope of the power conferred by s 51(xxvi) to make laws with respect to "[t]he people of any race for whom it is deemed necessary to make special laws" or within the prima facie scope of the power conferred by s 51(xxix) to make laws with respect to "[e]xternal affairs".

4. Whether the Native Title Act wholly or partially (in particular ss 11, 19, 20, 22, 23, 26, 28, 43 and 211(2)) falls outside the scope of Commonwealth legislative power in that it:

(i) impermissibly attempts to control State legislative power;

(ii) impermissibly seeks directly to impose invalidity on State legislation;

(iii) impermissibly discriminates against Western Australia;

(iv) impermissibly impairs the ability of the State of Western Australia to function as such;

(v) impermissibly singles out the State for the imposition of a burden or financial liability (ie s 20).

1. As exemplified particularly by the decisions of this Court in Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 and Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192.

There are some further issues in the case but they are of subsidiary importance and can better be addressed after the relevant statutory provisions are considered.

The issues already identified and the subsidiary issues are raised by questions reserved by the Chief Justice for the opinion of the Full Court in three proceedings in which argument was heard together. The State of Western Australia is the defendant in proceedings brought by representatives of the Wororra and Yawuru Peoples and in proceedings brought by representatives of the Martu Peoples. The State is the plaintiff in proceedings against the Commonwealth. The validity of the WA Act is challenged in the proceedings to which the State of Western Australia is a defendant; the validity of the Native Title Act is challenged in the proceedings to which the Commonwealth is defendant. The meaning and significance of most of the questions reserved by the Chief Justice depend on the complex of provisions contained in the respective Acts the validity of which is under challenge. The answers to the questions reserved must await a consideration of those provisions in the course of addressing the issues earlier stated. It is convenient to consider those issues in chronological order.

1. The establishment of Western Australia: was native title extinguished?

The State submits that the history of the establishment of the Colony of Western Australia reveals an intention on the part of the Crown to extinguish generally the native title existing over land within the proposed colonial boundaries. The State's submission on this aspect of the case, carefully framed by the Solicitor-General, focuses on the propositions that the Crown may confiscate private property as an act of State [5] and that the survival of native title on the acquisition of sovereignty by the British Crown was no more than a presumption rebuttable by proof of the actual intention of the Crown to extinguish native title [6] . The Crown's intention at the time of the establishment of Western Australia to become the beneficial owner of the land was said to distinguish the history of that Colony from the history of the establishment of other Australian colonies. That intention, so the argument ran, was sufficient to rebut any presumption of the survival of native title. The intention of the Crown is said to be ascertainable from the instruments relevant to the establishment of the Colony considered in the context of the surrounding circumstances. Of course, the mere formation of an intention by the officers of the Crown could not have achieved the extinguishment of native title; intention would have had to find expression in order to be effective. In Mabo [No 2] Toohey J spoke of a "positive act" as the means by which private property may be seized "in the act of acquiring sovereignty" [7] .

1. See Mabo [No 2] (1992) 175 CLR 1 at 55, 95-96, 183-184. 2. See Mabo [No 2] (1992) 175 CLR 1 at 127. 3. Mabo [No 2] (1992) 175 CLR 1 at 184.

After sovereignty is acquired, native title can be extinguished by a positive act which is expressed to achieve that purpose generally - for example, s 7 of the WA Act - provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act. Again, after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel - for example, a grant by the Crown of a parcel of land in fee simple - provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act. But, in neither of the examples given is it relevant to inquire into the state of mind of the Crown or of the Crown's officers who did the act. Nevertheless, the State submits, if a Sovereign in acquiring territory manifests an intention to extinguish native title generally, the acquisition is effective in municipal law to achieve the intended result.

The acquisition by the Crown of the territory of Western Australia was an act of State, the validity of which is not open to question in municipal courts [8] . But the effect of an act of State by which territory is acquired on rights and interests in land within the territory is, of necessity, a matter for determination by the municipal law applied in the territory by the acquiring Sovereign [9] . At common law, a mere change in sovereignty over a territory does not extinguish pre-existing rights and interests in land in that territory [10] . Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory [11] , the presumption in the case of the Crown is that no extinguishment is intended [12] . That presumption is applicable by the municipal courts of this country in determining whether the acquisition of the several parts of Australia by the British Crown extinguished the antecedent title of the Aboriginal inhabitants [13] .

1. Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 7 Moo Ind App 476 at 529 [ 19 ER 388 at 407]; Mabo [No 2] (1992) 175 CLR 1 at 31-32, 78-79. 2. Mabo [No 2] (1992) 175 CLR 1 at 95. 3. See Mabo [No 2] (1992) 175 CLR 1 at 54-57, 82, 182 and authorities there cited. 4. Mabo [No 2] (1992) 175 CLR 1 at 95; cf at 193-194. 5. Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876 at 880; [1957] 2 All ER 785 at 788. 6. Mabo [No 2] (1992) 175 CLR 1 at 57, 82-83, 183-184.

The State of Western Australia, acknowledging the presumption, sought to rebut it by showing that the British Crown, in acquiring the territory of Western Australia, manifested an intention to extinguish all native title to land in that territory. That intention was said to follow from the Crown's intention to assume absolute ownership of all land within the Colony. To discharge the onus, it is necessary to show at least that the Crown has manifested clearly and plainly an intention to extinguish all native title. So much is required of any statute which is said to extinguish native title which has survived acquisition of a territory by the Crown [14] and there is no reason why some lesser standard should be applied in ascertaining the Crown's intention when exercising the prerogative power to acquire new territory. It may be that even stricter proof is required. In In re Southern Rhodesia [15] , Lord Sumner said the presumption of the survival of property rights upon conquest was applicable "in the absence of express confiscation or of subsequent expropriatory legislation". However, for reasons that will appear, it is unnecessary to choose between these tests.

1. See Mabo [No 1] (1988) 166 CLR 186 at 213, 223; Mabo [No 2] (1992) 175 CLR 1 at 64, 111, 136, 138, 195-196. 2. [1919] AC 211 at 233.

The State submitted that the Crown's intention to extinguish native title generally was manifested in and is to be inferred from the terms of the instruments relevant to the establishment of the Colony of Western Australia in the circumstances in which those instruments were issued. The relevant history starts with the commendation of the Swan River area as a desirable location for a trading, naval and military station by Captain Stirling in a report to Governor Darling on 14 December 1826 [16] , his exploration of the area in early 1827 and his report on the desirability of the south west part of the continent for settlement [17] . He put himself forward for consideration as Superintendent of such a settlement [18] . At first, the proposal to establish a settlement in the area of the Swan River was not adopted by the British Government [19] but later there were discussions between officers of the British Government and a consortium of prospective investors. Ultimately, the Government agreed with promoters of a scheme to grant land in the proposed colony in exchange for investing capital "upon public or private Objects at the Rate of Forty Acres for every Sum of £3 so invested" [20] .

1. Historical Records of Australia (HRA), Series 1, vol 12, pp 777-780. 2. 18 April 1827: HRA, Series 3, vol 6, pp 551-584. 3. HRA, Series 1, vol 13, p 307. 4. HRA, Series 3, vol 6, p 584: Letter Under Secretary Stanley to Stirling, 29 November 1827. 5. HRA, Series 3, vol 6, pp 593-594.

On 5 November 1828 Sir George Murray, Principal Secretary of State, wrote to the Lords Commissioners of the Admiralty requiring the despatch of an official to take formal possession of "the Western side of New Holland in His Majesty's name" [21] . Captain Fremantle was the Admiralty's ultimate choice to carry out these instructions [22] . On 30 December 1828, Captain Stirling was appointed to command an expedition for a settlement at the mouth of the Swan River "with the adjacent Territory". He was to receive a grant of 100,000 acres of his choosing [23] but no pecuniary emoluments in excess of the expenses of his command [24] . He was directed to assume the title of Lieutenant Governor [25] .

1. Swan River Papers (SRP), vol 3, p 26. 2. Orders from the Admiralty to Fremantle, 2 December 1828: Diary and Letters of Admiral Sir C H Fremantle, GCB Relating to the Foundation of the Colony of Western Australia 1829 (1979), pp 18-19. 3. HRA, Series 3, vol 6, pp 596, 598, 603. 4. SRP, vol 11, p 19: Goderich to Stirling, 28 April 1831. 5. HRA, Series 3, vol 6, p 600.

From the beginning it was intended that the new settlement should be self-supporting. The British Government did not intend to incur any expense in conveying settlers or in supplying them with necessaries after their arrival. The policy that land be allotted according to the amount to be invested was contained in regulations promulgated by the Colonial Office in January 1829 and amended in some respects in the following month [26] . On 22 January 1829, Sir George Murray gave instructions to Captain Stirling accordingly [27] and he was directed on the policy to be followed in the granting of land in particular locations. He had also been directed that "a due proportion [of land] must be reserved for the Crown, as well as for the maintenance of the Clergy, support of Establishments for the purposes of Religion, and the Education of youth" [28] .

1. HRA, Series 3, vol 6, p 606. 2. HRA, Series 3, vol 6, pp 609-610. 3. Instructions to Stirling from Murray, 30 December 1828: p 601.

Captain Fremantle reached the West Coast of New Holland on 25 April 1829 but the weather held him out of the Swan River until 2 May 1829 when he took formal possession "of the whole of the West Coast of New Holland in the name of His Britannic Majesty, and the Union Jack was hoisted on the South head of the River" [29] . Captain Stirling arrived on 1 June aboard the " Parmelia " in company with other settlers [30] . A week later, HMS " Sulphur " anchored in Cockburn Sound with a detachment of troops on board [31] . Captain Stirling reported to Mr Horace Twiss, MP, Under Secretary for the Colonies that Captain Fremantle "had taken possession in His Majesty's Name of the portion of New Holland which is not included in the Territory of New South Wales" [32] . At this time, the western boundary of the Colony of New South Wales had been extended from the 135th degree of east longitude to the 129th degree of east longitude [33] . However, it does not appear that the settlement of Western Australia then extended to all of New Holland west of the 129th degree of east longitude. Stirling had not received formal instructions at this stage as to the eastern boundary of the settlement and a settlement at King George Sound which had been established in December 1826 remained under the administrative authority of the Governor of New South Wales until March 1831 [34] .

1. SRP, vol 5, p 100: Fremantle to Croker, 8 October 1829. 2. SRP, vol 5, p 100; Fremantle to Croker, 8 October 1829. 3. SRP, vol 5, p 100; Fremantle to Croker, 8 October 1829. 4. SRP, vol 3, p 118: Stirling to Twiss, 25 August 1829. 5. Letters Patent commissioning Governor Darling of 16 July 1825, the North Coast of New Holland between 135th and 129th meridians having been taken possession of in the name of King George IV on or before 12 November 1824: HRA, Series 3, vol 5, p 781, despatch of Captain JJ Gordon Bremer. 6. Mulvaney & Green, Commandant of Solitude: Journals of Captain Collet Barker 1828-1831 (1992), p 246.

On 18 June 1829, as Lieutenant Governor of His Majesty's Settlement of Western Australia, Stirling issued a Proclamation declaring that the "Laws of the United Kingdom as far as they are applicable to the circumstances of the case do immediately prevail and become security for the Rights, Privileges and Immunities of all His Majesty's Subjects found or residing in [the] Territory" of Western Australia. In accordance with the protection of that law the Lieutenant Governor gave notice "that if any person shall be convicted of behaving in a fraudulent cruel or felonious manner to the aboriginal race of inhabitants of this Country such person or persons will be liable to be prosecuted and tried for the offence as if the same had been committed against any others of His Majesty's Subjects". The proclamation recited that the Lieutenant Governor had been given power "to grant unoccupied lands" within the territory and that regulations would be published governing the granting of lands. On 28 August 1829 General Regulations and Instructions relative to Crown lands were notified [35] . The regulations implemented the policy of allotting land according to the amount to be invested by the grantee, whether a private settler or an officer of the civil or military establishment [36] .

1. SRP, vol 4, p 18. 2. The General Regulations and Instructions relative to Crown Lands, cl 13.

In the meantime, the British Parliament had enacted the Swan River Act 1829 [37] which provided for the making of Orders in Council authorising the appointment of three or more persons resident in the Settlement to enact laws and to constitute courts for the peace, order and good government of persons in the Settlement. No part of the colonies of New South Wales and Van Diemen's Land was to be "comprized within the said New Colony or Settlements of Western Australia".

The preamble to the Act referred to a Settlement "upon certain wild and unoccupied Lands on the Western Coast of New Holland". If this preamble can be construed by reference to contemporary usage, the description "wild" bears the meaning of the same term in the regulations of 13 January 1829 which referred to land that had not "been brought into Cultivation, or otherwise improved or reclaimed from its wild state" [38] . The term "wild" probably meant land in its natural state. The term "unoccupied" is of greater legal significance. It could not have meant unoccupied by Aborigines for it was known at all material times that the land on the west coast of New Holland was occupied by Aborigines. Stirling had so reported in 1827 [39] and the instructions first given by the Lords Commissioners of the Admiralty to the officer commanding the naval forces at the Cape of Good Hope to despatch a ship to take possession of the western coast of New Holland directed the observance of "great caution against any surprize of the natives, and especially to be very guarded with respect to their women" [40] . That direction was conveyed by formal instruction to Captain Fremantle [41] . In 1829, shortly after Stirling had arrived, a Major Lockyer wrote an article for the information of intending settlers which noted that the settlers would have to watch their cattle and sheep "from the Natives, who are very numerous and fierce" and he anticipated that "force will have to be used to drive them away and quit that part of the Coast" [42] . By the end of 1830, the land on both sides of the Swan and Canning Rivers almost to their source had been allocated [43] . A record was kept of the "Natives, original Owners of Land on the Right & Left Banks of the Swan, from Fremantle to the Head of River" [44] . In the light of the knowledge of actual occupation of the Swan River area by Aborigines, "unoccupied" in the preamble to the Swan River Act must have meant "unoccupied by settlers". That accords with the practice noted by the House of Commons Select Committee on Aborigines (British Settlements) in 1837 [45] . The Committee observed that -

while Acts of Parliament have laid down the general principles of equity, other and conflicting Acts have been framed, disposing of lands without any reference to the possessors and actual occupants, and without making any reserve of the proceeds of the property of the natives for their benefit. (Emphasis added.) And, in Cooper v Stuart [46] , New South Wales was described as "a tract of territory practically unoccupied, without settled inhabitants or settled law". Clearly enough, occupation by Aborigines was disregarded. The Aborigines and their interests in the land were not acknowledged. The territory was, for the purposes of the law governing the relationships between the Crown and the settlers, treated as though it were "desert uninhabited" [47] . Or, to use the more familiar phrase of international law, "terra nullius". 1. Regulations for the guidance of those who may propose to embark, as Settlers, for the new Settlement on the Western Coast of New Holland: HRA, Series 3, vol 6, p 608. 2. HRA, Series 3, vol 6, pp 556-557. 3. SRP, vol 3, p 27: Barrow to Commodore Schomberg, 7 November 1828. 4. SRP, vol 3, p 111: Schomberg to Fremantle, 14 March 1829. 5. HRA, Series 3, vol 6, pp 604-606. 6. Report by Paul Seaman QC, "The Aboriginal Land Inquiry" (September 1984) ch 12, pp 87-88. 7. Memorandum of 31 December 1840 headed with that description by Charles Symmons, Protector of Natives, to the Colonial Secretary, Colonial Secretary's Records, vol 89. 8. British Parliamentary Papers (BPP), Report on Aborigines (British Settlements), 26 June 1837, [425], p 4. 9. (1889) 14 App Cas 286 at 291. 10. Blackstone's phrase: Commentaries on the Laws of England, 17th ed (1830), Bk 1, ch 4, p 107, discussed in Mabo [No 2] (1992) 175 CLR 1 at 34-37.

On 4 March 1831 Captain Stirling was appointed Governor of Western Australia [48] . The Letters Patent and Commission containing the appointment then defined the boundaries of Western Australia, fixing the eastern boundary at the 129th degree of east longitude [49] . Governor Stirling was given authority, with the advice and consent of the Executive Council of the Colony, "to issue a proclamation dividing our said Territory of Western Australia and its Dependencies into Districts Counties Hundreds Towns Townships and Parishes and appoint the limits thereof" [50] . The Instructions under the Royal Sign Manual accompanying the Commission directed Stirling to cause a survey to be made of all the land in Western Australia which was to be divided into counties and sub-divided into hundreds and parishes. He was given power, with the advice of the Executive Council, "to agree for such Lands Tenements and Hereditaments as shall be in our power to dispose of and them to grant to any person or persons upon such Terms and services and acknowledgments to be thereupon reserved unto us according to such Instructions as shall be given to you" [51] . The 26th clause of the Instructions read as follows:

And it is Our pleasure that all the waste and uncleared Lands within Our said Territory which shall remain after making such reservations as before mentioned for the public Service shall be granted in our Name and in our behalf to private persons willing to effect settlements thereupon and subject nevertheless to the several rules and conditions hereinafter particularly mentioned. [52] 1. Letters Patent and Commission of Captain James Stirling RN, 4 March 1831, reproduced in Russell, A History of the Law of Western Australia and its Development from 1829 to 1979 (1980), pp 336-350. 2. The boundary of Western Australia was thus made contiguous with the boundary of New South Wales. Subsequently the western boundary of South Australia was extended westward from 132 degrees of east longitude to 129 degrees of east longitude by the Australian Colonies Act 1861 Imp. Later, the area which is now the Northern Territory was annexed to South Australia by Letters Patent of 6 July 1863 issued pursuant to s 2 of the Australian Colonies Act. Thus the territory of South Australia became contiguous with the territory of Western Australia, the 129th degree of east longitude being - as it still is - the boundary. 3. Russell, A History of the Law of Western Australia and its Development from 1829 to 1979 (1980), pp 339, 346: Letters Patent and Commission of Captain James Stirling RN, 4 March 1831. 4. Russell, p 341. 5. Russell, p 348.

By the time Stirling's Commission as Governor issued, the policy of granting land to settlers according to the value of investment in the Colony had proved to be unsatisfactory. The Colonial Office resolved on a new policy for the disposal of land in Western Australia. All the lands in the Colony not already granted or appropriated for public purposes should be put up for sale at a price not to be below the rate of 5 shillings per acre [53] . The new policy, following the policy in New South Wales, was thought to be "absolutely essential for the purpose of checking the dispersion of Settlers" [54] . The new policy was contained in the Governor's Instructions (cll 26-32). Land was to be granted to purchasers "in free and common Soccage yielding and paying a quit-rent of one pepper-corn by the year" [55] .

1. SRP, vol 11, p 51: Colonial Office Circular - Information for the use of those who may propose to embark as Settlers for the new Settlement at Western Australia, 1 March 1831. 2. SRP, vol 11, p 22: Goderich to Stirling, 28 April 1831. 3. A tenure of an estate in fee simple without incidents: see Williams and Eastwood on Real Property, 24th ed (1933), pp 34-35; Russell, p 349: Letters Patent and Commission of Captain Stirling, 4 March 1831.

The 34th clause of the Instructions gave the Governor directions about the treatment of the native inhabitants of Western Australia, directing him "especially [to] take care to protect them in their persons and in the free enjoyment of their possessions and by all lawful means [to] prevent and restrain all violence and injustice which may in any manner be practised or attempted against them" [56] .

1. Russell, p 350: Letters Patent and Commission of Captain Stirling, 28 April 1831.

Viscount Goderich, who succeeded Murray as Secretary of State, wrote a despatch to Governor Stirling on 28 April 1831 relating, inter alia, to the law to be applied in Western Australia [57] . The law was said to have been carried to Western Australia by the King's subjects residing there who were "entitled to all the Rights & Privileges of British Subjects, & carry with them the Law of their Native Country, so far as it is applicable to their new situation & circumstances". The Secretary emphasised that it was desirable that the Colony's Legislative and Executive Council - constituted by Order in Council pursuant to the Swan River Act - should provide for the institution of courts of justice, which should exercise their jurisdiction "with the utmost possible degree of simplicity & economy", a practice which had been found effective to diminish "the prolixity & expence of legal proceedings" [58] .

