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LAWS3111 LAW OF PROPERTY A > EXTINGUISHMENT OF NATIVE TITLE > Flashcards

EXTINGUISHMENT OF NATIVE TITLE Flashcards

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0
Q

What are the two restrictions on the Government’s power of extinguishment?

A
  1. Racial Discrimination Act (RDA) 1975

2. Native Title Act (NTA) 1993 (Cth)

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1
Q

What is Extinguishment?

A

Extinguishment is the termination or permanent ending of native title. It was held in Mabo that Native Title is liable to extinguishment or impairment by government action. This was an incident of Crown Sovereignty.

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2
Q

Which section of the RDA is relevant?

A

s10: which indicates that any attempt by a State to extinguish or impair NT is subject to this section which requires equality before the law.

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3
Q

At Common law, what is the test whether government action extinguished Native Title?

A

Whether there was a “clear and plain intent” - Mabo and Wik v Queensland.

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4
Q

What is the second test at common law for government action to extinguish Native Title?

A

As in WA v Ward, it is the “inconsistency of incidents test”. This involves an objective inquiry into identifying and comparing the two sets of rights, and whether the rights granted to the third party are “necessarily inconsistent” with the continued existence of NT.

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5
Q

What is statutory extinguishment?

A

This is where legislation can extinguish NT.

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6
Q

If a legislation regulates the enjoyment of NT rights, is it extinguishing NT?

A

No: Yanner v Eaton

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7
Q

What are the tests for Statutory extinguishment?

A

It is the same two tests at Common law:

  1. From Mabo and Wik: Clear and plain intent to extinguish
  2. From WA v Ward: whether the legislation is necessarily inconsistent with NT rights.
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8
Q

What is non-statutory extinguishment?

A

Native title can also be extinguished by non-statutory executive action such as inconsistency with crown grants made under legislation.

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9
Q

What are the tests for extinguishemnt for non-statutory extinguishment?

A

Same as the other two:
1. Mabo and Wik: Clear and plain intent to extinguish
2. WA v Ward: Necessarily inconsistent.
In this case, where there is non-statutory extinguishment, Native Title is extinguished to the extent of inconsistency.

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10
Q

Non-statutory extinguishment

Will a grant of fee simple extinguish Native Title?

A

Yes: Fejo v Northern Territory

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11
Q

Non-statutory extinguishment

Will a grant of exclusive possession leases extinguish NT?

A

Yes: Wilson v Anderson

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12
Q

Non statutory extinguishment

Will a grant of non-exclusive possession extinguish NT?

A

Not necessarily: Wik v Queensland.
These will extinguish only exclusive Native Title Rights. So the right to control access to land will be extinguished.

In the case of mining leases, these also do not necessarily extinguish, however in the case of inconsistency with NT rights, the NT rights give way.

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13
Q

Is Revival possible at Common law?

A

No, once Native Title has been extinguished, it cannot be revived: Fejo and Mabo.
Certain exceptions in s47A and s47B of NTA.

Nor is suspension of Native Title rights possible at common law: WA v Ward

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14
Q

What does the NTA do with extinguishment?

A

It validates ‘past acts’ and ‘intermediate period acts’ which may have been invalid due to NT.
Validation of those acts could result in complete extinguishment of NT or in some cases merely suspended for the term of the grant and then revived

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15
Q

What is the time period for the “deemed extinguishment: confirmation of extinguishment” provisions?

A

From 1975 - 1996.

Pre 1975, before the RDA, Native Title was completely extinguished.

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16
Q

What are PEPAs?

A

These are Previous Exclusive Possession Acts.
All acts coming within this definition, valid or validated, and if taking place before 23 December, permanently extinguish Native Title.

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17
Q

What sections of the NTA define PEPA?

A

s23 A, s23 B and s23 C.

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18
Q

What is a Previous Non-Exclusive Possession Act?

A

These are within the definition of NTA, if valid or validated, and if taking place on or before 23 dec 1996, extinguish NT ONLY TO THE EXTENT of the inconsistency.

The ‘extent’ of inconsistency interpretation can be brought in from common law extinguishment in WA v Ward

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19
Q

What sections cover PNEPAs?

A

s23A, s23F, s23G

20
Q

What is the importance of s23G?

A

It indicates PNEPA does not apply to s15(1)(a) which is past acts. This is because the NTA was drafted with the belief that pastoral leases would extinguish NT. Therefore pastoral leases come under this exception.
Pastoral leases are only subject t the NT between period of 1975 and 1994.

21
Q

Do PNEPAS cover mining leases?

A

No.

22
Q

What happens if the act or grant is not covered by PEPAs or PNEPAs?

A

Then you consider whether it is a past or intermediate period act.

23
Q

What is a past act?

A

s228 NTA
These are grants occurring between 1975 and 1 January 1994
These are legislation occurring between 1975 and 1 July 1993

24
Q

What does validated mean if it falls within the definition of Past act?

A

This depends on the category which the act falls into

25
Q

What are the four categories for Past Acts and the sections under the NTA?

