The Registration, Recording or Noting of Native Title
Jennifer Sue Jude
Bachelor of Arts Macquarie University, 1979
Graduate Diploma of Librarianship University of New South Wales, 1980
Bachelor of Laws (Hons) University of Technology Sydney, 1986
Master of Laws Sydney University, 2003
A thesis submitted for the degree of Doctor of Philosophy at
The University of Queensland in 2018
TC Beirne School of Law
Abstract
This thesis argues that the registration system for native title is not comprehensive, certain or current. It is out of date in at least two of the three Registers and is selective in the information that is registered. Accordingly, one is required to search in numerous places to achieve any level of certainty in relation to whether native title exists over Crown land and water. There are serious omissions from the Native Title Act 1993 (Cth) (‘Native Title Act’), which do not assist.
There is nothing in the Native Title Act that prevents the States and Territories from duplicating the registered information concerning native title in land and indeed New South Wales has to some degree done this already. Queensland has taken a different approach and has established separate registers for different types of Crown land, which is not ideal from a registration or titling perspective where the ideal is to have one conclusive register in which all interests are registered or recorded. These differing approaches by States add another layer of uncertainty.
The major deficiencies with the current system could be addressed if native title was recorded on the title to Crown land. The regime related to water is slightly more complex, due to the lack of an existing registration system. In relation to native title in inland water, native title could be the subject of a separate geospatial layer, section or register and be recorded on the registers established under the various Water Acts of the States and Territories. Native title in the sea would require the development of a new register and an accompanying conclusive three-dimensional marine cadastre in which to record all interests including native title rights and interests. The three-dimensional aspect of the sea would be catered for and interests in the layers of the sea, being the surface, the water column and the sea bed, would be addressed in the cadastre. For example, the rights of navigation and access, including native title access, are exercised in at least two layers, being the surface and the water column. Other rights such as gathering are exercised in the three layers of the sea. Development would be complex and geospatial experts would be invaluable but the end result would justify the expenditure. It is recommended that a Commonwealth working group be established to investigate this recommendation.
This thesis will add to the literature in the area of native title, titling and registration, filling a crucial gap in this area. It is also anticipated that the findings of this thesis will be of great interest to the Commonwealth and State governments as they continue to grapple with how best to communicate information on native title. The implementation of the recommendations herein will also deliver economic benefits because with greater conclusiveness, currency and certainty regarding this information, the costs of development on Indigenous land would be lower.
i Declaration by author
This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis.
I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, financial support and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my higher degree by research candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award.
I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 (Cth) unless a period of embargo has been approved by the Dean of the Graduate School.
I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis and have sought permission from co-authors for any jointly authored works included in the thesis.
ii Publications included in this thesis
No publications are included in this thesis
iii Submitted manuscripts included in this thesis
No manuscripts are submitted for publication.
Other publications during candidature
No other publications
Contributions by others to the thesis
Dr Justine Bell-James, Senior Lecturer, TC Beirne School of Law, University of Queensland, contribution for supervision
Dr Sean Sexton, Senior Lawyer, Native Title Services Victoria, contribution for supervision
Associate Professor Margaret Stephenson, University of Queensland, contribution for supervision
iv Statement of parts of the thesis submitted to qualify for the award of another degree
No works submitted towards another degree have been included in this thesis.
Research Involving Human or Animal Subjects No animal or human subjects were involved in this research.
v Acknowledgements
Dr Justine Bell-James, Senior Lecturer, T C Beirne School of Law, University of Queensland, for supervision, commentary and support on confirmation document, final chapters, thesis review and thesis submission;
Dr Sean Sexton, Senior Lawyer, Native Title Services Victoria, for supervision, support and commentary throughout;
Associate Professor Margaret Stephenson, University of Queensland, for supervision, support and commentary up to and including mid-candidature review;
M/s Robyn Kent, Accredited Editor, RAK Editing Services, Golden Beach, Qld 4551;
Professor Bill Duncan, QUT Brisbane, for commentary on confirmation document;
Professor Graeme Orr, TC Beirne School of Law, University of Queensland, for commentary on confirmation document;
Professor Peter Butt, c/- Sydney University, for reference;
Dr Arthur Glass, Visiting Professional Fellow, University of New South Wales, for reference;
Mr Bob Gowenlock of Counsel, Sydney Bar Association, for reference;
Dr Salvatore Lenti, General Practitioner, Paddington Medical Service, for valued support;
Ms Tess Brinums, speech pathologist, for on-going support and practice with oral presentation;
TC Beirne School of Law, University of Queensland, for support, assistance, accommodation and equipment;
Graduate School, University of Queensland, for support and financial assistance;
Mr Bill Lemson for on-going support and driving to University in final year;
Disability Services Queensland and Student Services, The University of Queensland, for assistance with accommodation, disability services and recommendations regarding equipment in final year.
vi Financial support
Financial support provided in the way of a scholarship being a University of Queensland Research Scholarship
Keywords
Registration, register, recording, Torrens Title, Mabo, Crown land, Crown water, native title, Nisga’a People, Metis People.
vii Australian and New Zealand Standard Research Classifications (ANZSRC)
Provide data that links your thesis to the disciplines and discipline clusters in the Federal Government’s Excellence in Research for Australia (ERA) initiative.
ANZSRC code: 180101, Aboriginal and Torres Strait Islander Law 60%
ANZSRC code: 180124 Property Law 40%
Fields of Research (FoR) Classification
Allows for categorisation of the thesis according to the field of research.
FoR code: 1801, Law and Legal Studies 100%
18 September 2018
viii Table of Contents
CHAPTER 1 INTRODUCTION ...... 1
1.1 Overview of problem ...... 1
1.2 The main concerns...... 4
1.3 Thesis structure ...... 6
1.4 Methodology ...... 7
1.5 Research problem ...... 7
1.5.1 Comprehensiveness ...... 7
1.6 Research questions to be addressed...... 9
1.7 Original contribution ...... 11
1.8 Practical significance of this research ...... 12
1.9 Conclusion ...... 13
CHAPTER 2 REASONS FOR REGISTRATION ...... 15
2.1 Introduction ...... 15
2.2 Reasons for registration of land generally ...... 16
2.2.1 Assertion of sovereign jurisdiction ...... 16
2.2.2 Capitalist alienation of resources into commodities ...... 18
2.2.3 Caring for things ...... 19
2.2.4 Reasons for title by registration ...... 20
2.2.5 Reasons for registration of native title ...... 22
2.3 Conclusion ...... 24
CHAPTER 3 PROCESS OF REGISTRATION OF NATIVE TITLE IN COMMONWEALTH REGISTERS ...... 25
3.1 Introduction ...... 25
3.2 Legislative basis for the Native Title Registers...... 25
3.2.1 Register of Native Title Claims, Native Title Act pt 7 ...... 26
3.2.2 National Native Title Register, Native Title Act pt 8 ...... 28
3.2.3 Register of Indigenous Land Use Agreements, Native Title Act pt 8A ...... 30
ix 3.3 Native Title Vision ...... 33
3.4 Process of registration ...... 34
3.4.1 The Register of Native Title Claims ...... 34
3.4.2 The National Native Title Register ...... 38
3.4.3 The Register of Indigenous Land Use Agreements ...... 39
3.5 Shortcomings in the Native Title Act with respect to the Registers ...... 42
3.6 Could the Registers of the National Native Title Tribunal be expanded to accommodate omissions and updating of registered information? ...... 43
3.7 Conclusion ...... 45
CHAPTER 4 SEARCHING THE REGISTERs ...... 47
4.1 Introduction ...... 47
4.2 Methodology ...... 47
4.3 Queensland case study...... 48
4.3.1 The Commonwealth examples will be searched below...... 49
4.3.2 Searches of the Commonwealth Registers kept by the Native Title Registrar for Queensland ...... 49
4.3.3 Searches of Native Title Vision for Queensland ...... 51
4.3.4 Searches of the State of Queensland Registers ...... 53
4.4 New South Wales case study...... 54
4.4.1 These titles will be searched on the National Native Title Register and the Register of Indigenous Land Use Agreements as applicable, Native Title Vision, and in the Torrens Title Register of New South Wales ...... 55
4.4.2 Searches of the Commonwealth Registers kept by the Native Title Registrar for New South Wales ...... 55
4.4.3 Searches of Native Title Vision for New South Wales ...... 56
4.4.4 Searches of the Torrens Title Register in SAI Global Property for New South Wales58
4.5 Western Australia case study ...... 60
4.5.1 Searches of the Registers kept by the Native Title Registrar for Western Australia ... 60
4.5.2 The following are relevant searches for Western Australia ...... 60
x 4.5.3 Searches of Native Title Vision for Western Australia...... 62
4.6 Can native title be accommodated in Torrens Title as a title to land? ...... 63
4.6.1 Searches of the Torrens Title Register in Landgate for Western Australia ...... 64
4.6. Conclusion ...... 66
CHAPTER 5 THE TORRENS TITLE REGISTERS...... 68
5.1 Introduction ...... 68
5.2 Object and purpose of Torrens Title legislation ...... 69
5.3 Prerequisite that Crown lands are converted to Torrens Title if native title is to be accommodated ...... 70
5.4 Additional prerequisite for native title to be accommodated in Torrens is that native title is a proprietary interest in land ...... 72
5.4.1 Ward at the Full Federal Court level ...... 76
5.4.2 Ward at High Court level ...... 77
5.4.3 High Court cases subsequent to Ward ...... 79
5.4.4 A strengthening shift in direction by the High Court ...... 80
5.5 A brief introduction to the features of the Torrens Title system ...... 82
5.5.1 Title by registration ...... 82
5.5.2 Mirror principle ...... 82
5.5.3 Curtain principle ...... 83
5.5.4 Insurance principle ...... 83
5.5.5 Importance of the mirror, curtain and insurance principles to native title ...... 83
5.6 Native title and registered Torrens Title interests ...... 85
5.6.1 Caveats as notice ...... 86
5.6.2 Native title as a caveatable interest ...... 86
5.7 Indefeasibility of title ...... 89
5.7.1 Immediate indefeasibility ...... 89
5.7.2 Indefeasibility deferred ...... 91
5.7.3 Exceptions to indefeasibility ...... 91
5.7.4 Exceptions to indefeasibility and native title ...... 93 xi 5.7.5 Groundwater and surface water ...... 95
5.8 Native title and the Torrens Title insurance principle ...... 95
5.9 Torrens Registrars ...... 96
5.10 The registration, recording or notation of native title rights and interests in Torrens Title systems that are themselves not complete ...... 97
5.11 The imperative to incorporate native title within a land registration system ...... 100
5.12 Assessment of whether Torrens Title systems can accommodate native title rights and interests in lands ...... 101
5.13 Conclusion ...... 104
CHAPTER 6 OTHER REGISTRATION SYSTEMS...... 106
6.1 Introduction ...... 106
6.2 The Nisga’a system ...... 106
6.3 Metis Settlement Land Registration System ...... 109
6.4 Cadastral geospatial mapping systems ...... 113
6.5 Conclusion ...... 116
CHAPTER 7 NATIVE TITLE AND INLAND WATER ...... 117
7.1 Introduction ...... 117
7.2 Inland water ...... 118
7.3 Statutory regimes for non-tidal water ...... 119
7.4 Features of the water legislative systems ...... 120
7.5 Water trading ...... 121
7.6 Queensland system ...... 121
7.6.1 Legislative provision ...... 121
7.6.2 Queensland legislative provision for native title in inland water ...... 122
7.7 New South Wales system ...... 124
7.7.1 Legislative provision ...... 124
7.7.2 Native title ...... 125
7.8 Western Australian system ...... 126
7.8.1 Legislative provision ...... 126 xii 7.8.2 Western Australia legislative provision for native title in inland water ...... 127
7.9 Legislative vesting to the Crown ...... 128
7.9.1 Impact of vesting on the practice of native title rights and interests ...... 130
7.10 Court findings of native title in inland water ...... 131
7.11 Method of recording native title rights and interests in inland water ...... 134
7.12 Conclusion ...... 135
CHAPTER 8 NATIVE TITLE AND THE SEA ...... 136
8.1 Introduction ...... 136
8.2 Determination of native title rights and interests in the sea ...... 136
8.3 Need for a conclusive marine registration system in which to accommodate native title rights and interests in the sea and other tidal waters ...... 145
8.4 Difficulties in creating a conclusive marine cadastre in which to accommodate native title rights and interests ...... 149
8.4.1 Data on the foreshore terrain ...... 150
8.4.2 Airborne electromagnetic induction ...... 151
8.4.3 Synthetic aperture radar ...... 151
8.4.4 Aerial photogrammetry and high resolution satellite imagery ...... 151
8.4.5 Laser induced detection and ranging systems (‘LIDAR’) ...... 152
8.5 Data on the tides ...... 152
8.6 Three-dimensional approach ...... 153
8.7 Identification of marine areas ...... 154
8.8 Aboriginal identification of marine areas ...... 154
8.9 Defining the marine interests ...... 155
8.10 Naming the marine interests ...... 156
8.11 Developing a vision ...... 157
8.12 Sustainable partnerships ...... 157
8.13 The marine register ...... 158
8.13.1 Above the line or below the line registration ...... 160
8.14 Conclusion ...... 161 xiii CHAPTER 9 CONCLUSION ...... 163
9.1 Introduction ...... 163
9.2 Rationale for retention of current system ...... 164
9.3 Overview of the proposed model for change ...... 165
9.4 Specific legislative amendments recommended ...... 166
9.4.1 Commonwealth legislation—the Native Title Act ...... 166
9.4.2 State and Territory land and water legislation ...... 169
9.4.3 State and Territory Torrens Title legislation ...... 170
9.4.4 Amendments to accommodate native title rights and interests in inland waters in the water registers ...... 173
9.4.5 Legislation required for rights in the sea ...... 176
9.5 Division of Powers—Commonwealth and State ...... 177
9.5.1 The Melbourne Corporation doctrine ...... 179
9.6 Conclusion ...... 181
BIBLIOGRAPHY ...... 183
xiv List of Figures & Tables
No figures and tables are included in this thesis.
xv List of Abbreviations used in the thesis
AURISA is Australian Urban and Regional Information Systems
CSIRO is Commonwealth Scientific and Industrial Research Organisation
ICS is Royal Institute of Chartered Surveyors
ICSM is Intergovernmental Committee on Surveying and Mapping
WGS84 datum, WGS is World Geodetic System. WGS84 is a system with coordinates. Over time these coordinates change. The United States National Geospatial Intelligence Agency has the responsibility for WGS84 datum.
xvi CHAPTER 1 INTRODUCTION
Mabo establishes a fundamental truth and lays the basis for justice. It will be much easier to work from that basis than has ever been the case in the past.
Paul Keating, Lowitja O’Donoghue Oration (2011)1
1.1 OVERVIEW OF PROBLEM
Since Mabo v State of Queensland (No 2)2 was handed down in 1992 it has become clear that a significant amount of Crown land and water may still contain native title and that the concept of property as formerly recognised in Australia has changed.3 That said, while the High Court rejected terra nullius, it did not reject the Australian land tenure system. Consequently, existing land registration systems now need to accommodate forms of title and interests previously unknown. This includes native title and freehold title that contains native title. Freehold title that contains native title would include titles created pursuant to certain grants made under State and Territory Aboriginal land rights legislation and registered or recorded in State and Territory Torrens Title systems.
The need to accommodate the new forms of title in existing land or water registration systems has not been met by most of the States and Territories.4 Generally, this is because the tenure registration and recording systems they use for freehold land and/or Crown land and water have not been modified to accommodate all native title interests. This would include native title determinations, Indigenous Land Use Agreements and Section 31 Future Act Agreements5 made pursuant to the Native Title Act. It would also include other matters concerning future acts6 that are undertaken over Crown land or water that contains native title. In addition, there is no consistency in the way in which the States and Territories register or record the titles of Crown land or interests in Crown land or water.7 This adds
1 Paul Keating, The Lowitja O’Donoghue Oration 31 May 2011, Don Dunstan Foundation, University of Adelaide (2011). 2 Mabo v Queensland (No 2) (1992) 175 CLR 1. 3 Patricia Lane, ‘Native Title—The End of Property As We Know It’ (2000) 8(1) Australian Property Law Journal 1, 11. 4 Real Property Act 1900 (NSW) s 12C provides for determinations of native title and any other interests in native title to be recorded in the Torrens Title Register; Land Act 1994 (Qld) s 373ZD provides for the registration of Indigenous Land Use Agreements in an appropriate register established under that Act; Land Act 1994 (Qld) s 280 provides that the chief executive may record in a relevant register established under the Land Act 1994 (Qld) anything the chief executive considers should be recorded to ensure the register is an accurate, comprehensive and useable record of the relevant land dealings, arguably this could include native title issues. With the exception of New South Wales, which has made provision for Torrens Title recording of native title, other States and Territories have not made provision for registering or recording native title in their Torrens Title systems. 5 Native Title Act s 31. 6 Native Title Act s 233. 7 Queensland and Tasmania do not register Crown land leases in their Torrens Title systems as noted in Robert Chambers, An Introduction to Property Law in Australia (Law Book, 3rd ed, 2013) 529. 1 a level of complexity in relation to achieving a national uniform titling system for any interest including native title rights and interests. The cadastral mapping systems of the States and Territories also fail to consistently capture all matters related to native title. Furthermore, for the most part, State and Territory Crown land, real property and water legislation has not been amended to provide for the registration, recording or noting of native title rights and interests in State and Territory registration systems relating to Torrens Title or to Crown land and water. Some interests granted in Crown land, however, are already accommodated in Torrens Title systems,8 while allocated Crown land may be accommodated in dedicated Crown land registration systems as are Crown land leases in Queensland in the Queensland Registers.9
Because much of the land and water containing native title is within State and Territory jurisdictions, the Commonwealth registration system for native title is reliant on information provided by the States and Territories. Although States and Territories provide some of their cadastral data to the Native Title Registrar, from a searching perspective the three native title Registers established pursuant to the Native Title Act do not duplicate the cadastral records of the States and Territories. Additionally, the three native title Registers are not linked to the Torrens Title systems or to the dedicated land or inland water registration systems of the States and Territories. There is a partial failure by the Commonwealth and the States and Territories to keep the cadastral records current, as they concern native title subsequent to registering determinations of native title and Indigenous Land Use Agreements.10 Numerous registers need to be searched and multiple enquiries made in various systems when attempting to ascertain a true picture of native title matters that affect land title, particularly the title of Crown land.
Additionally, it is arguable from a native title perspective that a true picture of the matters affecting the title of Crown land is almost impossible to ascertain. As well as the State and Territory registration and recording systems being deficient in relation to registration or recording of native title issues, the
8 New South Wales has converted most of its Crown lands to Torrens Title; New South Wales Government,
11 Native Title Act s 31. 12 Native Title Act s 47 applies when an application for a determination is made and at that time a pastoral lease is held over the area by any of the persons in the claim group or by a trustee, on trust for any of those persons or a company whose only shareholders are any of those persons. In that case, prior extinguishment must be disregarded; Native Title Act s 47A provides that when an application for a determination of native title is made and a freehold or lease is in force which was granted pursuant to legislation for the benefit of Aboriginal People and members of the claim group occupy the area, then prior extinguishment must be disregarded; Native Title Act s 47B applies if an application for a determination of native title is made over vacant Crown land and at that time members of the claim group occupy the area. In that case prior extinguishment must be disregarded. 13 Native Title Act s 24LA. 14 Section 24FA protection arises under the Native Title Act pursuant to a non-claimant application that has been lodged with the Federal Court when there is no registered native title claim at the relevant time which, with some exceptions, is 4 months from a notification day which appears in the notice of the non-claimant application. Once s 24FA protection is achieved, validity of the relevant future act is assured, provided the non-claimant application is before the Federal Court when the future act is carried out. The non-claimant application is often withdrawn by consent after the future act is complete rather than proceeding to a determination that native title doesn’t exist. In addition, if there is an entry on the National Native Title Register that native title does not exist, the area subject to that entry has s 24FA protection. 3 Not keeping the Register of Indigenous Land Use Agreements up to date may have significant legal implications. An example occurs in a number of small mining Indigenous Land Use Agreements in Queensland where the small miners did not become a party to the agreement. In some instances such agreements remain registered when the date in the sunset clause for becoming a party to the agreement has long passed and no-one has joined. In this case, the agreement should have been removed from the Register of Indigenous Land Use Agreements.15 A true picture of the relevant Crown land titles is that they are not subject to a small-scale mining Indigenous Land Use Agreement whereas the Register of Indigenous Land Use Agreements wrongly indicates that they are.16 At best, this is confusing and, at worst, negligent on the part of the parties to the agreement who should have requested that the Native Title Registrar remove the agreement from the Register of Indigenous Land Use Agreements as it has no operation. Its registration may mislead persons who have a need to deal with the relevant Crown land or water including other native title groups who may wish to claim the area that is erroneously registered.
1.2 THE MAIN CONCERNS
The Cape York Institute and the Cape York Land Council in a joint submission to COAG (The Council of Australian Governments) noted that land administration systems providing certainty are ‘essential infrastructure for development on Indigenous land’17 and without these, costs for business proponents in starting up a business on Indigenous land are very high.18
Lack of certainty will remain unless the current native title registration system is amended. This is because the current native title registration system is deficient in at least three major ways:
Firstly, it is not comprehensive as it is selective in the information that is registered (‘comprehensiveness’). Secondly, it does not utilise a land title approach in registration (‘certainty’). Thirdly, changes occurring to native title and land title information, subsequent to registration, are not updated in at least two of the three Registers established pursuant to the Native Title Act 1993 (Cth) (‘Native Title Act’) (‘currency’).
15 Native Title Act s 199C provides for removal of details of an agreement from the Register of Indigenous Land Use Agreements. 16 Muluridji Peoples’ Small Scale Mining and Exploration Activities ILUA—QI 2006/049; North Queensland Aboriginal Land Council’s Future Act Mining and Exploration (FAME) records, North Queensland Land Council. 17 Investigation into Indigenous Land Administration and Use—Report to the Council of Australian Governments by the Senior Officers Working Group (Commonwealth of Australia, 2015) 50. 18 Ibid 52. 4 This thesis aims to determine whether native title rights and interests in land can be appropriately incorporated through amendments to the existing system or whether land registration systems such as the Torrens Title systems or other registration systems that use a land titling approach should be used. This is particularly important because, in determining compensation claims, the courts are moving towards considering that native title is a tenure based in its own right rather than an interest in land of a proprietary nature. This is significant given that the grant of the tenure is more important than the way the rights under the tenure are exercised.19
In meeting this aim, this thesis will consider a number of different options. It will be determined whether the Registers kept by the Native Title Registrar can be expanded to incorporate information concerning native title that is currently omitted from, or not updated within those Registers while maintaining a historical registration searching capacity. A historical registration searching capacity would deliver registration details at any stage of registration and would ensure that information initially registered and subsequent changes that occur can always be traced.20 The other registration systems that will be considered, besides the Torrens Title system, include unique systems that employ a titling approach developed in Queensland (‘the Queensland Registers’).21 They will also include registration systems in jurisdictions outside Australia established by Aboriginal title holders to register Aboriginal title, with the systems of Canada being particularly relevant. Geospatial systems, which require electronic access and a level of interpretative skill on the part of the user, will also be examined.