1. SRP, vol 11, p 57: Goderich to Stirling, 28 April 1831. 2. SRP, vol 11, pp 59-60.

This review takes us to, or past, the establishment of the Colony. It was at the point of establishment that, on the State's submission, the Crown's intention to extinguish native title and to acquire for itself the absolute ownership of all the land in the Colony had been manifested. That point was not precisely fixed in argument before this Court: it was submitted that it may have been when Captain Fremantle took possession on 2 May 1829 or when Lieutenant Governor Stirling issued his proclamation on 18 June 1829 or when the Governor's Commission and Instructions prescribing the boundaries of the Colony were issued on 4 March 1831. It does not much matter for the purposes of this case.

The history of Western Australia subsequent to the establishment of the Colony is relied on by the State to evidence the Crown's antecedent intention to be from the beginning the absolute owner of land within the Colony. The use of post-establishment history to evidence the nature of the acquisition was accepted by Deane and Gaudron JJ in Mabo [No 2] [59] :

There can be cases in which events after an act of State can remove uncertainty or ambiguity about what was involved in the act of State itself. The subsequent history, so the argument runs, is more consistent with the extinguishing of native title on the establishment of the Colony than with extinguishment thereafter. Indeed, the State does not rely on that history to show a post-establishment extinguishment of native title. The subsequent history reveals, as might be expected, the expansion of settlement on land granted by the Crown in districts in which land suitable for pastoral and agricultural purposes was discovered. 1. (1992) 175 CLR 1 at 98.

As pastoral leases expanded in the Australian colonies, concern for the dispossessed Aborigines mounted. The Select Committee of the House of Commons on Aborigines (British Settlements) [60] noted in 1837 that the Aboriginal people in Australia were in a "barbarous state and so entirely destitute even of the rudest forms of civil polity, that their claims, whether as sovereigns or proprietors of the soil, have been utterly disregarded. The land has been taken from them without the assertion of any other title than that of superior force, and Her Majesty's sovereignty over the whole of New Holland is asserted without reserve". The Committee acknowledged that this situation had occurred although it was "in the recollection of many living men [that] every part of this territory was the undisputed property of the Aborigines". The Committee recommended the appointment of protectors of Aboriginal people.

1. BPP, Report on Aborigines (British Settlements), 26 June 1837, [425], pp 82-83.

A copy of the report was transmitted by Lord Glenelg to the Governors of New South Wales (Governor Gipps) [61] and Western Australia (Governor Hutt) [62] . It was in response to this communication that Governor Hutt, in a despatch of 3 May 1839 [63] , wrote of the Aborigines that "they have not yet begun to emerge from the simplest and most elementary state of barbarism". He thought it was "totally impracticable" to accord them full legal protection of their properties because -

the only substantial property they ever did possess is the soil, over each separate portion of which some individual claims an inherited right, and of this we have long ago divested them, not being aware of such claims. [64] The legal protection of native title would have been "totally impracticable" only in respect of land already alienated. It would have been practicable "to protect them in the free enjoyment of their possessions" where the rights of immigrant settlers were not in competition with Aboriginal interests. There was no legal reason why native title could not have been allowed to continue in respect of other land. But the Governor continued to allow immigrants to settle on unalienated land and Aborigines were dispossessed parcel by parcel. 1. BPP, Colonies: Australia, vol 5 (1837-1840), pp 374-375. 2. BPP, Colonies: Australia, vol 8 (1844), p 370. 3. Hutt to Glenelg, 3 May 1839: BPP, Aborigines (Australian Colonies), 9 August 1844, (627), pp 363-364. 4. BPP, Aborigines (Australian Colonies), 9 August 1844, (627), pp 363-364.

As the areas under pastoral lease expanded, the subsistence of Aborigines whose food was derived by foraging was threatened. In March 1850 an Order in Council provided [65] :

Nothing contained in any pastoral lease shall prevent the aboriginal natives of this colony from entering upon the lands comprised therein, and seeking their subsistence therefrom in their accustomed manner. Pastoral leases issued thereafter contained a clause acknowledging the " full right to the aboriginal natives of the said colony at all times to enter upon any part of the said demised Premises for the purpose of seeking their subsistence therefrom in their accustomed manner" [66] . 1. Order in Council, 22 March 1850: Western Australian Government Gazette, 17 December 1850, p 4. 2. The precise form of lease differed according to the category of lease specified in the regulations published in the Western Australian Government Gazette, 14 February 1860, p 13.

So far as these vignettes of history reveal, those involved in establishing the British Colony of Western Australia knew that there were Aborigines who, by their law and customs, were entitled to possession of land within the territory to be acquired by the Crown and settled as a Colony. But the acquisition of the territory of Western Australia was effected for the purpose of creating a colony to be populated by British settlers to whom land would be granted. The policy of the British Government was that Western Australia should be fully surveyed and, subject to reserves which might be created for specific purposes, the whole of the land within the territory should be available for sale. This policy was to be (and was) implemented by the exercise of sovereign power backed, if need be, by force. Apart from the reservation of Aboriginal rights to forage in pastoral leases after 1850, Aborigines and their interests in the land were simply ignored in the development of the new settlement. For the purposes of the British Parliament and the British Government alike, Western Australia was classified as "unoccupied". As in other Australian Colonies [67] , the Aborigines in Western Australia were in fact dispossessed of land parcel by parcel as British settlement expanded. Even so, more than 52 per cent of the land in Western Australia remains unalienated.

The State ultimately submitted that the intention of the British Crown to extinguish native title generally and to acquire full beneficial ownership of the land in Western Australia is manifested in, and is to be inferred primarily from, the terms of the Commission and Instructions to Governor Stirling which prescribed that the division, sub-division and sale of all land in the Colony should proceed forthwith in circumstances in which, so far as was then known, that policy was capable of immediate implementation. It is difficult to predicate of the Crown an intention to acquire full beneficial ownership of all land in Western Australia before the boundaries of the Colony were fixed by the Governor's Commission of 1831. Moreover, if the intention rests largely on the expressed policy of immediate division, sub-division and sale, the practicality of carrying out that policy over the whole of the vast land mass encompassed by the colonial boundaries must surely have been problematic.

In any event, an inquiry into the intent as to native title with which the British Crown acquired the territory of Western Australia is somewhat artificial when it is recalled that the Australian Colonies were established at a time when the expanded notion of terra nullius underpinned the expansion of Empire and led the courts of the time to treat the country as if it were "desert uninhabited". Bearing this perception in mind, the true inference to be drawn - if not the certain fact - is that the Aborigines and their title to land were ignored in the establishment of Western Australia and that Stirling was intended to exercise the power which a Sovereign possesses to dispose of land within the Sovereign's territory by such means as the law of the Sovereign prescribes. The title of Aboriginal peoples in land was ignored because, at that time, there was a common opinion (which Mabo [No 2] holds to be erroneous) that the Aborigines had no legal interest in land. Governor Hutt's assessment of the Aborigines in 1839 corresponded with the description found in the opinion of the Privy Council in In re Southern Rhodesia [68] :

Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilised society. Of people so classified Lord Sumner said [69] : It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. Even if the British Government had recognised the existence of native title from the beginning, they could have safely disregarded the interests of the Aboriginal peoples. Whatever interests in land the Aborigines might have had would not have prevailed against the freehold tenure on which land was proposed to be granted in the Colony in exercise of the sovereignty which was to be acquired. A general extinguishment of native title was unnecessary, for the continued existence of native title would not have been - as the Privy Council thought that Aboriginal land interests in Southern Rhodesia would have been - "fatally inconsistent with white settlement of the country, [which] was the object of the whole forward movement" [70] . 1. [1919] AC 211 at 233. 2. Rhodesia [1919] AC 211 at 233-234. 3. Rhodesia [1919] AC 211 at 234.

The State of Western Australia was not concerned to restore the authority of In re Southern Rhodesia or to find some analogy between that case and the present. Nor did the State seek to challenge the principles adopted by this Court in Mabo [No 2]. The State's submission, on this aspect of the case, is simply that the British Crown intended a general extinguishment of native title to or over all land within the colonial boundaries of Western Australia as defined in Stirling's Commission and manifested that intention in that Commission and the accompanying Instructions. If the assertion of a sovereign power to control all land in the acquired territory were sufficient to manifest such an intention [71] , there would be much to support the submission. But the facts revealed by the history of the establishment of Western Australia show only that it was intended to exercise the sovereign power of the Crown to grant land to immigrant settlers. Once it is realised that the common law theory which underlay the acquisition of sovereignty in "settled" colonies at the time of settlement of Western Australia regarded the territory of a colony inhabited by indigenous people to be "desert uninhabited", an inference that the British Crown intended a general extinguishment of native title cannot be drawn. Extinguishment would have been seen to be an unnecessary step to take. The Crown's colonial policy was capable of being implemented without a general extinguishment of native title. Therefore the presumption remains that native title in Western Australia was not extinguished in the course of acquiring that Colony. Accordingly, as Macfarlane JA observed in Delgamuukw v British Columbia [72] with reference to the purpose of legislation promulgated in order to assist British settlement in and authority over the Colony of British Columbia:

One should assume that the object was to achieve the desired result with as little disruption as possible, and without affecting accrued rights and existing status any more than was necessary. 1. A proposition apparently endorsed by the Privy Council in Sobhuza II v Miller [1926] AC 518 at 525 and by Judson J in Calder v Attorney-General (British Columbia) [1973] SCR 313 at 344; (1973) 34 DLR (3d) 145 at 167 (contra Hall J at 401-404; at 208-210). 2. (1993) 104 DLR (4th) 470 at 529.

There is no difference in point of law relating to native title between the establishment of the Colony of Western Australia and the establishment of the Colony of New South Wales. In reference to the historical evidence relating to the establishment of the Colony of New South Wales, Deane and Gaudron JJ said in Mabo [No 2] [73] :

Even if the act of State establishing the Colony be so extended to include all the documents read and all those activities, there is nothing which could properly be seen as effecting a general confiscation or extinguishment of any native interests which may have existed in the Colony under native law or custom or as negating or reversing the strong assumption of the common law that any such pre-existing native interests were respected and protected under the law of the Colony once established. The same observation may be made in relation to the establishment of the Colony of Western Australia. Two consequences follow. First, since the establishment of the Colony native title in respect of particular parcels of land has been extinguished only parcel by parcel. It has been extinguished by the valid exercise of power to grant interests in some of those parcels and to appropriate others of them for the use of the Crown inconsistently with the continuing right of Aborigines to enjoy native title. Secondly, it may be found that, at the time when the WA Act came into operation, native title (as recognised by this Court in Mabo [No 2]) existed in Western Australia in respect of land where the continuing right of Aborigines to enjoy their native title was inconsistent neither with the valid grant of an interest nor with a valid appropriation of the land for the use of the Crown. 1. (1992) 175 CLR 1 at 96.

2. The WA Act and its operation: consistency with the Racial Discrimination Act

The operation of the WA Act is hinged on the existence of "native title" as defined by s 3:

"native title" means one or more rights or entitlements of a kind recognized by the common law, being rights or entitlements -

exercisable by Aboriginal persons in accordance with Aboriginal tradition. The WA Act draws a distinction between "native title" and "title". "Title", though it is defined to include ownership of and an interest in land "whether proprietary or otherwise" (including a use for mining purposes), does not include native title [74] . Title thus refers to interests arising from Crown grant; native title refers to interests arising from Aboriginal law and custom. 1. See the definition of title in s 3.

The WA Act has retrospective and prospective operations. Section 5 is the key retrospective provision. It confirms titles granted in the period from 31 October 1975 (the day when the Racial Discrimination Act commenced) to 2 December 1993 (the day when Pts 2 and 3 of the WA Act came into operation) [75] . If the effect of that confirmation is to extinguish or impair native title, a claim for compensation may be made under s 28 (s 5(3)(b)). The key prospective provision of the WA Act is s 7 [76] which reads:

(1) On the commencement of, and by operation of, this section -

(a) any native title to land that existed immediately before that commencement is extinguished; and

(b) the members of an Aboriginal group who held native title to land immediately before that commencement become entitled to exercise rights of traditional usage in relation to that land under and subject to this Act.

(2) Rights of traditional usage created by subsection (1)(b) in relation to land replace the rights and entitlements that were incidents of the native title to that land extinguished by subsection (1)(a) and, unless this Act provides otherwise, are equivalent in extent to the rights and entitlements that they replace.

The equivalence in extent of the statutory rights of traditional usage with the rights and entitlements of the holders of native title is limited by sub-s (2) in two respects: first, the statutory rights replace only the rights and entitlements that were "incidents" of the native title extinguished and, secondly, the statutory rights replace those rights and entitlements "unless this Act provides otherwise". For present purposes it is unnecessary to consider the first of these limitations [77] ; it is sufficient to consider the second. For ease of reference, the "rights of traditional usage" conferred by s 7, unqualified by the second limitation, will be called "s 7 rights". It will be necessary to consider whether and to what extent s 7 rights are restricted or diminished by operation of the second limitation. 1. The "prescribed period" as defined in s 3. 2. Section 7 has no application to the extinguishment or impairment of native title by s 5: s 5(3)(a). 3. In the absence of an issue as to the content of native title vested in a particular claimant - whether a group of Aborigines or an individual Aborigine - and in the absence of evidence, it would not be possible to determine the extent, if any, to which "native title" rights and entitlements are "incidents" of the native title extinguished.

The validity of the WA Act is attacked on the basis of alleged inconsistency with the Racial Discrimination Act and with the Native Title Act. Leaving aside the question of inconsistency with the Native Title Act (which is not in issue) the critical consideration is whether there was inconsistency with the Racial Discrimination Act. If there was supervening inconsistency between the WA Act and the Racial Discrimination Act, native title to land in Western Australia may have survived so that the Native Title Act can operate upon it. The WA Act is said to discriminate against the Aborigines (who, but for the operation of s 5 or s 7 of the WA Act, would be holders of native title) in comparison with the holders of other forms of title. The WA Act is said to discriminate against those Aborigines by denying them equal enjoyment of certain human rights appearing in Art 5 of the International Convention on the Elimination of All Forms of Racial Discrimination scheduled to the Racial Discrimination Act. The most significant of those human rights for present purposes are -

"The right to own property alone as well as in association with others;" (Art 5(d)(v))

"The right to equal treatment before the tribunals and all other organs administering justice" (Art 5(a)).

On that account, the WA Act is said to be inconsistent with s 10(1) of the Racial Discrimination Act. That sub-section reads as follows: If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

Discrimination in the enjoyment of the human rights to own and to inherit property which attracts the operation of s 10(1) of the Racial Discrimination Act was discussed in Mabo [No 1]. In that case, Brennan, Toohey and Gaudron JJ said [78] :

Section 10 of the Racial Discrimination Act is enacted to implement Art 5 of the Convention and the "right" to which s 10 refers is, like the rights mentioned in Art 5, a human right - not necessarily a legal right enforceable under the municipal law. The human rights to which s 10 refer include the right to own and inherit property. In the development of the international law of human rights, rights of that kind have long been recognised. Thus, the Universal Declaration of Human Rights 1948, Art 17 included the following: "1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property." (The word "arbitrarily" has been interpreted to mean not only "illegally" but also "unjustly": see Meron (ed), Human Rights in International Law: Legal and Policy Issues (1984), vol 1, p 122, fn 40.)

Although the human right to own and inherit property (including a human right to be immune from arbitrary deprivation of property) is not itself necessarily a legal right, it is a human right the enjoyment of which is peculiarly dependent upon the provisions and administration of municipal law. Inequality in the enjoyment of that human right may occur by discrimination in the provisions of the municipal law or by discrimination in the administration of the municipal law or by both.

And Deane J said [79] : the moral entitlement to own property alone as well as in association with others and the moral entitlement to inherit which are referred to in Art 5 of the International Convention are "rights" for the purpose of the guarantee against racial discrimination contained in s 10 of the Commonwealth Act. Implicit in those moral entitlements is the "right" to enjoy immunity from being "arbitrarily dispossessed of [one's] property" which is expressly recognised by Art 17(2) of the Universal Declaration of Human Rights 1948. The second point to be made about s 10 is that the section is not to be given a legalistic or narrow interpretation. As its opening words ("If, by reason of ") make clear, it is concerned with the operation and effect of laws. In the context of the nature of the rights which it protects and of the provisions of the International Convention which it exists to implement, the section is to be construed as concerned not merely with matters of form but with matters of substance, that is to say, with the practical operation and effect of an impugned law. 1. Mabo [No 1] (1988) 166 CLR 186 at 217. 2. Mabo [No 1] (1988) 166 CLR 186 at 229-230.

By the operation of s 10(1) of the Racial Discrimination Act, equality of enjoyment of the human rights to own and inherit property is conferred on the "persons of a particular race". The Racial Discrimination Act does not alter the characteristics of native title, but it confers on protected persons rights or immunities which, being recognised by "the tribunals and all other organs administering justice", allow protected persons security in the enjoyment of their title to property to the same extent as the holders of titles granted by the Crown are secure in the enjoyment of their titles. "Property" in the context of the human rights with which we are concerned includes land and chattels as well as interests therein. Where, under the general law, the indigenous "persons of a particular race" uniquely have a right to own or to inherit property within Australia arising from indigenous law and custom but the security of enjoyment of that property is more limited than the security enjoyed by others who have a right to own or to inherit other property, the persons of the particular race are given, by s 10(1), security in the enjoyment of their property "to the same extent" as persons generally have security in the enjoyment of their property [80] . Security in the right to own property carries immunity from arbitrary deprivation of the property [81] . Section 10(1) thus protects the enjoyment of traditional interests in land recognised by the common law. However, it has a further operation.

1. Mabo [No 1] (1988) 166 CLR 186 at 218-219, 230-231. 2. Mabo [No 1] (1988) 166 CLR 186 at 217, 230.

If a law of a State provides that property held by members of the community generally may not be expropriated except for prescribed purposes or on prescribed conditions (including the payment of compensation), a State law which purports to authorise expropriation of property characteristically held by the "persons of a particular race" for purposes additional to those generally justifying expropriation or on less stringent conditions (including lesser compensation) is inconsistent with s 10(1) of the Racial Discrimination Act.

The two-fold operation of s 10(1) ensures that Aborigines who are holders of native title have the same security of enjoyment of their traditional rights over or in respect of land as others who are holders of title granted by the Crown and that a State law which purports to diminish that security of enjoyment is, by virtue of s 109 of the Constitution, inoperative. The security of enjoyment of what the WA Act includes in "title" by the holders thereof is the benchmark by which to determine whether, for the purposes of the Racial Discrimination Act, the Aborigines who hold native title enjoy their human rights in relation to land to a more limited extent than do persons of other races.

To determine whether the prospective provisions of the WA Act are inconsistent with s 10(1) of the Racial Discrimination Act, it is necessary to compare the position of the Aborigines who hold s 7 rights with the position of the holders of forms of title other than native title. Or, as s 10(1) of the Racial Discrimination Act confers on the Aborigines who hold native title security of enjoyment to the same extent as the holders of other forms of title have security of enjoyment, it is equally valid to compare the position of the Aborigines who hold s 7 rights with the position in which those Aborigines would be if the WA Act had not purported to extinguish their native title and substitute s 7 rights in its place [82] . If, by virtue of the WA Act, Aborigines on whom s 7 rights are conferred do not enjoy the same security of enjoyment of those rights as do the holders of "title", there is an inconsistency between the WA Act and s 10(1) of the Racial Discrimination Act [83] . And, if there be such an inconsistency, the WA Act is invalid to the extent of the inconsistency [84] . On the other hand, if the WA Act were to ensure to Aborigines the same security of possession and enjoyment of s 7 rights as the Racial Discrimination Act confers on the Aboriginal holders of native title, there would be no inconsistency in respect of security of title between the WA Act and the Racial Discrimination Act.