A

Category A: s229 includes: Freehold estate, commercial leases, agricultural, pastoral or residential and certain public works.

Category B: S230 includes: Leases that are not mining leases in A or C

Category C: 230 NTA includes: mining leases

Category D: 231 NTA: all other acts

26
Q

Past Acts

How do you tell the effect of extinguishment of the categories?

A

S15 of the NTA indicates:

  1. Category A: Total extinguishment
  2. Category B: Extent of inconsistency
  3. Category C: Non extinguishment principle
  4. Category D: Non extinguishment principle
27
Q

What is the non extinguishment principle and under which section of the NTA does it arise from?

A

S238: Native Title continues to exist, but is suspended for the term of the interest and revives once that interest expires.

28
Q

What are Intermediate Period Acts?

A

S232A: Intermediate period acts are acts between 1 Jan 1994 and 23 Dec 1996

29
Q

What are the categories for Intermediate Period Acts?

A

These are the same categories as above.

The only difference is: Pastoral and Agricultural leaseholds are now in Category B.

s232B: Category A

S232C: Category B

S232D: Category C

S232E: Category D

30
Q

What are the effects on Native Title for each category?

A 
S22A
Category A: Total extinguishment
Category B: Extent of inconsistency 
Category C: Non-extinguishment Principle
Category D: Non-extinguishment principle
31
Q

What if the act does not fall within the Intermediate Period Act?

A

Then this goes to the Future dealings Regime

32
Q

What is the Future Dealings Regime?

A

The Future dealings Regime deals with legislation enacted mid 1993 and action taken after Jan 1 1994.
But because of Intermediate Period Acts, the Future Dealings Regime really applies from Dec 23 1996 Onwards.

All extinguishment in this period is governed by s238 NTA which is the non extinguishment principle

33
Q

If an act falls within the future dealings regime, how can Native be extinguished?

A

Via future acts after an unopposed non-claimant application: ss24FA-FE

  1. By ILUAS
  2. By compulsory acquisition ss24MD
  3. By confirmation extinguishment provisions (up until 1996 end)
34
Q

What is the first method of extinguishment?

A

Where it is a future Act

35
Q
  1. Future Act

What is a future Act?

A

s233(1)(a): These are Acts granted after 23 Dec 1996.

s227 NTA: it is an act that “affects” Native Title (whether it extinguishes wholly or partly).

36
Q

When will a Future Act be valid?

A
  1. If it is listed in the provisions of the NTA.
  2. Where it is possible over freehold land and satisfies the requirements of the Right to Negotiate.
  3. By ILUA.
37
Q

When will a future act be invalid?

A
  1. If it affects NTA AND

2. It is not covered by NTA provisions

38
Q

What what extent are future acts invalid?

A

Only to the extent that Native Title is affected.

39
Q

What future acts under the NTA are valid?

A

s24A-N

40
Q

What is the Right to Negotiate?

A

In certain sections, Native Title holders have the right to negotiate with the government prior to the government carrying out certain Future Acts.

The acts that are covered are ss25-29.

41
Q

What happens if those acts, which are subject to the RTN, are done without the process?

A

s28 NTA: they are invalid t o the extent that they affect Native Title.

42
Q

What are Indigenous Land Use Agreements (ILUAs)?

A

They are voluntary agreements, primarily about the use of land, made between a NT group and others.

They can be used for:

  1. Invalidating future acts
  2. Claims process - where they can skip the RTN process.
43
Q

What are the types of ILUAs?

A
  1. Body Corporate AGreements s24BD- S24BI
  2. Area Agreements: s24CA - s24CL
  3. Alternative Procedure Agreements: s24DA-s23DM
44
Q

What are the types of matters expected to be in the ILUA?

A

S24 mostly indicates what needs to be included.

45
Q

Do the ILUAs need to be registered?

A

Yes, they must be registered before the benefits of the NTA is gained.
They must be registered onto the Register of ILUAs administered by the Registrar of the National Native Title Tribunal (NNTT)

46
Q

What are the benefits of registering the ILUA?

A
  1. It receives contractual effect and is legally binding: s24EA(1)(a)
  2. ALL native title holders in the area are covered by the agreement, regardless of whether they were parties to the agreement.
47
Q

What must happen prior to the registration of the ILUA?

A

It must either be certified by all representative Aboriginal bodies for the area or be properly authorised: s24CG(3); s251A NTA

From WGC v Bygrave, this includes:

  1. All reasoanble efforts must be made to identify everyone who holds or may hold Native Title to the area” s24CC NTA
  2. Those identified as holding or potentially holding authorise the making of the agreement: s24CG; s203BE NTA
48
Q

Is there any compensation?

A

Where it is Commonwealth compulsory acquisition, then s51(xxxi) indicates compensation must be payable on ‘just terms’.
Furthermore, NTA , there is compensation for loss of diminution or impairment of NTA, to be paid on ‘just terms’.
S51A caps this at the ‘fee simple’ value of the land, although this power is also subject to s51(xxxi)

LAWS3111 LAW OF PROPERTY A (19 decks)

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