This thesis will also determine whether native title rights and interests in inland water can be incorporated into the dedicated registration systems for non-native title interests in inland water established by the States and Territories of Australia pursuant to their water legislation.22 The setting up a marine registration system and conclusive three-dimensional cadastre in support, to accommodate all sea rights including native title rights and interests in the sea will be considered. The sea has a three-dimensional aspect which should be taken into account. Queensland, New South Wales and Western Australia will be investigated as case examples because they have systems in place for registering non-native title interests in inland water and two of the three States have provided for native title in the water legislation. This thesis will also consider how the courts have treated
19 Northern Territory v Griffiths [2017] FCAFC 106. 20 Jose Bellido and Hyo Yoon Kang, ‘In Search of a Trade Mark—Search Practices and Bureaucratic Poetics’ (2016) 25(2) Griffith Law Review 147, 164. 21 Land Act 1994 (Qld) s 275. 22 Water Industry Act 1994 (Vic), Water Act 1898 (Vic); Water Management Act 1999 (Tas); Water Industry Act 2012 (SA); Water Resources Act 2007 (ACT); Water Act 2000 (Qld); Water Management Act 2000 (NSW), Water Act 1912 (NSW); Rights in Water and Irrigation Act 1914 (WA); Water Act (NT). 5 native title as it applies to inland water in those States. This will involve the regulation of inland water that has occurred through legislative and regulatory action by the three States.23
This issue of native title claims over the sea will be examined as will the many difficulties involved in establishing a marine register supported by a conclusive three-dimensional cadastre to operate as a support system for the current native title registration system. Accommodating native title rights and interests in the sea as well as all other marine interests would reveal how interests in a marine space relate to each other and to native title.
In examining both land and water registration schemes, this thesis will, additionally, examine the theory behind why registration for any interest in land or water has occurred and the reasons why title by registration has developed in Australia. How registration of native title rights and interests has been influenced by the reasons for registration generally, and by the Torrens Title system, will also be considered.
1.3 THESIS STRUCTURE
The thesis is structured as follows: Chapter 1 will provide an introduction to the research project and methodology to be employed in this thesis; Chapter 2 will provide a review of the reasons for registration of interests in land including an analysis of the philosophy behind registration; Chapter 3 provides a detailed overview of the process of registration of native title showing how registration currently occurs and what is achieved by registration; Chapter 4 outlines searching the registers in regard to samples drawn from three States; Chapter 5 outlines the Torrens Title system showing what is required for Torrens Title registration of land and registration or recording of native title in land within that system; Chapter 6 shows other registration systems including title-based registration systems drawn by different Indigenous groups; Chapter 7 deals with native title and inland water, covering the issue of how the water acts have impacted on native title; Chapter 8 covers native title and the sea and discusses the development of a register and three- dimensional conclusive marine cadastre; and
23 Water Act 2000 (Qld); Water Act 1912 (NSW); Water Management Act 2000 (NSW); Rights in Water and Irrigation Act 1914 (WA). 6 Chapter 9 will conclude the thesis and provide recommendations.
1.4 METHODOLOGY
The methodology adopted in this thesis is mainly legal and doctrinal analysis involving an interdisciplinary approach. This involves using the published materials on the subject and legislation and cases as appropriate.
One chapter of the research (Chapter 4) will employ a qualitative research approach. Samples of land have been drawn from determinations of native title, Indigenous Land Use Agreements and undetermined Non-Claimant Applications. The samples provide for a range of registration dates and include determinations that have included Indigenous Land Use Agreements as part of settlement and are registered for Queensland, New South Wales and Western Australia. The samples for Non- Claimant Applications settled without determination are drawn from information in the records of the National Native Title Tribunal, given that where there is no applicable determination, the Non- Claimant Application is not registered in the Registers kept by the Native Title Registrar.
These samples will be searched in the relevant Registers kept by the Native Title Registrar and in Native Title Vision, which is a geospatial system also kept by the Native Title Registrar. The samples will also be checked in Registers kept by the States of Queensland, being the Queensland Registers, and New South Wales and Western Australia, being the Torrens Title systems. The purpose is to see if the title details are listed and if there is any registration or recording of native title. The results of the searches will be analysed to test the theory that there is selective inclusion, lack of updating and currently a lack of comprehensiveness, currency, certainty in the registration system for native title.
1.5 RESEARCH PROBLEM
The research problem is exemplified by the three major issues inherent in the current registration system.
1.5.1 Comprehensiveness
The current Registers established pursuant to the Native Title Act are not comprehensive as they do not provide for registration, recording or noting of a number of native title rights and interests or
7 matters that affect native title.24 Matters impacting on native title that are not registered or recorded include, but are not necessarily confined to:
(a) s 31 Future Act Agreements25 made under the Native Title Act; (b) s 24FA protection areas (‘Non-Claimant Applications’) where there has been no determination that native title does not exist;26 (c) areas where the non-extinguishment principle27 applies; (d) areas where compulsory acquisitions of all interests have occurred which has the effect of extinguishing native title;28 and (e) areas where Native Title Act sub-div L29 has been used to provide validity for a future act.
The research problem also arises because after a determination of native title or an Indigenous Land Use Agreement30 is registered the Native Title Act does not provide any mandatory provision for updating changes to the title of land or the native title details in the National Native Title Register or the Register of Indigenous Land Use Agreements. These are two of the three Registers kept by the Native Title Registrar. As a result, certainty of the registration details exists only at the exact point of registration. In addition, there is no mandatory provision in State or Territory legislation that compels the provision of information to the Native Title Registrar when details that affect the registered information are altered. Even when the office holders responsible for registering titles in the States and Territories are aware of the changed information there is no guarantee that all of the changed information is provided to the Native Title Registrar. The sample of register searches analysed in Chapter 4 of this thesis demonstrates the implications that result.
Changes that require native title details to be updated may include surrender of native title to the Crown of a State, Territory or the Commonwealth after a determination of native title or an Indigenous Land Use Agreement has been registered. In that event, native title is extinguished and
24 Stephenson and Tehan, above n 10, 248. 25 A Section 31 Future Act Agreement is an agreement made during the normal negotiation procedure of the right to negotiate of a future act taking place pursuant to the Native Title Act and often relates to mining although it is not confined to mining and can be within the context of a compulsory acquisition of all the rights and interests in Crown lands or waters; Native Title Act pt 2 div 3 sub-div P deals with the right to negotiate. 26 See footnote 14. 27 The non-extinguishment principle applies when native title is merely suspended rather than extinguished pursuant to a future act, for example including, but not confined to, future acts provided for in Native Title Act ss 24HA(4), 24ID(1)(c), 24JA(3), 24KA(4), 24NA(4). 28 Native Title Act s 24MD. 29 Native Title Act sub-div L is used to provide validity for low impact future acts. It is important that the areas where sub- div L has been used are known because a future act carried out pursuant to sub-div L cannot continue once there is a determination of native title over the area; Native Title Act s 24LS(1)(a). 30 An Indigenous Land Use Agreement is a voluntary agreement provided for in the Native Title Act in pt 2 div 3 of of that Act. There are three types of Indigenous Land Use Agreements being area agreements, body corporate agreements and alternative procedure agreements as provided in Native Title Act ss 24B, 24C, 24D. 8 the registration details should be updated accordingly. Events that alter land title descriptions include government subdivisions that occur after a determination of native title or an Indigenous Land Use Agreement has been registered. One Lot and Plan number may become many Lot and Plan numbers. Land that contains native title can be transferred pursuant to Aboriginal land rights legislation subsequent to the registration of a determination of native title or an Indigenous Land Use Agreement. This will change the land title details from Crown land that contains native title to statutory freehold that contains native title.
Because the registered information lacks currency and certainty, many different sources need to be checked when dealing with Crown land31 and water that contains or may still contain native title. This is inefficient, potentially leads to important matters being missed and may lead to invalidity of major State and Territory development affecting third parties. Additionally, it is well below the public expectations of how a registration system for native title rights and interests should operate32 given that the public would expect a registration system for native title to be correct. As well, the Registers operated by the Native Title Registrar do not use a land title approach or certificate of title for registration. Registration takes place pursuant to a written description and mapping, not a plan-based description, increasing the difficulty of locating native title and referencing it to a land parcel description.
1.6 RESEARCH QUESTIONS TO BE ADDRESSED
The overarching research question to be addressed in this thesis is how to provide comprehensiveness, certainty and currency to the registration, recording or noting of native title in Australia both on land and water.
In answering this question, the following sub-questions will be considered:
(a) What is the best way to ensure that information concerning native title and land title is current subsequent to registration? Options include: (1) having the native title rights and interests in land recorded in Torrens Title systems; (2) using the current registration system for inland water; and
31 Crown lands include those lands held by States and Territories and managed pursuant to Crown land legislation, lands owned in freehold by the Crown of a State or Territory (government department owned land) and not managed under Crown land legislation, reserved and dedicated Crown land managed by Reserve Trusts or other managers, Crown land subject to Wik type leases but not Crown land grazing or pastoral leases in the Western Division of New South Wales, Crown land subject to valid grants of other interests that have not extinguished native title, and vacant Crown land (unallocated State land). 32 See introduction of this chapter where the shortcomings are raised. 9 (3) developing a new system for the sea. (b) If inclusion of native title in land in Torrens Title systems is found to be the best approach, is it appropriate to use a land tenure registration system for the registration, recording or noting of native title in land at all, given that the High Court has determined the content of native title to be ‘a bundle of rights’?33 This may equate to native title being a proprietary interest in land only for some purposes, such as compensation. Alternatively, native title may be a proprietary interest in land for all purposes. More recently, within the extinguishment context, the High Court has moved towards treating native title as a unitary title,34 that is, a proprietary tenure possessing a wholeness in itself, rather than merely an interest in land of a proprietary nature. This finding tends to strengthen the view that native title is a proprietary interest in land for all purposes. (c) How can impediments to inclusion of native title in land in Torrens Title systems be overcome? These impediments include the need to convert the Crown land that contains native title to Torrens Title. Conversion35 and inclusion of Crown land in the Torrens Title systems is necessary to ensure the availability of a Torrens Title folio descriptor against which details of native title can be registered or recorded. Inclusion in the Torrens Title systems involves the relevant Crown land being allocated a Lot and Plan number, pursuant either to plan compilation or survey. In plan compilation, the Registrar-Generals, Registrar of Titles or Recorder of Titles, as the case may be,36 can give no guarantee of the correctness of the boundaries of the land. Accordingly, this approach may be controversial to some jurisdictions.37 The alternative approach of surveying the Crown land in preparation for its inclusion in the Torrens Title systems has significant financial implications. Where Crown land that contains native title cannot be converted to Torrens Title for some reason, there may
33 Wurridjal v Commonwealth (2009) 237 CLR 309, 422 [296]. 34 Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209; Western Australia v Brown (2014) 253 CLR 507; Queensland v Congoo (2015) 320 ALR 1; Karpany v Dietman (2013) 252 CLR 507. 35 ‘Conversion’ as it relates to Crown land means changing the status of the Crown land to Torrens Title land but without the land becoming freehold by that process. 36 The title of the office holder responsible for registration of land under real property legislation is not consistent throughout Australia. 37 NSW has given most land in NSW, including Crown land, a Lot and Deposited Plan number by utilising plan compilation to indicate the boundaries in respect of unsurveyed Crown land. As the boundaries of land cannot be guaranteed where plan compilation is used to describe the land, the Registrar General of NSW issues a limited title. Some Crown land, such as the 100 foot reservations, Crown roads, National Parks and State Forests, waterways and Crown land in the western division of New South Wales, have not yet been allocated a Lot and a Deposited Plan number; New South Wales Government, New South Wales Land and Property Information Services, New South Wales Land Titles Manual,
1.7 ORIGINAL CONTRIBUTION
This thesis will make a significant contribution to the existing literature in native title and land and water registration. To date, there has not been a major examination of the registration, recording or noting of native title in lands nor have there been publications concerning the registration of native title in inland water or in the sea. One paper has been published in the area of registration of Indigenous lands and a discussion of the need for reform.38 Other than this paper there is little to
38 See for a detailed discussion of the issues identified in Margaret A Stephenson and Maureen Tehan ‘The Recording and Management of Indigenous Lands and Title: Is Reform Required?’ (2015) 24 Australian Property Law Journal 235, 248. 11 essentially no academic work in this field. Accordingly, this thesis will be an original contribution to the literature in the area of registration, recording or noting of native title rights and interests in land and water.
1.8 PRACTICAL SIGNIFICANCE OF THIS RESEARCH
This thesis will also be of value in persuading the Commonwealth, States and Territories of the need to amend the current registration system for native title to provide comprehensiveness, currency and certainty for native title rights and interests in land and water. States and Territories may be persuaded as to the value of a conclusive titling system that contains all interests in land.
This thesis will also offer practical solutions to the lack of certainty that currently exists in the native title registration system. This lack of certainty is of concern because title certainty provided through accurate registration systems is important for assurance of the correct owner of the title or interest held. It is also important to know the correct description of the title or interest held, the correct date the title or interest was created or dissolved and the correct boundary description of the title or interest held. Certainty of title is also important for economic prosperity of individuals and for Australia’s continuing economic growth as a nation.39 Additionally, certainty of title can ensure that efficient mechanisms to prevent registration of fraudulent interests are in place. Pursuant to statutory guarantees, certainty of title can provide compensation for victims of fraud40 and for mistakes in registers causing loss.
The need for certainty of title does not only apply to freehold land, its owners and to those who deal with the freehold title of land. It also extends to Crown land and water which is generally the type of tenure where native title is found to exist.41 The need for certainty of title also extends to persons who deal with Crown land or water, governments, local Councils and statutory land managers who own or manage large tracts of Crown land and water. Additionally, the need for certainty of title extends to native title holders and persons who have been granted interests in Crown land or water such as pastoral and mining lessees. Such persons require certainty in relation to matters that affect the title of Crown land or water because that can promote increased opportunities for wealth-producing activities. Native title can also be protected and addressed in one of the ways provided by the Native Title Act when future acts42 are undertaken on Crown land or water that is known to contain or may
39 Hernando De Soto,‘The Mystery of Capital’ (2001) 38(1) Finance and Development 29, 29–30. 40 Dianne Cragg, ‘Best Practices in First Nations Land Title Systems’ (2007) First Nations Property Ownership Initiative 1, 13. 41 Mabo v Queensland (No 2) (1992) 175 CLR 1. 42 Native Title Act, s 233. 12 still contain native title. This assures that any development on Crown land or water is valid from a native title perspective. If the validity of future development on Crown land or water is assured, this has the potential to increase the willingness of developers to deal with governments, local Councils and statutory land managers as owners and managers of Crown land and water that contains native title. Developers are sometimes reluctant to commence development because they consider resolving the native title issues is a complex task. They are conscious of the fact that if the native title issues are not resolved correctly and according to law, there is a risk that tenures granted and development carried out pursuant to agreements made during the right to negotiate will be invalid.43 This has potentially serious consequences, including orders for demolition.
1.9 CONCLUSION
It is imperative that the registration system for native title provides comprehensiveness, currency and certainty which will be achieved if the recommendations in this thesis are accepted. This is important because of the amount of Crown land and water that will be involved in the native title process. A significant number of applications for a determination of native title and Non-Claimant Applications are still being lodged in the Federal Court. Determinations of native title by the Federal Court are continuing to be made. Indigenous Land Use Agreements and Section 31 Future Act Agreements continue to be negotiated. Future acts also continue to be carried out by governments on Crown land and water. The quantity of Crown land that remains to be granted to Aboriginal Land Councils and that may still contain native title is also considerable, particularly in New South Wales.44 The difficulty in monitoring exactly how Crown land and water is affected by native title issues will continue and may increase in the future while Australia fails to provide a native title registration system that ensures comprehensiveness, certainty and currency for Crown land and water and for native title rights and interests existing therein. The system kept by the Native Title Registrar is unlikely to change. The difficulty may be reduced by using Torrens Title systems to complement native title rights and interests in land in the Registers kept by the Native Title Registrar. The systems that register or record other non-native title interests in inland water set up pursuant to the water legislation of the States and Territories could also be used to complement the Registers kept by the Native Title Register. Finally, development of a new marine system and conclusive cadastre for native
43 Native Title Act s 24OA; Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v Queensland (1999) 95 FCR 14. 44 NSW has approximately 29,000 undetermined Aboriginal Land Claims lodged by Aboriginal Land Councils pursuant to the Aboriginal Land Rights Act 1983 (NSW) that must be determined by the Minister administering the Crown Lands Act 1989 (NSW);The Greens, Australian Greens 18 December 2014, ‘Government Must Act on Aboriginal Land Claim Backlog’
14 CHAPTER 2 REASONS FOR REGISTRATION
2.1 INTRODUCTION
Chapter 1 outlined the failings of the current registration system for native title. This leads to two critical questions that are worthy of exploration: why the particular registration system established pursuant to the Native Title Act was chosen, and more fundamentally, why registration of native title rights and interests is necessary or desirable at all. This chapter will look at the deficiencies of the current registration system and the reasons for registration and for the choice of registration system for native title.
The choice goes beyond the native title process itself and relates to the reasons why registration of land occurs more generally. The reasons for registration also relate to the development in Australia of systems that utilise legal registers to confer ownership and legal rights. Historical reasons whereby the past has influenced the present in the native title area play a role1 and theoretical, philosophical and political reasons have also played a part. Expanding on some of these themes, Pasternak, writing about the Canadian situation, provides three reasons for land registration generally:2
(a) assertion of sovereign jurisdiction; (b) capitalist alienation of resources into commodities; and (c) caring for things.3
These three factors will be considered in turn, identifying how pursuance of each of these goals has impacted on native title.
Following that, this chapter will consider the development of title by registration and how all of the issues outlined above have affected the development of the registration of native title rights and interests.
1 Alexander Reilly, ‘How Mabo Helps Us Forget’ (2006) 6 Macquarie Law Journal 4, 4–5. 2 Shiri Pasternak, ‘Property in Three Registers’ Architecture, Landscape and Political Economy, Issue 00 Scapegoat Property 10
2.2.1 Assertion of sovereign jurisdiction
Sovereign jurisdiction involves assertions of ownership and control by a sovereign state over resources4 and full beneficial ownership of land. Pasternak considers that taking title of Crown land is the highest assertion of sovereignty by the provincial or federal governments in Canada and that when the Crown asserts it holds title that is a ‘property claim to the entire land base of the country’.5
In Australia, before British sovereignty,6 Aboriginal people were sovereign nations.7 However, Australia was settled under the doctrine of terra nullius, now known to be a fiction,8 which precluded Australian Aborigines from legal assertion of their sovereign jurisdiction over the British when the first British settlement was established at Sydney Cove in 1788. The early colonial government of New South Wales under ‘legislative, executive and judicial authority’9 took full beneficial ownership of all the land in New South Wales, and in doing so, effectively dispossessed the Aboriginal population on the east coast of Australia. A system of Anglo-European settlement encouraged by the colonial government developed in the colony of New South Wales. As a land owner, it was necessary for the colonial government to know how much land it had disposed of by way of free grants to the early settlers. It was no doubt very difficult at that time for the colonial government to know its total landholdings given the land size of New South Wales and the lack of survey. Bhandar, writing on South Australia, considers that to the early colonial settlers, who believed in the fiction of terra nullius, Australia was free of pre-existing owners. Accordingly, land ownership through registration could be imposed in Australia more easily than in England, which had a long history of feudal land ownership, an aristocratic ruling class and minimal conveyance of land.10
Bhandar’s ideas on South Australia are readily applicable to New South Wales where the land was considered not to have owners or, if recognised, the previous ownership was ignored. These matters are one reason for the development of systems for registering or recording interests in land and land dealings. A further reason for the development of registration systems was that, in granting dominion
4 Paul Babie, ‘Sovereignty as Governance: An Organising Theme for Australian Property Law’ (2013) UNSW Law Journal 43, 50; Lee Godden, ‘Wik: Legal Memory and History’ (1997) 6 Griffith Law Review 122, 126. 5 Pasternak, above n 2, 15. 6 Larissa Behrendt et al, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press, 2010) 175. 7 Henry Reynolds, ‘Reviving Indigenous Sovereignty?’ (2006) 6 Macquarie Law Journal 5. 8 Mabo v Queensland (No2) (1992) 175 CLR 1. 9 Behrendt et al, above n 6, 176. 10 Brenna Bhandar, ‘Title by Registration: Instituting Modern Property Law and Creating Racial Value in the Settler Colony’ (2015) 42(2) Journal of Law and Society 253, 254. 16 (sovereignty) to individual settlers over land pursuant to land grants, the early colonial government established relationships whereby the recipients could control others by excluding them from access and use of the granted land.11 Additionally, use and occupation of the granted land could be in any manner chosen by the recipient of the land grant. As the land grants divested significant control in the individual, registration was a means of preventing actions against the interests of the general public through obligations and restrictions that applied to the granted land being registered or recorded on title.12
Although the colonial government may not have consciously viewed registration as a weapon of dispossession and displacement of Aboriginal people, in many respects it can be seen as that, due to its focus on land ownership and property accumulation. To be registered, land needed to be regarded as a commodity, capable of description, exchange, quantification, valuation and monitoring. This is fundamentally different from the way land was, and currently is, viewed by Indigenous Australians as a provider of food, water, shelter, culture, kinship and spirituality and a source of the Dreaming where the Aboriginal relationship with land is that of custodian rather than owner.13
Commodification of land facilitated conveyancing, which resulted in private ownership of land in the colony increasing over time. By the early 1800s a system had been established for recording the free grants and transfers of land that colonial governors had made to the early settlers in New South Wales.14 The free grant system was abolished in Governor Burke’s term of government and land was required to be purchased whereupon the land dealings and funds raised by the sale of Crown land also required records to be kept.15 Furthermore, in accordance with its assertions of sovereignty, the colony only permitted settlement in 19 counties of the new colony, but many squatters illegally settled outside these areas.16 In 1836 Governor Bourke sought to require the squatters to enter into licences in recognition that the title to the land on which they were squatting remained Crown land.17 These
11 David Lametti, ‘The concept of Property: Relations through Objects of Social Wealth’ (2003) 53(4) The University of Toronto Law Journal 325, 329. 12 Paul Babie, ‘Sovereignty as Governance: An Organising Theme for Australian Property Law’ (2013) 36(3) University of New South Wales Law Journal 1075, 1078. 13 Kathy Gibson, ‘Accounting as a Tool for Aboriginal Dispossession: Then and Now’ (2000) 13(3) Accounting, Auditing and Accountability Journal 289, 289–306; The Importance of Land
2.2.2 Capitalist alienation of resources into commodities
To understand what is meant by ‘capitalist alienation of resources into commodities’ and why it is a reason for registration, a brief consideration of the Marxist view of ‘commodities’ is needed. In the Marxist view, commodities are objects that because of their properties satisfy some human want, need or desire.18 Societies where the capitalist mode of production operates, such as in Australia, gain their wealth by accumulating commodities.19 Each commodity has a use value determined by its utility and is also the material repository of exchange value determined by the desire in the community to possess the particular commodity.20 In the Marxist view, a commodity can be exchanged equally with other commodities and if use value is omitted, the common aspect of all commodities is that they represent abstract human labour.21 The difficulty with the Marxist view of commodities is that it does not adequately accommodate unoccupied, undeveloped Crown land where no human labour is involved if, for example, the land has not been fenced, cleared or cultivated. This is not to say, however, that unoccupied, undeveloped Crown land cannot be treated as a commodity, cannot possess a value and cannot be dealt with, but rather is a gap in the Marxist interpretation of commodities.