1. Mabo [No 1] (1988) 166 CLR 186 at 218, 231. 2. Gerhardy v Brown (1985) 159 CLR 70 at 98-99. 3. Gerhardy v Brown (1985) 159 CLR 70 at 121, 146.

The grounds of attack on the validity of s 7 of the WA Act are numerous. It will not be necessary to consider all the grounds advanced. Apart from the question of compensation, it will suffice to mention the particular provisions of the WA Act which affect the extinguishment of s 7 rights and the liability to compulsory taking of land subject to s 7 rights.

(i) Liability to extinguishment and impairment of s 7 rights

A title to land, as defined by s 3 of the WA Act, is granted by the Crown. So far as it consists in ownership of or a legal or equitable interest in land, it cannot be extinguished without statutory authority [85] . As Chitty says [86] :

the King cannot take away, abridge, or alter any liberties or privileges granted by him or his predecessors, without the consent of the individuals holding them. In particular, a grant cannot be superseded by a subsequent inconsistent grant made to another person [87] . Nor can a right to use land, if granted validly by the Crown, be recalled prior to expiry unless the right is qualified by a power of recall contained in the terms of the grant or is conferred by statute. At common law, however, native title can be extinguished or impaired by a valid exercise of sovereign power inconsistent with the continued enjoyment or unimpaired enjoyment of native title [88] . But the Racial Discrimination Act is superimposed on the common law and it enhances the enjoyment of those human rights (earlier mentioned) which affect native title so that Aboriginal holders are secure in the possession and enjoyment of native title to the same extent as the holders of other forms of title are secure in the possession and enjoyment of those titles. The question is whether the WA Act attempts to diminish that security to the comparative disadvantage of the Aborigines on whom s 7 rights are conferred. 1. Mabo [No 2] (1992) 175 CLR 1 at 64. 2. A Treatise on the Law of the Prerogatives of the Crown (1820), p 125. 3. Earl of Rutland's Case (1608) 8 Co Rep 55a at 55b, 56a [77 ER 555 at 556-557]. 4. Mabo [No 2] (1992) 175 CLR 1 at 64, 110-111.

The Parliament of Western Australia enacted the WA Act to provide for two problems which were identified in the opening recitals: first, to resolve "serious questions among the people of Western Australia, and those dealing with them, as to the security and certainty of titles to land held by the Crown, granted by the Crown, or derived from titles granted by the Crown"; and, secondly, to provide that the rights of Aboriginal people in relation to land "be recognised by and derived from the written laws of Western Australia so that those rights can be administered as part of a single system of land titles and land management and, in particular, so that appropriate compensation can be provided if those rights are extinguished or impaired". Central to the accomplishment of these objectives was the prescribing of the priority to be accorded to "title" over "native title". This was effected by s 8(2) and Divs 3 and 4 of Pt 3 of the WA Act. Those provisions may be consistent with the common law relating to native title but we are concerned with their consistency with s 10(1) of the Racial Discrimination Act.

Section 7 rights cannot be exercised inconsistently with the rights of holders of title (s 8(2)(b)) nor so as to restrict or impair the exercise of the rights of a holder of a title to the land: s 20. Section 23 provides that s 7 rights are extinguished by, inter alia -

(a) any legislative or executive action which is clearly and plainly -

(ii) inconsistent with the continued exercise of the rights;

(b) the grant of freehold title or leasehold title (including pastoral leases) in relation to the land under any written law relating to land grants, land administration or land titles, except to the extent that the grant expressly reserves any right of traditional usage;

(c) the grant of a lease in relation to the land under any law relating to mining, except to the extent that the grant expressly reserves any right of traditional usage;

(d) the dedication, reservation or use of the land for public or other works or purposes to the extent that the dedication, reservation or use is inconsistent with the continued exercise of the rights;

(i) the giving of a notice under section 26(1)(a) to the Aboriginal group whose members are entitled to exercise the rights.

The existence of s 7 rights or the currency of proceedings relating to the existence of s 7 rights does not preclude executive action that may result in the extinguishment, suspension or impairment of those rights: s [89] Action having any of those results may be taken under the general laws of the State pursuant to s 17 which reads:

(1) In this section "general laws" means written laws or other laws as in force from time to time that apply generally to land or members of the public.

(2) Unless another written law expressly states otherwise, the existence, or possible existence, of rights of traditional usage in relation to land does not affect the application of general laws to land that is, or may be, the subject of rights of traditional usage or to Aboriginal groups whose members are, or may be, entitled to exercise such rights.

1. Section 26(1) empowers the Minister, by giving or publishing a notice in a prescribed manner, to extinguish or suspend s 7 rights if the Minister "considers the extinguishment or suspension to be necessary for any purpose for which land could be taken or resumed compulsorily under any written law". The operation of s 26 will be considered later in this judgment in the context of the compulsory taking of land subject to s 7 rights.

The "general laws" include the Acts of Western Australia which are amended by Sch 1 to the WA Act, including the Mining Act 1978, the Land Act 1933, the Petroleum Act 1967 and the Public Works Act 1902. Under those Acts, rights and interests in land amounting to "title" can be created by executive action. Subject to the amendments prescribed in Sch 1 to the WA Act, the application of those Acts is unaffected by the existence of s 7 rights over or in respect of the land to which those Acts respectively apply. Each of them creates a power which may be exercised by the Executive Government of the State and which, if exercised, would extinguish or impair s 7 rights. By reference to those Acts and to their amendment by the WA Act, it is possible to compare the security of possession and enjoyment of s 7 rights by those on whom those rights are conferred with the security of possession and enjoyment of "title" by the holders thereof. If the holders of s 7 rights have less security than the holders of "title" or less security than they would have had as holders of native title protected by the Racial Discrimination Act, s 7 is inconsistent with s 10(1) of the Racial Discrimination Act and is inoperative by reason of s 109 of the Constitution.

Section 7(1) of the Land Act authorises the Governor to dispose of Crown lands which, having regard to the amendments inserted by Pt 2 of Sch 1 to the WA Act, include land subject to s 7 rights. The power of disposal, if validly exercised, destroys s 7 rights by virtue of s 23 of the WA Act. In comparison with the holders of title, whose estates or interests in land granted by the Crown cannot be destroyed by executive action except, generally speaking, by resumption under statutory authority [90] , s 7 rights possessed by Aboriginal people in land which is under the Land Act can be extinguished or impaired simply by exercise of the executive power to dispose of the land. The WA Act does prescribe restrictions on the power of the Executive Government to dispose of land under s 7(1) of the Land Act when the land is subject to s 7 rights. But the restrictions are transparently insubstantial in comparison with the restrictions which protect the security of the holders of other forms of title.

1. Power to resume for prescribed purposes portions of land held under certain Crown leaseholds is conferred on the Governor by ss 11 and 109 of the Land Act but subject to certain conditions including the payment of compensation.

Land subject to s 7 rights can be reserved for a public purpose or disposed of under the Land Act when an Aboriginal group whom the Commissioner of Aboriginal Planning considers to have s 7 rights is notified of a proposal to reserve or dispose of the land and does not lodge an objection to the proposal [91] . But the Commissioner is not required to notify the group unless the proposal is referred to the Commissioner [92] by the Minister for Lands who has both a discretion to refer or not to refer the proposal [93] and a power to "disapply" the provisions protective of s 7 rights "to a particular proposal in respect of an area of land" [94] . Even if the Minister for Lands does not "disapply" the protective provisions and does refer a proposal to the Commissioner, the lodging of an objection by an Aboriginal group merely enlivens an obligation on the part of the Minister administering the WA Act (the Minister for Aboriginal Affairs) to consult with the group and advise the Minister for Lands that there is no reason why the proposal should not be carried out or to recommend to the Minister for Lands that the proposal should not be carried out [95] . But the advice or recommendation is neither judicially reviewable [96] nor binding on the Minister for Lands [97] .

1. Land Act, as amended by Pt 2 of Sch 1 to the WA Act, ss 7A(1)(a), (b), (c), 27c(1), 27D. 2. Land Act, s 27C. 3. Land Act, s 27B(1). 4. Land Act, s 27H. 5. Land Act, s 27F(1), (2). 6. Land Act, s 27F(3). 7. Land Act, s 27G.

Whenever there is a proposal to dispose of land under the Land Act or to reserve it for public purposes, the security of enjoyment of s 7 rights to or in respect of that land is no more than the Minister for Lands chooses to allow. The power to extinguish s 7 rights, when the extinguishment is effected by a disposal of land under the Land Act, can be exercised by the Executive Government simply to confer a benefit on the intended disponee. By comparison, the power to extinguish estates or interests in land granted by the Crown can be exercised only for the purposes and subject to the procedures prescribed by the Public Works Act 1902 WA [98] or other legislation which authorises the compulsory taking of land. The purposes for which land held by "title" can be taken are limited to the public purposes prescribed by statute and (as we shall see when we consider the Public Works Act) the holder of "title" is given protection against compulsory taking more substantial than that provided for the holders of s 7 rights.

It follows that such protection as is conferred on the holders of s 7 rights to or in respect of land under the Land Act is inconsistent with the protection which the Racial Discrimination Act confers on the holders of native title and which the general law confers on the holders of other forms of title. By subjecting s 7 rights to the qualification [99] "unless this Act provides otherwise", the holders of s 7 rights suffer a diminution in their human rights inconsistent with s 10 of the Racial Discrimination Act.

For the purposes of the Mining Act, land is divided into "Crown land", reserved land and "private land" [100] . Crown land is open for mining [101] . As such, the holder of a Miner's Right may enter Crown land without notice, prospect for minerals, peg out land and apply for a mining tenement [102] . Some areas of Crown land are exempt without the consent of the occupier or warden, including parts of pastoral leases within 400 m of wells, bores or other water works made by the pastoral lessee [103] . As any land that might be subject to s 7 rights falls within the definition of Crown land and as the Aboriginal holders of s 7 rights do not appear to answer the statutory description of "occupier" [104] , the Aboriginal holders may be disturbed without notice by prospectors armed with a Miner's Right. They may be disturbed even at the site of a dam, bore, well or spring on which they rely for water. By contrast, a prospector needs a warden's permit to enter on private land to search for minerals or to mark out a mining tenement [105] . The permit is limited to thirty days and the holder of the permit is liable for any damage done on the land by the entry [106] . Notice of the permit must be given to the owner and to the occupier [107] . A permit holder may apply for a mining tenement on notice to the owner and occupier [108] but, unless the owner and occupier of the private land consents [109] , no mining tenement may be granted in respect of land which falls into certain protected classes, including the site of a dam, bore, well or spring [110] .

1. Mining Act, s 8 and see s 24. 2. Mining Act, s 18. 3. Mining Act, ss 18, 20. 4. Mining Act, s 20(5)(e). 5. Mining Act, s 8. 6. Mining Act, ss 28, 30, 32. 7. Mining Act, s 30(3), (5), (6), (7). However, no entry fee is payable: s 123. 8. Mining Act, s 31. 9. Mining Act, s 33. 10. Mining Act, s 33(1b). 11. Mining Act, s 29(2).

The several divisions of Pt IV (Mining Tenements) of the Mining Act contain the provisions under which various classes of licences, leases or other tenements may be granted. These divisions are amended by the WA Act [111] which inserts provisions giving them effect subject to a new Div 5A [112] . Each division provides for objections to be made and considered when an application is made for a mining tenement but the amendments provide a special regime for objections by Aboriginal groups on grounds relating to s 7 rights. The regime prescribed by Div 5A mirrors in the Mining Act the scheme prescribed by the amendments to the Land Act. There are some variations which take account of the differing structures of the two Acts.

1. WA Act, Pt 1 of Sch 1. 2. Part 1 of Sch 1 to the WA Act amends the Mining Act Pt IV - Div 1 - Prospecting Licence by cl 3, Div 2 - Exploration Licence by cl 7, Div 3 - Mining Lease by cl 10, Div 4 - General Purpose Lease by cl 12, Div 5 - Miscellaneous Licences by cl 13.

There are, broadly speaking, two classes of applications for mining tenements: applications for mining leases and general purpose leases and applications for prospecting licences, exploration licences, special prospecting licences and (under s 91 of the Mining Act) miscellaneous licences for roadways, etc. The complex of Mining Act provisions necessarily prescribes a connection between the two classes of mining tenements, but it is unnecessary to examine that connection. For present purposes, it suffices to compare the position of a private land owner and the position of the holder of s 7 rights when an application of one or other class for a mining tenement is made. Prospecting licences cannot be granted over private land [113] .

When applications for an exploration licence or mining lease on private land are being heard by the warden, the owner and occupier are entitled to notice [114] and may object to the grant. The objection is heard by the warden [115] who makes a recommendation to the Minister [116] who is empowered, after receiving the recommendation, to grant an exploration licence or a mining lease [117] . But unless mining is below 30 ft from the natural surface of the land no mining can start until compensation for the owner has been paid or agreed [118] .

1. Mining Act, ss 58(4), 74(3). 2. Mining Act, ss 59(1), (2), 75(1), (2). 3. Mining Act, ss 59(3), 75(3). 4. Mining Act, ss 57, 71. 5. Mining Act, s 35; and see s 123.

A different regime is prescribed in the case of objections to the grant of mining leases on grounds relating to s 7 rights. Objections by Aboriginal groups on grounds relating to s 7 rights can be lodged under s 94F of the Mining Act [119] . However, the machinery which provides for notification to be given to Aboriginal groups who might possess s 7 rights and might wish to object is put in motion only by applicants for mining leases or general purpose leases. An applicant for such a lease must notify the Commissioner for Aboriginal Planning [120] who is required to give notice of the application to any Aboriginal group whom he considers may have s 7 rights over or in respect of relevant land [121] . The Commissioner has no such function to perform in relation to applications for prospecting licences, exploration licences, special prospecting licences or miscellaneous licences.

1. Not under the other provisions of the Act relating to objections. 2. Mining Act, s 94D. 3. Mining Act, s 94E.

If an Aboriginal group lodges a notice of objection within the prescribed time - which cannot be more than seventy days after the day when the application was lodged [122] - the Minister for Aboriginal Affairs consults with the Aboriginal group [123] . Thereafter, in the case of an application for a lease or exploration licence, the Minister for Aboriginal Affairs either advises the Minister for Mines that there is no reason why the application should not be granted or recommends that the application be refused [124] . But if the applicant for the lease is the holder of a prospecting licence [125] or an exploration licence [126] , the application will result in the grant of a mining lease or a general purpose lease [127] and the only recommendation which the Minister for Aboriginal Affairs may make to the Minister for Mines is that conditions be attached to the grant having regard to the s 7 rights claimed in the Aboriginal group's notice of objection [128] . In the case of an application for a licence [129] - other than an exploration licence - the Minister for Aboriginal Affairs makes a recommendation to the Minister for Mines as to whether the application should be granted or refused and, if granted, the conditions to be attached to the grant [130] . Whether the application be for a mining lease or for a licence, the advice or recommendation of the Minister for Aboriginal Affairs is neither judicially reviewable [131] nor binding on the Minister for Mines [132] . No notification procedure appears to be provided for in the case of an application for an exploration licence.

1. Mining Act, s 94F(2). 2. Mining Act, s 94H. 3. Mining Act, s 94H(1), (3)(b). 4. Mining Act, s 49(1). 5. Mining Act, s 67(1). 6. Mining Act, s 75(5). This is a provision of general application but the holders of s 7 rights do not enjoy the protection available to the holders of "title" when applications for prospecting licences or exploration licences are made. 7. Mining Act, ss 49(3), 67(2), 75(5a). 8. Mining Act, ss 94H(1), (3)(a), 94K. 9. Mining Act, s s 94H(3)(a), 94I. 10. Mining Act, s 94H(5). 11. Mining Act, s 94H(6).

It can be a condition of the grant of a mining tenement [133] that mining is not carried out on land that -

(a) is being bona fide used by the Aboriginal group -

(i) as a permanent living area on which is constructed housing or other substantial buildings;

(ii) as a yard, orchard, plantation or garden adjacent to such an area; or

(iii) as an airstrip in connection with such an area, and is being so used under a lease or reservation of the land;

(b) is a site of a cemetery or burial ground of the Aboriginal group;

(c) provides the Aboriginal group's water supply; or

(d) is within 100 metres of land referred to in paragraph (a), (b) or (c).

Such a condition is attached if the Aboriginal group has objected and the Minister for Aboriginal Affairs has given a certificate to the Minister for Mines [134] . The condition may be lifted if the Minister for Aboriginal Affairs, being satisfied after consultation that the group is not opposed to the mining, consents "on behalf of the group" to the carrying out of the mining [135] . 1. Mining Act, s 94M. 2. Mining Act, ss 94H(4), 94M(1). 3. Mining Act, s 94O.

In any case and at any time, the Minister for Mines has power to "disapply" the provisions protective of s 7 rights to "an application for a mining tenement, or applications for a particular kind of mining tenement, in respect of an area of Crown land" [136] .

The protection of s 7 rights under the Mining Act is as much at the discretion of the Minister for Mines as the protection of s 7 rights under the Land Act is at the discretion of the Minister for Lands. As the granting of any mining tenement amounts to the granting of "title" under the WA Act [137] the exercise of s 7 rights is precluded when inconsistent with the rights conferred by a mining tenement. Section 7 rights are extinguished by a grant of a mining lease unless the lease expressly reserves them [138] . The protection of Aboriginal holders of s 7 rights against liability to having their rights suspended or extinguished is significantly less than the protection against a similar liability given by the Mining Act to the holders of "title" to private land or an "occupier" of Crown land. Section 7 rights, being statutory, do not appear to bring the holders thereof within the definition of "occupier" whose occupation must be under a "lawful title granted by or derived from the owner of the land".

1. The definition of title in s 3 of the WA Act expressly includes "use for, or for a purpose associated with or incidental to, mining operations, operations for the recovery of petroleum, prospecting or exploration": sub-s (2). 2. WA Act, s 23(c).

The Petroleum Act is amended by Pt 3 of Sch 1 to the WA Act. The amendments follow the same pattern as the amendments to the Mining Act contained in Pt 1 but the Minister for Mines is required to give notice to the Commissioner of the making of applications for approval to carry out operations, other than exploration, on Crown land [139] . By giving that notice, the objection and consultation procedures are set in train [140] . The power to "disapply" the procedure relating to s 7 rights is inserted in the Act [141] . The holders of s 7 rights in respect of Crown land - the class of land in respect of which native title might exist - have lesser rights than the holders of title to private land in respect of (i) consent required by the holders of leases, licences and permits who propose to explore or conduct drilling operations on certain private land including land near a waterhole, dam, spring or bore [142] ; (ii) arguably [143] compensation to be paid for disturbance [144] ; and (iii) the agreement of compensation as a condition of the carrying out of operations under the lease, licence or permit [145] .

1. Petroleum Act, s 69B. 2. Mining Act, ss 69C-69H. 3. Mining Act, s 69I. 4. Mining Act, s 16. 5. See ss 30 and 29(1)(a) of the WA Act. 6. Petroleum Act, ss 11(2), 17, 21. 7. Mining Act, s 20.