Similarly to Canada, Aboriginal people in Australia were dispossessed not only of their land, but of the other resources contained therein, such as trees, water, fish and other grown and hunted produce from land and water. These were alienated into commodities and were capable of being identified, quantified, valued, registered, exchanged and sold and would then have to be purchased by Aboriginal people.22 In a Marxist interpretation this type of alienation is dual dispossession of Aboriginal people.23 Once there has been alienation from the means of production and resources have become commodities, the next logical steps are quantification, regulation, taxation, valuation and trade of those commodities with registration providing the means for those processes to be centralised, standardised and monitored.
18 Karl Marx, Capital: A Critique of Political Economy (Penguin, 1990) vol 1, 125. 19 Robert Freedman, ed, Marx on Economics (Penguin Books, 1961) 28. 20 Ibid. 21 Freedman, above n 19, 27. 22 David Harvey, ‘The New Imperialism: On Spatio-Temporal Fixes and Accumulation by Dispossession’ (2004) 40 The Socialist Register 63, 63–83. 23 Ibid. 18 2.2.3 Caring for things
In Pasternak’s view, caring for things, including land, involves looking after them for future generations.24 This provides a persuasive reason for registration; although whether it was highly important in colonial times is unknown, but it is important now. A land title register is able to provide accurate, centralised information that can assist in caring for things by supporting sound environmental and planning decision-making.25 For example, environmental covenants can be registered or recorded on the title of land to ensure its protection. The owner of the land would need to comply with the covenant or do their best to ensure another did so, perhaps by agreement. This could include clearing feral animals and weeds or preventing contamination or soil erosion. Additionally, protection may now include the registration or recording on title of obligations such as reducing carbon emissions by improving farming methods or by planting trees. These covenants run with the land, which ensures that future owners are bound by the same conditions as the current owners and that the land is protected for subsequent generations.
Covenants are utilised throughout Australia but the Australian States and Territories have not taken a uniform approach to registering or recording environmental and planning restrictions and obligations on title, which is liable to cause confusion and uncertainty.26 An example of what can occur when restrictions and obligations are not registered or recorded on title, and as a result land owners are not fully aware of accurate legal restrictions on clearing,27 occurred in Wall v Doyle.28 Environmental restrictions were not recorded on the title of land that the Doyles purchased to build a house. They approached the Council and the Department of Natural Resources and Mines about clearing the land whereupon they were advised there were no restrictions pursuant to the Vegetation Management Act 1999 (Qld).29 On the strength of this advice, the Doyles cleared the land only to discover later that there were restrictions under the Nature Conservation Act 1992 (Qld) and the cleared trees were protected species.30 Prosecution and orders for reinstatement of the trees
24 Pasternak, above n 2, 16. 25 Justine Bell, ‘Greening the Land Title Register—How Can the Land Title Register Assist with Sustainable Decision- Making’ (2010) 18(3) Australian Property Law Journal 263, 264; Victorian Law Reform Commission, Easement and Covenants Consultation Paper no 2, Victorian Law Reform Commission (2009) 92, 93; Sharon Christianson and William Duncan, ‘Aligning Sustainability and the Torrens Register: Challenges and Recommendations for Reform’ (2012) 20(2) Australian Property Law Journal 112, 112–15. 26 Ibid, 269. 27 Rohan Bennett, Jude Wallace and Ian Williamson, ‘Achieving Sustainable Development Objectives through Better Management of Property Rights, Restrictions and Responsibilities’ (Paper presented at the Expert Group Meeting on Incorporating Sustainable Development Objectives into ICT Enabled Land Administration Systems Melbourne, 9–11 November 2005) 209. 28 Wall v Doyle [2008] QPEC 23 unreported, Robin J, 19 February 2008. 29 Bell, above n 24, 265. 30 Ibid 266. 19 followed.31 Accurate information placed on title through registering covenants could have helped prevent environmental breaches of this nature.
2.2.4 Reasons for title by registration
The above offers an explanation as to why registration of interests in land occurs generally. The desire to care for things, Australia’s capitalist mode of production where resources are commoditised, and the need to identify, monitor and impose restrictions have no doubt influenced why the registration of native title rights and interests was considered necessary and appropriate. The development of a system such as Torrens Title also played a part. The Torrens Title system consists of legal registers linked to a geospatial system to provide title by registration. Native title, which followed, became subject to a system whereby various procedural and other rights in land and water were gained, maintained and monitored through their inclusion in legal registers supported by a geospatial system. The fact that Torrens Title is the predominant system for registering land in Australia no doubt also influenced the choice of registration system for native title. At the point of lodgement, the land title details for native title would not necessarily have been known and this may have precluded the land title aspect of Torrens Title from being adopted in the native title context.
The Torrens Title system commenced in South Australia with the Real Property Act 1858 (SA) and the use of legal registers for land in Australia can be partly attributed to Sir Robert Richard Torrens and his employment in the shipping industry.32 The shipping industry had utilised legal registers since the 13th century.33 Mention of Torrens, however, is not to be seen as an affirmation of the great man shaping history theory, which is based on an idea that history is shaped by outstanding individuals34 rather than by factors that are social and economic. Torrens, like his contemporaries, was a product of his society and environment. Bhandar accords significant importance to Torrens, however, because Torrens drove the idea of title by registration through his writing and political career.35 Torrens held the view that the English conveyancing system was unsuitable for Australia. Without the constraints of English property relationships, the English aristocracy and the English conveyancing system, there
31 Bell, above n 24, 266. 32 Bhandar, above n 10, 258. 33 Ibid 259. 34 Sidney Hook, The Hero in History (Humanities Press, 1950) 67; In this theory, greatness stemmed from Godly Motivation and leadership qualities were not due to societal influence. Such men influenced society rather than society influencing them. The philosophy is applicable to men as in the time around the 19th century when the theory was popular women did not participate in important positions; The quote ‘Great Leaders are God Gifted not man-made’ is relevant as a concise explanation; Melbourne Juris Doctor, University of Melbourne, Quotations and Sayings 2018,
Torrens is justified in his view that Australia was unsuitable for English property law, not only from the property relationship aspect and because the early Australian population consisted largely of convicts rather than aristocrats, but also because the geographical differences between Australia and England were significant. Additionally, the early colonial governors were developing many different tenures that were unknown to Britain. This also contributed to Australia’s Crown land system being very different from that of Britain. A New South Wales example of a tenure unknown to Britain is a lease for special purposes under Crown Lands Occupation Act 1861 (NSW) s 30 where the lease purposes could be numerous and wide ranging and included purposes such as wharves and erection of machinery for saw mills. Hogg states that Australian State law on Crown land was ‘so entirely novel that nothing more than bare principles of English law can be relied on as guides’.37
Bhandar also considers that title by registration was the legal technique that allowed a ‘shift from predominately feudal conceptualizations of land to modern forms of property’38 and Pottage considers it a ‘transformation in the idea of title to land; a transformation which manifested itself in the gradual dissolution of the logic peculiar to the regime of contract and conveyance’.39 Both views offer valid explanations for the development of title by registration.
An important advantage of title by registration was that it offered certainty and government backing40 although certainty was not an original idea that can be attributed to the Torrens Title system. Prior to the Norman conquest in England there was public land transfer accompanied by survey and once the land transfer was complete there was certainty from the aspect that no right of challenge to the land’s ownership existed.41 The 1066 invasion by the Normans altered the Saxon approach to conveyancing in England.42
Dr Ulrich Hubbe also played an important role in the development of the Torrens Title system by translating texts obtained from Hamburg.43 The translations, which were progressing prior to 1858,
36 Ibid 258. 37 James Edward Hogg, Conveyancing and Property Law in New South Wales (Lawbook, 1909) 3. 38 Bhandar, above n 10, 255–6. 39 Alain Pottage, ‘The Originality of Registration’ (1995) 15(3) Oxford Journal of Legal Studies 371; Sarah Keenan, ‘Smoke, Curtains and Mirrors: The Production of Race Through Time and Title Registration’ (2016) Law and Critique 1, 3. 40 Bhandar, above n 10, 271–2. 41 Robert T Stein and Margaret A Stone, Torrens Title (Butterworths, 1991) 2. 42 Ibid. 43 Dr Ulrich Hubbe, Title by Registration in the Hanse Towns (Parliament of South Australia, 1861). 21 are claimed to have helped provide the finer details for the drafting of the Torrens Title legislation in South Australia.44 Accordingly, it is fair to say that the system of land registration that operated in the Hanseatic towns may have been equally as important as the shipping registers in the development of the Torrens Title system of registration in South Australia.45 The Real Property Act (SA) commenced on 1 July 185846 and by 1875 the Torrens Title system had been implemented by all the colonies of Australia. Currently it is enacted in a number of different statutes in each of the Australian States and Territories.47
2.2.5 Reasons for registration of native title
Mabo48 instigated a drastic change to Australian law because native title was not in any way part of the inherited British system but instead arose out of relationships with land and water. The Australian Government chose not to recognise this difference either purposefully or due to conservatism.49 When it needed to enact legislation to respond to Mabo it is unsurprising that the Australian Government did not stray too far from the use of legal registers and a supporting geospatial system to accommodate the newly recognised native title rights and interests because this was familiar and well known to the government. In keeping with political conservatism, even though the native title rights and interests were different from other rights and interests in Crown land and water they were not treated as fundamentally different. Instead of being treated as ‘indigenous people’s relationships with land [and water the rights and interests were translated] into rights and interests known to the Australian common law’.50 That is, they were treated as commodities to coexist with any other valid rights and interests in areas of land and water where native title was not extinguished.
As the Crown land and water in which native title was claimed often initially lacked a title identifier, native title rights and interests were not easy to immediately accommodate in the Crown land systems or the Torrens Title systems of the States and Territories.51 The model adopted by the Commonwealth for native title, however, possesses a similarity with Torrens Title systems as the Native Title Act
44 Greg Taylor, A Great and Glorious Reformation: Six Early South Australian Legal Innovations (Wakefield Press, 2005) 39. 45 Anthony Esposito, ‘A Comparison of the Australian (‘Torrens’) System of Land Registration and the Law of Hamburg in the 1850s’ (2003) 7(2) Australian Journal of Legal History 193. 46 Taylor, above n 44, 19. 47 Real Property Act 1900 (NSW); Land Title Act (NT); Land Titles Act 1980 (Tas); Transfer of Land Act 1958 (Vic), Property Law Act 1958 (Vic); Transfer of Land Act 1893 (WA); Land Title Act 1994 (Qld); Real Property Act 1886 (SA); Land Titles Act 1925 (ACT); Douglas J Whalan, The Torrens System in Australia (Lawbook, 1982) 23. 48 Mabo v Queensland (No 2) (1992) 175 CLR 1. 49 John Hirst ‘Conservatism’ in Graeme Davidson et al (eds), The Oxford Companion to Australian History (Oxford University Press, 2nd ed, 2001) 148–50. 50 Christopher Shanahan, ‘Legislative Responses to Mabo—Rendering the Law Unconscious?’ (1995) 2(1) Murdoch University Electronic Journal of Law 11. 51 Lane, above n 14, 1. 22 provides for a number of legal Registers whereby procedural and other rights are gained and maintained through registration of rights and interests with a geospatial mapping system supporting those Registers. The significant difference between the Registers established under the Native Title Act and Torrens Title is that registration in Torrens Title systems creates a unique title and title reference where registration or recording of coexisting rights and interests is able to take place on that title.
Howitt considers that ‘rather than recognising and creating a robust legal version of the interests and responsibilities created by customary law … political responses to the [Mabo] decision sought to maintain the status quo — the dominance of the dominant culture’.52 That the status quo has been maintained is correct. Commoditising native title and establishing legal registers by which to monitor, qualify and quantify native title is treating it within familiar bounds and failing to capture the complex relationships among native title holders themselves and with adjoining Aboriginal groups. Failure to capture relationships, responsibilities and obligations that traditional laws and customs impose on native title holders in regard to ‘country’ and the ‘Dreaming’ is the result.53
The possibility that the dominant culture has imposed its dominance on the native title process through the choice of registration system is not ideal, although the registration process, as established by the alleged dominance, is highly important. Valuable benefits are conferred by registration, including a seat at the table for native title claimants and native title holders to ‘negotiate for economic benefits from their lands when they regard that appropriate under their traditional laws and feasible having regard to the nature and situation of the land’.54 The native title rights and interests, although falling short of a right to veto, are very significant and valuable from a negotiation perspective.55 Without registration of native title rights and interests, procedural and other rights are not attracted. Without registration of Indigenous Land Use Agreements, the agreement is only binding as a contract on the parties to the agreement and does not bind all native title holders in the agreement area including those who are yet to be born. It is important for the sustainability of Indigenous Land Use Agreements that all persons who hold native title in the agreement area are bound by the agreement.
52 Richie Howitt, ‘Scales of Co-existence: Tackling the Tension between Legal and Cultural Landscapes in Post-Mabo Australia’ (2006) 6 Macquarie Law Journal 49; Garth Nettheim ‘Judicial Revolution or Cautious Correction? Mabo v Queensland’ (1993) 16(1) University of New South Wales Law Journal 1, 6–7; Jillian Kramer, ‘(Re) mapping Terra Nullius: Hindmarsh, Wik and Native Title Legislation in Australia’ (2016) 29 International Journal of Semiotics of Law 191, 210–12. 53 Howitt, above n 51, 50; HA Amankwah, ‘Post Mabo: The Prospect of the Recognition of a Regime of Customary (Indigenous) Law in Australia’ (1994) 18(1) University of Queensland Law Journal 15, 22. 54 Paul Seaman QC, ‘Providing a Sustainable Economic Land Base for Aboriginal Populations’ (1995) 2(1) Murdoch University Electronic Journal of Law 5. 55 Howitt, above n 52, 49. 23 2.3 CONCLUSION
This chapter has set out the reasons for registering interests in property and the reasons for and creation of title by registration as well as the influence on native title registration that these matters have effected. It has concluded that registration of native title rights and interests and Indigenous Land Use Agreements is important for conferring significant procedural rights and for agreement sustainability. The provision of comprehensiveness, currency and certainty for native title would be likely to gain native title holders a place in planning, environmental protection and climate change initiatives. The disadvantages of added expense and increased workloads for the States and Commonwealth would in the long term be outweighed by the advantages for both native title holders and other persons seeking to deal in Crown land and water. It is, therefore, useful to consider the native title registration process in some depth and the following chapter will indicate how native title registration is achieved and maintained.
24 CHAPTER 3 PROCESS OF REGISTRATION OF NATIVE TITLE IN COMMONWEALTH REGISTERS
3.1 INTRODUCTION
The previous chapter set out the rationales for registering interests in land both generally and for native title. It is now important to consider the legislative process involved in gaining registration of native title related rights and interests because legislation confers vital procedural and other rights. In that regard, North Ganalanja Aboriginal Corporation and Waanyi People v Queensland 1 held that the States and Territories of Australia were prevented from dealing with land inconsistently, which was imposed by the right to negotiate.2 The Native Title Act also imposes other important procedural rights such as requirements to provide notice, the right to comment and other procedural rights in relation to some future acts.3
There are three Commonwealth Registers where applications, determinations and Indigenous Land Use Agreements are registered. The setting up of the Registers, the Registers themselves and their shortcomings will be considered. The process that takes place when native title rights and interests, determinations and Indigenous Land Use Agreements are registered is also appropriate to consider. Furthermore, this thesis will examine the feasibility of expanding the current Registers set up by the Native Title Registrar under the current system for registration of native title rights and interests to see if this would improve comprehensiveness, certainty and currency for native title rights and interests.
3.2 LEGISLATIVE BASIS FOR THE NATIVE TITLE REGISTERS
The Native Title Act provides for the explicit manner in which registration of native title is to take place and establishes three Registers. The legal provisions relating to the three Registers are contained in Native Title Act pts 7, 8 and 8A.
1 (1996) 185 CLR 595. 2 John Basten QC, ‘The Impact of Native Title on Domestic Law’ (Paper delivered at AIAL Seminar, Sydney, 24 June 1998); native title generally see Melissa Perry and Stephen Lloyd, Australian Native Title Law (Thompson Reuter, 2nd ed, 2018). For land registration generally see Martin Dixon, Amy Goymour, Stephen Watterson, New Perspectives on land registration contempory problems and solutions (Hart Publishing, 2018). 3 Native Title Act ss 24GB(9), 24GD(6), 24GE(1)(f), 24HA(7), 24ID(3), 24HA(4), 24JB(7), 24KA(7), 24MA(6A), 24MA(6B), 24NA(8), 24NA(9), 24NA(10); This may not be a conclusive list of notice, the right to comment and other procedural rights provisions but listed are the main areas that relate to future acts. 25 3.2.1 Register of Native Title Claims, Native Title Act pt 7
The Register of Native Title Claims is established and kept by the Native Title Registrar and it may be kept electronically in two or more Registers, which contain the information that the Native Title Registrar determines must be entered.4 This suggests that the Native Title Registrar determines the mandatory information that is to be registered; however, this is not the case because the Native Title Act expressly prescribes which information must be registered in the Register of Native Title Claims.5 For each claim covered by Native Title Act s 190(1)6 the information that must be registered includes where the claim was filed, the name of the body where the filing of the claim took place, the date of registration of the claim by the Native Title Registrar, the name and address of the applicant for purposes of service and a description of the claim area. A description of the claim group must also be registered. In addition, the information must include a description of the native title rights and interests that have been registered on the basis that the Native Title Registrar, in applying Native Title Act sub s190B(6),7 considered that a prima facie case had been made out. As well as the mandatory information that must be included, the Native Title Registrar has a discretion to include in the Register of Native Title Claims other details about the claim as the Native Title Registrar thinks appropriate. Claims must be included in the Register of Native Title Claims as soon as practicable after they are accepted for registration.8
The Register of Native Title Claims is able to be inspected during business hours by members of the public and the Native Title Registrar must ensure its availability and provide computer access or a computer printout where the registered information is kept wholly or partly on a computer.9 If the Native Title Registrar is satisfied that parts of the registered information should not be available on the basis of a public interest test, there is no need to make the information available to the public. Importantly, cultural issues can be taken into account by the Native Title Registrar in determining if the registered information should be confidential.10 Confidentiality is an important consideration and the ability to ensure confidentiality for some information would be required to be available in any alternative system for registering or recording native title, given that applications for a determination
4 Native Title Act s 185. 5 Native Title Act s 186. 6 Native Title Act s 190(1) provides that a claim covered by that section is a registered claim. 7 Native Title Act-sub s 190B( 6) provides that for purposes of the registration test, the Registrar must consider that prima facie some of the rights and interests claimed can be established. 8 Native Title Act sub s 190(1)(a). 9 Native Title Act s 187. 10 Native Title Act s 188(2). 26 of native title often include private personal information including gender-sensitive material which is material that cannot be disclosed to the opposite sex because of traditional laws and customs.
The amendments that the Native Title Registrar is able to make to the Register of Native Title Claims are numerous and occur when claims are amended. Amendments must be made as soon as practicable. Some amendments attract reapplication of the registration test, and if the claim is not accepted for registration when the registration test is reapplied, the Native Title Registrar must remove the entry of the claim from the Register of Native Title Claims.11 In addition, if rights and interests were not registered because information was not before the Native Title Registrar when the registration test was applied, the Register must be amended to include those rights and interests if subsequently they pass the registration test, pursuant to additional information being provided to the Native Title Registrar.12
When claims are finalised by determination wholly or in part, dismissed or withdrawn, the Register of Native Title Claims must be amended to reflect this fact.13 In the case of determinations, where a body corporate has not yet been nominated pursuant to Native Title Act s 57(2) to hold the native title as agent or trustee for the native title holders and perform the functions set out in Native Title Act s 57(3), the Register of Native Title Claims must also be amended in that regard.14
As shown, the Native Title Registrar has substantial powers of amendment and many amendments to the Register of Native Title Claims are mandatory whereby the Native Title Registrar has no discretion. The Native Title Registrar also has a wide power of delegation. Delegation to a recognised State or Territory body of all or any powers15 that concern parts of the Register of Native Title Claims is able to take place, provided those powers relate to the jurisdictional limits of the particular State or Territory involved and provided the State or Territory agrees.16
The Register of Native Title Claims can be searched by the public online under the search headings of Tribunal File Number, Federal Court File Number, Application Name, State or Territory, Representative Aboriginal or Torres Strait Islander Body Area, Local Government Area, Date and
11 Native Title Act sub s 190(3)(b). 12 Native Title Act sub s 190(3A)(a)–(d). 13 Native Title Act sub s 190D(4). 14 Native Title Act sub s 190(4)(da). 15 Native Title Act s 253 defines ‘recognised State or Territory body’ to mean a court, office, tribunal or body in relation to which a determination under Native Title Act s 207A is in force; Native Title Act s 207A provides that the Commonwealth Minister may, by legislative instrument, determine that a court, office tribunal or body (which court, office, tribunal or body is called the body) established by or under a law of a State or Territory is a recognised State/Territory body, if the State Minister for the State, or Territory Minister for the Territory, nominates the body to the Commonwealth Minister for the purposes of s 207A. 16 Native Title Act s 191. 27 Range of Dates. The Register of Native Title Claims, however, cannot be searched using a land title description because claims are not registered with reference to a land title identifier. In any event, a land title registration approach may not be possible at the point of registration of an application for a determination of native title. In many cases, the title details of the claimed area are not provided at the outset of a claim for native title. The claim area is often defined by a written description that utilises physical features and geographical coordinates, which do not necessarily correspond to registered land boundaries. The application may be well progressed before the State provides its tenure analysis and full title descriptions of the claimed land and water becomes available.
A significant observation is that there are no legislative impediments in the Native Title Act in relation to the registered information being duplicated in State or Territory registers, which would include the Torrens Title Registers in as much as the information relates to the jurisdictional limits of a particular State or Territory.
3.2.2 National Native Title Register, Native Title Act pt 8
The National Native Title Register, similarly to the Register of Native Title Claims, may be kept by computer and must be open to the public for inspection during business hours.17 Certain parts of this Register may be kept confidential pursuant to a public interest test.18 The National Native Title Register may consist of two or more Registers, which contain so much of the information that must be registered as the Native Title Registrar determines.19
Once again, the Native Title Registrar does not have a discretion to determine what must be registered because the mandatory content of the National Native Title Register is expressly provided for in the Native Title Act. Approved determinations of native title by the Federal or High Courts or by State or Territory bodies are registered.20 Other information that must be included in the National Native Title Register is the name of the body making the determination, the date of the determination and the area of land and water where native title is determined to exist. Who holds the native title and a description of the native title rights and interests held21 must also be registered. In addition, the name and address of a prescribed body corporate that holds the native title on trust or as agent for the native title holders must be registered.22
17 Native Title Act s 194. 18 Native Title Act s 195. 19 Native Title Act s 192(4). 20 Native Title Act sub ss 193(1)(a)–(b). 21 Native Title Act sub ss 193(2)(a)–(d). 22 Native Title Act sub s 192(2)(e). 28 The Native Title Registrar has power to amend the National Native Title Register after registration but is not directly obligated to update the registration details when changes to native title, or the title of the land included within the determination, occur. For example, it may be that a State, a Territory or the Commonwealth compulsorily acquires all rights and interests, including the native title rights and interests, in land subsequent to the determination having been made. Land in a Deeds of Grant in Trust area in Queensland, which has been the subject of a determination that native title exists, may be converted to freehold pursuant to the Aboriginal Land Act 1991 (Qld).23 These actions would extinguish native title. If the compulsory acquisition is carried out pursuant to a Section 31 Future Act Agreement, which is not required to be registered, it would be impossible for a person searching the National Native Title Register to know that native title no longer exists in the relevant land. The Registrar does have discretion to include information about other native title determinations or native title decisions made by courts and tribunals in the National Native Title Register.24
The mandatory amendment power of the Native Title Registrar relates to changes that must be made to details about prescribed bodies corporate. That power includes where one prescribed body corporate that holds the native title on trust is replaced by another as trustee.25 The power also includes where a trust under which native title is held, is terminated and replaced by an agent prescribed body corporate,26 where an agent prescribed body corporate is replaced by another agent prescribed body corporate,27 and where an agent prescribed body corporate is replaced by a trustee prescribed body corporate.28 The Native Title Registrar’s power of delegation is exactly the same as that of the Register of Native Title Claims and it is a wide power. Pursuant to agreement by a State or Territory, any or the whole of the Native Title Registrar’s power in relation to the National Native Title Register could be delegated to a recognised State or Territory body in respect of land and water within the jurisdiction of a particular State or Territory.29
Again, there is nothing contained in the Native Title Act that would prevent States and Territories from duplicating the content of the National Native Title Register in State or Territory registers. There is one important distinction between the Register of Native Title Claims and the National Native Title Register, which is that the Native Title Registrar must advise the relevant State and Territory land titles office about determinations or native title decisions as soon as practicable after an entry is made
23 Aboriginal Land Act 1991 (Qld) s 32C. 24 Native Title Act s 194(5). 25 Native Title Act sub s 194(4)(a). 26 Native Title Act sub s 194(4)(b). 27 Native Title Act sub s 194(4)(c). 28 Native Title Act sub s 194(4)(d). 29 Native Title Act s 198. 29 in the National Native Title Register.30 The ‘relevant land titles office’ is defined to mean the body responsible for registering real estate interests in a State or Territory.31 This no doubt means the person responsible for registering interests under Torrens Title, being the Registrar General, the Registrar of Titles or the Recorder of Titles, as the case may be.
The National Native Title Register can be searched online by the public under the search headings of Tribunal File Number, Federal Court File Number, Short Name, Case Name, State or Territory, Registered Native Title Body Corporate Number, Representative Native Title Body Corporate, Representative Aboriginal/Torres Strait Islander Body Area, Local Government Area, Determination Type, Legal Process, Determination Outcome, Determination Date and Determination Range of Dates. By the time there is a registered determination of native title, the title details of the land determined to contain native title would usually be known. Once again there is no searching facility providing access to the National Native Title Register by way of land title details. This is because a land title approach is not utilised in the registration process in that Register.
3.2.3 Register of Indigenous Land Use Agreements, Native Title Act pt 8A
The Register of Indigenous Land Use Agreements is established and kept by the Native Title Registrar and, similarly to the other two Registers discussed above, it can be kept by computer.32 The provisions relating to inspection of the Register of Indigenous Land Use Agreements33 are similar to the provisions relating to inspection of the National Native Title Register; accordingly, it is not necessary to discuss these again. Parts of the Register of Indigenous Land Use Agreements can be kept confidential if parties advise in writing that they do not wish the public to be able to inspect certain parts of the agreement. The mandatory information that must be registered by the Native Title Registrar, however, must be available for public inspection.
In relation to the contents of the Register of Indigenous Land Use Agreements, if the requirements of Native Title Act pt2 div3 sub-divs B, C or D34 provide for the registration of an agreement, then the mandatory details that must be registered are the description of the area under agreement,35 the names of the parties and their addresses36 and the term of the agreement.37 In addition, if the agreement
30 Native Title Act s 199. 31 Native Title Act s 199(2). 32 Native Title Act s 199A. 33 Native Title Act s 199D. 34 Subdivisions B, C or D of Division 3 of Part 2 of the Native Title Act deal with Body Corporate Indigenous Land Use Agreements, Area Indigenous Land Use Agreements and Alternative Procedure Indigenous Land Use Agreements. 35 Native Title Act sub s 199B(1)(a). 36 Native Title Act sub s 199B(1)(b). 37 Native Title Act sub s 199B(1)(c). 30 contains particular statements provided for by Native Title Act sub-ss 24EB (1)38 or 24EBA (1)39 or 24EBA (4),40 the details of such statements must also be included in the Register.41 The Native Title Registrar also has a discretion to enter other details in the Register of Indigenous Land Use Agreements as considered appropriate42 and has obligations in relation to updating the Register if addresses are advised to have been changed.43
In relation to removal of details from the Register, subject to there being an order by the Federal Court not to remove details, the Native Title Registrar must remove the agreement from the Register of Indigenous Land Use Agreements in certain circumstances. For body corporate agreements those circumstances are if there is subsequently a determination of native title in favour of a different native title claim group44 from the group who entered the agreement in relation to any of the area covered by the agreement. In regard to an area agreement, it must be removed from the Register if there is an approved determination of native title over any of the area covered by the agreement and any party under the determination is not a person who authorised45 the making of the agreement.46 This is the case whether the agreement is certified47 or not48 but the removal from the Register of Indigenous Land Use Agreements is subject to orders by the Federal Court to the contrary. The Native Title Registrar must also remove an Indigenous Land Use Agreement from the Register of Indigenous Land Use Agreements if a party advises in writing that the agreement has expired and the Native Title Registrar believes, on reasonable grounds, that this is the case.49 The agreement must also be removed
38 A sub-s 24EB(1) statement relates to consent to future acts or classes of future acts being done, or classes of future acts being done subject to conditions. If sub-div P, which involves the right to negotiate, applies the statement includes that it does not apply. The statement also includes that if native title is to be surrendered then that is intended to extinguish native title. 39 s 24EBA statement deals with the effect of registration on previous acts that are covered by Indigenous Land Use Agreements that contain statements validating future acts or classes of future acts. 40 Subsection 24EBA(4) deals with the non-extinguishment principle applying to future acts unless the agreement includes a statement that surrender of native title is intended to effect extinguishment. 41 Native Title Act s 199B. 42 Native Title Act s 199B(2). 43 Native Title Act s 199B(4). 44 Native Title Act s 199C(1). 45 Section 251A of the Native Title Act provides the meaning of ‘authorised’ in relation to Indigenous Land Use Agreements as being that the persons holding native title authorise an Indigenous Land Use Agreement where, if there is a traditional decision making process that must be complied with for things of that kind, the persons authorising the agreement do so in accordance with that traditional decision making process. Where there is no traditional decision making process for authorising things of that kind then an agreed decision making process is adopted and used. 46 Native Title Act s 199C (1) (a). 47 Paragraph 24CG(3)(a) of the Native Title Act provides that the application for registration of the Indigenous Land Use Agreement must either have been certified by all the representative bodies for the area or pursuant to para 24CG(3)(b) include a statement that all reasonable efforts have been made to identify all persons who may hold native title in the area covered by the agreement and all persons so identified have authorised the making of the agreement. 48 Paragraph 24CG(3)(b) of the Native Title Act provides for a statement in agreements that are not certified. The statement must state that all reasonable efforts have been made (including by consulting all representative bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified and all persons so identified have authorised the making of the agreement. 49 Native Title Act s 199C(1)(c)(i). 31 from the Register if all the parties advise in writing that they wish to terminate the agreement.50 In addition, where the Federal Court has made orders that the agreement is to be removed, the Native Title Registrar must remove it from the Register of Indigenous Land Use Agreements. The Federal Court may make orders to remove when fraud, undue influence or duress has been involved in relation to a person entering into an Indigenous Land Use Agreement and the person would otherwise not have done so.51
The Native Title Registrar has wide powers to delegate functions relating to the Register of Indigenous Land Use Agreements and to the provisions relating to Indigenous Land Use Agreements under the Native Title Act. By signed instrument, the Native Title Registrar may delegate any or all of their powers concerning the Register of Indigenous Land Use Agreements to the holder of an office, or to a body, established by or under a law of the State or Territory, subject to obtaining the agreement of the State or Territory.52 The delegation power of the Native Title Registrar in respect of the Register of Indigenous Land Use Agreements is different from the delegation power in relation to the other two Registers. The powers concerning the Register of Indigenous Land Use Agreements could, arguably, be delegated by the Native Title Registrar to the Registrar-General, Registrar of Titles or Recorder of Titles, whichever is appropriate, of the States or Territories. This is provided the States or Territories agreed, given that the power of delegation extends to the holder of an office.53 The power could also be delegated to the various land titles offices if they are established by or under a law of the State or Territory, provided the State or Territory agreed.
By contrast, the power in relation to the Register of Native Title Claims and the National Native Title Register can only be delegated to a recognised State/Territory body. This term is defined in Native Title Act s 253 to mean a court, office, tribunal or body in relation to which a determination under Native Title Act s 207A54 is in force. The likely explanation for the difference is that the Register of Native Title Claims and the National Native Title Register are concerned with the registration of applications for a determination of native title that are currently or have been subject to court processes. Accordingly, the defined recipients of the delegation power in relation to those Registers are also concerned with court processes whereas the Register of Indigenous Land Use Agreements is concerned with the registration of native title agreements. These can be negotiated and entered into where no application for a determination of native title has been lodged. Those agreements can also
50 Native Title Act s 199C(1)(c)(ii). 51 Native Title Act sub ss 199C(1A)(2)–(3). 52 Native Title Act s 199F. 53 Native Title Act s 199F. 54 Native Title Act s 207A provides for a State or Territory body to make determinations of native title and compensation determinations if determined able to do so by legislative instrument of the Commonwealth Minister for native title. 32 be entered into post-determination where the application for a determination of native title is no longer before the court. Given that court processes may not necessarily be involved, the recipient of any delegated power in relation to the Register of Indigenous Land Use Agreements need not be a court, tribunal or office concerned with court processes.
From a searching perspective, the Register of Indigenous Land Use Agreements can be searched online under the search headings of Tribunal File Number, Indigenous Land Use Agreement Name, Indigenous Land Use Agreement Type, State or Territory, Representative Aboriginal/Torres Strait Islander Body Area, Subject Matter, Date, and Range of Dates. Once again, there is no provision for searching the Register of Indigenous Land Use Agreements on a land title description even though most Indigenous Land Use Agreement area descriptions would be based on a land title description.
3.3 NATIVE TITLE VISION
Native Title Vision is ‘a free on-line visualisation, mapping and query tool’55 which, although not a register and, accordingly, not having the force of law, is claimed to contain a cadastral geospatial representation of the three Registers discussed above and linkages to other ‘web-based material’.56 In 2017 an updated Native Title Vision (‘2017 Version’) was released, which contains a number of layers representing different land aspects and different outcomes and these layers can be superimposed over images from Google Earth or Queensland Globe, which can be opened inside Google Earth,57 to provide additional information. Map images and satellite imagery are also included in Native Title Vision. Within the layers there are various search functions and searches of the layers invariably refer the searcher to the three Registers kept by the Native Title Registrar.
One of the layers contained in a former version of Native Title Vision and in the 2017 Version is a non-freehold land parcels geospatial layer, which represents Crown land. This could be an important supplement to the three Registers in relation to locating non-freehold land/Crown land by way of title descriptor, but the layer has shortcomings because it is not necessarily updated by the Native Title Registrar subsequent to a determination of native title being registered on the National Native Title Register. There are also shortcomings in relation to native title because although the non-freehold
55 National Native Title Tribunal, Commonwealth Government
Although significant information is provided in the layers, much of the information requires some level of interpretation on the part of the searcher. This is of concern because many users lack sophisticated knowledge of mapping or native title. This is an issue that must be addressed because of the importance of digital geospatial land mapping for the future. The National Native Title Tribunal has made some attempt to address the gap in skills through traineeships for Indigenous persons in spatial information.59 Unless the States and Territories are using similar spatial definitions, are cooperating in the provision of updated information to the Native Title Registrar subsequent to registration, and are able to provide historical data on Crown land (non-freehold land), training will not be a complete solution to delivering accurate geospatial information about native title.
3.4 PROCESS OF REGISTRATION
The following section sets out how registration occurs and the often complex process that is involved in achieving registration.
3.4.1 The Register of Native Title Claims
The three Registers established pursuant to the Native Title Act differ in regard to their registration processes. With respect to the Register of Native Title Claims, the registration test is applied to all applications for a determination of native title and to most amendments.60 Whalebone v Western Australia61 illustrates that there is no mandatory requirement for applicants to amend their applications that have failed the registration test so as to try to achieve registration. Applications that fail the registration test could potentially proceed to a determination of native title without having been registered on the Register of Native Title Claims. If they do not proceed to registration very valuable rights are not available to the native title claimants during the sometimes lengthy period
58 Extinguishment of native title occurs when native title is no longer present which can take place when it is surrendered to the Crown by the native title holders, connection to the area is lost by the native title holders or certain legislation is passed or tenures are granted validly by the government which are wholly inconsistent with a continuation of native title. Once extinguished native title does not revive; Native Title Act s11; Brendan Edgeworth, ‘Extinguishment of Native Title: Recent High Court Decisions’ (2016) 8(22) Indigenous Law Bulletin 28. 59 Bowen, above n 56, 321. 60 Some minor technical amendments may not be subject to reapplication of the registration test. 61 Unreported, McKerracher J, 12 November 2008 [2008] FCA 1678. 34 between lodgement and determination of the application for a determination of native title.62 If the application for a determination of native title is made in response to a future act notice or a Non- Claimant Application, the timelines for applying the registration test are strict.63 In other cases, the registration test must be applied as soon as practicable.64 If registration is achieved, various procedural rights are attracted by the registered native title claimants in the carrying out of future acts. These procedural rights include, as relevant, the right to be notified, the right to comment in relation to specific future acts and the right to negotiate in relation to mining interests and compulsory acquisition of rights and interests in land. If registration is not achieved by the application for a determination of native title, the procedural rights, as mentioned above, are not attracted.
The Registrar’s decision not to register, or to register, native title rights and interests may be reviewed by the Federal Court which, on its own motion, may dismiss the application65 including those brought in response to a future act notice.66 In the case of Champion v Western Australia (No 2)67 the power of the court to dismiss an application on its own motion was considered. The court determined that if there is ‘a real chance, rather than a mere possibility, that the claim will be amended which would lead to a different decision by the Registrar’,68 then a claim may be dismissed. In that case, there was uncertainty about the composition of the claim group but progress was being made with assistance from the National Native Title Tribunal. Accordingly, the Federal Court saw fit to adjourn its own motion to dismiss the claim rather than dismiss it immediately.69 In the case of George on behalf of the Gurambilbarra People v Queensland,70 the court looked at Native Title Act s 190(6)(a). This section provides that the court may dismiss an application if the court is satisfied that there has been no amendment since the registration test was applied and the application is not likely to be amended in a way that would lead to a different decision by the Registrar.71 In particular, the word ‘likely’ was considered where it was said in that the meaning of the word is elusive and has been considered in a number of different contexts. Logan J said that it may mean ‘probable in the sense of more probable than not or more than a fifty percent chance’.72 Alternatively, it may mean ‘material risk as seen by a
62 Whalebone v Western Australia, unreported, McKerracher J, 12 November 2008 [2008] FCA 1678 [4]. 63 Native Title Act s 190A(2). 64 Native Title Act s 190A. 65 Native Title Act ss 190F(5)–190F(6). 66 Native Title Act s 94C(1). 67 Unreported McKerracher J, 12/4/2011 [2011] FCA 345. 68 Champion v Western Australia, unreported McKerracher J, 12/4/2011 [2011] FCA 345 12]. 69 Champion v Western Australia, unreported McKerracher J, 12/4/2011 [2011] FCA 345 [18]. 70 Unreported Logan J, 10 October 2008, [2008] FCA 1518. 71 George on behalf of the Gurambilbarra People v Queensland, unreported Logan J, 10 October 2008, [2008] FCA 1518 [40]. 72 George on behalf of the Gurambilbarra People v Queensland, unreported Logan J, 10 October 2008, [2008] FCA 1518 [43]. 35 reasonable man such as might happen’73 or ‘some possibility more than a remote or bare chance’.74 His Honour observed that in Post and Telegraph Act 1901–1973 (Cth) s 139B the word ‘likely’ was given its ordinary meaning, which was ‘more probable than not’ and in relation to ‘conduct’, the word ‘likely’ may mean ‘prone’.75 Logan J was reluctant to give the word ‘likely’ the meaning of ‘more probable than not’ or ‘more likely than not’ in the context of a provision directed to dismissal of an application for a determination of native title without a hearing on the merits.76 The Acts Interpretation Act 1901 (Cth) did not assist Logan J and he found, in any event, that it was not necessary to finally determine the meaning of ‘likely’ as related to Native Title Act s 190(6)(a) because the evidence before the court was significantly short of what was required to satisfy the Native Title Registrar to change the registration test decision.77 What can be gleaned from this review of the meaning of ‘likely’ is that within the context of dismissal of an application for a determination of native title on the court’s own motion the ordinary meaning of ‘likely’ will probably not be applied.
The case of Fazeldean on behalf of the Thalanyji People (No 2) v Western Australia78 shows that a Federal Court review of the Registrar’s decision not to register an application for a determination of native title is not a hearing de novo. The Federal Court itself does not reapply the registration test. Although the court may decide that the material to be put forward in an amendment to an application for a determination of native title would be likely to render the application capable of passing the registration test, Barker J said ‘whether or not the Registrar or delegate will find that the application as amended satisfies the registration test is of course another matter’.79 The case of Donnelly for the Wahlabul People v Registrar National Native Title Tribunal80 indicates that the court’s power to dismiss on its own motion is wide as, in that case, there had been a failure to state the applicant’s address for service on the application for a determination of native title. This failure was technical rather than going to the merits of the application but it was still held to be non-compliance with a mandatory provision of the registration test.81 Therefore, a failure to correctly fill in a court form for
73 George on behalf of the Gurambilbarra People v Queensland, unreported Logan J, 10 October 2008, [2008] FCA 1518 [43]. 74 George on behalf of the Gurambilbarra People v Queensland, unreported Logan J, 10 October 2008 [2008] F CA 1518 [43]. 75 George on behalf of the Gurambilbarra People v Queensland, unreported Logan J, 10 October 2008 [2008] FCA 1518 [43]. 76 George on behalf of the Gurambilbarra People v Queensland, unreported Logan J, 10 October 2008, [2008] FCA 1518 [45]. 77 George on behalf of the Gurambilbarra People v Queensland, unreported Logan J, 10 October 2008 [2008] FCA 1518 [53]. 78 Unreported North J, 7 March 2014 [2014] FCA 1163. 79 Fazeldean on behalf of the Thalanyji People (No 2) v Western Australia, unreported North J, 7 March 2012 [2012] FCA 1163 [92]. 80 Unreported Hely J, 19 September 2000 [2000] FCA 1330. 81 Donnelly for the Wahlabul People v Registrar National Native Title Tribunal, unreported Hely J, 19 September 2000 [2000] FCA 1330 [17]. 36 an application for a determination of native title may result in dismissal of an application on the court’s own motion. This appears a drastic approach to a matter easily corrected.
Applying the registration test to an application for a determination of native title or an amendment involves a consideration by the Native Title Registrar about the technical and procedural aspects and the merits of the claim for native title.82 The matters that are subject to consideration of their merits are the written description of the claim and the map provided, whereby the Native Title Registrar must be satisfied with reasonable certainty whether native title rights and interests have been claimed in relation to particular land and waters appearing in the map and written description of the claim area.83 The Native Title Registrar must also be satisfied that the persons in the group claiming to hold native title are either expressly named in the application or are described with sufficient clarity for it to be ascertained whether any particular person is in the native title claim group.84 Additionally, the Native Title Registrar must be satisfied that the native title rights and interests claimed are sufficient to be identified.85 The Native Title Registrar must also be satisfied that the factual basis of the assertions of native title sufficiently support that the native title claim group has, and its predecessors had, an association with the claim area.86 Additionally, the Native Title Registrar must also be satisfied that traditional laws and customs that are acknowledged and observed by the claim group exist and that native title continues to be held in accordance with those traditional laws and customs.87 Some of the rights and interests claimed must be able to be established prima facie.88 In that establishment, there must be at least one of the native title claim group who is currently, or was previously, physically connected with any part of the claim area, or would have been if it was not for things done.89 ‘Things done’ exclude an interest created by the Crown or by a statutory authority or a leaseholder of any of the land or waters in the claim area.90 The application and documents submitted must not disclose, and the Native Title Registrar must not otherwise be aware, that the application for a determination of native title has been made over areas where there have been previous determinations of native title or exclusive or non-exclusive possession acts. In that case, because of Native Title Act s 61A,91 the application should not have been made.92 The application for
82 Native Title Act ss 190B–190C. 83 Native Title Act s 190B(2). 84 Native Title Act s 190B(3). 85 Native Title Act s 190B(4). 86 Native Title Act s 190B(5). 87 Native Title Act s 190B(5). 88 Native Title Act s 190B( 6). 89 Native Title Act s 190B(6). 90 Native Title Act s 190B(7). 91 Native Title Act s 61A places limitations on making applications for a Determination of native title including when there is already a Determination of native title or a previous exclusive possession act which relates to the area. 92 Native Title Act s 190B (8). 37 a determination of native title and the documents must also not disclose, or the Native Title Registrar must not be otherwise aware that, subject to sub-ss 47(2), 47A (2) or 47B (2) where native title extinguishment must be disregarded, the claim has been made over areas where native title has been extinguished93 or over minerals, petroleum or gas when they are wholly owned by the Crown.94 If waters in an offshore place95 are claimed, the application and documents submitted must not disclose that exclusive native title is claimed over the whole or part of the claim area. In addition, nor must the Native Title Registrar be otherwise aware of that fact.96
When applying the registration test, the Native Title Registrar must also be satisfied of a number of procedural and other matters, including that the application contains all the details required and is accompanied by an affidavit or other mandatory document.97 The Native Title Registrar must also be satisfied that when the current application was made no member of the claim group in the current application was a member for any other application over the same claim area. This is where the other application is registered and appears on the Register of Native Title Claims pursuant to the registration test having been applied to it.98 Additionally, there must be certification by an Aboriginal or Torres Strait Islander representative body, which must not certify unless it is of the opinion that the applicant is a member of the claim group making the application and is authorised by the claim group to make the application. If the application is not certified, statements must be included demonstrating that the applicant is part of the claim group with reasons why the Registrar should be satisfied that the applicant is authorised by the claim group to make the application.99
3.4.2 The National Native Title Register
Determinations of native title are registered in the National Native Title Register. The Registrar of the Federal Court must notify the Native Title Registrar as soon as practicable of an approved determination of native title and the details must be registered by the Native Title Registrar as soon as practicable.100 Where the native title rights and interests are to be held in trust or as agent by a
93 Native Title Act s 190B(9)(c). 94 Native Title Act s 190B(9)(a). 95 Section 253 defines ‘offshore place’ as land or waters to which the Native Title Act extends, other than land and waters in an onshore place. ‘Onshore place’ is defined to be land and waters within the limits of a State or Territory to which the Native Title Act extends. 96 Native Title Act s 190B(9)(b). 97 Native Title Act ss 190C(2)61–2. 98 Native Title Act s 190C(3). 99 Native Title Act s 190C(4)–190C (5). 100 Native Title Act s 197. 38 prescribed body corporate, its name and address must also be registered on the National Native Title Register.101
3.4.3 The Register of Indigenous Land Use Agreements
Registration of an Indigenous Land Use Agreement on the Register of Indigenous Land Use Agreements requires an application to be made by any of the parties to the Agreement, provided that all the parties agree thereto. A copy of the Indigenous Land Use Agreement and any other prescribed documents or information must accompany the application for registration.102 Gaining registration of an Indigenous Land Use Agreement is not always straightforward.