(ii) The compulsory taking of land subject to s 7 rights

When a public authority of the State is authorised to take land for the purpose of constructing a public work pursuant to the Public Works Act, the procedure prescribed by that Act must be followed [146] . Power to take land for a public purpose is conferred by s 17(1) of the Act. The procedure differs depending on the status of the land to be taken. If Crown land [147] is to be taken, the taking is effected by setting the land apart for the purpose of the public work [148] and by publication in the Government Gazette of a notice that the land has been set apart for the public purpose therein expressed [149] . Crown land does not include permanent reserves or national parks [150] . Nor does it include land "granted or agreed to be granted in fee simple, or held or occupied under the Crown by lease or licence, or for any other estate or interest" [151] . Aborigines possessing s 7 rights do not occupy land "under the Crown" by lease, licence or any other estate or interest. Those Aborigines thus have no entitlement to notice of intention to take the Crown land to which their s 7 rights relate.

1. Public Works Act, s 10. The term "public work" is defined in s 2. 2. As defined by s 2 of the Public Works Act. 3. Public Works Act, s 12. 4. Public Works Act, s 17(1), (2a). 5. Public Works Act, s 2; Land Act, s 31(1)(a). 6. Public Works Act, s 2.

Land other than Crown land in which no person has an estate or interest [152] is taken only after publication of a notice of intention to take the land [153] and its service on the owner of the land and on any person actually occupying the land in exercise of a right of possession [154] . The owner or occupier is entitled to object but the Minister may overrule the objection and, in that event, a notice that the land has been "taken" or "resumed" for the public purpose therein expressed may be published in the Government Gazette [155] . Upon the publication of a Gazette notice, the land is vested in the public authority freed of all interests whatsoever [156] .

1. Public Works Act, s 17(2a)(a). 2. Public Works Act, s 17(2)(b). 3. Public Works Act, s 17(2)(a), (c)(ii). 4. Public Works Act, s 17(2)(d), (e). 5. Public Works Act, s 18.

The Public Works Act was amended by Pt 6 of Sch 1 to the WA Act which inserts Pt IIA into the Public Works Act and subjects the power to set apart, take or resume land for a public purpose to the provisions of Pt [157] . It is not entirely clear whether Pt IIA is a code governing the setting apart, taking or resumption of any land that answers the description of "prescribed land" contained in s 33C. Section 33C defines "prescribed land" to include Crown land as defined in s 2 of the Public Works Act, reserves and pastoral leases under the Land Act and land held for the use and benefit of Aboriginal people. Part IIA gives an Aboriginal group the right to object "on grounds relating to" s 7 rights within a period not more than forty-two days after the day on which a copy of a proposal to take prescribed land is sent to the group by the Commissioner for Aboriginal Planning [158] . But the Commissioner's duty to send a notice to an Aboriginal group is enlivened only by a referral of the proposal by the Minister for Works [159] who has a discretion to refer or not to refer the proposal [160] . If a proposal is referred to the Commissioner, the Commissioner sends a copy of the proposal to any Aboriginal group whom he considers to have s 7 rights [161] . If the group lodges an objection within time, the lodging merely enlivens an obligation on the part of the Minister for Aboriginal Affairs to consult with the group. That Minister then either advises the Minister for Works that, so far as s 7 rights are concerned, there is no reason why the proposal should not be carried out or recommends to the Minister for Works that the proposal should not be carried out [162] . But the advice or recommendation is neither judicially reviewable [163] nor binding on the Minister for Works [164] . In any event, the Minister for Works has a power to "disapply" the provisions protective of s 7 rights "to a particular proposal in respect of an area of land" [165] .

1. WA Act, Pt 6 of Sch 1, cl 2. 2. Public Works Act, s 33H. 3. Public Works Act, s 33G. 4. Public Works Act, s 33F. 5. Public Works Act, s 33G. 6. Public Works Act, s 33J. 7. Public Works Act, s 33J(3). 8. Public Works Act, s 33K. 9. Public Works Act, s 33L.

There are two features of the procedure for taking "prescribed land" which distinguish it from the procedure for taking land which is owned or occupied by a person having an estate or interest amounting to "title" in the land to be taken. The first is that notice of the intention to take land has to be served on any person who is an owner or occupier of the land to be taken who is residing in the State [166] , whereas the service of a copy of a proposal to take land subject to s 7 rights is, in effect, in the discretion of the Minister for Works; the second is that the grounds of objection in respect of prescribed land are limited to grounds in relation to s 7 rights whereas the grounds of objection in other cases are not limited.

Apart from extinguishment of s 7 rights by exercise of the power to take land under the Public Works Act, s 26 of the WA Act gives the Minister administering that Act power to extinguish or suspend s 7 rights simply by giving or publishing a notice to that effect "if the Minister considers the extinguishment or suspension to be necessary for any purpose for which land could be taken or resumed compulsorily under any written law". The Minister has a discretion to refer or not to refer a proposal to give or publish a notice to the Commissioner for Aboriginal Planning [167] . If the Minister does refer the proposal, the Public Works Act procedure is followed (subject to necessary adaptations). If the Supreme Court has made a declaration with respect to the possession of s 7 rights in respect of the land to which the notice relates, a copy of the notice is to be served on the Aboriginal group holding the s 7 rights or their representatives. If no such declaration has been made but the Commissioner is of the opinion that an Aboriginal group is entitled to s 7 rights affected by the notice, the notice is to be given to that group. If no group can be identified, no notice need be served but a notice must be gazetted and published in a newspaper [168] . The extinguishment or suspension of s 7 rights by a s 26 notice gives members of the Aboriginal group affected the right to claim compensation [169] , the matter next to be considered. It is clear, however, that s 26 of the WA Act and the Public Works Act (as amended by the WA Act) deny to the Aboriginal holders of native title the same protection against compulsory acquisition as the protection by way of notice, the right to object and the right to proper consideration of objection which the law and judicial review accord to the holders of other forms of title.

1. WA Act, s 26(2). 2. Land (Titles and Traditional Usage) Regulations 1993 (Government Gazette, 31 December 1993, p 6899). 3. WA Act, s 29.

The "rights of traditional usage" which are created by s 7 and are qualified by the subsequent provisions of the WA Act fall short of the rights and entitlements conferred by native title the enjoyment of which is protected by s 10(1) of the Racial Discrimination Act. The shortfall is substantial. Yet s 28(1) of the WA Act precludes the allowance of compensation for the extinguishment of native title effected by the enactment of s 7(1)(a) of that Act. No compensation is payable for the comparative insecurity of enjoyment of s 7 rights to which reference is made in the above review of State legislation.

That review shows that the qualification of s 7 rights effected by the various provisions of the WA Act is inconsistent with s 10(1) of the Racial Discrimination Act. The prospective operation of the WA Act, based on s 7, is destroyed by that inconsistency. The retrospective operation of that Act, based on s 5, remains for consideration.

The holders of native title who, during the period 31 October 1975 to 2 December 1993 [170] , suffered the extinguishment or an impairment of "the rights and entitlements that were incidents of the native title that has been extinguished or impaired" [171] , may claim compensation under the WA Act within eighteen months of 2 December 1993 [172] . As noted above, the titles which were granted by the Crown during that period are confirmed by s 5 of the WA Act. That section excludes the application of s 7 to the rights and entitlements that were extinguished or impaired by the making of grants of title during that period. The compensation payable to the holders of the rights and entitlements that were incidents of the native title that was extinguished or impaired during that period [173] is governed by principles set out in s 38(1) of the WA Act. The same principles govern the assessment of compensation for the extinguishment, suspension or impairment of s 7 rights [174] .

1. The "prescribed period" defined in s 3 of the WA Act. 2. WA Act, s 38(3)(a). 3. WA Act, s 28(3). 4. WA Act, s 38(3)(a). 5. WA Act, s 38(3)(b).

The maximum amount of compensation that can be awarded is [175] -

the amount that could have been determined under the Public Works Act 1902 if the land had been held under or subject to a title and had been taken or resumed compulsorily. This provision equates the measure of compensation payable to the holders of native title to the compensation payable to the holders of other forms of title. On its face, the compensation provisions do not appear to discriminate against the holders of native title (or the holders of s 7 rights) in a way that is inconsistent with s 10(1) of the Racial Discrimination Act. Whether all the compensation provisions of the WA Act - particularly s 38(1)(f) - are in conformity with s 9 of the Racial Discrimination Act is open to argument but it is unnecessary to decide that question. 1. WA Act, s 38(1)(c).

Even if the compensation provisions do not of themselves offend the Racial Discrimination Act, the validity (for the purposes of s 109 of the Constitution) of the retrospective extinguishment or impairment of native title by s 5 of the WA Act is not established merely by the conferring of a present right to compensation. If, consistently with s 10(1) of the Racial Discrimination Act, a State law could not have authorised the extinguishment or impairment of native title because there was no corresponding authority to extinguish or impair other forms of title, a State law which purports to confirm retrospectively the validity of the act which extinguished or impaired native title cannot restore effect to the act in question. Section 5(1) is concerned to confirm the validity of grants of title made after the Racial Discrimination Act came into operation where those grants purported to extinguish or impair native title. If native title was protected then by the Racial Discrimination Act, only a law of the Commonwealth could be effective to modify the operation of the Racial Discrimination Act and then only for the future: the effect of s 109 of the Constitution cannot be retrospectively undone [176] .

1. University of Wollongong v Metwally (1984) 158 CLR 447.

Of course, the primary question is whether the acts which s 5 of the WA Act purports to confirm retrospectively were authorised by a State law that was inconsistent with the Racial Discrimination Act when the respective acts were done. The courts have not determined the effect of the Racial Discrimination Act on the validity of the State laws authorising the doing of executive acts which purportedly extinguished or impaired native title after the Racial Discrimination Act came into operation. And it is unnecessary to determine that question now. If the State laws which authorised the doing of acts that purported to extinguish or impair native title after the Racial Discrimination Act came into operation were consistent with the Racial Discrimination Act, s 5 does not have the effect of extinguishing or impairing native title: native title had already been extinguished or impaired effectively pursuant to the relevant State law. On that hypothesis, s 5 by its own terms [177] would have no legal effect on native title. However, if those acts were authorised by laws that were inconsistent with the Racial Discrimination Act at the time when the acts were done, s 5 can have no effect upon the native title which those acts purported, but purported ineffectively, to extinguish or impair. On that hypothesis, s 5 is denied any effect by s 109 of the Constitution.

On either hypothesis, s 5 is ineffective. It is not invalid in the sense that it is beyond legislative power. But it has no legal operation. It follows that neither s 5 nor s 7 of the WA Act extinguishes or impairs native title. Those sections are the lynchpins on which the operation of the WA Act wholly depends. By virtue of s 109 of the Constitution or perhaps, in the case of s 5, by virtue of prior valid extinguishment or impairment of native title to particular parcels of land, the WA Act has no legal operation.

3. The Native Title Act: its constitutional character

As native title survived the establishment of the Colony of Western Australia and as the WA Act failed in its purpose of extinguishing native title, native title survived or was capable of surviving in Western Australia as at 1 January 1994, when the substantive provisions [178] of the Native Title Act commenced operation. The common law concept of "native title" is incorporated into the definition contained in s 223(1) of the Act:

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.

It is unnecessary to consider sub-s (3) of s 223 which brings within the definition of "native title" statutory rights and interests into which native title rights and interests have been compulsorily converted. 1. Except Pt 10.

The constitutional character of the Native Title Act is determined by reference to its operation [179] . Its operation must be ascertained not only from its terms but from the circumstances in and upon which the Act takes effect and the change it makes in the law [180] . Under the common law, as stated in Mabo [No 2], Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown. The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown's (or a statutory authority's) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title. Three aspects of the operation of the Native Title Act are of central importance to its constitutional character: the recognition and protection of native title, the giving of full force and effect to past acts which might not otherwise have been effective to extinguish or impair native title and the giving of full force and effect to future acts which might not otherwise be effective to extinguish or impair native title. The key provisions are to be found in Pt 2 of the Act, the terms used therein being defined in Pt 15.

1. Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7, 16. 2. The Commonwealth v TasmaniaTasmanian Dam Case (the) (1983) 158 CLR 1 at 152, 245.

The first of the enacted objects of the Native Title Act is "to provide for the recognition and protection of native title" (s 3(a)). This object is achieved by a statutory declaration (s 11(1)) that native title "is not able to be extinguished contrary to this Act." The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title.

Of course, as this Court held in Mabo [No 1], native title was substantially protected against extinguishment by the Racial Discrimination Act on and after 31 October 1975. But the Native Title Act expressly makes "valid" - a term which is defined to include "having full force and effect" (s 253) - certain "past acts" that affect native title to the exclusion of the protection extended by the Racial Discrimination Act. Although s 7(1) of the Native Title Act provides that nothing in that Act "affects the operation of the Racial Discrimination Act 1975 ", s 7(2) declares that s 7(1) "does not affect the validation of past acts by or in accordance with this Act." [181] Past acts and "future acts" are defined by Div 2 of Pt 15 of the Native Title Act. These definitions are carefully drafted to comprehend a large number of qualifying factors. Any attempt to summarise their terms and the substantive provisions of Pt 2 with which they interlock will inevitably be inexact, but a summary must suffice to expose the salient features of the Act that are relevant to its constitutional character.

1. Although nothing in the Native Title Act affects the operation of the Racial Discrimination Act, nothing in the Racial Discrimination Act is capable of affecting the operation of the Native Title Act truly construed. However, to construe the Native Title Act and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act if that construction would remove the ambiguity.

An "act", whether past or future, includes the making, amendment or repeal of any legislation, the exercise of any executive power of the Crown in any of its capacities (whether or not under legislation) and the grant, creation, variation or extinguishment of interests in land or other rights by the Crown in any of its capacities or by any other person (s 226). The definition of past act (s 228) distinguishes in point of terminal date [182] between the enactment of a law (1 July 1993) and other "acts" (1 January 1994). To be a "past act", the act done before the terminal date must have been "invalid" to some extent on account of the existence of native title. As the chief, and perhaps the only, way in which the existence of native title might have produced invalidity in a past act attributable to a State or Territory is by attracting the overriding operation of the Racial Discrimination Act, the definition of past acts gathers in those legislative and other acts which discriminated, albeit unintentionally, against the Aboriginal and Torres Strait Islander holders of native title. The overriding operation of the Racial Discrimination Act would have made inconsistent State and Territory laws inoperative or would have required the reading down of State and Territory laws so as to be consistent with the Racial Discrimination Act. The legislative authority which State and Territory laws were capable of giving to executive acts affecting native title was restricted accordingly. The definition of "past act" is the lynchpin for the provisions of the Native Title Act which permit State laws enacted in the future to give full force and effect to earlier acts which purported to extinguish or impair native title but which were ineffective at the time when the acts were done.

1. An act (other than the enactment of a law) done on or after 1 January 1994 may also be within the definition if the act is done in exercise of some anterior right to do the act or to have the act done: s 228(3)-(9). The terminal date for legislative acts prevents the WA Act from satisfying the definition of a "past act".

An act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act. Such an act neither needs nor is given force and effect by the Act. But, as acts purporting to extinguish or impair native title might be impugned as inconsistent with the Racial Discrimination Act if they were done after that Act came into operation [183] , the Parliament has chosen to include certain legislative and executive acts of the Crown within the definition of "past acts". Section 14 then confers (or confirms, if only to remove doubt) validity on the past acts of the Commonwealth. Section 19(1) permits State and Territory laws enacted in the future to confer (or confirm, if only to remove doubt) validity on the past acts of the State or Territory. The Queensland Coast Islands Declaratory Act 1985 Q is excluded from the definition of past acts (s 228(2)(a), (10)).

The provision authorising the future validation of past acts attributable to a State is not affected by the principle that a law of the Commonwealth cannot retrospectively avoid the operation of s 109 of the Constitution on a State law that was inconsistent with a law of the Commonwealth [184] . Section 19 of the Native Title Act does not purport to deny the overriding effect of the Racial Discrimination Act upon any inconsistent law of a State in the past. Section 19 removes any invalidating inconsistency between, on the one hand, a State law enacted in the future that purports to validate past acts attributable to a State and, on the other, the Racial Discrimination Act or any other law of the Commonwealth (including the Native Title Act itself). The validation of past acts attributable to a State is effected by a State law which, at the time of its enactment, is not subject to an overriding law of the Commonwealth. The force and effect of a past act consisting of a State law which was "invalid" by force of s 109 of the Constitution because of inconsistency with the Racial Discrimination Act is recognised only from and by reason of the enactment of the future State law but, from that time onwards, the force and effect of the past act is determined by the terms of the State law enacted in conformity with s 19.

1. University of Wollongong v Metwally (1984) 158 CLR 447.

Past acts are divided into four categories, each category having a particular effect in extinguishing or impairing native title. A "category A past act" (s 229) includes the granting of a freehold estate or the granting of a commercial, agricultural, pastoral or residential lease. Category A past acts also include the construction of certain public works. A "category B past act" (s 230) consists in the granting of other types of lease, not being a mining lease. Grants to a grantee who is the Crown or a statutory authority of the Crown and grants for the benefit of Aborigines and Torres Strait Islanders are excluded from both category A (s 229(3)(d)) and category B (s 230(d)). A "category C past act" (s 231) consists in the granting of a mining lease [185] . A "category D past act" is a past act that does not fall into one of the other categories (s 232).

1. Parts of a mining lease used for residential and certain other purposes may be treated as a separate lease (s 245(2) and (3)) the grant of which falls within category A: s 229(3)(b).

Past acts are attributable either to the Commonwealth (s 14) or to a State or Territory (s 19). A past act attributable to the Commonwealth "is valid, and is taken always to have been valid" (s 14(1)). The effect of validation of past acts on native title is prescribed by s 15. Category A past acts attributable to the Commonwealth extinguish native title and category B past acts attributable to the Commonwealth extinguish it to the extent of the inconsistency with the past act in question. Category C and category D past acts preserve native title but suspend its effect so far and for so long as is necessary to allow the mining lease or other past act to operate and have effect [186] . If the past act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders, the effect of the reservation or condition is preserved by s 16. Compensation for past acts falling into categories A and B is payable by the Commonwealth to the native title holders whose native title is affected and, subject to certain qualifications, compensation is also payable by the Commonwealth to native title holders in respect of categories C and D past acts (s 17).

1. The "non-extinguishment principle" defined in s 238 and applied by s 15(1)(d).

The regime which the Native Title Act permits in relation to past acts attributable to a State or Territory mirrors the regime prescribed in relation to past acts attributable to the Commonwealth. Section 19(1) provides:

If a law of a State or Territory contains provisions to the same effect as sections 15 and 16, the law of the State or Territory may provide that past acts attributable to the State or Territory are valid, and are taken always to have been valid. The validating legislation must be an exercise of the legislative power of the State or Territory, but a State or Territory law which does not satisfy s 19(1) will be ineffective to give force and effect to a past act which had purported to extinguish native title, for such a State or Territory law does not fulfil the criteria of an exception to the general sterilisation of past acts by s 11 of the Act. Native title holders whose native title is affected by a past act attributable to a State or Territory may recover compensation from the State or Territory under s 20 of the Act, sub-s (1) of which provides - If a law of a State or Territory validates a past act attributable to the State or Territory in accordance with section 19, the native title holders are entitled to compensation if they would be so entitled under subsection 17(1) or (2) on the assumption that section 17 applied to acts attributable to the State or Territory.

A "future act" may be the enactment of a law or another act done on or after the terminal date for the doing of a past act (s 233(1)). A "future act" either validly "affects" native title or, like a past act, would be "invalid" to some extent on account of the existence of native title. An act "affects" native title "if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise" (s 227). The term "future act" excludes laws purporting to validate past acts (s 233(2)) - which must be given force and effect, if at all, pursuant to s 19(1) - or acts done under prescribed laws enacted to confer land or water rights on Aborigines or Torres Strait Islanders (ss 233(3), 253). Future acts are either "permissible" or "impermissible". Permissible future acts, whether legislative or not, must satisfy the criterion of treating native title holders in the same way as they would be treated if they held a fee simple in the land or, where the land is in the Australian Capital Territory or the Jervis Bay Territory, if they held a Commonwealth lease under a law of the Commonwealth or the Territory (s 235(2)-(6)). This is the criterion of "ordinary title" defined in s 253. Renewals, re-grants and extensions of commercial, agricultural, pastoral or residential leases which do not enhance the nature of the tenure of the lessee and do not diminish any reservation or condition for the benefit of Aborigines or Torres Strait Islanders are permissible future acts. Future acts relating to an offshore place [187] , or having a "low impact" on native title [188] or being covered by particular agreements made by native title holders [189] are also "permissible" (s 235(8)). All future acts that are not "permissible" are "impermissible" (s 236) and, subject to some qualifications (ss 24, 25) are invalid to the extent that they affect native title (s 22).

1. Defined in s 253. 2. "Low impact future act" is defined in s 234. 3. As provided for in s 21.

The general rule is that a permissible future act is "valid" (s 23(2)), and thus is of full force and effect. But there are qualifications to the general rule. The major qualifications are (i) the possible requirement that a notice of an intention to do the future act and any other procedural right be given to native title holders who may be affected by the doing of the act (s 23(6), (7)); and (ii) a requirement, in the case of some future acts [190] , that native title holders be given the right to negotiate about the doing of the future act and, if agreement is not reached, to have the question decided by an arbitral body. The entitlement of native title holders to notice and other procedural rights arises [191] if they would be entitled to those rights were they the owners in fee simple [192] of the land to be affected.

1. Specified in Subdiv B of Div 3. 2. "In relation to an onshore place": s 23(6)(a). 3. Or the lessee under a lease falling within the definition of "ordinary title": s 23(6)(a).

Subdivision B of Div 3 of the Native Title Act contains provisions conferring a "right to negotiate" on the holders of native title when the Commonwealth, a State or a Territory proposes to create, vary or extend a right to mine or to acquire compulsorily native title rights and interests in order to confer rights or interests on some person other than the acquiring Government or to do some other act approved by the Commonwealth Minister administering the Act (s 26(2)). "Native title parties" [193] are entitled to notice (s 29), to negotiate (ss 30, 31, 32, 33) and, in the event of disagreement (s 37), to have the question determined by an arbitral body (ss 27, 35, 38, 39). In addition, notice must be given to the public, the arbitral body and to any person who seeks the doing of the particular future act (s 29(2)(d), (e), (3)). In these cases, the proposed future act is invalid unless (i) agreement is reached by the negotiating parties (s 28(1)(d)), (ii) the arbitral body determines the proposed act may be done, with or without conditions (s 28(1)(e)), or (iii) in the event of a determination that the act must not be done, a Commonwealth, State or Territory Minister overrules the determination, with or without conditions (ss 28(1)(f), 42). If the act is done and conditions apply, they have the force of a contract among the negotiating parties (ss 34, 41, 42(7)).

1. In effect, those interested in native title in the particular land.

The effect of a permissible future act on native title depends on the nature of the act. If a Commonwealth, State or Territory law provides for the compulsory acquisition of native title and other interests in relation to land or waters and for compensation in money or a form other than money [194] , acquisition under the law is valid and an act done "in giving effect to the purpose of the acquisition" may extinguish native title (s 23(3)). But the mere acquisition of native title or the doing of any other permissible future act does not extinguish native title; it merely suspends native title rights and interests so far and for so long as is necessary to allow the permissible future act to operate and have effect [195] . Compensation is payable by the Commonwealth, State or Territory as the case may be or, if the relevant statute so provides, by the person who has requested that the permissible future act be done (s 23(5)). If a permissible future act relates to an area over which native title has not been claimed before a Native Title Tribunal and in respect of which it is claimed without objection that there is no native title (s 67), any future act is valid and may extinguish native title unless a competent court or tribunal has subsequently determined that native title exists (ss 24, 13(3), (4), (7), 253). If it turns out that native title rights and interests have thereby been extinguished or impaired, the holder is entitled to compensation (s 24(1)(d), (e), (2)).

1. See definition of Compulsory Acquisition Act in s 253. 2. The "non-extinguishment principle" defined by s 238 and applied by s 23(3) and (4).

Apart from extinguishment by past acts and future acts, native title can be extinguished by agreement between the holders of native title and the Commonwealth, State or Territory (as the case may be) in which the relevant land is situated. The agreement may either surrender the native title or authorise a future act that will affect the holders' native title. The consideration may consist in a grant of freehold or some other interest in the same or other land (s 21).

The Native Title Act contains extensive provisions for the making, acceptance and determination of claims to native title and the registration of native title claims and of determinations of native title. It prescribes "just terms" to be the measure of compensation for any loss, diminution, impairment or other effect of an "act" on native title rights and interests (s 51(1)); or, in the case of a law which prescribes the compensation for affecting native title to be the same as compensation for affecting "ordinary title" [196] , that measure of compensation (ss 51(3), 240, 253). If land subject to native title is acquired under a "Compulsory Acquisition Act" (which, by definition (s 253), permits the compulsory acquisition of both native title and other interests), the assessment of compensation may have regard to "any principles or criteria set out in that Act" (s 51(2)).

1. That is, a fee simple or in the case of the Australian Capital Territory and Jervis Bay Territory, a Commonwealth leasehold interest: s 253.

The constitutional character of the Native Title Act may now be examined. The Act removes the common law defeasibility of native title, and secures the Aboriginal people and Torres Strait Islanders in the enjoyment of their native title subject to the prescribed exceptions which provide for native title to be extinguished or impaired. There are only three exceptions: the occurrence of a past act that has been validated, an agreement on the part of the native title holders, or the doing of a permissible future act. The Act confers its protection upon native title holders who, ex hypothesi, are members of a particular race. As "[t]he relationship between the Aboriginal people and the lands which they occupy lies at the heart of traditional Aboriginal culture and traditional Aboriginal life" [197] , the significance of security in the enjoyment of native title by the Aboriginal people of Western Australia who hold native title is undoubted.

1. Tasmanian Dam Case (1983) 158 CLR 1 at 274-275, per Deane J.

Western Australia's challenge to the Native Title Act refers to sections of the Act to which no specific reference has thus far been made (including the whole of Pts 6, 7 and 8 relating respectively to the National Native Title Tribunal, the Register of Native Title Claims and the National Native Title Register). However, no argument was directed against those provisions except so far as those provisions provided machinery to implement the provisions of the Act relating to the recognition, protection, extinguishment and impairment of native title. No question as to the constitution, procedure, findings or determinations of the National Native Title Tribunal has arisen for decision.

Having referred to the salient feature of the Native Title Act for the purpose of determining its constitutional character, it is now necessary to examine the scope of the constitutional power relied on for its support. The operation of an Act for which the support of a power is invoked is one question; the scope of a power is another [198] . The Commonwealth seeks to support the Act by the powers contained in s 51(xxvi) and (xxix) of the Constitution, but we may put par (xxix) aside until we examine the races power on which the Commonwealth principally relies.

Section 51 confers on the Parliament power to make laws with respect to -

(xxvi) The people of any race for whom it is deemed necessary to make special laws. The races power, unlike the aliens power or the corporations power, is not expressed to be a power to make laws simply with respect to persons of a designated character. It must be "deemed necessary" that "special laws" be made for "the people of any race". As the phrases quoted prescribe the conditions of legislative power, it is said that this Court must determine for itself whether an impugned enactment satisfies those conditions. Western Australia submits that, while it is concededly for the Parliament to deem a law to be necessary [199] , it is the duty of the Court to determine whether the law answers the constitutional description. So much can be accepted, and so the elements of the description must be stated. 1. Tasmanian Dam Case (1983) 158 CLR 1 at 202, 319.

The requirement that laws enacted under par (xxvi) be "special" was referred to by Stephen J. In Koowarta v Bjelke-Petersen [200] :

Although it is people of "any" race that are referred to, I regard the reference to special laws as confining what may be enacted under this paragraph to laws which are of their nature special to the people of a particular race. It must be because of their special needs or because of the special threat or problem which they present that the necessity for the law arises; without this particular necessity as the occasion for the law, it will not be a special law such as s 51(xxvi) speaks of. If, as this passage suggests, the requirement that a law enacted under s 51(xxvi) be special were held to evoke a judicial evaluation of the needs of the people of a race or of the threats or problems that confronted them in order to determine whether the law was, or could be deemed to be, "necessary", the Court would be required to form a political value judgment. Yet it is clear that that judgment is for the Parliament [201] , not for the Court. If the Court retains some supervisory jurisdiction to examine the question of necessity against the possibility of a manifest abuse of the races power [202] , this case is not the occasion for an examination of that jurisdiction. The removal of the common law general defeasibility of native title by the Native Title Act is sufficient to demonstrate that the Parliament could properly have deemed that Act to be "necessary". 1. (1982) 153 CLR 168 at 210. 2. And was so intended by the Constitutional Conventions of Sydney in 1891 (Official Report of the National Australasian Convention Debates, 3 April 1891, pp 703-704) and Melbourne in 1898 (Official Record of the Debates of the Australasian Federal Convention, 28 January 1898, pp 248, 253-254). 3. cf Gerhardy v Brown (1985) 159 CLR 70 at 138-139.

"Special" qualifies "law"; it does not relate to necessity. Therefore the special quality of a law must be ascertained by reference to its differential operation upon the people of a particular race [203] , not by reference to the circumstances which led the Parliament to deem it necessary to enact the law. A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race. The law may be special even when it confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race [204] . That was the view of the majority in the Tasmanian Dam Case, where the protection of objects of significance to Aboriginal cultural heritage was held to be supported by the races power albeit the same objects were items of cultural heritage under an international treaty the protection of which was supported by the external affairs power. Mason J said of par (xxvi) [205] :

Its terms are wide enough to enable the Parliament (a) to regulate and control the people of any race in the event that they constitute a threat or problem to the general community, and (b) to protect the people of a race in the event that there is a need to protect them. Indeed, it is not denied that the power extends to a law protecting them, eg, a law protecting the people of that race from racial discrimination. Brennan J said [206] : A law which, on its face, does not discriminate in favour of the people of a race, may nevertheless be valid if it discriminates in favour of those people by its operation upon the subject matter to which it relates. That involves no departure from the ordinary processes of constitutional interpretation. The characterisation of a law requires that the operation of the law be ascertained by reference to its terms and their application to the circumstances in which the law operates. And Deane J held that the races power is "a general power to pass laws discriminating against or benefiting the people of any race" [207] . His Honour said of the words "people of any race" [208] : Plainly, the words have a wide and non-technical meaning The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively. Any doubt, which might otherwise exist in that regard, is removed by reference to the wording of par (xxvi) in its original form. The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. Applying these observations, the Native Title Act is "special" in that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title (the "people of any race") a benefit protective of their native title. Perhaps the Act confers a benefit on all the people of those races. The special quality of the law thus appears. Whether it was "necessary" to enact that law was a matter for the Parliament to decide and, in the light of Mabo [No 2], there are no grounds on which this Court could review the Parliament's decision, assuming it had power to do so. 1. Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 186, 245, 261. 2. It was on this point, not on the point of differential operation on people of a particular race, that the minority in the Tasmanian Dam Case denied the support of s 51(xxvi): see the Tasmanian Dam Case (1983) 158 CLR 1 at 110-111, per Gibbs CJ; at 202-203, per Wilson J; and at 319-320, per Dawson J. 3. Tasmanian Dam Case (1983) 158 CLR 1 at 158; and see at 180, per Murphy J. 4. Tasmanian Dam Case (1983) 158 CLR 1 at 244-245. 5. Tasmanian Dam Case (1983) 158 CLR 1 at 273. 6. Tasmanian Dam Case (1983) 158 CLR 1 at 273-274; see also at 180, per Murphy J.

Construing s 51(xxvi) of the Constitution in this way, Western Australia's submission that the Native Title Act generally does not answer the constitutional description of a law within s 51(xxvi) must be rejected. Western Australia submits that the races power is merely a constitutional peg on which the Commonwealth inappropriately seeks to hang the Act and that the true character of the Act is to be seen from the subjecting of State legislative or executive action affecting native title to the consent of the Commonwealth. This submission is based, at least in part, on the protection of native title by the Racial Discrimination Act and the WA Act. It is said that, as the Racial Discrimination Act put native title "on an equal footing with other titles" and as the WA Act remedied "such defects in native title as may have been inherent in it at common law", the Native Title Act could not be regarded either as "necessary" or as a "special" law falling within s 51(xxvi). Its true character, so the argument runs, is "a law with respect to governments and governmental activity, including the validity of that activity". The submission misconstrues the legislative power conferred by s 51(xxvi) of the Constitution. Moreover, it fails to appreciate the true operation of the Racial Discrimination Act and the WA Act upon native title in Western Australia.

The relationship of the Native Title Act with the Racial Discrimination Act has two aspects: first, the Native Title Act validates or permits the validation of past acts that were not of full force and effect because of the operation of the Racial Discrimination Act; second, the Native Title Act affords protection to the holders of native title who heretofore have been protected by (and who may continue to be protected under [209] ) the Racial Discrimination Act, the regime established by the Native Title Act being more specific and more complex than the regime established by the Racial Discrimination Act.

1. See s 233(1)(c)(ii); and see Pt 6 of this judgment, below.

The Racial Discrimination Act, the only relevant law of the Commonwealth prior to the commencement of the operation of the Native Title Act, did not alter the common law relating to native title. Section 10 of the Racial Discrimination Act added statutory protection to the common law rights of the holders of native title so that the holders of native title were able to enjoy their title equally with the enjoyment of other title by the holders thereof. Thus the Racial Discrimination Act protects native title holders against discriminatory extinction or impairment of native title. The Native Title Act, on the other hand, protects native title holders against any extinction or impairment of native title subject to the specific and detailed exceptions which that Act prescribes or permits. The constitutional character of the Native Title Act is not to be determined by reference to the regime established by the Racial Discrimination Act, much less by reference to an estimate of whether it was necessary to replace it. In so far as Western Australia's submission rests upon the protection of native title by the WA Act, it is sufficient to recall that the WA Act purported to extinguish native title, creating administratively defeasible rights in its place. The WA Act did not provide such a protection for native title as to make the Native Title Act otiose.

However, Western Australia's submissions as to the constitutional support for the Native Title Act take on a more substantial form when they invoke those limitations on the scope of the powers available to support the Native Title Act - the external affairs power as well as the races power - which are implied from the text and structure of the Constitution. By reason of those implied limitations, a law which, on one view, is a law supported by an available power may nevertheless fail to attract the support of that power because it offends a relevant implication [210] . Although the provisions protective of the enjoyment of native title appear to stamp the Native Title Act with the character of a special law deemed necessary for the people of a race, it is necessary to consider the limitation on the scope of the races power and of the external affairs power created by constitutional implications derived from the text and structure of the Constitution. The same implications limit both powers. As the Act is prima facie supported by the races power, it is unnecessary to consider whether, implied limitations apart, it is supported by the external affairs power. If the Act were ultimately to fall by reason of such an implied limitation on the races power, it would not be saved by an equally limited external affairs power. We may therefore pass immediately to a consideration of limitations imposed by constitutional implication.

1. Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 271-272, 274-275.

Here, Western Australia submits that the Native Title Act interferes impermissibly with the exercise of the powers of the States generally and of Western Australia in particular to perform the function of administering the lands of the State. The interference is said to offend constitutional implications that are stated in various ways, to which reference is made in the next part of this judgment.

4. Validity of impugned key provisions of the Native Title Act

Western Australia submits that certain provisions of the Native Title Act which are essential to its operation are outside the legislative powers of the Parliament of the Commonwealth. The impugned provisions are ss 11, 19, 20, 22, 23, 26, 28, 43 and 211(2).

The first ground of attack on these provisions is that they purport to control the exercise by the State of its legislative power or purport directly to render State laws invalid.

Section 107 of the Constitution confers on or confirms to the Parliaments of the respective States the powers vested in those Parliaments as at the establishment of the Commonwealth except to the extent that any power is "exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State". It is beyond the power of the Parliament of the Commonwealth to enact a law that is inconsistent with s 107. It is therefore beyond the legislative power of the Commonwealth Parliament to withdraw from any State Parliament a legislative power that is conferred on or confirmed to that Parliament by s 107. Nor does the Parliament of the Commonwealth have power directly to control the content of a State law. By virtue of s 107 of the Constitution, a valid law of a State operates according to its tenor except to the extent, if any, that s 109 of the Constitution renders the State law "invalid". In Gerhardy v Brown [211] , Brennan J said:

It is outside the powers of the Commonwealth Parliament to prohibit the Parliament of a State from exercising that Parliament's powers to enact laws, whether discriminatory or not, with respect to a topic within its competence. It is not to the point that a law, if enacted by the State Parliament, will be invalid by reason of its inconsistency with a Commonwealth law. A Commonwealth law purporting to prohibit a State Parliament from enacting a law finds no support in s 109 of the Constitution; rather, s 109 operates on a law that a State Parliament has lawfully enacted. 1. (1985) 159 CLR 70 at 121; see Mabo [No 1] (1986) 166 CLR 186 at 196-197, 203, 216, 243.

If, by reason of inconsistency with a law of the Commonwealth, a State law is to the extent of the inconsistency "invalid" - that is "suspended, inoperative and ineffective" [212] - the effect on the State law is not produced directly by operation of the Commonwealth law but by s 109 of the Constitution, the operation of which is attracted by the inconsistency [213] . It was an inevitable consequence of the constitutional distribution of specific legislative powers to the Commonwealth and residual legislative powers to the States that there would be cases of inconsistency between the legislative provisions governing the same act, matter or thing. Section 109 of the Constitution prescribes which law should prevail and which should be "invalid". But the effect of s 109 on a State law that is inconsistent with a law of the Commonwealth is not to impose an absolute invalidity. On the contrary, the State law remains valid though it is rendered inoperative to the extent of the inconsistency, but only for so long as the inconsistency remains [214] . The extent of the inconsistency depends on the text and operation of the respective laws.

1. Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 286, per Windeyer J. 2. Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 120; R v Members of Railways Appeals Board and Commissioner for Railways (NSW); Ex parte Davis (1957) 96 CLR 429 at 439; R v Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia (1977) 137 CLR 545 at 563; University of Wollongong v Metwally (1984) 158 CLR 447 at 455, 460, 469, 473-474, 476, 478-479. 3. Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 573, 599; Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 274, 278, 282-283, 286; University of Wollongong v Metwally (1984) 158 CLR 447 at 456, 461-462, 473-474, 477, 484-485.

Neither the operation of s 109 nor the existence of a State law inconsistent with a proposed law of the Commonwealth affects the extent of a legislative power of the Commonwealth. Given power to make laws with respect to prescribed subjects, the Commonwealth may, if it chooses, make a law with respect to a prescribed subject that is exclusive and exhaustive. Then, if any State law has been or is enacted to apply to that subject, an inconsistency arises and the State law becomes inoperative so long as both laws are on the statute books. In Wenn v Attorney-General (Vict) [215] Latham CJ said:

If the Commonwealth Parliament, in a law with respect to a subject within its legislative powers, enacts provisions which show that the Parliament intended to make an adjustment with respect to certain matters upon a particular basis to the exclusion of any other adjustment, then the result is to exclude the application of any State legislation or other provision which would "disturb or vary the Federal adjustment": see Clyde Engineering Co Ltd v Cowburn [216] . Where such an intention is manifested, then the Federal provision is the only provision to be applied "both as to what is granted and what is refused" [217] . Accordingly, his Honour upheld the validity of a Commonwealth law which "expressly states an intention to make the Federal legislation exclusive and exhaustive" [218] . 1. (1948) 77 CLR 84 at 108-109. 2. (1926) 37 CLR 466 at 491. 3. Clyde Engineering (1948) 37 CLR 466 at 491. 4. Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 109.