Registration of body corporate Indigenous Land Use Agreements can only occur after there has been an approved determination of native title and there are registered native title bodies corporate over the whole of the agreement area. Any of the parties can advise the Native Title Registrar, within one month after the notification day103 has appeared in the notice to the public, that the party does not wish the agreement to be registered.104 An Aboriginal and Torres Strait Islander body can also advise within the same time period that it was not consulted or provided with information about the parties’ intentions to enter the agreement. If the Native Title Registrar is satisfied of the correctness of that information, the agreement must not be registered.105 In relation to Area Indigenous Land Use Agreements there is an objection process against registration.106 The grounds of objection are specific and relate to matters concerning certification by an Aboriginal and Torres Strait Islander representative body. In authorisation, the grounds involve whether all reasonable efforts have been made to identify all persons claiming to hold native title and whether all persons who have been identified by that process have authorised the making of the agreement.107 Registration of Alternative Procedure Indigenous Land Use Agreements is also subject to objection provisions, although the grounds are different and are that it would not be fair and reasonable to register the agreement. Such objections can be made by any person claiming to hold native title in the agreement area108 and reasons must be stated in the objection as to why the registration would not be fair and reasonable.109
101 Native Title Act s 193(2)(e). 102 Native Title Act s 24BG. 103 The notification day is a day that must be specified in notices, pursuant to which time runs for the doing of particular things, including provision of responses; Native Title Act s 24BI in relation to Body Corporate Indigenous Land Use Agreements. 104 Native Title Act s 24BI(2). 105 Native Title Act s 24BI(3). 106 Native Title Act s 24CI. 107 Native Title Act ss 203BE(5)(a)–(b). 108 Native Title Act s 24DJ(1). 109 Native Title Act s 77A(c). 39 The provisions for objecting to an Indigenous Land Use Agreement can delay the registration process over a considerable period of time because all objections must be withdrawn before the agreement can be registered. When the objection has not been successful in preventing registration, the Federal Court review process has sometimes overturned the decision of the Native Title Registrar, as shown in the case of Kemp v Native Title Registrar.110 In that case, an area Indigenous Land Use Agreement made by Dr Davis-Hurst, who was the registered native title claimant for the Kattang People, had been considered for registration by the Native Title Registrar. The objector, Mr Kemp, was not a party to the Agreement and not a member of the claim group represented by Dr Davis-Hurst,111 which had authorised the making of the Agreement. Mr Kemp was a descendant of the Pirripaayi People and a party claiming to hold native title in the Saltwater land subject to the Agreement.112 After considering the objection of Mr Kemp, the Native Title Registrar’s delegate came to the decision that the Indigenous Land Use Agreement could be legally registered. The question for consideration by the court was whether all reasonable efforts had been made to identify all persons claiming to hold native title in the area and all persons so identified had authorised the making of the Agreement. It was found that all reasonable efforts had been made and due to this process Mr Kemp had been identified but he had not authorised the making of the Agreement. The court found the words of Native Title Act s 24CG (3)(b)(i)113 were to be given their literal meaning and that all persons so identified were required to authorise the Agreement.114 Accordingly, the decision of the Native Title Registrar to register the Agreement was ordered to be set aside.115
It should be understood that not every agreement made with Aboriginal people pursuant to the Native Title Act is an Indigenous Land Use Agreement. Logan J, in an application for judicial review, in Fesl v Delegate of the Native Title Register116 considered whether the Native Title Registrar’s delegate was able to make a decision about whether an Agreement sought to be registered was an Indigenous Land Use Agreement. The Agreement involved the Traveston Crossing Dam – Stage 1, which was a future act. After an application was made for registration by Queensland Water Infrastructure Pty Ltd, which was the dam development company, the delegate decided the Agreement could be registered
110 (2006) 153 FCR 38. 111 Kemp v Native Title Registrar (2006) 153 FCR 38 47 [38]. 112 Kemp v Native Title Registrar (2006) 153 FCR 38 40 [2]. 113 Native Title Act s 24CG (3) (b) (i) provides that a statement must be provided which indicates ‘that all reasonable efforts have been made (including consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified’. 114 Kemp v Native Title Registrar (2006) 153 FCR 38, 50 [58]. 115 Kemp v Native Title Registrar (2006) 153 FCR 38, 51 [62]–[63]. 116 (2008) 173 FCR 150. 40 on the Register of Indigenous Land Use Agreements.117 The registered native title claimant sought judicial review on a number of grounds. Those included that the first respondent could not be satisfied that the Gubbi Gubbi and the Kabi Kabi Peoples were part of the same group and whether the Native Title Registrar’s functions could include deciding whether an Agreement was an Indigenous Land Use Agreement.118 Logan J decided that both the Gubbi Gubbi and the Kabi Kabi Peoples had provided their authorisation of the Agreement and the process leading up to the authorisation meeting, the authorisation meeting itself and the ensuing decision-making process were lawful.119 Everyone had the opportunity to participate in the authorisation process and it was a matter for individuals whether they did so. Accordingly, the delegate was entitled to decide on the evidence that there was one tribal group.120 It was further held that as a matter of good public administration the delegate was also entitled to decide that the Agreement was an Indigenous Land Use Agreement.121
QGC Pty Ltd v Bygrave (No 2)122 is a later case where there was a contrary finding in respect of the power of the Native Title Registrar’s delegate to decide whether an agreement is an Indigenous Land Use Agreement. This case dealt with the notice requirements for registration of an area Indigenous Land Use Agreement. The delegate was of the opinion that an Agreement was not an Indigenous Land Use Agreement because one party constituting the registered native title claimant of the Iman#2 application for a determination of native title123 had refused to execute the Agreement. As the Agreement was not considered to be an Indigenous Land Use Agreement, the delegate also considered there was no power to give notice of the Agreement under Native Title Act s 24CH. It was held by Reeves J that there was no requirement by the particular language or the context of Native Title Act s 24CH requiring the Native Title Registrar to make any decision about the taxonomy of the Agreement and the only decision to be made was whether or not to register the Agreement as an Indigenous Land Use Agreement.124 In addition, it was held that there was no requirement for all the registered native title claimants to execute the Agreement.125 It was sufficient, pursuant to Native Title Act ss 24CD(1), (2)(a),126 which set out who may be a party to an Indigenous Land Use Agreement, that one or more of the persons constituting the registered native title claimant be named as parties. In any event, in this case there was other independent evidence of the parties’ consent to the
117 Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150, [84]–[87]. 118 Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150 [13]. 119 Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150 [74]. 120 Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150 [74]. 121 Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150 [39]. 122 QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412. 123 Doyle on behalf of the Iman People #2 v Queensland, unreported Reeves J, 23 June 2016 [2016] FCA 743. 124 QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412 [26]–[27]. 125 QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412 [101]. 126 QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412 [29]. 41 Agreement.127 The Native Title Registrar was ordered by Reeves J to give notice of the Agreement and to apply the registration test according to the law.128
Bygrave (No 2) was subsequently overturned by McGlade v Native Title Registrar,129 with the result that all persons registered as the applicant must be parties to the Indigenous Land Use Agreement and must execute the agreement for it to be registered as an Indigenous Land Use Agreement. As this decision has significant implications for the validity of registered Indigenous Land Use Agreements where registration took place pursuant to the findings in Bygrave (No 2), a Bill to overturn the impact of the decision was assented to on 22 June 2017.130 The provisions of the Native Title Amendments (Indigenous Land Use Agreements) Act 2017 (Cth) ensure that Indigenous Land Use Agreements that are already registered that do not contain all signatures of a registered native title applicant are valid. That Act also ensures that all signatures of a registered native title applicant are not required in future area Indigenous Land Use Agreements.
3.5 SHORTCOMINGS IN THE NATIVE TITLE ACT WITH RESPECT TO THE REGISTERS
This chapter has demonstrated that the legislation regulating the registration of native title has serious shortcomings despite being fairly detailed. Entries in these Registers do not use land title descriptors. It cannot be seen how coexisting issues relate to native title, nor do the Registers link to any titling register for land or water. There are no mandatory provisions for the Native Title Registrar to update tenure details when changes occur after a determination of native title or an Indigenous Land Use Agreement has been registered. Unless the Native Title Registrar is told of changes to native title and/or tenure details by the native title holders, the parties, the relevant representative native title body corporate for the area, or the relevant government, the Native Title Registrar may not be aware that changes have occurred. Although the Native Title Act does not currently contain any mechanism to address this situation, the contents of Indigenous Land Use Agreements and Section 31 Future Act Agreements would be known to the Native Title Registrar as copies of these agreements are provided. Those contents may signal impending changes to native title or land title pursuant to the undertaking of future acts. When impending changes are signalled there could be a proactive pursuit of the proposed information changes by the Native Title Registrar from the relevant State or Territory without legislative amendment. Currently this does not occur.
127 QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412 [102]. 128 QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412 [121]. 129 Unreported, North, Barker and Mortimer JJ, 2 February 2017 [2017] FCAFC 10. 130 Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth). 42 A further shortcoming arises in the Native Title Act because, as mentioned above, Native Title Act s 199 provides that the relevant land titles office is to be notified when there is a determination of native title. No similar requirement exists in relation to notification of the relevant land titles office upon entry of native title rights and interests in the Register of Native Title Claims when an application for a determination of native title becomes registered. Although Native Title Act ss 66(3), (6) operate to effect notice of a registered application on the State and Territory Minister for native title this is not considered sufficient. Upon registration, a number of important procedural rights are attracted by registered native title claimants and the land titles offices need to be immediately aware of this by direct notice. For example, upon registration of an application for a determination of native title in the Register of Native Title Claims, the registered native title claimant attracts the right to be notified,131 the right to comment and the right to negotiate,132 as relevant, in relation to some future acts.133 Acts that pass the freehold test, where it is assumed that the native title claimants hold ordinary title instead of native title, attract the same procedural rights that would be received by freehold owners in relation to the proposed activity.134 Acts that pass the freehold test in most cases include compulsory acquisitions of all rights and interests.
The range of procedural rights attracted by registered native title claimants are identical to the rights afforded to native title holders once there is a determination of native title, although the effect of noncompliance with the procedural rights on the validity of the future act are different for determined native title holders as opposed to registered native title claimants.135 Arguably, registration of an application for a determination of native title is sufficiently significant to justify direct notice of registration to relevant land titles offices. If that was the case, the knowledge to be able to provide a recording or notation on the title of the relevant Crown land would be expediently available to the States and Territories if their Torrens Title registration systems were accommodating. Persons dealing with Crown land would be immediately aware of the correct native title claimants and that relevant procedural rights must be afforded.
3.6 COULD THE REGISTERS OF THE NATIONAL NATIVE TITLE TRIBUNAL BE EXPANDED TO
ACCOMMODATE OMISSIONS AND UPDATING OF REGISTERED INFORMATION?
After examination of the three Registers, Native Title Vision and the registration process established pursuant to the Native Title Act, the Native Title Act system is the most logical to expand to include
131 Including but not confined to Native Title Act ss 24GB(9)(c), 24HA(7)(a), 24JAA(10)(a), 24JB(7)(a), 24KA(8)(d). 132 Native Title Act s 25 provides an overview of the future acts that attract the right to negotiate. 133 Including but not confined to Native Title Act ss 24GB(9)(d), 24HA(7)(b), 24JAA(10)(b), 24JB(7)(b), 24KA(9)(d). 134 Native Title Act s 24MD(6A). 135 Lardil, Kaiadilt, Yamgkaal and Gangalidda v State of Queensland (1999) 95 FCR 14, 23 [36]. 43 some of the native title issues that are lacking. Section 31 Future Act Agreements could be included in the Register of Indigenous Land Use Agreements, although the Native Title Act would need to be amended to make provision for that to occur and the name of the Register would require changing. Alternatively, if the notification136 and objection provisions137 pertaining to Indigenous Land Use Agreements were not considered appropriate for Section 31 Future Act Agreements, which is the preferred view, a new system for recording these agreements could be established by amendment to the Native Title Act.
The Native Title Act would also require amendment to make it mandatory to provide a historical registration searching facility so that registration information at any stage could be ascertained. Amendment would also be required so that the Native Title Registrar updates the National Native Title Register and the Register of Indigenous Land Use Agreements to reflect changes that occur to the native title or the title of the Crown land (non-freehold land) subsequent to registration. To be effective, this would also require amendment to State and Territory Crown lands (non-freehold land) legislation, to real property legislation given that some Crown land has been converted to Torrens Title, and to water legislation. The amendments would need to provide that information concerning changes to native title and title details, occurring after registration of a determination of native title or an Indigenous Land Use Agreement, is to be provided to the Native Title Registrar by the States and Territories. The States and Territories are known to cooperate in providing proprietary interest holders with information for notification by the Native Title Registrar of an application for a determination of native title, pursuant to an explicit legislative requirement.138 Cooperation in regard to supplying information for updating the Registers would be likely to occur if explicitly provided for in the Native Title Act and in relevant Crown lands, real property and water legislation of the States and Territories.
Where there is an application for a determination of native title, an approved determination of native title, or an Indigenous Land Use Agreement registered in the relevant Register kept by the Native Title Registrar, subsequent issues that affect native title or land title in any area subject to such registration could be recorded or noted against the registered entry. Future acts pertaining to Crown land (non-freehold land) or water, where there has not been an application for a determination of native title, an approved determination of native title or an Indigenous Land Use Agreement registered and no entry appears on a relevant Register, could not be recorded or noted in any of the Registers
136 Native Title Act ss 24BH, 24CH, 24DI. 137 Native Title Act ss 24CI, 24DJ. 138 Native Title Act s 66(3)(iv) provides for notice to be given to persons holding proprietary interests in relation to the area covered by the application unless the Registrar considers it would be unreasonable to do so. 44 established pursuant to the Native Title Act. Although these are matters that any person dealing with Crown land (non-freehold land) and water needs to know, that problem can only be resolved by the use of a title-based registration system for native title where the title details are likely to already appear in a relevant register.
3.7 CONCLUSION
The Registers established under the Native Title Act are not title based, and while expanding and updating those Registers would improve the comprehensiveness of two of the Registers specifically, it would offer only a partial solution to the omissions, certainty and lack of currency of those Registers more generally. It would not offer a conclusive register as to all the issues that pertain to native title as it affects Crown land (non-freehold land) and other land and water. Nor would it serve to demonstrate how co-existing interests in the same land and water relate to native title and to each other. This thesis will establish that these matters can be most effectively addressed by utilising the Torrens Title systems and the dedicated inland water registration systems of the States and Territories to support and supplement the current native title registration system. Utilising the Torrens Title systems and the dedicated inland water systems to support the native title registration system would require amendment to real property and water legislation of most States and Territories. Additionally, this thesis will establish that development of a new marine registration system including a three- dimensional cadastre for all the interests existing in the sea, including native title rights and interests, would be capable of supporting the current native title registration system.
It has been demonstrated in this chapter that by virtue of the drafting of the current legislation:
(a) the Registers established pursuant to the Native Title Act are selective in their registration approach and are not current. A land title could become freehold, occurring after determination, and appear on the National Native Title Register and also be registered on the Torrens Title Register as freehold; (b) this occurs because changes to land title and native title occurring after registration are not updated in the National Native Title Register or the Register of Indigenous Land Use Agreements; (c) accordingly, the current native title registration process requires amendment, supplementation and support; and (d) the drafting of the Native Title Act has led to significant issues in practice.
45 To demonstrate the final point above, it is appropriate to conduct sample searches within the Registers established pursuant to the Native Title Act and within Native Title Vision to show the implications of the selective registration process and the lack of updating.
Sample searching in the Torrens Title Registers of New South Wales and Western Australia and in the Queensland Registers will also be carried out. This will be shown to be necessary to ascertain the correct registered proprietor and the correct land title details when land title and land ownership have changed subsequent to registration and those changes have not been updated in the Registers established pursuant to the Native Title Act.
46 CHAPTER 4 SEARCHING THE REGISTERS
4.1 INTRODUCTION
Chapter 1 criticised the current system for publicising native title interests due to its lack of comprehensiveness, certainty and currency, the selectivity of native title information that is registered and the failure to update land title or native title details subsequent to registration of native title rights and interests in the National Native Title Registers and the Register of Indigenous Land Use Agreements. Although Chapter 3 indicated that these native title Registers could be improved through updating, ultimately the current registration systems could only be corrected by utilising State and Territory systems. Accordingly, the purpose of this chapter is to conduct several random searches of native title Registers in the case study jurisdictions to test and prove my assertions and also to outline the implications that arise. Copies of searches of Registers are contained in espace which was developed by the University of Queensland Library for lecturers and students and is useful for management of research. Material in espace is not necessarily included in a thesis word count.
4.2 METHODOLOGY
Searching all native title Registers is well beyond a research project of this scope and size. For this reason, the scope has been narrowed in two ways. First, three case study States are considered: Queensland, New South Wales and Western Australia. These States were chosen because New South Wales and Western Australia have largely converted their Crown land to Torrens Title and if a registration or recording occurs on title, these States are the most likely candidates to have a title in Torrens Title on which to register or record native title. Queensland has adopted a unique system for Crown lands, which bears consideration. Second, a small sample of register entries was chosen from these case study States to be analysed. The criterion for the choice of the title samples is that they depict a range of different dates of claims, different size claims, differences in land and water claimed with some involving non extinguishment and most show agreements registered as part of a settlement.This sample is representative of all claims made. 1Information kept by the National Native Title Tribunal about Non-Claimant Applications settled without determination was selected. Generally this information is difficult to locate as it is not registered at all. The title descriptors will be searched in the relevant Registers kept by the Native Title Registrar. The title descriptors selected will also be searched in Native Title Vision, which is the mapping support system for the Registers
1 Anol Bhattacherjee, Social Science Research:Principles, Methods and Practices (American Studies Commons University of South Florida, 2nd ed, 2012) 9-13. 47 kept by the Native Title Registrar. The title descriptors selected will represent areas where determinations of native title have been made, areas where Indigenous Land Use Agreements have been registered, areas subject to Native Title Act s 47 where prior extinguishment must be disregarded and areas where s 24FA protection may have been gained when there has been no determination that native title does not exist. Instead, the application for a determination of native title (‘Non-Claimant Application’) has been withdrawn by the parties by consent after the future act, the subject of the Non-Claimant Application, is complete.
A further purpose of this chapter is to ascertain how the titles selected are registered, recorded or noted by the Native Title Registrar and whether the Register entries are sufficient to provide the type of native title information that may be required by a person needing to deal with land that contains or may contain native title, which includes governments and proponents wishing to undertake a future act. The same title descriptions as selected to search the Registers kept by the Native Title Registrar will be used to search the Queensland Registers and the Torrens Title Registers of the States of New South Wales and Western Australia. This may assist in ascertaining the correct registered proprietor of the land or correct title details when such information has not been updated in the National Native Title Register or the Register of Indigenous Land Use Agreements.
It is not possible to search any title descriptors from Section 31 Future Act Agreements because they are not included in the Registers kept by the Native Title Registrar or in the publicly accessible data held by the National Native Title Tribunal. Additionally, the layers in Native Title Vision do not include a separate layer for Section 31 Future Act Agreements; therefore, identification or searching of relevant tenures contained in Section 31 Future Act Agreements within that system is not possible. This is despite those agreements being capable of covering important matters affecting native title rights and interests including extinguishment.
4.3 QUEENSLAND CASE STUDY
The Queensland title descriptors selected are as follows:
Lot 121 on SL8307, Local Government Area, Redland City Council, contained in determination of native title by consent Delaney on behalf of the Quandamooka People #2 v Queensland, QUD6024/1999,2 date of effect 9 December 2011;
2 Unreported, Dowsett J, 4 July 2011 [2011] FCA 741. 48 Lot 30 on AP15824, Local Government Area, Redland City Council, contained in Quandamooka Redland City Council Area Indigenous Land Use Agreement, QI2011/039, registered 9 December 2011; Lot 4 on Plan LD 137, Local Government Area, Mareeba Shire Council, which is an area subject to Native Title Act s 47B—contained in determination of native title by consent Congoo on behalf of the Bar-Barrum People #2 v Queensland, QUD 6015/2011,3 date of effect 10 June 2016; Lot 111 on Plan NR 7962, Local Government Area, Cairns Regional Council, contained in Non Claimant Application Diana Ava Jackson v Queensland, QN 1994/004, withdrawn on 26 November 1997.
4.3.1 The Commonwealth examples will be searched below.
4.3.2 Searches of the Commonwealth Registers kept by the Native Title Registrar for Queensland
4.3.2.1 Lot 121 on SL8307, Local Government Area, Redland City Council
The Register extract from the National Native Title Register for Delaney on behalf of the Quandamooka People #2 v Queensland shows Lot 121 on SL8307 as an area where non-exclusive native title has been recognised by consent. Also shown is the fact that Stradbroke Rutile Pty Ltd holds Permit to Occupy 219075 over Lot 121 on SL8307. The term of the Permit to Occupy is not recorded or noted, although it is mentioned that the non-extinguishment principle applies, which means the native title will revive upon expiry of the Permit to Occupy. Therefore, it is essential to know the term of Permit to Occupy 219075 to ascertain when native title will fully operate.