If the Commonwealth intends to make a law the exclusive and exhaustive law upon a subject within its legislative power, the intention may appear from the text or from the operation of the law. The text may reveal the intention either by implication or by express declaration. And if it be within the legislative power of the Commonwealth to declare that the regime prescribed by the Commonwealth law shall be exclusive and exhaustive, it is equally within the legislative power of the Commonwealth to prescribe that an area be left for regulation by State law. The effect of the authorities was stated by Mason J in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation [219] :

The judgments to which I have referred make the point that although a provision in a Commonwealth statute which attempts to deny operational validity to a State law cannot of its own force achieve that object, it may nevertheless validly evince an intention on the part of the statute to make exhaustive or exclusive provision on the subject with which it deals, thereby bringing s 109 into play. Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law. 1. (1977) 137 CLR 545 at 563.

If the application of State law to a particular subject matter be expressly excluded by a valid law of the Commonwealth, a State law which is expressed to apply to the subject matter is inconsistent with the Commonwealth law and s 109 of the Constitution is thereby enlivened. Such a State law is rendered inoperative not because the Commonwealth law directly invalidates the State law but by force of s 109 of the Constitution. Dixon J said in Wenn v Attorney-General (Vict) [220] :

There is no doubt great difficulty in satisfactorily defining the limits of the power to legislate upon a subject exhaustively so that s 109 will of its own force make inoperative State legislation which otherwise would add liabilities, duties, immunities, liberties, powers or rights to those which the federal law had decided to be sufficient. But within such limits an enactment does not seem to me to be open to the objection that it is not legislation with respect to the federal subject matter but with respect to the exercise of State legislative powers or that it trenches upon State functions. Beyond those limits no doubt there lies a debatable area where federal laws may be found that seem to be aimed rather at preventing State legislative action than dealing with a subject matter assigned to the Commonwealth Parliament. 1. (1948) 77 CLR 84 at 120.

The critical question is the scope of Commonwealth legislative power. Provided the power supports a Commonwealth law making its regime exclusive and exhaustive, the law may validly exclude in terms the application of State law to the subject matter. In Botany Municipal Council v Federal Airports Corporation [221] this Court adopted the remarks of Dixon CJ in Australian Coastal Shipping Commission v O'Reilly [222] :

The argument that under a legislative power of the Commonwealth the operation of State laws cannot be directly and expressly excluded has been used without effect in a succession of cases beginning with The Commonwealth v Queensland [223] . It may be worth remarking that the interpretation, long since adopted by this Court, of s 109 is hardly consistent in thought with such an argument. The Court has interpreted s 109 as operating to exclude State law not only when there is a more direct collision between federal and State law but also when there is found in federal law the manifestation of an intention on the part of the federal Parliament to "occupy the field": see Hume v Palmer [224] ; Ex parte Nelson [No 2] [225] ; Ex parte McLean [226] . Surely, consistency with that doctrine demands that a legislative power, such as that given by s 51(i) together with s 98, must extend to a direct enactment which expressly excludes the operation of State law provided the enactment is within the subject matter of the federal power. Indeed there can really be no other way of expressing the intention and accomplishing the federal legislative purpose. 1. (1992) 175 CLR 453 at 465. 2. (1962) 107 CLR 46 at 56-57. See also West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 at 670-671; Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 108-110; 119-120. The contrary view of Evatt J in West has not gained acceptance. See Australian Coastal Shipping Commission (1962) 107 CLR 46 at 63-64, 71. 3. (1920) 29 CLR 1. 4. (1926) 38 CLR 441. 5. (1929) 42 CLR 258. 6. (1930) 43 CLR 472.

Where it is within the legislative competence of the Commonwealth Parliament to prescribe an exclusive statutory regime, a Commonwealth law which merely expresses an exclusion of the operation of a State law is not construed as an attempt to invalidate the State law directly [227] . It is construed as an expression of intention that the Commonwealth law should have exclusive operation. Being construed as a declaration of intention that the Commonwealth law should operate exclusively of State law on the topic, the Commonwealth law is within power. Unless the Commonwealth law were expressed in terms which precluded that construction, the form of expression does not take the law outside Commonwealth power.

1. Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 548-549; Metal Trades Industry Association of Australia v Amalgamated Metal Workers' and Shipwrights' Union (1983) 152 CLR 632 at 641-643, 648-649.

In the light of these general principles, we may turn to examine the provisions which, the State submits, impermissibly attempt to control State legislative powers and impermissibly seek directly to impose invalidity on State legislation. It will be recalled that the key provision of the Native Title Act is s 11(1):

Native title is not able to be extinguished contrary to this Act. If this provision is within Commonwealth power, any future State law which purports to extinguish native title contrary to the Act is inoperative by reason of s 109 of the Constitution. That is not to say that the legislative power of a State Parliament to enact a law extinguishing or authorising the extinguishment of native title is affected by the Native Title Act. A State law purporting to have that effect is wholly valid as a law of the State and it would operate according to its tenor but for any inconsistency with the Native Title Act, the Racial Discrimination Act or other law of the Commonwealth. If s 11(1) of the Native Title Act is valid, however, the only areas of operation available for a State law are the areas left available to State law by the Native Title Act. Provided it is within the legislative power of the Commonwealth to exclude completely the operation of State law extinguishing native title, it is within Commonwealth power to exclude partially or on terms the operation of a State law which has that effect. The provisions which validate or which authorise the validation of legislative and executive acts that affect native title (notably ss 11(2), 19 and 23) define the area within which State and Territory laws have a field of operation with respect to native title. Those provisions are exceptions to the general sterilisation of extinguishing acts declared by s 11(1).

The critical question is not whether the impugned provisions other than s 11(1) are beyond the legislative power of the Commonwealth, but whether s 11(1) is within Commonwealth power. As we have seen, a law of the Commonwealth protecting native title from extinguishment is a law which is supported by s 51(xxvi) of the Constitution [228] . Therefore s 11(1) is valid and it is within the powers of the Parliament of the Commonwealth to prescribe the areas within which other laws may operate to affect the regime of protection prima facie prescribed by s 11(1). As the only repositories of power capable of extinguishing native title other than the Commonwealth are the States and Territories and some of their statutory authorities, a law protecting native title from extinguishment must either exclude the application of State and Territory laws or prescribe the areas within which those laws may operate. The Commonwealth has chosen to prescribe the areas available to control by other laws by prescribing what State and Territory laws are "valid" or "invalid" and, if valid, the conditions of validity.

The use of the term "valid" raises the question whether the Native Title Act is attempting to prescribe conditions relating to the power to make or the making of a State law, even though the validity of a State law cannot be affected by a law of the Commonwealth. But the term "valid" (or its derivatives), which appears in more than one of the impugned provisions, has more than one meaning and it is defined in the Native Title Act to include "having full force and effect". In accordance with s 15A of the Acts Interpretation Act 1901 Cth, that term must be construed to have a meaning which is supported by Commonwealth legislative power; it must not be construed to have a meaning which, in its context, would carry the Act outside Commonwealth legislative power. Therefore the use of the term, its derivatives or its opposite in the impugned provisions, so far as those respective terms relate to a State law, must be taken to mean having, or not having, (as the case may be) full force and effect upon the regime of protection of native title otherwise prescribed by the Act. In other words, those terms are not used in reference to the power to make or to the making of a State or Territory law but in reference to the effect which a State law, when validly made, might have in creating an exception to the blanket protection of native title by s 11(1). In using the terms "valid" and "invalid", the Act marks out the areas relating to native title left to regulation by State and Territory laws or the areas relating to native title regulated exclusively by the Commonwealth regime.

The provisions now under consideration can be seen, on analysis, to be prescriptions of the conditions on which State laws may be operative. Section 11(2) of the Native Title Act prescribes the boundaries of the areas within which a State law may operate to extinguish native title. It provides:

An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:

(a) in accordance with Division 3 of Part 2 (which deals with future acts and native title); or

(b) by validating past acts in relation to the native title.

Section 19 prescribes the inclusion in the State law of provisions "to the same effect as sections 15 and 16" as the criterion defining the area of permissible regulation of past acts by a State law. Of course, a past act may consist of a law enacted by a State before 1 July 1993 which affected native title or authorised the doing of acts which extinguished or impaired native title (for example, the granting of title to land the subject of native title). These State laws and the acts done under their authority may have been wholly valid, there being no Commonwealth law at the relevant time with which the particular State law was inconsistent. As we have seen, the Native Title Act does not affect State laws that were unaffected by s 109 of the Constitution nor does it deal with the extinguishment or impairment of native title by or pursuant to those laws [229] . Section 19 deals only with acts that were, at the relevant time, wholly or partially invalid, there being a Commonwealth law at the relevant time with which the State law was inconsistent. Section 19 deals with the conditions on which invalid past acts can be given force and effect by the future enactment of a State or Territory law. 1. See the definition of past act in s 228, especially sub-s 2(a)(i) and (b).

Division 3 of Pt 2 of the Native Title Act (which includes ss 22, 23, 26, 28 and 43) has a broadly corresponding function to perform in relation to future acts. That Division prescribes the extent to which State law may affect the regime of protection of native title and, in doing so, prescribes the criteria which must be satisfied if the State law is to operate within the area relating to future acts left to it by the Act.

The provisions of Subdiv B of Div 3 of Pt 2 of the Act, which require a "Government party" to engage in negotiation with Aboriginal groups before taking certain steps (including the enactment of legislation) that would affect native title, are the subject of a particular ground of objection by the State. Subdiv B prescribes a procedure of negotiation and conditions which must be satisfied before a proposed "permissible future act" covered by s 26(2) has force and effect "in relation to an onshore place" (s 26(1)). Section 26(2) reads:

Subject to subsection (3), the acts are as follows:

(a) the creation of a right to mine, whether by the grant of a mining lease or otherwise;

(b) the variation of such a right, to extend the area to which it relates;

(c) the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine;

(d) the compulsory acquisition of native title rights and interests under a Compulsory Acquisition Act, where the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on persons other than the Government party;

(e) any other act approved by the Commonwealth Minister, in writing, for the purposes of this paragraph.

A negotiation procedure commencing with notification to Aboriginal or Torres Strait Islander bodies and being either the "normal" or an "expedited" procedure must be followed (ss 29-34). The conditions to be satisfied are prescribed chiefly by s 28. Broadly speaking, if an affected Aboriginal or Torres Strait Islander body objects to the proposal (ss 28(1)(b), 32(2)), either an agreement must be reached with that body for the doing of the act proposed (ss 28(1)(d), 34), or the issue must go to arbitration before an arbitral body that determines that the act may be done (with or without conditions) (ss 28(1)(e), 38(1)(b), (c)) or, if the arbitral body determines that the act must not be done (s 38(1)(a)), that determination is overruled by a Minister - a State or Territory Minister in the case of a State or Territory Tribunal (s 42(1)), the Commonwealth Minister in the case of the National Native Title Tribunal (s 42(2)). Criteria to be observed by the arbitral bodies are prescribed (s 39) and the ministerial power of overruling must be exercised in the interests of the relevant State or Territory (s 42(1), (2)(b)) or in the national interest (s 42(2)(a)). Section 26(2)(e) confers on the Commonwealth Minister a power to subject permissible future acts to the Subdiv B procedure, and s 26(3)(b) confers on the Commonwealth Minister a power to exclude a permissible future act which is covered by pars (a) to (d) of s 26(2) from the Subdiv B procedure. The latter power is governed by criteria which require the Minister to be satisfied that the proposed act "will have minimal effect on any native title" and that native title holders will be "appropriately consulted" about access to the land or waters involved (s 26(4)).

These provisions are, for the most part, merely regulatory. They prescribe the steps to be taken to obtain agreement to, or approval for the doing of, a proposed permissible future act which falls within s 26(2). The provisions prescribing the procedure to be followed and the conditions to be satisfied simply define the scope of certain exceptions to the general protection of native title declared by s 11(1). They do not purport to impose upon a State Parliament or other "Government party" any positive obligation or duty to do anything or to follow particular procedures. The provisions of Div 3 of the Act (including Subdiv B) which relate to future acts merely prescribe the scope of exceptions to the general protection of native title by s 11.

Permissible future acts fall into one of three categories: (i) permissible future acts covered by s 26(2) to which Subdiv B applies. Subdivision B prescribes the procedure that must be followed and the conditions that must be fulfilled if a proposed permissible future act covered by s 26(2) is to be valid; (ii) permissible future acts to which s 24 or s 25 applies. Sections 24 and 25 govern particular acts which, though valid, may give rise to a claim for compensation or may deny pro tanto the effectiveness of native title rights; and (iii) permissible future acts which do not fall into either of those categories. Acts in this category are valid: s 23(2). They take effect according to the tenor of the State law which is, or which authorises, the proposed permissible future act. Categories (ii) and (iii) relate to permissible future acts that, being valid, are effective to extinguish or affect the rights and interests of the holders of native title. Category (i) creates a gateway to validity through which other permissible future acts must pass if they are to affect the rights and interests of the holders of native title. Subdivision B defines the scope of the category (i) exceptions to the general protection of native title declared by s 11(1). It does not purport to impose upon a State Parliament or other "Government party" any positive obligation or duty to do anything or to follow particular procedures.

By exercise of the power conferred by sub-s (2)(e) or the power conferred by sub-s (3)(b), the Minister may add a proposed permissible future act to, or take a proposed permissible future act from, the acts otherwise covered by s 26(2). The proposed permissible future act is thereby either subjected to the provisions of Subdiv B or relieved from compliance with those provisions. It either moves from category (iii) to category (i) or from category (i) to category (iii), as the case may be. The Minister's power to exclude a proposed permissible future act from the acts otherwise subject to compliance with Subdiv B opens the s 23 gateway of validity to the act in question. But when the Minister exercises the power conferred by s 26(2)(e), a proposed permissible future act which would otherwise be valid will be rendered invalid in default of compliance with the requirements of Subdiv B. This provision was specifically attacked as beyond the power of the Parliament. It was said to be an impermissible attempt to create a ministerial power to control State functions.

If a proposed permissible future act is the subject of an approval under s 26(2)(e) and is rendered invalid for non-compliance with Subdiv B, the invalidity does not flow from inconsistency with the Minister's written approval under s 26(2)(e) but from inconsistency between the State law which is, or which authorises, the proposed permissible future act and the provisions of the Native Title Act (ss 11, 23, 28) which, acting upon the approval [230] , require compliance with Subdiv B to avoid the sterilising operation of s 11. The Minister's power to extend the provisions of Subdiv B to permissible future acts additional to those prescribed expressly by the Act is merely part of the administrative machinery regulating the gateways to validity of permissible future acts. It may be said that the power has a legislative character since its exercise effectively adds to the list of permissible future acts prescribed by pars (a) to (d) of s 26(2). Even so, the course of authority in this Court has long since removed any objection to the Parliament's power to delegate legislative power to a Minister [231] . However, the power is not truly legislative. Upon the Minister's giving of a written approval under s 26(2)(e), the proposed permissible future act is, by force of the Native Title Act itself, subject to the requirements of Subdiv B. An exercise of the power engages the operation of the provisions of the Commonwealth law which make its provisions exclusive of the provisions of any inconsistent State law [232] . Section 26(2)(e) therefore validly empowers the Minister to add a proposed permissible future act to the list of those which must satisfy the requirements of Subdiv B to be effective.

1. Ex parte McLean (1930) 43 CLR 472 at 484-485; T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 at 182-183; Metal Trades Industry Association of Australia v Amalgamated Metal Workers' and Shipwrights' Union (1983) 152 CLR 632 at 648. 2. Nott Bros & Co Ltd v Barkley (1925) 36 CLR 20 at 24, 29; Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 at 763. 3. Williams v Hursey (1959) 103 CLR 30 at 68-69; Textile House Pty Ltd v Carmody (1976) 50 ALJR 497 at 499.

Section 43(1) raises the same problem as that raised by sub-s (3)(b) of s 26. It provides, inter alia:

(a) a law of a State or Territory makes alternative provisions to those contained in this Subdivision in relation to acts covered by this Subdivision that are attributable to the State or Territory; and

(b) the Commonwealth Minister determines in writing that the alternative provisions comply with subsection (2); the alternative provisions have effect.

Sub-section (2) prescribes a list of requirements with which the "alternative provisions" must, in the opinion of the Commonwealth Minister, comply if the Subdiv B procedure and the s 28 conditions are not to apply. Section 43 states the Parliament's intention that acts covered by s 26(2) should not be governed exclusively by Commonwealth law when the Minister is of the opinion that State laws and executive action taken under them satisfy the requirements which the Parliament specifies. When the Minister makes a determination under s 43(1)(b), the Commonwealth law (Subdiv B) is withdrawn pro tanto and the State law is left with a corresponding field of effective operation [233] . The Minister is not empowered to engage but to exercise a power to disengage the operation of s 109. Section 43 of the Native Title Act is valid. 1. See Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 373.

Section 211 of the Native Title Act is another provision which is said to be beyond Commonwealth power. It applies when (s 211(1)(b), (c)) -

a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and

the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.

The impugned part of s 211 is sub-s (2) which should be read with sub-s (3):

(2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:

(a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and

(b) in exercise or enjoyment of their native title rights and interests.

(3) Each of the following is a separate " class of activity ":

(e) any other kind of activity prescribed for the purpose of this paragraph.

The usufructuary rights comprehended by sub-s (3) are, by virtue of sub-s (2)(b), rights and interests which are incidents of native title. They are, by definition (s 223(1)), rights and interests that are recognised by the common law and, by operation of s 11(1), they cannot be extinguished except in conformity with the Act. Section 211(2) removes the requirement of a "licence, permit or other instrument granted or issued under the law" referred to in s 211(1)(b) as a legal condition upon the exercise of the native title rights specified in sub-s (3). If the affected law be a law of a State, its validity is unimpaired, but its operation is suspended in order to allow the enjoyment of the native title rights and interests which, by s 211, are to be enjoyed without the necessity of first obtaining "a licence, permit or other instrument". Again, the effect of s 211 is not to control the exercise of State legislative power, but to exclude laws made in exercise of that power (inter alia) from affecting the freedom of native title holders to enjoy the usufructuary rights referred to in s 211.

Section 20 requires separate consideration. It is not a mere exception to the protection cast over native title by s 11(1). It imposes upon a State or Territory an obligation to pay compensation to native title holders if a law is enacted to validate a past act, the law complies with the requirements in s 19, and the past act is of the same kind as exposes the Commonwealth to a liability to pay compensation for a past act in either category A or category B. Section 23 also imposes upon a State or Territory an obligation to pay compensation to native title holders if a permissible future act which extinguishes or impairs the enjoyment of native title is attributable to a State or Territory. The rights conferred on native title holders by ss 20 and 23(4) and (5) are conferred directly by the Native Title Act, not by the State or Territory law by or pursuant to which native title is extinguished or impaired. A different provision governs compulsory acquisition. If the permissible future act is a law providing for the compulsory acquisition of native title, the law must comply with the requirements contained in the definition of Compulsory Acquisition Act in s 253, including the requirement that compensation, in money or in a form other than money (s 79), be provided. In State laws answering the description of "Compulsory Acquisition Act", the State accepts a liability to provide compensation. That is required by the Native Title Act as a condition of permitting the effective operation of the Compulsory Acquisition Act.

The State submits that the provisions of the Native Title Act which impose, directly or indirectly, on a State an obligation to provide compensation for the extinguishment or impairment of native title are invalid for want of Commonwealth legislative power when extinguishment or impairment is effected by or pursuant to the enactment of a State law. Such provisions, it is submitted, (a) single out the States for the imposition of a financial burden, and (b) impose the burden upon the exercise of legislative power by the States. The submission overlooks, with respect, the legal effect of a validation of a past or permissible future act by a State law which is enacted in conformity with s 11(2) of the Native Title Act. Such an act divests from the Aboriginal native title holders the proprietary or usufructuary rights which they possessed by virtue of the common law and which were protected by s 11(1) of the Native Title Act or by the Racial Discrimination Act. If the Commonwealth chooses to confer on Aborigines who hold native title a right to compensation for its divestiture, the question is whether the conferring of that right is within power. The duty to pay compensation is imposed by the Native Title Act on the party who effects the divestiture or who requests that the divestiture be effected. The duty to pay arises on the doing of the effective act of divestiture. The conferring of the right to compensation on the divested holders of native title is as much a special law for their benefit as the law which protects native title from divestiture.