The National Native Title Register also shows that the native title found to exist in QUD2011/002 is subject to three Indigenous Land Use Agreements4 and many interests under 24 statutes5 including
4 Unreported Reeves J, 10 June 2016 [2016] FCA 693. 4 Quandamooka Peoples’ Land and Sea Indigenous Land Use Agreement executed 15 June 2011; Quandamooka Peoples’ and Local Government Indigenous Land Use Agreement executed 4 July 2011; Dunwich Sewage Treatment Plant ILUA registered 22 June 2001. 5 Nature Conservation Act 1992 (Qld); Marine Parks Act 2004 (Qld); Fisheries Act 1994 (Qld); Coastal Protection and Management Act 1995 (Qld); Transport Operations (Marine Safety) Act 1994 (Qld); Transport Operations (Marine Pollution) Act 1995 (Qld); Transport Infrastructure Act 1994 (Qld); Integrated Planning Act 1997 (Qld); Sustainable Planning Act 2009 (Qld); Forestry Act 1959 (Qld); Fire and Rescue Services Act 1990 (Qld); Ambulance Service Act 1991 (Qld); Water Act 2000 (Qld); Land Act 1994 (Qld); Mineral Resources Act 1989 (Qld); Post and Telegraph Act 1901 (Cth); Telecommunications Act 1975 (Cth); Electricity Act 1994 (Qld); Local Government Act 2009 (Qld); Fisheries Management Act 1991 (Cth); Historic Shipwrecks Act 1976 (Cth); Meteorology Act 1955 (Cth); Lighthouses Act 1911 (Cth); Environment Protection and Biodiversity Conservation Act 1999 (Cth).
49 interests granted under the Land Act 1994 (Qld). None of these interests are detailed, and in order to ascertain the native title that may be able to be exercised when the term of Permit to Occupy 219075 expires over Lot 121 on SL8307, one would have to undertake extensive searching of the Agreement Areas of the three Indigenous Land Use Agreements and the listed legislation to ascertain whether any interests, apart from Permit to Occupy 219075, have been granted or operate pursuant to the legislation listed to affect Lot 121 on SL8307. It would also involve an examination of Permit to Occupy 219075 to determine its expiry date. This would be a very labour-intensive investigation and is highly unsatisfactory from the aspect of providing certainty by registration for native title.
4.3.2.2 Lot 30 on AP15824, Local Government Area, Redland City Council
When the Register of Indigenous Land Use Agreements is searched, the Register extract for an area agreement called ‘Quandamooka Redland City Council ILUA’ is shown to include Lot 30 on AP15824. That agreement is expressed to cover the claim areas of Delaney on behalf of the Quandamooka People v Queensland #1 and #2,6 being QUD6010/98 and QUD6024/99 respectively. QUD60210/98 and QUD6024/99 are expressed on their respective Register extracts to be subject to the ‘Quandamooka Peoples and Local Government ILUA’ but there is no way of ascertaining by examination of the Register extract entries whether this and the ‘Quandamooka Redland City Council ILUA’ are one and the same agreement, at least without further research. In addition, Lot 30 on AP15824 is expressed to be subject to a future act being an amalgamation of Lot 30 on AP15824 into Lot 47 on S2536 and, if this has occurred, it is not reflected on the Register extracts for the above- mentioned determinations QUD6010/98 and QUD 6024/99 in the National Native Title Register or on the relevant Register extract for the Quandamooka Redland City Council ILUA in the Register of Indigenous Land Use Agreements.
4.3.2.3 Lot 4 on Plan LD 137, Local Government Area, Mareeba Shire Council
When the National Native Title Register is searched for Congoo on behalf of the Bar-Barrum People #2 v Queensland, Lot 4 on Plan LD 137, Local Government Area, Mareeba Shire Council, appears on the Register extract and an asterisk refers one to a note, which indicates that this is an area where Native Title Act s 47B applies. Section 47B of the Native Title Act provides for vacant Crown land covered by claimant applications whereby prior extinguishment must be disregarded if one or more members of the native title claim group occupy the area when the application for a determination of
6 Unreported, Dowsett J, 4 July 2011 [2011] FCA 741; Quandamooka #1 and #2; These judgments were delivered pursuant to this decision. 50 native title is made. There is no way of ascertaining from the Register extract which person/s occupied Lot 4 Plan LD 137 at the lodgement date of the application for a determination of native title.
4.3.2.4 Lot 111 on Plan NR 7962, Local Government Area, Cairns Regional Council
Lot 111 on Plan NR 7962, the subject of Non-Claimant Application Diana Ava Jackson v Queensland, does not appear in any of the three Registers kept by the Native Title Registrar. However, a listing in ‘Applications, Registration Decisions and Determinations’, which is one of the databases of the National Native Title Tribunal, indicates that the Non-Claimant Application to which this title description refers was lodged on 27 September 1994 by Dianna Ava Jackson and withdrawn on 26 November 1997. The entry does not indicate whether validity for the future act, the subject of the Non-Claimant Application, was gained pursuant to Native Title Act s 24(1),7 which is the predecessor of s 24FA, and the Non-Claimant Application withdrawn by consent without proceeding to a determination that native title does not exist. Currently, where a Non-Claimant Application proceeds to a determination that native title does not exist, s 24FA protection applies by operation of the legislative provisions of the Native Title Act.8 Section 24FA protection also applies when the Non- Claimant Application is unopposed and is before the Federal Court when the future act is undertaken. In that situation, after the future act is complete, the Non-Claimant Application may be withdrawn by consent of the parties without the need to proceed to a determination. Ideally, there should be a recording system kept by the Native Title Registrar that is available to the public indicating whether validity for the future act has been obtained when Non-Claimant Applications are withdrawn or discontinued without proceeding to a determination that native title does not exist. That system should also indicate the nature of the future act. It is important for persons having a need to deal with land that contains native title to know whether or not a future act carried out over the land is valid.
4.3.3 Searches of Native Title Vision for Queensland
4.3.3.1 Lot 121 on SL8307, Local Government Area, Redland City Council
A search of Native Title Vision revealed that Lot 121 on SL8307, Local Government Area, Redland City Council was not included in that system as at 17 August 2016. The advice from the National Native Title Tribunal is ‘please note that Lot 121 SL8307 was not found on the National Native Title Tribunal’s records’.9 This highlights that the mapping in Native Title Vision is not current. If the mapping was current it should have been possible to ascertain from Native Title Vision that Lot121
7 Native Title Act s 24(1) has now been replaced by s 24FA. 8 Native Title Act s 24FD. 9 National Native Title Tribunal, Commonwealth Government, Reference SR1556. 51 SL8307 is now statutory freehold land where native title co-exists with the statutory freehold interest and with Permit to Occupy 219075 held by Stradbroke Rutile Pty Ltd. If title details for Lot 121 on SL8307 have changed, as the search below of the Queensland Registers reveals is the case, ideally it should have been possible to ascertain the new Lot and Plan number for Lot 121 SL8307 from the mapping in Native Title Vision.
4.3.3.2 Lot 30 on AP15824, Local Government Area, Redland City Council
The advice from the National Native Title Tribunal is that Lot 30 on AP15824, Local Government Area, Redland City Council, was not found in Native Title Vision.10 Without checking in the Queensland Registers there would be no way of ascertaining from the Registers of the National Native Title Tribunal or Native Title Vision that Lot 30 on AP15824, Local Government Area, Redland City Council, has been amalgamated into Lot 1 on Survey Plan 251716, Local Government Area, Redland City Council.
4.3.3.3 Lot 4 on Crown Plan LD137, Local Government Area, Mareeba Shire Council
Lot 4 on Crown Plan LD137, Local Government Area, Mareeba Shire Council is shown on Native Title Vision as a reserve for the purpose of township, which commenced on 7 December 1907.11 There is no mention of there having been a determination of native title nor is it shown that this Lot is subject to Native Title Act s 47B where prior extinguishment must be disregarded.
4.3.3.4 Lot 111 on Plan NR7962 Giangurra, Local Government Area, Cairns Regional Council
Lot 111 on Plan NR7962 is shown on Native Title Vision as a reserve for recreation12 with no mention of there having been a Non-Claimant Application lodged and withdrawn on 26 November 1997, which may have gained validity for a future act, and no mention of there having been a determination of native title as is shown on the Queensland Register search for this title as referred to below. The search in the Queensland Registers reveals an Administrative Advice in respect of a native title determination pursuant to dealing 713041790 lodged on 8 February 2010.
10 National Native Title Tribunal, Commonwealth Government, Reference SR1590. 11 National Native Title Tribunal, Commonwealth Government, Reference SR1590. 12 National Native Title Tribunal, Commonwealth Government, Reference SR1590. 52 4.3.4 Searches of the State of Queensland Registers
4.3.4.1 Lot 121 on SL8307, Local Government Area, Redland City Council
Searches of the Queensland Registers indicate Lot 121 on SL8307 has been amalgamated into Lot 2 Survey Plan 228367 Local Government Area, Redland, and has become statutory freehold where the Registered Owner is Quandamooka Yoolooburrabee Aboriginal Corporation Trustee. That Corporation holds the land in trust for the benefit of Aboriginal people who are particularly concerned with the land and their ancestors and descendants, pursuant to the Aboriginal Land Act 1991 (Qld).13 As the land is statutory freehold, native title has not been extinguished. Administrative Advices appearing on the title record show that there are current dealings numbered 714315465 and 714315687, both relating to native title determinations pursuant to the Native Title Act.14 The details reflected in this search of the Queensland Registers concerning Lot 121 SL8307 could not be ascertained from searching the National Native Title Register or Native Title Vision.
4.3.4.2 Lot 30 on AP15824, Local Government Area, Redland City Council
A search of the Queensland Registers (Current Reserve search) indicates that Lot 30 on AP 15824 has been amalgamated into Lot 1 Survey Plan 251716 and the land is a Crown reserve for recreation where the Trustees are Redland City Council.15 The search did not disclose a recording of any native title issues, and there were no administrative advices shown on title. However, this is an area that is subject to an Indigenous Land Use Agreement, as indicated by the search of the Register of Indigenous Land Use Agreements, not shown in the Queensland Registers.
4.3.4.3 Lot 4 on Crown Plan LD137 Local Government Area Mareeba Shire Council
A search of the Queensland Registers (Current Reserve search) reveals Lot 4 Crown Plan LD137 to be a reserve for the purpose of township. The Trustee is referred to as being ‘unknown’ with a reference to a gazettal on 1 January 1801 page 1. A State Permit No 710002097 created on 10 October 2006 is recorded. Administrative Advices indicate a dealing 717429904, which was lodged on 5 August 2016 and which refers to a native title determination pursuant to the Native Title Act.16 The
13Queensland Department of Natural Resources and Mines, Government of Queensland, Request No 24138189, 29/8/2016 at 12.41 pm, title reference 50868221 created 20/12/2011, 1. 14 Ibid 2. 15Queensland Department of Natural Resources and Mines, Government of Queensland, Request No 24138261, 29/8/2016 at 12.45 pm, title reference 49010816 date gazetted 16/9/1972, 257. 16 Queensland Department of Natural Resources and Mines, Government of Queensland, Request No 24138280, 29/8/2016 at 12.47 pm, title reference 49004604 date gazetted 07/12/1907, 1387. 53 National Native Title Register shows that Lot 4 Crown Plan LD137 is subject to Native Title Act s 47B; however, this fact is not recorded in the Current Reserve search in the Queensland Registers.
4.3.4.4 Lot 111 on Plan NR7962, Local Government Area, Cairns Regional Council
A search of the Queensland Registers shows Lot 111 on Plan NR7962 to be a Crown reserve for recreation. Administrative Advices show a dealing 713041790 lodged on 8 February 2010 in respect of a native title determination pursuant to the Native Title Act.17 There is no mention of there having been a Non-Claimant Application withdrawn on 26 November 1997 pursuant to which validity for a future act may have been gained by operation of the former Native Title Act s 24(1) (now Native Title Act s 24FA).
Copies of the searches of the Queensland Registers are contained in a separate file on UQeSpace.
4.4 NEW SOUTH WALES CASE STUDY
The title descriptors selected are as follows:
Lot 44 on Deposited Plan 822650, Local Government Area, Kempsey Shire Council, contained in determination of native title by consent Mary-Lou Buck v New South Wales, NSD6002/1996,18 registered 7 April 1997; Lot 435 on Deposited Plan 72910, Local Government Area, Byron Shire Council — contained in Bunjalung of Byron Bay (Arawkal) Area Indigenous Land Use Agreement, NIA2001/001, registered 28 August 2011; Lot 96 on Deposited Plan 822831, Local Government Area, Clarence Valley Council, contained in Yaegl People #2 v Attorney General of New South Wales, NSD168/2011,19 which is subject to Native Title Act s 47A, date of effect 25 June 2015; and Lot 271 on Deposited Plan 751000, Local Government Area, Gundagai Shire Council — contained in Non-Claimant Application, James Francis Benison & Barbara Benison v New South Wales, NSD1819/2012, discontinued on 27 November 2013.
17 Queensland Department of Natural Resources and Mines, Government of Queensland, Request No, 24138291, 29/8/2016 at 12.48 pm, title reference 49008120 date gazetted 25/6/1910, 1776. 18 Unreported, Lockhart J, 7 April 1997 [1997] FCA 1624. 19 Unreported, Jagot J, 25 June 2015 [2015] FCA 647. 54 4.4.1 These titles will be searched on the National Native Title Register and the Register of Indigenous Land Use Agreements as applicable, Native Title Vision, and in the Torrens Title Register of New South Wales
4.4.2 Searches of the Commonwealth Registers kept by the Native Title Registrar for New South Wales
4.4.2.1 Lot 44 on Deposited Plan 822650, Local Government Area, Kempsey Shire Council
Lot 44 in Deposited Plan 822650 is revealed on the National Native Title Register extract for Mary- Lou Buck v New South Wales to be among the areas where native title has not been extinguished as at the date of the determination. The Register extract also provides that at 5 pm on 7 April 1997 all native title rights and interests in that lot pass to the State of New South Wales.
4.4.2.2 Lot 435 on Deposited Plan 729107, Local Government Area, Byron Shire Council
When the Register of Indigenous Land Use Agreements is searched for the Bunjalung of Byron Bay (Arakwal) Area Indigenous Land Use Agreement, the Register extract expressly states:
“The Agreement comprises those areas described as follows: Lot 435 DP729107, Lot 437 DP729107, Lot DP484493, Lot 171 DP 755695, Lot 428 DP729069, Lot 324 DP 755695, Lot 427 DP729068, Lot 452 DP 484493, the Cape Byron State Recreational Area and an area adjacent to the eastern boundary of Lots 1 and 10 DP 270196, and southern boundary of Lot 437 DP729107, being that area extending to the mean low water mark, bordered by the elongation of the northern boundary of Lot 10 DP270196 and southern boundary of Lot 1 DP270106”20
The statements of the kind mentioned in Native Title Act ss 24EB(1), 24EBA(1) or (4), which are also contained in the Register extract, mention surrender of native title is to occur in the ‘Patterson Street Land’ and the ‘Iron Bark Avenue Land’ as provided for in clauses 8 and 12 of the Indigenous Land Use Agreement. There is no way of ascertaining from the Register extract where this land is situated and whether the ‘Patterson Street Land’ and the ‘Iron Bark Avenue Land’ consist of one or more of the Lots mentioned above, which are stated as areas subject to the Agreement and noted to include Lot 435 on Deposited Plan 729107. No maps are provided and the Indigenous Land Use Agreement is not provided as part of the Register extract to assist in ascertaining the location of the areas where native title is to be surrendered.
20 National Native Title Tribunal, Indigenous Land Use Agreement Register, Register Extract 1. 55 4.4.2.3 Lot 96 on Deposited Plan 822831, Local Government Area, Clarence Valley Council
A search of the National Native Title Register expressly indicates that, in relation to the Yaegl People #2 determination, Lot 96 DP 822831, Parish/Locality Nanegai, is subject to Native Title Act s 47A. That section provides that if when the application for a determination of native title is made, there is a freehold, lease or a vesting in force created or granted pursuant to legislation that makes provision for the freehold, grant or vesting only to, for, in, or for the benefit of, Aboriginal people or there was a reserve or trust held expressly for the benefit of Aboriginal people and one or more members of the claim group occupy the area, then prior extinguishment must be disregarded. The only exception to this is where the grant of a freehold estate was for the provision of services, which is not the case in relation to Lot 96 Deposited Plan 822831. No further details of the relevant legislation or tenure giving rise to the operation of Native Title Act s 47A or the person/s occupying Lot 96 Deposited Plan 822831 as at the date of the lodgement of the application for a determination are provided in the Register extract.
4.4.2.4 Lot 271 on Deposited Plan 7510000, Local Government Area, Cootamundra, Gundagai Regional Council
This title description could not be selected by searching in any of the Registers kept by the Native Title Registrar; however, it does appear in a listing of ‘Applications, Registration Decisions and Determinations’ on the web page of the National Native Title Tribunal. Lot 271 Deposited Plan 7510000 is noted to have been the subject of a Non-Claimant Application lodged by James Francis Benison and Barbara Benison (‘Applicant’), which was discontinued on 13 November 2012. The Applicant to the Non-Claimant Application was seeking s 24FA protection for a future act. There is no way of ascertaining whether s 24FA protection was gained before the Non-Claimant Application was withdrawn. Additionally, the listing in ‘Applications, Registration Decisions and Determinations’ does not indicate the nature of the future act for which s 24FA protection was being sought.
4.4.3 Searches of Native Title Vision for New South Wales
4.4.3.1 Lot 44 on Deposited Plan 8222650, Local Government Area, Kempsey Shire Council
Lot 44 on Deposited Plan 8222650, Local Government Area, Kempsey Shire Council, was advised by the National Native Title Tribunal as not being included in Native Title Vision.21 The Register
21 National Native Title Tribunal, Commonwealth Government, Reference SR1590. 56 extract relating to Lot 44 Deposited Plan 8222650 indicates that native title was to be surrendered at 5 pm on 7 April 1997. On surrender of native title, tenure of the land may have changed from Crown lands to freehold with allocation of a new Lot and Plan number providing a possible explanation for why Lot 44 on Deposited Plan 8222659 could not be located in Native Title Vision. If this is the case, there is no way of ascertaining the new Lot and Plan number from the Registers kept by the Native Title Registrar or from Native Title Vision.
4.4.3.2 Lot 435 on Deposited Plan 729107, Local Government Area, Byron Shire Council
Lot 435 on Deposited Plan 729107, Local Government Area, Byron Shire Council, was advised by the National Native Title Tribunal to be freehold.22 Lot 435 Deposited Plan 729107 is contained within the Bunjalung of Byron Bay (Arakwal) Indigenous Land Use Agreement, pursuant to which it is known that surrenders of native title were to take place in respect of areas identified as the ‘Patterson Street Land’ and the ‘Ironbark Avenue Land’. There is no way of ascertaining from Native Title Vision whether Lot 435 Deposited Plan 729107 is part of the ‘Patterson Street Land’ or the ‘Ironbark Avenue Land’. It may reasonably be assumed that this is the case by conversion of Lot 435 on Deposited Plan 729107, Local Government Area, Byron Shire Council, to freehold but there is no way of confirming this through the Register of Indigenous Land Use Agreements or through Native Title Vision.
4.4.3.3 Lot 96 on Deposited Plan 822831 Local Government Area Clarence Valley Council
Lot 96 on Deposited Plan 822831, Local Government Area, Clarence Valley Council, was also advised by the National Native Title Tribunal to be freehold.23 There is no mention in Native Title Vision that the area is subject to Native Title Act s 47A and that prior extinguishment, possibly that brought about by the grant of the freehold estate, must be disregarded.
4.4.3.4 Lot 271 on Deposited Plan 751000, Local Government Area, Cootamundra–Gundagai Regional Council
Lot 271 on Deposited Plan 751000, Local Government Area, Cootamundra–Gundagai Shire Council, was additionally advised by the National Native Title Tribunal to be freehold.24 It was not noted in Native Title Vision whether the future act, the subject of the Non-Claimant Application that was
22 National Native Title Tribunal, Commonwealth Government, Reference SR1590. 23 National Native Title Tribunal, Commonwealth Government, Reference SR1590. 24 National Native Title Tribunal, Commonwealth Government, Reference SR1590. 57 discontinued on 13 November 2012, had gained s 24FA protection and had validly extinguished native title.
4.4.4 Searches of the Torrens Title Register in SAI Global Property25 for New South Wales
4.4.4.1 Lot 44 Deposited Plan 822650, Local Government Area, Kempsey Shire Council
Lot 44 Deposited Plan 822650, Local Government Area, Kempsey Shire Council, was noted to be either not held or cancelled by the Registrar-General of New South Wales. As this lot currently appears on the National Native Title Register entry for Mary-Lou Buck v New South Wales as an area that contains native title that is to be surrendered, the lack of updating of the National Native Title Register is well demonstrated. Lot 44 Deposited Plan 822650 does not appear in Native Title Vision; accordingly, the searching required to update information regarding Lot 44 Deposited Plan 822550 goes well beyond the registration system kept by the Native Title Registrar and would involve a further search of the cancelled titles in the Torrens Title Register, which incurs a fee to ascertain whether Lot 44 Deposited Plan 822650 has issued under a different Torrens Title folio reference after the native title was surrendered.
4.4.4.2 Lot 435 Deposited Plan 729107, Local Government Area, Byron Shire Council
Lot 435 Deposited Plan 729107, Local Government Area, Byron Shire Council, is shown on the certificate of title to be freehold owned by the Bundjalung of Byron Bay Aboriginal Corporation. It is a reasonable assumption that this lot was part of either the ‘Patterson Street Land’ or the ‘Ironbark Avenue Land’ where native title was to be surrendered and subsequently the land was transferred to the prescribed native title body corporate. This assumption cannot be confirmed, however, by searching the Register of Indigenous Land Use Agreements, Native Title Vision or the Torrens Title Register of New South Wales. New South Wales Government departmental files would need to be accessed to verify that Lot 435 Deposited Plan 729107, Local Government Area, Byron Shire Council, was transferred as part of the Patterson Street Land or the Ironbark Avenue Land.
4.4.4.3 Lot 96 Deposited Plan 822831, Local Government Area, Clarence Valley Council
The certificate of title for Lot 96 Deposited Plan 822831, Local Government Area, Clarence Valley Council, shows the Birrigan Gargle Local Aboriginal Land Council as the registered proprietor of the
25 SAI Global Property is an electronic conveyancing system containing access to Torrens Title registers Australia wide. Methods for searching are not uniform as some States may be searched on a Lot and Deposited Plan number while others States such as Western Australia require a folio identifier. Refer Property Information, SAI Global Property Division Pty Ltd
The National Native Title Register shows the area as being subject to Native Title Act s 47A, which relates to prior extinguishment being disregarded where there is a freehold estate granted under legislation that benefits Aboriginal people and one or more of the native title holders occupy the area at the time the application for a determination of native title is lodged. However, there is no mention of this fact on the certificate of title, which demonstrates that although New South Wales has provided for the recording of native title issues in its Torrens Title Register, pursuant to its real property legislation, it is selective in respect of the native title information that is recorded. Because of the operation of Native Title Act s 47A, this may potentially be an area where native title is not extinguished and the s 42 recording pursuant to the Aboriginal Land Rights Act 1983 (NSW) should have appeared on the certificate of title. It would require significant searching and access to New South Wales Government departmental records to verify whether this is the case.