The submission that the compensation provisions single out the States is misconceived. The compensation provisions apply to each of the polities - Commonwealth, States and Territories - which may so exercise their legislative or executive powers as to effect a divestiture of native title in accordance with the provisions of the Native Title Act. There are no other repositories of power capable of effecting divestiture. The States are not singled out to bear an arbitrary financial burden. They are required to pay or provide for compensation for taking native title from the holders thereof. Other persons may interfere with the exercise of the rights conferred on the holders of native title, but no person other than the polities has power to extinguish or impair the rights available for exercise. These provisions are supported by s 51(xxvi) of the Constitution.

(ii) Impermissible discrimination against Western Australia and impermissible impairment of the ability of Western Australia to function as a State

Western Australia submits that the provisions of the Native Title Act governing the validity of future acts, particularly Subdiv B of Div 3 of Pt 2, exceed the limits of Commonwealth legislative power implied by the federal nature of the Constitution. The relevant principle can be traced back to Melbourne Corporation v The Commonwealth [234] . A more recent statement of the principle appears in Queensland Electricity Commission v The Commonwealth [235] . In that case Mason J said [236] :

This review of the authorities shows that the principle consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities; and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments The second element of the prohibition is necessarily less precise than the first; it protects the States against laws which, complying with the first element because they have a general application, may nevertheless produce the effect which it is the object of the principle to prevent. His Honour went on to comment [237] : First, [d]iscrimination against a particular State, at least so long as it involves the imposition of a special burden or disability on that State, by isolating it from the general law applicable to others, including other States, falls squarely within the principle. Secondly, notwithstanding its basis in a constitutional conception of a relationship between a central government and separate State governments and the emphasis given to its application to the exercise of executive power by the States, the principle protects legislatures as well as executive governments. Thirdly, it does not follow that every law which deprives a State of a right, privilege or benefit which it enjoys will amount to discrimination in the sense already discussed. A law which deprives a State of a right, privilege or benefit not enjoyed by others, so as to place the State on an equal footing with others, is not a law which isolates the State from the general law. [238] Counsel for Western Australia submit that the two elements of the principle to which Mason J referred may not comprehend the principle in its full width. A passage from the judgment of Dawson J in Queensland Electricity Commission v The Commonwealth was cited to suggest a principle conferring on State functions a wider immunity from interference by Commonwealth power. Dawson J expressed the implication in terms of the Commonwealth Parliament's inability to "impair the capacity of the States to exercise for themselves their constitutional functions: that is to say, their capacity to function effectually as independent units" [239] . 1. (1947) 74 CLR 31. 2. (1985) 159 CLR 192. 3. Queensland Electricity Commission (1985) 159 CLR 192 at 217. 4. Queensland Electricity Commission (1985) 159 CLR 192 at 217. 5. See also Queensland Electricity Commission (1985) 159 CLR 192 at 205-206, 221-222, 231, 244-247, 258-260; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 134, 163, 210, 241-244. 6. Queensland Electricity Commission (1985) 159 CLR 192 at 260.

Whether the principle be stated in one form or the other, a submission that a Commonwealth law exceeds the power that would support the law if it were not limited by implication requires consideration of the nature and scope of that power. That is ascertained by reference to the text conferring the power, its subject matter and the general context of the Constitution [240] .

1. Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 271-272, 274-275.

If the power prima facie available to support a Commonwealth law is such that the law may govern a particular act, matter or thing, the fact that a State exercises or has been accustomed to exercise legislative or executive power to govern the same act, matter or thing does not establish either discrimination against the State or an impermissible interference with the State's performance of its constitutional functions. In Re Lee; Ex parte Harper [241] Mason, Brennan and Deane JJ said:

If the Constitution contemplates that the States will be subject to control or regulation by the Commonwealth or its agencies in particular respects, their subjection to that control or regulation cannot amount to a relevant impairment or inhibition of their capacity to govern. On the view which we are presently inclined to take of the implied limitations, they do not protect the States from the consequences of the exercise by the Commonwealth of the powers granted to it by the Constitution which contemplate their application to the States. Nor do they protect the States from an erosion in their status occasioned by the increasing regulation of community affairs by the Commonwealth in accordance with its powers. Once the doctrine of reserve powers was exploded by the Engineers' Case [242] , the Constitution could not be read as preserving to the States an immunity from the operation of a non-discriminatory Commonwealth law provided the power supporting the law contemplates its application to the States and its application does not deprive the States of "their capacity to function as governments". For reasons earlier stated, s 51(xxvi) of the Constitution supports a law which protects native title from extinguishment or impairment. To exercise that power it is necessary to control the exercise by other repositories of the power to extinguish or impair native title. As extinguishment or impairment can be effected at common law only by or pursuant to a law enacted by a competent legislature, the power conferred by s 51(xxvi) must extend to the support of a law which excludes, wholly or in part, State or Territory law from operating to affect native title. The power cannot be limited by an implication which exempts the States from the application of such a law without denying what is at the heart of s 51(xxvi) so far as it may be exercised for the benefit of the people of the indigenous races of Australia. The Native Title Act, being supported by that provision, cannot be held to discriminate impermissibly in its application to the State of Western Australia or in its application to the States and Territories as a whole. 1. (1986) 160 CLR 430 at 453. 2. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

Western Australia submits that the Native Title Act produces a more substantial effect upon Western Australia than the effect produced by the application of the Act to any other part of the Commonwealth. And, invoking the second element in the principle limiting Commonwealth power, Western Australia submits that the application of the Native Title Act to that State deprives the government of the State of the capacity to function as a government or burdens and impedes its function as a government. The differential effect argument can be disposed of shortly. The differential effect on Western Australia arises simply because history and geography have combined in creating in Western Australia a greater area and proportion of land which might be subject to native title than the area or proportion of such land in other parts of the Commonwealth. That difference is of practical importance, but it does not indicate impermissible discrimination in the application of the Native Title Act. The State's argument as to interference with its capacity to function as a government calls for further examination.

The statement of claim filed by Western Australia contains two paragraphs which describe functions of the State which are pleaded to be "fundamental" or "essential":

62. The capacity and power to grant, regulate and otherwise deal with land and other resources in Western Australia, including the capacity and power to appropriate land for public purposes and to alienate and develop Crown lands, particularly for agricultural, pastoral and mining purposes in accordance with the laws in force in Western Australia is a fundamental sovereign function of the Government of Western Australia as a State.

63. The capacity and power to administer and regulate land and other resources in Western Australia and the revenue derived from it are essential to the continued existence of the State and its capacity to function as a government.

The pleading of the State's functions was expanded by reference to material showing the extent and importance of the State's function of administering land and mineral resources. The Native Title Act is said to interfere impermissibly with the State's capacity to perform these functions.

Western Australia is the largest of the States. It has an area of 2,527,620 km2: 35 per cent (895,694 km2) is classified as "vacant Crown land"; 16 per cent (402,996 km2) as reserves and 1 per cent (18,902 km2) as State forests and timber reserves. The remainder of the State is the subject of Crown grants: 7 per cent (182,380 km2) is private freehold; 38 per cent (951,006 km2) is pastoral leasehold and 3 per cent (76,640 km2) other leasehold. The administration of this land and its resources occasions a great number of decisions and actions each year. In the year 1992-1993, the following number of transactions took place: 2,400 in creating, vesting and amending reserves; 460 in creating, deviating, closing and disposing of roads; 3,230 in releasing or selling lots of land, granting easements and other tenures and offering leases; seventy-two in resuming land for government or local authorities; and thirty in acquiring land for public works.

The Executive Government of Western Australia administers legislation governing mining for minerals including petroleum and the pipeline transportation of petroleum products. It also administers State agreement legislation which is enacted where a development project requires the co-ordination of extensive services by State and by private enterprise. The mining industry of Western Australia is of great economic and social importance. It produces significant proportions of the world production of iron ore, alumina, nickel, mineral sands, liquefied natural gas, gold and gem diamonds. The value of Western Australian minerals and energy production in the year 1991/92 was $10,238m. Capital expenditure on the industry for the year 1992/93 was $2,196.2m. Employment in the mining and energy industries in 1993 accounted for 3.87 per cent of the State's workforce (30,300 people).

These bare statistics indicate the extent of the function of administering land and mining legislation in the State, to mention only the chief categories of administrative activities that are affected by the Native Title Act. The Native Title Act is said by Western Australia to operate in that State "in a disproportionate and discriminatory way" and to be likely "significantly to interfere with mineral exploration and mining in Western Australia". Accepting for the purposes of determining constitutional validity that the Act will complicate government administration in Western Australia and delay the making of administrative decisions, the question is whether those effects constitute an impermissible interference with the capacity of the Government to function as such.

These effects touch upon the scope of State power and the difficulty of its exercise, not upon the machinery of the government of the State. They are, no doubt, of considerable political significance, for the effective scope of State powers and the efficiency of their exercise are the concern of the governments of the States. But, as Dixon J pointed out in Melbourne Corporation v The Commonwealth [243] :

The framers of the Constitution do not appear to have considered that power itself forms part of the conception of a government. They appear rather to have conceived the States as bodies politic whose existence and nature are independent of the powers allocated to them. The Constitution on this footing proceeds to distribute the power between State and Commonwealth and to provide for their inter-relation, tasks performed with reference to the legislative powers chiefly by ss 51, 52, 107, 108 and 109. For constitutional purposes, the relevant question is not whether State powers are effectively restricted or their exercise made more complex or subjected to delaying procedures by the Commonwealth law. The relevant question is whether the Commonwealth law affects what Dixon J called the "existence and nature" of the State body politic. As the Melbourne Corporation Case illustrates, this conception relates to the machinery of government and to the capacity of its respective organs to exercise such powers as are conferred upon them by the general law which includes the Constitution and the laws of the Commonwealth [244] . A Commonwealth law cannot deprive the State of the personnel, property, goods and services which the State requires to exercise its powers and cannot impede or burden the State in the acquisition of what it so requires. 1. (1947) 74 CLR 31 at 82. 2. Constitution, Covering Clause V.

Such practical difficulty as there may be in the administration of the legislation of Western Australia governing land, minerals and the pipeline transportation of petroleum products can be attributed to the realisation that land subject to native title is not the unburdened property of the State to use or to dispose of as though it were the beneficial owner. The notion that the waste lands of the Crown could be administered as the "patrimony of the nation" and that the traditional rights of the holders of native title could be ignored was said to be erroneous in Mabo [No 2] [245] and the effect of the Native Title Act on State administration must be seen in that light. The Native Title Act may diminish the breadth of the discretions available to the Executive Government but that is not sufficient to stamp it with invalidity. Brennan J said in the Tasmanian Dam Case [246] :

The Commonwealth measures diminish the powers of the executive government but they do not impede the processes by which its powers are exercised. There is no foundation for attributing to the control of the mass of waste lands of a State a special immunity from valid Commonwealth law. Waste lands of a State are to be administered by the executive government of the State according to the law which is binding upon it, including the laws of the Commonwealth that bind the State. A restriction upon the doing of specified acts in the exercise of an executive power to use and to control the use of waste lands is no invalid intrusion upon the exercise of that power. The Act does not purport to affect the machinery of the government of the State. The constitution of the three branches of government is unimpaired; the capacity of the State to engage the servants it needs is unaffected; the acquisition of goods and services is not impeded; nor is any impediment placed in the way of acquiring the land needed for the discharge of the essential functions of the State save in one respect, namely, the payment of compensation. The Act does not impair what Dawson J described as "the capacity to exercise" constitutional functions though it may affect the ease with which those functions are exercised. 1. (1992) 175 CLR 1 at 52-53. 2. (1983) 158 CLR 1 at 214-215.

Absent any overriding Commonwealth law, land subject to native title at common law in Western Australia could be acquired by the State on such terms as to compensation, if any, as the Parliament of the State saw fit to provide. But the Native Title Act does require the State, if it exercises a power of compulsory acquisition - a power which any government must have to perform its functions - to pay compensation as prescribed by s 51. That measure of compensation cannot exceed the measure of "just terms" but may be less if the lesser payment involves no discriminatory treatment of the Aboriginal holder of native title. The Act does place this burden on the exercise of an essential State power but it does so as an incident of the protection of native title. In other words, s 51(xxvi) confers power to enact a law that entitles the holder of native title to compensation for the extinguishment or impairment of the holder's rights and interests and the State, in common with any other authority which is capable of extinguishing native title, may be required to pay that compensation. Section 51(xxvi) is not impliedly limited so as to preclude the Commonwealth from protecting the holders of native title in this way. Having regard to s 51(xxxi) of the Constitution and the standard of fair dealing which it prescribes, it would be surprising to find that the structure of the Constitution impliedly limited the power of the Parliament to enact a law which gives effect to that standard.

5. Submission of invalidity based on Constitution, s 53

When the Bill for the Native Title Act was in the Senate, that Chamber inserted amendments relating to offers of financial assistance to States and Territories (s 200), the establishment of the Parliamentary Joint Committee on Native Title (ss 204-207) and the protection of native title from debt recovery processes (s 56(5), (6)). The insertion of these provisions, which were accepted when the Bill was returned to the House of Representatives, is said by Western Australia to work the invalidity of the Native Title Act for want of conformity with s 53 of the Constitution. However, the argument is not supported by the course of authority in this Court as to the justiciability of questions arising under s 53. The relevant paragraph of s 53 reads as follows:

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

Section 53 is a procedural provision governing the intra-mural activities of the Parliament. The traditional view is that this Court does not interfere in those activities [247] . That view was stated by Mason CJ, Deane, Toohey and Gaudron JJ in Northern Suburbs General Cemetery Reserve Trust v The Commonwealth [248] in reference to s 54 of the Constitution:

a failure to comply with the dictates of a procedural provision, such as s 54, dealing with a "bill" or a "proposed law" is not contemporaneously justiciable and does not give rise to invalidity of the resulting Act when it has been passed by the two Houses of the Parliament and has received the royal assent. The traditional view accords both with the text of s 53, which speaks of "proposed laws" rather than "laws" [249] and with the intention manifested in the Convention Debates [250] . It follows that the submission is not one which can lead to a declaration of invalidity of the Native Title Act. 1. s 57 apart; see Cormack v Cope (1974) 131 CLR 432 at 454; Victoria v The Commonwealth and Connor (1975) 134 CLR 81 at 184. 2. (1993) 176 CLR 555 at 578. 3. Osborne v The Commonwealth (1911) 12 CLR 321 at 336, 352, 355. 4. Official Report of the National Australasian Convention Debates, (Adelaide) 13 April 1897, pp 472-473.

In any event, the submission of want of conformity with s 53 appears to be without merit. None of the Senate amendments appears to increase a "charge or burden on the people".

Section 7(1) of the Native Title Act reads as follows:

Nothing in this Act affects the operation of the Racial Discrimination Act 1975. It is difficult to identify the legal purpose which this provision is intended to serve. It does not affect the validation of past acts: s 7(2) expressly so declares.

It is clear that the Native Title Act does not repeal the Racial Discrimination Act either retrospectively or prospectively. The reference to invalidity in the definition of past act (s 228(2)(b)) contemplates the operation of the Racial Discrimination Act during the relevant period. And the definition of "future act" speaks of the invalidity of acts (including the enactment of State and Territory laws) "apart from this Act" (s 233(1)(c)(ii)). That definition assumes, or at least allows for, the operation of the Racial Discrimination Act where that operation produces the invalidity that falls within the definition. Section 7(1) at least ensures that the Native Title Act is not construed as impliedly repealing any of the provisions of the Racial Discrimination Act. The latter Act continues to operate on subjects outside the Native Title Act in precisely the same way as it operated before the Native Title Act came into operation.

Western Australia sought to use s 7(1) as the vehicle for destruction of the substantive provisions of the Native Title Act relating to future acts. The Native Title Act was said to discriminate in favour of Aborigines and Torres Strait Islanders and thus to offend the Racial Discrimination Act. As s 7(1) preserved the operation of the Racial Discrimination Act, so the argument ran, the offending provisions of the Native Title Act "must be regarded as inoperative". The argument encounters considerable obstacles. In the first place, it is not easy to detect any inconsistency between the Native Title Act and the Racial Discrimination Act. The Native Title Act provides the mechanism for regulating the competing rights and obligations of those who are concerned to exercise, resist, extinguish or impair the rights and interests of the holders of native title. In regulating those competing rights and obligations, the Native Title Act adopts the legal rights and interests of persons holding other forms of title as the benchmarks for the treatment of the holders of native title [251] . But if there were any discrepancy in the operation of the two Acts, the Native Title Act can be regarded either as a special measure under s 8 of the Racial Discrimination Act [252] or as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the International Convention on the Elimination of All Forms of Discrimination [253] . And further, even if the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both Acts emanate from the same legislature and must be construed so as to avoid absurdity and to give to each of the provisions a scope for operation. The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operation. But it is only to that extent that, having regard to s 7(1), the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act.

1. See the use of the criterion of ordinary title in ss 17(2), 235(2), (3), (4), 240, 253 and the criterion of similar compensable interest in ss 17(2), 23(4)(b)(ii), 51(3), 240. 2. Gerhardy v Brown (1985) 159 CLR 70. 3. Sadurski, Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case that Wasn't, Sydney Law Review, vol 11 (1986) 5; McKean, Equality and Discrimination under International Law (1993), p 288; Brownlie, The Rights of Peoples in Modern International Law (1983), p 10; Australian Law Reform Commission, Report No 31, The Recognition of Aboriginal Customary Laws (1986), vol 1, pars 148, 150.

Section 7(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act. The Native Title Act prescribes specific rules governing the adjustment of rights and obligations over land subject to native title and s 7(1) cannot be construed as intending to nullify those provisions. It may be that s 7(2) is otiose but that provision is properly to be seen as inserted out of an abundance of caution. It follows that the inconsistency between the WA Act and the Racial Discrimination Act either survived the enactment of the Native Title Act or, if the Native Title Act affected the relevant provisions of the Racial Discrimination Act, from the time when that occurred, an inconsistency arose between the WA Act and s 11 of the Native Title Act.

Section 12 of the Native Title Act reads as follows:

Subject to this Act, the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth. Section 12 does not in terms make a law in the sense of creating rights or imposing obligations. It takes the common law as an entirety and purports to invest it with the force of a law of the Commonwealth. If s 12 be construed as an attempt to make the common law a law of the Commonwealth, the attempt encounters some constitutional obstacles. There can be no objection to the Commonwealth making a law by adopting as a law of the Commonwealth a text which emanates from a source other than the Parliament [254] . In such a case the text becomes, by adoption, a law of the Commonwealth and operates as such. But the common law is not found in a text; its content is evidenced by judicial reasons for decision. Isaacs J explained in Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia [255] that it is the declaratory nature of a judgment [256] that allows for the evolution of the common law: A prior decision does not constitute the law, but is only a judicial declaration as to what the law is. The declaration, unless that of a superior tribunal, may be wrong, in the opinion of those whose present function is to interpret and enforce the law. In Giannarelli v Wraith , Brennan J said [257] : In the view of a court sitting at the present time, earlier decisions which are not binding upon it do not necessarily represent the common law of the earlier time, though they record the perception of the common law which was then current. His Honour went on to say that if a court, because it perceives the common law to be different from what it was earlier perceived to be, so declares it, then effect will be given to that declaration as truly representing the common law. 1. Hooper v Hooper (1955) 91 CLR 529 at 536-537. The law of the States that was picked up as a law of the Commonwealth in that case was statute law, not common law. Where a State statute is thus picked up and enacted as a law of the Commonwealth, the common law which has affected the construction of the text or has attached doctrines to its operation continues to have the same effect on the law of the Commonwealth as it has or had on the law of the State subject to contrary provision. 2. (1913) 17 CLR 261 at 275-276. 3. See also Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463; R v Kirby; Ex parte Boilermakers' Society of AustraliaBoilermakers' Case (the) (1956) 94 CLR 254 at 281. 4. Giannarelli (1988) 165 CLR 543 at 584.

In construing s 12, the "common law" must be understood either as a body of law created and defined by the courts or as a body of law which, having been declared by the courts at a particular time, may in truth be - and be subsequently declared to be - different. Whether the common law be understood by reference to its source in judicial reasons for decision or by reference to its content as developing from time to time, there are objections to its being treated as a law of the Commonwealth.

If the common law in s 12 is understood to be the body of law which the courts create and define, s 12 attempts to confer legislative power upon the judicial branch of government. That attempt must fail either because the Parliament cannot exercise the powers of the Courts or because the Courts cannot exercise the powers of the Parliament. As Dixon CJ, McTiernan, Fullagar and Kitto JJ said in the Boilermakers' Case [258] :

it has been found impossible to escape the conviction that Ch III does not allow the exercise of a jurisdiction which of its very nature belongs to the judicial power of the Commonwealth by a body established for purposes foreign to the judicial power and that Ch III does not allow a combination with judicial power of functions which are not ancillary or incidental to its exercise but are foreign to it. Under the Constitution, the Parliament cannot delegate to the Courts the power to make law involving, as that power does, a discretion or, at least, a choice as to what that law should be [259] . 1. (1956) 94 CLR 254 at 296; see also at 271-272, 289, 292. 2. Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 93; The Commonwealth v Grunseit (1943) 67 CLR 58 at 66, 82-83.

If one construes s 12 as importing the common law as an organic, developing but unwritten body of law, a further objection to validity arises. The Commonwealth relies on s 51(xxvi) and (xxix) to support s 12. It is common ground that s 51(xxvi) can support a law only if that law is one which the Parliament has deemed necessary for the people of a race. The content of any such law is one which the Parliament must itself consider although a delegation to the Executive Government to make a law of a regulatory kind to implement an Act of the Parliament can find support in that paragraph. The common law relating to native title is not regulatory; it is substantive law the content of which is declared from time to time by the courts. Mabo [No 2] is a dramatic example of how the declaration of the common law relating to native title can change when a new judicial examination is made of the basic legal principles which underlie a proposition earlier accepted. Ex hypothesi, when a court declares a change in the common law, the Parliament has not considered whether it is necessary to make that change as a special law for the people of a race. The content of the common law will, in the ordinary course of events, change from time to time according to the changing perceptions of the courts. And the changes occur without reference to the Parliament in which is reposed the power to make special laws for the people of a race as the Parliament deems necessary.

If s 51(xxix) is relied on no different conclusion is reached. The municipal law relating to native title has no external element which might attract the support of the external affairs power. The common law may, it is true, find in international law concepts or values which may advantageously be used in the development of the common law, but the common law of native title is not developed in order to satisfy the obligations of a treaty and its operation is necessarily confined within Australia's boundaries.

If s 12 be construed as an attempt to make the common law a law of the Commonwealth, it is invalid either because it purports to confer legislative power on the courts or because the enactment of the common law relating to native title finds no constitutional support in s 51(xxvi) or (xxiv). A "law of the Commonwealth", as that term is used in the Constitution, cannot be the unwritten law. It is necessarily statute law, for the only power to make Commonwealth law is vested in the Parliament [260] . But the laws of the Commonwealth operate in the milieu of the common law. As Sir Owen Dixon observed [261] :

We act every day on the unexpressed assumption that the one common law surrounds us and applies where it has not been superseded by statute. A law of the Commonwealth may exclude, wholly or partially, the operation of the common law on a subject within its legislative power [262] or it may confirm the operation of the common law on such a subject [263] or it may simply assume that the common law applies to the subject [264] , as in truth it does unless excluded. But the common law is not itself a law of the Commonwealth. Section 4(1) of the Commonwealth Places (Application of Laws) Act 1970 Cth is an apparent but not real exception to this proposition. That sub-section reads: The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time. Under s 4(1), the provisions of the laws of a State at a particular time are made laws of the Commonwealth for Commonwealth places at that time. The Commonwealth refers to those provisions, whether statutory or not, as a dictionary for reference in ascertaining the rights and duties under Commonwealth law within Commonwealth places at the particular time. Section 4(1) does not enact either the State statute law or the common law as a law of the Commonwealth. 1. Constitution, s 1; see also Covering Clause 5 and ss 51 and 52. 2. "The Common Law as an Ultimate Constitutional Foundation", in Jesting Pilate (1965), p 205. 3. Eg, s 6 of the Diplomatic Privileges and Immunities Act 1967 Cth. 4. Eg, s 5 of the Insurance (Agents and Brokers) Act 1984 Cth. 5. Eg, s 5 of the Bills of Exchange Act 1909 Cth; see Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 137-139.

Section 12 of the Native Title Act does not in terms enact the common law as a law of the Commonwealth. It purports to give the common law "the force of a law of the Commonwealth". Section 12 simply attempts to engage s 109 of the Constitution in order to make the common law immune from affection by a valid State law. But it is of the nature of common law and of legislative power that the common law is subject to affection by exercise of legislative power. If s 109 could be engaged by s 12 to preclude the affection of the common law by a State law, it would have destroyed some of the legislative power of the State confirmed by s 107 of the Constitution. That is not the purpose of s 109. When s 109 is engaged, it does not diminish the legislative power of the State which has enacted the inconsistent law. Rather, s 109 operates only upon State laws that have been made in exercise of the legislative powers of the States confirmed by s 107. If s 12 of the Native Title Act were to result in the withdrawal from Parliaments of the States of an effective legislative power to override the common law, it would have diminished the legislative power confirmed by s 107 of the Constitution. And that it cannot do.

In argument, it was said that s 12 was the necessary foundation for the investing of federal jurisdiction to hear and determine claims with respect to native title. As native title is a concept of the common law, a claim in respect of native title might be thought not to arise under a law of the Commonwealth. But an application in respect of native title under the Act (ss 61, 74, 81) is a claim in respect of the rights and interests defined as native title by s 223 and protected by s 11(1) subject to the provisions imported by s 11(2). Recognition of those rights and interests by the common law is an element of the statutory definition (s 223(1)(c)) of native title but the need to establish that element does not deny to an application the character of a claim made under a law of the Commonwealth.

Section 12 is invalid but its invalidity does not affect the validity of any other provision of the Native Title Act.

In the light of this review of the relevant laws of the State and the Commonwealth it is possible to answer the questions which were agreed by the parties as appropriate to be answered by this Court in the combined proceedings. The answer to question 18 is agreed once the other questions are answered in the manner stated. The questions and answers are as follows:

Q.1(a) If any communal, group or individual rights or interests of the nature referred to in s 223(1) of the Native Title Act 1993 Cth (the Act) existed in Western Australia at a time prior to European settlement in Western Australia, had such rights or interests come to an end by extinguishment or otherwise:

(i) by the establishment of Western Australia as a colony, or

(ii) by the time of the establishment of Western Australia as a self-governing colony, or

(iv) by the time the Racial Discrimination Act 1975 Cth came into force, or

Q.1(b) If yes to any part of 1(a), was the consequence that at the time the Act came into force, there was no part of Western Australia in which "native title" or "native title rights and interests" within the meaning of s 223(1) of the Act were in being?

Q.2 Is the Act, in so far as it operates in and in relation to Western Australia by reason of s 223(3), beyond the legislative powers of the Commonwealth and invalid?

Q.3 Are ss 11, 19 and 20 of the Act, or any of them, beyond the legislative powers of the Commonwealth and invalid?

Q.4 Is s 22 of the Act, in so far as it applies to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid?

Q.5 Are the provisions of ss 23, 26 and 28 of the Act, in so far as they apply to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid?

Q.6 Are the provisions of s 43 of the Act, read with ss 23, 26 and 28, in so far as they apply to future acts which are the making, amendment or repeal of legislation by a State, beyond the legislative powers of the Commonwealth and invalid?

Q.7 Are the provisions of s 211(2) of the Act beyond the legislative powers of the Commonwealth and invalid?

Q.8 Is s 12 of the Act beyond the legislative powers of the Commonwealth and invalid?

Q.9 Does the Act, in its application to Western Australia, impose a special burden or disability on and discriminate against Western Australia and/or is it inconsistent with the continuance of Western Australia as an independent polity within the contemplation of the Constitution and/or with its capacity to function as such and is the Act therefore beyond the legislative powers of the Commonwealth and invalid?

Q.10(a) Are the provisions of ss 10, 11, 12, 19, 20-45, 47-54, 56(5), 57-60, 61-79, 80-94, 107-183, 184-191, 192-199, 201, 202-203, 211, 212(3), 218 and 240 of the Act, or any of them, laws with respect to the people of any race for whom it is deemed necessary to make special laws, within the meaning of s 51(xxvi) of the Constitution?

Q.10(b) Are the provisions of ss 10, 11, 12, 19, 20-45, 47-54, 56(5), 57-60, 61-79, 80-94, 107-183, 184-191, 192-199, 201, 202-203, 211, 212(3), 218 and 240 of the Act, or any of them, laws with respect to external affairs within the meaning of s 51(xxix) of the Constitution by virtue of:

(a) the International Convention on the Elimination of all Forms of Racial Discrimination; or

(b) the International Covenant on Civil and Political Rights?

A.10(b) Section 12 is not a law with respect to external affairs within the meaning of s 51(xxix). It is unnecessary otherwise to answer this question.

Q.10(c) If no to 10(a) and 10(b) in respect of any provision is that provision invalid?

Q.11 Do ss 10, 11, 12, 21-45, 47-54, 56(5), 57-60, 61-79, 80-94, 107-183, 184-191, 192-199, 201, 202-203, 211, 212(3), 218 and 240 of the Act, or any of them, have no lawful operation by reason of s 7 of the Act and the operation of the Racial Discrimination Act 1975 Cth?

Q.12 Are the provisions of Subdiv B of Div 3 of Pt 2, when read in the manner required by s 44 of the Act, laws with respect to the corporations referred to in s 51(xx) of the Constitution?

A.12 It was agreed that it is unnecessary to answer this question.

Q.13(a) Was the Act passed in accordance with s 53 of the Constitution?

A.13(b) The Act is not invalid by reason of s 53 of the Constitution.

Q.14 If any provision or provisions of the Act is or are invalid, is it or are they severable and, if so, to what extent?

Q.15 Are the provisions of the Land (Titles and Traditional Usage) Act 1993 WA (the 1993 WA Act) or anny of them inconsistent with the provisions of s 9 of the Racial Discrimination Act 1975 Cth and therefore invalid by reason of s 109 of the Constitution?

Q.16 Are the provisions of the 1993 WA Act or any of them limited in effect or inoperative by reason of s 10 of the Racial Discrimination Act?

A.16 The whole of the 1993 WA Act is inoperative either by reason of inconsistency with the provisions of s 10 of the Racial Discrimination Act and the operation of s 109 of the Constitution or, in the case of s 5 of the 1993 WA Act, because it had no legal effect on the title to any parcel of land.

Q.17 Are the provisions of the 1993 WA Act or any of them inconsistent with the provisions of s 10 of the Racial Discrimination Act and therefore invalid by reason of s 109 of the Constitution?

Q.18 Is the whole or any part of the 1993 WA Act and Regulations inconsistent with the Native Title Act 1993 Cth, the Regulations and Determination No 1 thereunder and invalid by reason of s 109 of the Constitution?

A.17 & 18 The whole of the 1993 WA Act (unless, in the case of s 5 of that Act, it had no legal effect on the title to any parcel of land) is inconsistent with the provisions of s 10 of the Racial Discrimination Act and therefore invalid by reason of s 109 of the Constitution. The whole of the 1993 WA Act (unless, in the case of s 5 of that Act, it had no legal effect on the title to any parcel of land) is inconsistent with the Native Title Act 1993 Cth and is invalid by reason of s 109 of the Constitution. Otherwise it is unnecessary to answer whether the present invalidity of the provisions of the 1993 WA Act results solely from their inconsistency with the Native Title Act or also from their inconsistency with the provisions of s 10 of the Racial Discrimination Act.

A further matter should be mentioned. An Aboriginal group, the Kamali Land Council, sought leave to intervene in order to submit that the Wororra people, the plaintiffs in one of the proceedings before the Court, do not represent the Kamali Land Council. As the constitution of those proceedings was not before the Court, the application was not then granted. Leave to intervene should now be formally refused. Dawson J.

In Mabo v Queensland [No 2] [265] it was common ground that, upon settlement of the Colony of New South Wales, the common law applied within the colony with the result that the radical title to all land vested in the Crown. I was of the view that, assuming native title to exist in some recognisable form at the time of settlement, it could only have survived settlement if, apart from legislation, it was recognised by the Crown, either expressly or by acquiescence. I could find no evidence of recognition at the time of settlement or subsequently and, accordingly, I concluded that native title, if it existed, had ceased to exist. The consequence was, in my view, that not only lands which had been alienated by the Crown, but all Crown lands, were free from any claim to native title.

The other members of the Court in Mabo [No 2] took a different view and reached a different conclusion. Whilst more than one course was pursued in the majority judgments, the reasons for judgment of Brennan J, with whom Mason CJ and McHugh J agreed, departed least from what I regarded as established law and, for my present purposes, may be accepted as containing the basic principles for which Mabo [No 2] now stands as authority. Not that those principles do not depart in important respects from what I regarded as established law; indeed, I do not read the judgment as intending anything else.

The conclusion reached by Brennan J was that, because the settlement of the colony proceeded upon the erroneous view that it was not already settled by the native inhabitants and that their laws did not constitute settled laws, the common law ought not now to be expounded so as to perpetuate the error. It followed, in his view, that the radical title of the Crown should no longer be regarded as affording absolute beneficial ownership but should be regarded as subject to native title. That derogation from the radical title of the Crown was not, as I understand the judgment, dependent upon any recognition of native title by the Crown. Nor did it matter that native title was inconsistent with the principles of the common law relating to the ownership of land, since its incidents were delineated by native law and custom rather than the common law. The only means by which native title to land might be extinguished apart from legislation was, the judgment concluded, by the alienation of the land by the Crown or by the appropriation of the land by the Crown to itself in a manner inconsistent with the continuation of native title.

In an earlier decision, Mabo v Queensland [No 1] [266] , a majority of the Court decided that s 3 of the Queensland Coast Islands Declaratory Act 1985 Q was inconsistent with s 10 of the Racial Discrimination Act 1975 Cth and, for that reason, was inoperative under s 109 of the Constitution. Section 3 of the Queensland Act retrospectively declared that, upon annexation to Queensland, the Murray Islands vested in the Crown free from all other rights.

Section 10(1) of the Racial Discrimination Act provides:

If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. The rights comprehended by s 10(1) include the right to own and to inherit property [267] . 1. See s 10(2); Art 5, par (d)(v) and (vi) International Convention on the Elimination of all Forms of Racial Discrimination.

The majority in Mabo [No 1] took the view that native title gave rise to a right to own property. They did not regard it as significant that the property comprising native title could, ex hypothesi, only be enjoyed by persons of a particular race or ethnic origin and concluded that to extinguish native title was to deprive those who held native title of the right to own property to the same extent as others of another race or ethnic origin.

Wilson J, on the other hand, in a minority judgment pointed out that the right to own property at common law was a right enjoyed equally by all, including those who claimed native title, whereas native title was confined to those of a particular race or ethnic origin. He concluded that to extinguish native title would not result in those who claimed it enjoying the right to own property to a lesser extent than those of another race or ethnic origin. On the contrary, he reasoned, the right to own property would thenceforth be upon the same basis for all.

The question in Mabo [No 1] arose upon the plaintiffs' demurrer to a defence raised by the State of Queensland in reliance upon s 3 of the Queensland Coast Islands Declaratory Act. Mason CJ and I, who were the other members of the minority, were of the view that it was not appropriate upon a demurrer to a defence to assume the truth of relevant matters pleaded in the statement of claim but denied in the defence and accordingly we would have overruled the demurrer upon that basis. However, in the light of Mabo [No 2], which clearly bases native title upon native law and customs and therefore confines any property rights arising therefrom to persons of a particular race or ethnic origin, I would, if I were called upon to choose between the view expressed by the majority in Mabo [No 1] and that expressed by Wilson J, prefer the view of Wilson J.

However, notwithstanding my own views, from which I do not resile, I think that I ought now to follow the decisions of the majority in Mabo [No 1] and Mabo [No 2]. The issues which were determined by those cases are of fundamental importance and deal with questions of title to land. It is desirable that the law now follow a consistent course in order to achieve maximum certainty with the least possible disruption. No good purpose is to be achieved by my continuing to follow a line of reasoning which has been rejected. In my view, the doctrine of precedent, notwithstanding that it is not rigidly applied in this Court, requires me to adopt the course which I propose to take. No interpretation of the Constitution requiring fidelity to the text rather than to judicial decision is involved and the words of Gibbs J in Queensland v The Commonwealth [268] have even greater force here than in that case:

No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court. The legislation which the Court has been required to consider in the present cases arose out of the decisions in Mabo [No 1] and Mabo [No 2] and even though its implementation is not yet far advanced, it would, I think, be wrong to approach the construction of that legislation upon any other basis than that those two cases were correctly decided. 1. (1977) 139 CLR 585 at 599.

Upon that basis, I agree with the conclusion reached by the majority in the present cases that in point of law no distinction can be drawn between the settlement of New South Wales and the settlement of Western Australia. The exertion of sovereignty over Western Australia - the act of state which established the colony - resulted in the application of the common law. Following Mabo [No 2], the radical title to the land, which vested in the Crown under the common law, was burdened by existing native title at the time of vesting. That was so as a matter of law, as I understand Mabo [No 2], whether or not the Crown chose to recognise native title. In those circumstances I am unable to see any need for a presumption that the Crown, in exerting sovereignty, did not intend to extinguish native title. Indeed, in so far as the cases before Mabo [No 2] speak in terms of a presumption [269] , they speak of a presumption that the proprietary rights of native inhabitants are recognised notwithstanding the exertion of sovereignty. Consequent upon Mabo [No 2], recognition is not required for the preservation of those proprietary rights: the exertion of sovereignty which brings with it the common law is incapable of extinguishing them whether or not they are recognised.

1. See, eg, Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 407.

Thus I find no occasion to resort to any presumption in order to reach the conclusion that the intention of those who settled Western Australia that Crown lands should be generally available for sale without regard to native title did not have the consequence that native title was extinguished. For that to happen, it was necessary for the Crown to exercise its right, which Mabo [No 2] held to arise from its radical title, to alienate the land or to appropriate it to itself in a manner inconsistent with native title.

If these comments amount to a qualification of the views expressed by the majority in these cases in relation to the establishment of Western Australia, then it is with that qualification that I express my agreement with those views.

I am also in agreement with the majority upon the basis of Mabo [No 1] and Mabo [No 2], that the Land (Titles and Traditional Usage) Act 1993 WA is inconsistent with s 10 of the Racial Discrimination Act 1975 Cth. Further, for the reasons given by the majority, I agree that the Native Title Act 1993 Cth (save for s 12) can be supported by the power to make laws for the people of any race for whom it is deemed necessary to make special laws [270] and that the Act does not in any unconstitutional manner discriminate against Western Australia or impair the legislative or executive functions of that State. I agree with the answers proposed by the majority to the questions asked.