4.4.4.4 Lot 271 Deposited Plan 751000, Local Government Area 822650, Cootamundra–Gundagai Regional Council
The certificate of title for Lot 271 Deposited Plan 751000, Local Government Area, Cootamundra– Gundagai Regional Council, shows the land as freehold and the registered proprietors are James Frances Bension and Barbara Bension as joint tenants. The title is a limited title where the land is unsurveyed and there is a recording in the second schedule of the certificate of title that the boundaries have not been investigated by the Registrar-General. The information in Native Title Vision agrees that the land is freehold. Nowhere in Native Title Vision or in the Torrens Title Register of New South Wales is it shown whether the future act that was the subject of Non-Claimant Application NSD1819/2012, lodged before the land became freehold, achieved s 24FA validity pursuant to the Native Title Act. This again demonstrates that, although New South Wales has made legislative provision in its real property legislation for the recording of native title, it is selective in the native title issues that it records in its Torrens Title Register. Given the lack of registration in the Registers kept by the Native Title Register and the lack of recording in the Torrens Title Register for New South
26 Aboriginal Land Rights Act 1983 (NSW) s 42 provides, with some exceptions, that an Aboriginal Land Council must not deal with land vested in it that contains native title unless the land is the subject of an approved determination of native title within the meaning of the Native Title Act. That determination must be that native title does not exist. 59 Wales it is not possible to trace in any registers whether s 24FA validity has been achieved where, as in this case, there has been no determination made by the Federal Court that native title does not exist.
Copies of the searches for New South Wales are contained in a separate file on UQeSpace.
4.5 WESTERN AUSTRALIA CASE STUDY
The title descriptors selected are as follows:
Reserve 1529 for Watering Place, which is a non-vested reserve, Local Government Region, Shire of Broome—contained in determination of native title by consent Hunter v Western Australia,27 WAD6281/1998, WAD234/2007, date of effect 11 June 2009; Lot 2 on Deposited Plan 9151, Local Government Region, Shire of Broome, contained in Karajarri Traditional Lands Association KSCS Eighty Mile Beach Body Corporate Indigenous Land Use Agreement, WI2015/010, registered 22 October 2015; Lot 341 on Deposited Plan 52596, Local Government Region, Shire of Derby, West Kimberley, which is subject to Native Title Act s 47B—contained in Aiken on behalf of the Bunuba People (Bunuba #3) v Western Australia,28 WAD95/2013, date of effect 22 December 2015; and Crown Reserve 26149 (Ellen Cove) Local Government Region, City of Albany, contained in Non-Claimant Application, Town of Albany v Western Australia, WN1996/001withdrawn on 2 May 1997.
4.5.1 Searches of the Registers kept by the Native Title Registrar for Western Australia
4.5.2 The following are relevant searches for Western Australia
4.5.2.1 Reserve 1529 for Watering Place, Local Government Region, Shire of Broome
When the relevant Register extract for Hunter v Western Australia is searched in the National Native Title Register, Reserve 1529 for Watering Place is noted to be a non-exclusive area where native title has been determined to exist. The co-existing interests are shown in Attachment 4 annexed to the Register extract and are ‘the interests of persons who have the care, control and management of the following reserves [which includes Reserve 1529 for Watering Place], and the interests of persons entitled to access and use these reserves for the respective purposes for which they are reserved,
27 Unreported, North J, 11 June 2009 [2009] FCA 654. 28 Unreported, Barker J, 22 December 2015 [2015] FCA 1482. 60 subject to any statutory limitations upon those rights’. The other interests also include the interests of persons holding leases over Reserve 1529 for Watering Place, the rights under mining exploration permits 448 and 465 for their terms, interests of licensees and permit holders where those interests were granted by the Commonwealth or State, including but not confined to fishing or pearling interests granted under relevant legislation. In addition, the native title rights and interests are also subject to the Rights in Water and Irrigation Act 1914 (WA), the common-law interests of the public, including rights of access and to use roads and named stock routes, rights to fish and navigate, legal and equitable interests, the rights of Telstra and the Executive Director of the Department of Environment and Conservation in respect of an agreement made with Anna Plains Cattle Co Pty Ltd.
The observation that can be made of the above-mentioned Register entry is that a great deal of further investigation would be required to ascertain how native title is affected by the co-existing interests. As an example, the Torrens Title Register for Western Australia would need to be searched for leases and Crown lands records searched for licences and permits to ascertain if leases, licences or permits have been granted over Reserve 1529 for Watering Place. Access to the agreement made with Anna Plains Cattle Co Pty Ltd would also be required to determine what rights exist under that agreement. If, for example, that agreement included rights to water and de-pasture herds of cattle on Reserve 1529 for Watering Place, then there may be times where native title cannot be exercised at all or can be exercised only on a restricted basis.
4.5.2.2 Lot 2 on Deposited Plan 91517, Local Government Region, Shire of Broome
A search of the Register of Indigenous Land Use Agreements including the relevant Register extract for the Karajarri Traditional Lands Association KSCS Eighty Mile Beach ILUA indicates that Lot 2 on Deposited Plan 91517 is also known as the ‘1994 Dragon Tree Soak Nature Reserve Addition Area’ and that there is ‘an irrevocable consent to the granting, issue or creation of any Tenure’29 over that reserve. The Register of Indigenous Land Use Agreements is not updated after registration in respect to changes in tenure details that occur in the Agreement area, so it is not possible to ascertain if new tenures have been created, such as those requiring subdivision of Lot 2 on Deposited Plan 91517, Local Government Region, Shire of Broome.
29 National Native Title Tribunal, Register of Indigenous Land Use Agreements, Commonwealth Government, Karajarri Traditional Lands Association KSCS Eighty Mile Beach Indigenous Land Use Agreement, WI2015, Attachment A— Future Acts. 61 4.5.2.3 Lot 341 on Deposited Plan 52596, Local Government Region, Shire of Derby, West Kimberley.
When the National Native Title Register is searched for Aiken on behalf of the Bunuba People #3, the Register extract expressly states that Native Title Act s 47B applies to Lot 341 on DP 52596 but does not provide details of the legislation or tenures giving rise to the operation of s 47B or details of which person/s occupied Lot 341 Deposited Plan 52596 as at the date of lodgement of the application for a determination of native title.
4.5.2.4 Crown Reserve 26149 Ellen Cove, Local Government Region, City of Albany
This title description could not be selected from any of the Registers kept by the Native Title Registrar but an entry did appear in a listing of ‘Applications, Registration Decisions and Determinations’ on the web page of the National Native Title Tribunal indicating that Crown Reserve 26149 was the subject of a Non-Claimant Application withdrawn on 2 May 1997. The future act was indicated, which was to reclaim and redevelop 70 m2 of the reserved land as a grassed area, elevate it and build a 20 m sea wall to retain the area. There is no way of ascertaining from the records of the National Native Title Tribunal whether s 24FA protection was achieved for the proposed future act or whether the future act was carried out.
4.5.3 Searches of Native Title Vision for Western Australia
4.5.3.1 Reserve 1529 for Watering Place, Local Government Region, Shire of Broome
Native Title Vision correctly reflects Reserve 1529 as a Crown reserve for the purpose of watering place. The co-existing interests shown on the Register extract are not shown in the Native Title Vision search but this may have resulted because all the layers in Native Title Vision may not have been accessed by the National Native Title Tribunal when the search was conducted.30
4.5.3.2 Lot 2 Deposited Plan 91517, Local Government Region, Shire of Broome
Lot 2 Deposited Plan 91517 is shown as Reserve 35918 being the Dragon Tree Soak Nature Reserve. Native Title Vision does not show that this area is subject to an Indigenous Land Use Agreement but again this may be as a result of failure by the National Native Title Tribunal to access all the layers in Native Title Vision when the search was conducted.
30 National Native Title Tribunal, Commonwealth Government, Reference SR1590. 62 4.5.3.3 Lot 341 Deposited Plan 52596, Local Government Region, Shire of Derby, West Kimberley
Lot 341 Deposited Plan 52596, Local Government Region, Shire of Derby, West Kimberley, appears in Native Title Vision as unallocated Crown lands.31 There is no mention of this area being subject to Native Title Act s 47B. Ideally, this information should appear because although the land may be unallocated Crown lands currently, it may have been subject to former historical tenures that have expired. Expired historical tenures may have extinguished native title but if Native Title Act s 47B operates, prior extinguishment must be disregarded. Persons having a need to deal with this land in future will have difficulty in making the necessary assessment of whether the non-extinguishment principle applies.
4.5.3.4 Reserve 26149 Ellen Cove, Local Government Region, City of Albany
Reserve 26146 Ellen Grove, Local Government Region, City of Albany, is shown as a non-freehold reserve for recreation vested in the City of Albany.32 Pursuant to the findings in Ward v Western Australia33 native title may be extinguished because of the vesting of the reserve in the City of Albany. In the event that native title has not been extinguished there is no indication whether s 24FA protection was obtained for the construction of the seawall pursuant to the Non-Claimant Application that was withdrawn on 2 May 1997 and no way of ascertaining from Native Title Vision whether the proposed reclamation to construct the seawall took place or whether the seawall has been constructed.
4.6 CAN NATIVE TITLE BE ACCOMMODATED IN TORRENS TITLE AS A TITLE TO LAND?
A separate consideration is whether native title rights and interests could be provided their own title in a Torrens Title registration system, or whether native title should take the status of another form of interest that operates over existing title. Currently, if recorded, native title interests are recorded on the title of Crown land. This approach is preferable to issuing a separate title. One of the key rationales for registering or recording native title on a land title register is to allow for a determination as to how native title rights and interests relate to co-existing rights and interests in the same land. This purpose would appear to be defeated if native title rights and interests that coexist with other rights and interests were to be registered or recorded on their own folio, that is, on a title separate from the title of the land in which native title exists. It would also be undesirable from the aspect of the carrying out of future acts.
31 National Native Title Tribunal, Commonwealth Government, Reference SR1590. 32 National Native Title Tribunal, Commonwealth Government, Reference SR1590. 33 Western Australia v Ward (2002) 213 CLR 1. 63 If a holder of native title has been granted the right to exclude all others (exclusive native title),34 the situation is different, and it is conceivable that exclusive native title may be able to be allocated its own folio. In considering extinguishment, the High Court has moved towards the content of native title being a ‘unitary title’ rather than a ‘bundle of rights’.35 There is always the consideration, however, that exclusive native title does not equate to freehold. The land remains Crown land (unallocated State land) whereby the Crown retains its interest, unless the exclusive native title is surrendered to the Crown by the native title holders, and the land is granted in freehold to the native title holders. In summary, it is argued that it is preferable for native title to be noted on the title of the land that contains it, even when the only interest is that of the Crown.
4.6.1 Searches of the Torrens Title Register in Landgate for Western Australia
As the searches for Western Australia require a Lot and Deposited Plan number, a Reserve Enquiry Detail search at the Department for Planning and Infrastructure (WA) was required for Reserve 1529 for Watering Place, Local Government Authority, Broome, and Reserve 26149 for recreation, Local Government Authority, Albany. Reserve 1529 was revealed to be Lot 962, Lot 963 and Lot 964 on Deposited Plan 407210 while Reserve 26149 Ellen Cove, Local Government Authority, City of Albany, was revealed to be Lot 651 on Deposited Plan 191343.
4.6.1.1 Lots 962, 963 and 964 Deposited Plan 407210 (also known as Reserve 1529 for Watering Place), Local Government Authority, Broome
The Records of Certificate of Crown Land Title show the lands are reserved for watering place with no management orders in place and the primary interest holder is the State of Western Australia. There is no recording of non-exclusive native title having been determined to exist and no recording of an agreement with Anna Plains Cattle Company on title.
4.6.1.2 Lot 2 Deposited Plan 91517, Local Government Region, Shire of Broome
The certificate of title reveals that Lot 2 Deposited Plan 91517, Local Government Region, Shire of Broome, is a qualified Crown lands title and the primary interest holder is the Conservation and Parks Commission (WA). Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC is also registered in Schedule 1 as a primary interest holder. There is no way of ascertaining from the
34 Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v Western Australia, unreported, Rares J, 20 July 2017 [2017] FCA 803. 35 Brendan Edgeworth, ‘Extinguishment of Native Title: Recent High Court Decisions’ (2016) 8(22) Indigenous Law Bulletin 28, 33. 64 face of the Record of the Qualified Certificate of Crown Land Title if the registration entry for Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC refers to the interest held under the Karajarri Traditional Lands Association KSCS Eighty Mile Beach ILUA, which is shown on the Register of Indigenous Land Use Agreements to operate over Lot 2 Deposited Plan 91517, Local Government Region, Shire of Broome. A memorandum number XE N444616 appears beside the registration date of 28 September 2016 on the Qualified Certificate of Crown Lands Title but this document was not available online from Landgate records. What is demonstrated by the registration of a native title interest in schedule one of the Qualified Certificate of Crown Lands Title is that Western Australia may entertain registration of some native title interests rather than a recording of those interests in its Torrens Title Register.
4.6.1.3 Lot 341 Deposited Plan 52596, Local Government Region, Shire of Derby, West Kimberley
When searched in the Torrens Title Register of Western Australia, Lot 341 Deposited Plan 52596 Local Government Region, Shire of Derby, West Kimberley, was advised by Kamelia Doll, Senior Customer Service Officer, Landgate by email at 13.21 pm on 7 December 2016 to be a cancelled title. Further searching of the cancelled titles records at additional cost would be required to ascertain if a new title has been allocated for former Lot 341 Deposited Plan 52596, Local Government Region, Shire of Derby, West Kimberley. The National Native Title Register and Native Title Vision show the land as Lot 341 Deposited Plan 52596 while the Torrens Title Register of Western Australia shows that title to be cancelled. This clearly demonstrates that the National Native Title Register is not updated when information about land title changes subsequent to registration and that updated information for Native Title Vision is either not being supplied to the Native Title Registrar by Western Australia or is being supplied and the records are not being updated.
4.6.1.4 Lot 651 Deposited Plan 191343 (also known as Reserve 26149 Ellen Cove, Local Government Region, City of Albany)
Lot 651 Deposited Plan 191343 is shown to be a reserve for the purpose of recreation under management of the City of Albany. The title bears a recording that the Management Order contains conditions in respect of leasing the land. The City of Albany is registered as the primary interest holder. There is no indication on title by a recording or notation that there was a Non-Claimant Application made seeking validity for a future act and no mention of whether the future act was carried out validly or carried out at all.
Copies of these searches are in a separate file on UQeSpace.
65 4.6. CONCLUSION
These case studies verify the central assertion made in this thesis, which is that the current system for the registration of native title interests lacks comprehensiveness, currency and certainty. It has been demonstrated in this chapter that the National Native Title Register and the Register of Indigenous Land Use Agreements are not updated when changes occur to the native title or the land title subsequent to registration of determinations of native title and Indigenous Land Use Agreements. In turn, this results in the Registers not being comprehensive and lacking in certainty and currency. It also can be said that in some cases the native title Registers are inaccurate and are far below public expectations because the public would expect registers dealing with native title to be accurate.
The searches consistently reveal that the information in Native Title Vision, as supplied by the three States considered in this chapter, does not always match the information in the Torrens Title Registers of New South Wales and Western Australia or to the information in the Queensland Registers. Additionally, the searches reveal that when a Lot and Deposited Plan have been cancelled subsequent to registration and a new Lot and Deposited Plan have been issued it is very difficult to ascertain the title details for the reissued Lot and Deposited Plan. The Registers kept by the Native Title Registrar and Native Title Vision are not able to provide this information. Native Title Vision does not contain information concerning freehold arising when native title is surrendered after determination resulting in cancellation of the Crown lands title and the reissuing of a freehold title. To ascertain this information requires searches of the Queensland Registers or the Torrens Cancelled Titles records and the Torrens Title Register as relevant. It may also involve obtaining copies of memoranda recorded or noted on title at significant expense to the searcher.
The sample searches that have been carried out demonstrate that the Registers kept by the Native Title Registrar do not provide all the information required by a person needing to deal with Crown lands that contain or may contain native title and are not able to stand alone without reference to Torrens Title Registers or the Queensland Registers. This means that persons wishing to deal with land can never be certain in relation to native title and potential invalidity and the associated risks. In addition, the sample searches demonstrate the States of New South Wales and Western Australia, where most Crown lands containing native title is included in the Torrens Title Registers of those States, are selective in which native title issues are registered or recorded. The Queensland Registers are also incomplete as shown in the above search of the Queensland Registers for Lot 30 AP15824, Local Government Area, Redland City Council. This may denote similar selectivity of native title information that is registered or recorded. Alternatively, it may denote failure to retrospectively register or record native title information or that provisions of the Indigenous Land Use Agreement
66 do not comply with the requirement for registration under the Land Act 1994 (Qld).36 The result is a lack of being able currently, to place full reliance on any of the Registers that register or record native title, solely or in combination with each other. This is a situation that needs to be addressed urgently. Although the sample chosen here is relatively small, it is anticipated that these issues pervade the system more generally.
The Torrens Title systems incorporate legal registers that potentially can provide certainty through the ability to register and record land interests on title. Accordingly, it is appropriate to examine these in some depth to ascertain whether registration of native title or, alternatively, recording of a wide range of native title rights and interests in land in Torrens Title Registers is feasible and whether doing so would provide the necessary support to the current native title registration system to ensure conclusiveness, currency and certainty for native title rights and interests in land.
36 Land Act 1994 (Qld) sch 3 pt 2. 67 CHAPTER 5 THE TORRENS TITLE REGISTERS
5.1 INTRODUCTION
Chapters 1 to 4 established that the current registry scheme under the Native Title Act is not conclusive, and lacks certainty and currency. Furthermore, it does not use a land title approach to registration, that is, native title is not cross-referenced to lot on plan descriptors. One possible solution to these problems is the registration, recording or noting of native title rights and interests in land on State-based Torrens Title Registers to supplement the current native title registration system.
This chapter will consider the Torrens Title systems of all jurisdictions generally, with greater emphasis on the case study jurisdictions of Queensland, New South Wales and Western Australia. The aim is to reveal that the Torrens Title system was developed as a tool for conveyancing ease because of the difficulty of needing to conduct historical investigations of land transactions. Although conveyancing itself is not directly relevant to native title because native title cannot be sold, it is relevant to consider Torrens Title systems because inalienability may not preclude native title from registration or recording in Torrens Title systems.
The Torrens Title system commenced in South Australia with the Real Property Act 1858 (SA)1 and has been implemented by all Australian States and Territories. It is currently enacted in a number of different statutes of the States and Territories.2 This legislation is not uniform and the precise operation of the Torrens Title system varies from State to State. Despite the dissimilarities between the operationalisation of Torrens legislation in the various States and Territories, the key object is similar in respect of providing certainty of title through government guaranteed indefeasibility of title.3
The object of this chapter is to evaluate whether native title rights and interests can be appropriately incorporated within Torrens Title systems. Additionally, consideration will be given to whether native title rights and interests could or should be registered and therefore granted the status of a registered
1 Greg Taylor, A Great and Glorious Reformation: Six Early South Australian Legal Innovations (Wakefield Press, 2005) 14. 2 Real Property Act 1900 (NSW); Land Title Act (NT); Land Titles Act 1980 (Tas); Transfer of Land Act 1958 (Vic); Property Law Act 1958 (Vic); Transfer of Land Act 1893 (WA); Land Title Act 1994 (Qld); Real Property Act 1886 (SA); Land Titles Act 1925 (ACT). 3 Peter Butt, ‘A Uniform Torrens Title Code?’(1991) 65 Australian Law Journal 348; Sharon Christensen and W D Duncan ‘Aligning Sustainability and the Torrens Title Register: Challenges and Recommendations for Reform’ (2012) 20(2) Australian Property Law Journal 112, 112–14. 68 interest, or whether a form of recording native title rights and interests within a Torrens Title system would suffice. The benefits that might accrue due to recording will also be discussed.
The first major barrier that will need to be addressed is the role of Crown land, as Crown land (or unallocated State land4) of a State or Territory is generally the type of land where native title is found to exist.5 An initial question arises as to whether conversion of Crown land to Torrens Title is a prerequisite for including native title rights and interests in Torrens Title systems, and this question will be explored. A second barrier to consider is whether an interest must be a proprietary interest in land in order to be registered or recorded within Torrens Title systems. If so, then it is contended that native title rights and interests are proprietary interests in land and meet such requirements. The remainder of the chapter examines features of the Torrens Title system and the application of native title within that system.
5.2 OBJECT AND PURPOSE OF TORRENS TITLE LEGISLATION
A primary reason for the introduction of the Torrens Title system in South Australia was to prevent the occurrence of defects in old system conveyancing, whereby purchasers of land had to establish an unbroken chain of title. This involved locating all the relevant documents dating back over a specified number of years to the first Crown grant of freehold.6 Due to sales and other dispositions, transfers of land title occurred frequently in early South Australia, making old system conveyancing a complex and time-consuming process in ascertaining the accuracy of all prior transactions with respect to the particular parcel of land.
Native title in land sits in a fundamentally different category from other land transactions, as it concerns rights and interests in land that are inalienable and non-transferable rights and interests in land.7 It is therefore not prone to the same problems that led to the need to register freehold land. Furthermore, registration is not needed to make conveyancing of native title land easier and cheaper, because native title cannot be conveyed. Arguably, however, native title would benefit from being registered or recorded on land title registers because that would offer comprehensiveness, currency and certainty to native title in land.
4 Land Act 1994 (Qld) sch 6. 5 Mabo v Queensland (No 2) (1992) 175 CLR 1. 6 See generally Douglas J Whalan, The Torrens System in Australia (Lawbook, 1982); Nicholas Mirzai and Samuel Kang, ‘Systems of Registration: Synergies between Torrens and the Personal Property Securities Regime’ (2012) 21 Australian Property Law Journal 32. 7 Mabo v Queensland (No 2) (1992) 175 CLR 1. 69 Irrespective of its inalienability, it should be noted that Indigenous freehold statutory title, which in a number of jurisdictions is inalienable,8 is registerable within Torrens Title systems.9 Arguably, then, native title should not be disbarred from Torrens Title registration or recording on the basis of being inalienable and non-transferable.
5.3 PREREQUISITE THAT CROWN LANDS ARE CONVERTED TO TORRENS TITLE IF NATIVE TITLE IS TO
BE ACCOMMODATED
Statutory freehold land that contains native title, such as in the case of grants made pursuant to Aboriginal land rights legislation, will generally have been allocated an ordinary folio (or in New South Wales often a limited folio). These will be registered in the Torrens Title Register.10 Accordingly, in the case of statutory freehold land, it would be possible now to register or record the existence of native title on the relevant certificates of title.
A considerable amount of native title, however, is found on Crown land. If native title is to be accommodated in Torrens Title systems it is important that Crown land, in which native title has been found to exist, is itself accommodated in Torrens Title Registers. If this is not the case, there will be no folio on which to register or record native title.
To date, New South Wales has converted most of its Crown land to Torrens Title11 and Western Australia has converted all of its Crown land to Torrens Title.12 Tasmania is able to bring certain Crown land under the Land Titles Act 1980 (Tas);13 however, when that occurs the process may convert the Crown land to freehold given that the State of Tasmania is registered as the registered proprietor of a freehold estate.14 The Northern Territory is able to convert allocated Crown land to Torrens Title and Crown land leases are included in the Torrens Title Register of the Northern Territory.15 South Australia, Victoria and the Australian Capital Territory have also included Crown
8 Aboriginal Lands Act 1970 (Vic); Aboriginal Land Act 1991 (Qld); Torres Strait Islander Act 1991 (Qld); Anangu Pitantjatjara Yankunytjatjara Land Rights Act 1981 (SA); Maralinga Tjarutja Land Rights Act 1984 (SA). 9 Aboriginal Land Rights Act (NT) 1976 (Cth) s 12(5). 10 In New South Wales land that has been subject to plan compilation rather than survey is allocated a limited title where the boundaries are not guaranteed; New South Wales historical records, New South Wales Land and Property Information Services, New South Wales Government,
Using New South Wales as an example of what conversion requires, bringing Crown land under the Torrens Title legislation involves making a primary application. This application must be supported by documents evidencing title and the boundaries of the land, which must be sufficiently certain for registration to take place. Conversion does not result in the Crown land becoming freehold in New South Wales and the land remains Crown land and may still hold native title.18 Once the Crown land is brought under the Torrens Title legislation an ordinary folio is issued.19 It is. A notation would appear on the Torrens Title Register notifying persons dealing with the registered proprietor that the land is subject to interests that may exist whether or not they are recorded or noted on the folio.20 In New South Wales, the conversion of Crown land to Torrens Title has been achieved by creating limited titles. Creating a limited title has involved defining the boundaries of the Crown land to be converted to Torrens Title by compiling plans, rather than defining the boundaries by survey. Where this has occurred, the limitation must be noted in the folio that the land boundaries have not been investigated by the Registrar-General.21 In these cases, subsequent dealings with the Crown land require surveys to be undertaken and the liability and costs for these are usually placed on the person
16 Transfer of Land Act 1958 (Vic) s 8; Real Property Act 1886 (SA) s 93; Land Titles Act 1925 (ACT) s 17. 17 Land Act 1994 (Qld) s 275; The Land Title Act 1994 (Qld) does not contain a provision for enabling non-freehold land in Queensland to be brought under that Act and converted to Torrens Title land. To do so would require legislative amendment. 18 Real Property Act 1900 (NSW) s 13D. 19 Peter Butt, Land Law (Lawbook, 6th ed, 2010) 843; Crown land generally in New South Wales see Andrew G Lang, Crown Land In New South Wales (Butterworths, 1973). 20 Ibid 845. 21 New South Wales Government, New South Wales Registrar General’s Directions, http//rgdirections.lpi.nsw.gov.au. 71 dealing with the land. In many cases this is an Aboriginal Land Council because the Crown land, when granted under the Aboriginal Land Rights Act 1983 (NSW), is often transferred to the claimant Aboriginal Land Council as statutory freehold pursuant to the issue of a limited title.22
It appears that the first hurdle of converting Crown land to Torrens Title has been overcome in at least two Australian States, being New South Wales and Western Australia. From the aspect of idenfying accurate boundaries, non-freehold land should be able to be converted to Torrens Title in Queensland relatively easily if there is a will to do so in the future, although this would require legislative amendment. Given the will, legislative amendment would not be difficult but it would require partial abandonment of the Queensland Registers as they relate to non-freehold land. In addition, unallocated Crown land may be able to be defined fairly easily and brought under Torrens Title in Tasmania, the Northern Territory, Victoria, South Australia and the Australian Capital Territory. Partial conversion of Crown land to Torrens Title has already occurred in these States and Territories, given that Crown land leases are included in their Torrens Title Registers. This again would require legislative amendments. In summary, it would be necessary for Crown land to be converted to Torrens Title and for legislative amendment to be made for this to occur in order for native title to be accommodated in Torrens Title systems.
5.4 ADDITIONAL PREREQUISITE FOR NATIVE TITLE TO BE ACCOMMODATED IN TORRENS IS THAT
NATIVE TITLE IS A PROPRIETARY INTEREST IN LAND
An additional prerequisite for including native title rights and interests in a Torrens Title system is that native title must be ‘a proprietary interest in land’.23 Chambers considers that the Torrens Title system is ‘used primarily for the protection of property rights [in private land]’.24 It is clear, however, from the examples discussed above in relation to conversion and partial conversion of Crown land to Torrens Title that has occurred in some Australian States and Territories, that the Torrens Title system can also accommodate public land.
The Native Title Act provides some indication that native title in Australia is proprietary in nature and therefore does belong in the Torrens Title system. This is due to the notice provision, whereby the land titles offices of the States and Territories, which are responsible for Torrens Title registration, are notified by the Native Title Registrar when there has been a native title determination.25 If native
22 New South Wales Aboriginal Land Council, Fact Sheet #5 ‘What Is Limited Title’
Over time, Australian courts have also developed a body of law providing further indication that native title is a proprietary interest in land. This issue was not resolved in Mabo (No 2),27 with significantly divergent views as to whether native title is a proprietary interest in land. The content of native title was described variously as a usufruct, sui generis, proprietary, personal, non-proprietary and both proprietary and usufructuary, meaning there was no united view on the subject.28 Brennan J said that a Crown land’s reservation for Aboriginal purposes creates a right of user but that right is subservient to the rights of user conferred by native title.29 His Honour followed on to say that a native title right, which confers a usufruct, leaves room for other persons to use the land either simultaneously or on occasion.30 In discussing Canadian cases, Brennan J also referred to Aboriginal title as perhaps not being personal or proprietary in nature,31 but instead being sui generis as was held in Guerin v The Queen.32 Deane and Gaudron JJ considered that native title was personal and did not constitute an interest in land.33 Their Honours also found that native title rights were ‘true legal rights which were recognised and protected by the law … legislative extinguishment would constitute an expropriation of property to the benefit of the underlying estate’.34 This may have meant that native title was proprietary, at least for purposes of compensation. Toohey J may have considered native title to be proprietary as in discussing extinguishment; his Honour considered native title should receive the same treatment as a proprietary interest in land.35 Dawson J considered native title to be non-proprietary.36 Such divergence in view from the High Court means that Mabo (No 2) is not particularly helpful in relation to determining whether native title is a proprietary right.
26 Native Title Act s 53; Richard H Bartlett, ‘The Proprietary Nature of Native Title’ (1998) 6(1) Australian Property Law Journal 77, 93. 27 Mabo v Queensland [No 2] (1992) 175 CLR 1. 28 Janice Gray, ‘Is Native Title a Proprietary Right’ (2002) 9(3) Murdoch University Electronic Journal of Law 1, 1–2. 29 Mabo v Queensland [No 2] (1992) 175 CLR 1, 67. 30 Mabo v Queensland [No 2] (1992) 175 CLR 1, 67. 31 Mabo v Queensland [No 2] (1992) 175 CLR 1, 11. 32 Guerin v The Queen (1984) 13 DLR 4th 321. 33 Mabo v Queensland [No 2] (1992) 175 CLR 1, 88, 89, 110. 34 Mabo v Queensland [No 2] (1992)175 CLR 1, [62]; Adrian Howe, ‘A Poststructuralist Consideration of Property as Thin Air—Mabo a Case Study’ [1995] Murdoch University Electronic Law Journal 18. 35 Mabo v Queensland [No 2] (1992)175 CLR 1, 213. 36 Mabo v Queensland [No 2] (1992) 175 CLR 1, 160. 73 In Mason v Tritton37 Kirby P considered the native title rights and interests of fishing and hunting to be both usufructuary and proprietary. His Honour stated ‘in a very real sense usufructuary rights such as fishing and hunting rights or practices provide evidence of a wider proprietary right which may become the subject of an Aboriginal community’s native title claim’.38 This paragraph was quoted in Commonwealth v Yarmirr39 in the Full Federal Court by Beaumont and Von Doussa JJ, who did not make it clear whether they agreed that the content of native title was both usufructuary and proprietary. It is likely, however, that their Honours did not agree because in the Full Federal Court in Ward v Western Australia 40 the same Judges considered the content of native title was a personal right and not an interest in land and that was the case even when native title was found to be exclusive.41
In Wik People v Queensland 42 the High Court appeared to be heading in a markedly different direction when Toohey J opined that the content of native title may be variable. Toohey J said ‘it is apparent that at one end of the spectrum native title rights may approach the rights flowing from full ownership at common law. On the other hand they may be an entitlement to come onto the land for ceremonial purposes, all other rights in the land belonging to another group’.43 In the same decision, Gummow J indicated the possibility of change within the common law to accommodate native title by gradual judicial decision.44 In Fejo v Northern Territory 45 the High Court reviewed the question of the content of native title where it was pleaded, and stated in obiter dictum that ‘native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law’.46 In Fejo 47 the majority appeared to favour the approach that native title is unique to itself and fragile, although not inherently so, but in the sense that it can be partially extinguished. The raising of the concept of ‘partial extinguishment’ set the scene for a ‘bundle of rights’ doctrine to be developed as the content of native title by the Full Federal Court in Ward v Western Australia.48
37 Mason v Tritton (1994) 34 NSWLR 572. 38 Mason v Tritton (1994) 34 NSWLR 572, 582. 39 Commonwealth v Yarmirr (1999) 101 FCR 171, 197. 40 Ward v Western Australia (2000) 179 ALR 159. 41 Ward v Western Australia (2000)179 ALR 159, 178. 42 Wik People v Queensland (1996) 187 CLR 1. 43 Wik People v Queensland (1996) 187 CLR 1, 126, 127. 44 Alex Reilly, ‘From a Jurisprudence of Regret to a Regrettable Jurisprudence: Shaping Native Title from Mabo to Ward ’(2002) 9(4) Murdoch University Electronic Journal of Law 1, 4; Wik People v Queensland (1996) 187 CLR 1, 179. 45 (1998) 195 CLR 96. 46 Fejo v Northern Territory (1998) 195 CLR 96, 100, 128. 47 (1998) 195 CLR 96. 48 Ward v Western Australia (2000) 179 ALR 159. 74 In Yanner v Eaton49 the issue for the High Court concerned the right to hunt wild animals and the difference between legislative regulation and extinguishment. In that case, two juvenile estuarine crocodiles had been hunted without a licence, permit or certificate pursuant to the Fauna Conservation Act 1974 (Qld) by Murandoo Yanner who had been charged with an offence under that legislation. It was held that the Gunnamulla Clan, of which Yanner was a member, possessed native title rights and it was the custom under those rights to take juvenile crocodiles.50 The police officer informant appealed the decision, and the Queensland Court of Appeal set aside the Magistrate’s order dismissing the complaint.51 Yanner then applied for and was granted special leave to appeal to the High Court, where his appeal was allowed.52 The High Court discussed ‘property’ as it applied to the Crown and to native title. Queensland argued that native title had been extinguished and that the fauna was wholly the property of the Crown. The High Court made it clear that there could be no absolute Crown ownership in wild things such as native animals, birds or the air.53 Gleeson CJ, Gaudron, Kirby and Hayne JJ considered the meaning of ‘property’ and said the word is often used to describe something belonging to someone, but the concept of property could be elusive.54 The bundle of rights doctrine was often used as a description of property, but this had limitations both as an analytical device and a precise description. This meant that the decision did not go sufficiently far to establish that the bundle of rights doctrine applied to native title. Their Honours found that many different types of relationships between persons and different subject matters can come within the meaning of ‘property’. In looking at inconsistency between native title interests and Crown land interests, their Honours found that it needed to be kept in mind that native title originates from Aboriginal law and custom and also reflects connection with land.55
Their Honours also quoted Brennan J in R v Toohey; ex parte Meneling Station Pty Ltd,56 whereby Brennan J stated in that case that
Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights but traditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginal people or Aboriginal groups may have responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it.57
49 Yanner v Eaton (1999)201 CLR 351. 50 Yanner v Eaton (1999) 201 CLR 351, 352. 51 Eaton v Yanner; Ex parte Eaton [1998] QCA 20. 52 Yanner v Eaton (1999) 201 CLR 351, 411. 53 Yanner v Eaton (1999) 201 CLR 351, 367–8. 54 Yanner v Eaton (1999) 201 CLR 351, 366. 55 Yanner v Eaton (1999) 201 CLR 351, 372–3. 56 R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327. 57 Yanner v Eaton (1999) 201 CLR 351, 373. 75 This is descriptive of Aboriginal ownership to some extent, but is not the complete picture, which involves complex relationships with traditional country, each other, neighbouring groups and the Dreaming. In any event, their Honours did not say expressly that this was their view; therefore, it cannot be said that Yanner v Eaton established the content of native title to be ‘primarily a spiritual affair’. Arguably, this was an advantageous outcome as it may be very difficult to accord a tangible proprietary composition to something that is ‘primarily a spiritual affair’.
5.4.1 Ward at the Full Federal Court level
Turning to Western Australia v Ward 58 in the Full Federal Court, Beaumont and Von Doussa JJ gave the majority decision, overturning the decision of Lee J at first instance. Because of the persuasive authority of Delgamuuku v British Columbia,59 Lee J had held that native title was not a bundle of rights but a connection to the land under traditional laws and customs where other rights were dependent on that connection.60 Extinguishment, in this view, would be as a whole. In many respects the judgment of Lee J is far clearer on the point that native title amounts to a proprietary interest in land. It is noted, however, that the theory behind the bundle of rights doctrine apprehends that proprietary rights in land are constituted by a ‘bundle’ held by the owner of the land.61
At the Full Court level, their Honours used the bundle of rights doctrine to justify partial extinguishment of native title,62 whereby some of the rights in the bundle can be extinguished while others remain intact. North J, who gave a compelling minority judgment in Ward,63 specifically rejected the bundle of rights doctrine and the concept of partial extinguishment because his Honour considered that native title should be seen as a connection to the land itself. North J was of the view that Lee J had correctly formulated the law relating to the content of native title.64 North J also considered that the doctrine of tenure could accommodate native title and the suspension of it, in preference to extinguishment.65
Barnett considers that the majority judgment in Ward in the Full Federal Court is a compromise between the granted Crown land interests and native title interests, which guarantees the co-existence
58 Western Australia v Ward (2000) 99 FCR 316. 59 Delgamuukw v British Columbia (1997) 153 DLR 4th 193. 60 Ward v Western Australia (1998) 159 ALR 483. 61 J E Penner, ‘The “Bundle of Rights” Picture of Property’ (1996) 46(3) UCLA Law Review 711, 711–13. 62 Katy Barnett, ‘One Step Forward and Two Steps Back: Native Title and the Bundle of Rights Analysis [Western Australia v Ward]’ (2000) 24(2) Melbourne University Law Review 462, 465. 63 Western Australia v Ward (2000) 99 FCR 316, 486–545. 64 Western Australia v Ward (2000) 99 FCR 316, 486 . 65 Reilly, above n 46, 4. 76 of both interests.66 That summation is no doubt correct but lamentable because a compromised approach has not provided the best outcome for native title holders. It has denied the content of native title rights and interests a robust meaning. The approach of North J at Full Federal Court level, when his Honour considered that the doctrine of tenure could accommodate native title, is preferable. North J considered native title would be better suspended rather than extinguished, which would have been a more advantageous outcome for native title holders and more in keeping with their sentiments in relation to how ‘country’ and inconsistent rights granted over traditional lands are viewed.
5.4.2 Ward at High Court level
In Western Australia v Ward,67 the main issue for determination by the High Court was whether there could be partial extinguishment. Gleeson CJ, Gaudron, Gummow and Hayne JJ delivered a joint judgment and stated that
the metaphor of ‘bundle of rights’ which is so often employed in this area is useful in two respects. It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional laws and customs.68
The majority judgment is conservative and their Honours predominately used similar language to that employed in the Native Title Act to determine the content of native title and utilised little innovation.69
Callinan J held that the Native Title Act contemplates the possibility of ‘partial extinguishment’ as well as ‘complete extinguishment’ and the concept of native title as a ‘bundle of rights’ was to the same effect.70 His Honour also said that the Native Title Act defines native title as rights acknowledged and traditional customs observed in relation to land and although the term ‘in relation to’ was wide, the phrase had to be construed within its context.71 It was found that the High Court could not assume that native title necessarily amounted to ownership similar to the ownership enjoyed by other non-native title members of the community.72 Clearly, in Western Australia v Ward 73 the High Court confirmed native title to be a bundle of rights. That doctrine does accord the rights within
66 Barnett, above n 64, 466. 67 Western Australia v Ward (2002) 213 CLR 1. 68 Western Australia v Ward (2002) 213 CLR 1, 95. 69 Robert French, ‘Western Australia v Ward: Devils (and Angels) in the Detail’ (2002) 7(3) Australian Indigenous Law Reporter 1, 2–3. 70 Western Australia v Ward (2002) 213 CLR 1, 263 [618]. 71 Western Australia v Ward (2002) 213 CLR 1, 274 [644]. 72 Western Australia v Ward (2002) 213 CLR 1, 287 [665]. 73 Western Australia v Ward (2002) 213 CLR 1. 77 the bundle the status of proprietary rights.74 Native title was not held by the High Court to be a right equivalent to a full ownership of the fee simple. McHugh considers that this has diminished the scope for native title holders in Australia to protect ‘country’ because it has denied them the right to exclude all others, which is a key element of ownership.75 Even in the case of exclusive native title, when found to exist over unallocated State land (vacant Crown land), unless the exclusive native title is surrendered to the Crown and freehold subsequently granted to the native title holders, the land remains Crown land.
The High Court can take little credit for originality in deciding that the content of native title is a bundle of rights because this concept is not new, innovative or original. The bundle of rights doctrine has been known for a considerable period of time and is usually viewed as a combination of Hohfeld’s 1913 analysis of ‘rights’ and Honore’s work on the concept of ‘ownership’.76 Hohfield conceptualised property as a multiple bundle of rights, where many different rights in rem are contained in the bundle and those rights are associated with companion rights. Honore’s work outlines the rights associated with ownership and clarifies that rights of ownership attract both duties and liabilities.77 The bundle of rights doctrine is well developed and Penner considers it is the prevailing mainstream Anglo- American thinking on the content of property.78 Accordingly, it was predictable that a conservative High Court would have eventually drawn on mainstream Anglo-American thinking even if the die had not been cast in Fejo in relation to partial extinguishment.
The bundle of rights concept of property has some detractors and the main basis for the criticism is that property may have some elements that cannot be explained by the bundle of rights doctrine.79 Pearson has never supported the view that the content of native title is a bundle of rights. Pearson favours the decision of Lamer CJC in Delgamuukw 80 that under ‘common law the act of occupation or possession is sufficient to ground native title … and the Aboriginal perspective must be taken into account alongside the perspective of the common law’.81
74 Lisa Strelein, Compromised Jurisprudence: Native Title Cases Since Mabo (Permalink, 2nd ed, 2009) 136. 75 Dr P G McHugh, ‘The Property Rights of Tribes’ in Martin Dixon (ed) Modern Studies in Property Law (Hart Publishing, 2009) vol 5, 4. 76 Penner, above n 63, 711–12. 77 Ibid 711. 78 Penner, above n 63, 711–12. 79 Henry E Smith, ‘Property is Not Just a Bundle of Rights’ (2011) 8(3) Econ Journal Watch 279, 281. 80 Delgamuukw v British Columbia (1997) 153 DLR 4th 193. 81 Noel Pearson, ‘Principles of Communal Native Title: Summary of the Principles Presented by Noel Pearson at a Seminar to Discuss the Legal Concept of Native Title’ (2000) 5(3) Indigenous Law Bulletin 4, 7. 78 5.4.3 High Court cases subsequent to Ward
A number of subsequent High Court cases between 2009 and 2013 examined the content of native title but did not add to or detract from the finding that the content of native title is a bundle of rights. The case of Wurridjal v The Commonwealth 82 concerned the grant of a five year lease on Maningrida land and the question was whether that grant constituted an acquisition of property and whether it needed to be on just terms pursuant to s 51(xxxi) of the Constitution. It is clear that native title is a proprietary interest in land in the view of French CJ because he said that
property … is not limited to an interest in fee simple. It is a bundle of rights or a ‘legally endorsed concentration of power over things and resources’. Such broad understandings of ‘property’ as used in section 51(xxxi) make it clear that the concept extends at least to include the traditional rights of Australian Aboriginals, particularly in relation to their land.83
In Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth,84 Hayne, Keifel and Bell JJ, who agreed with the reasons of French CJ and Crennan J, affirmed that the content of native title is a bundle of rights. Their Honours said
the Native Title Act postulates that there may be partial extinguishment of native title rights and interests. So for example, section 23A(1) of the Native Title Act speaks of the provisions of Division 2B of Part 2 of the Native Title Act providing that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title. That postulate is wholly consistent with the conclusion reached by the plurality in Ward that native title rights and interests may properly be seen as a bundle of rights, the separate components of which may be extinguished separately and as the plurality said in Ward it is a mistake to assume that what the Native Title Act refers to as native title rights and interests is necessarily a single set of rights relating to land that is analogous to a fee simple.85
In view of this, Grattan and McNamara describe native title as being akin to a feudal right in property.86
The High Court has been reluctant to accord native title the exact status of a fee simple where the owner of the fee simple has a right to exclude all others as against the whole world. It is clear,
82 Wurridjal v Commonwealth (2009) 237 CLR 309. 83 Wurridjal v Commonwealth (2009) 237 CLR 309, 422 [296]. 84 Akiba on behalf of the Torres Strait Regional Seas Claim group v Commonwealth (2013) 250 CLR 209, 239. 85 Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209 [59]. 86 Scott Grattan and Luke McNamara, ‘The Common Law Construct of Native Title: A “Refeudalisation” of Australian Land Law’ (1999) 8(1) Griffith Law Review 50, 63. 79 however, that holders of exclusive native title have the right to exclude other Aboriginal people and in certain circumstances may have a right to exclude all others.87 Leeks considers that essentially the High Court in treating native title as a bundle of rights has denied native title a full recognition as a property right and has reduced it to a series of itemised traditional activities over lands and waters.88 Leeks’s view, however, does not take into account ‘the recent major works on the subject of property especially the books of Becker,89 Waldron90 and Munzer91 [where the view] is that the actual nature of property has been satisfactorily explained by the Hohfeld-Honore “bundle of rights” analysis’.92 Accordingly, it is strongly arguable that native title, being a bundle of rights, is much more than a series of itemised traditional activities over land and waters and is a proprietary interest in land, which satisfies the prerequisite for its inclusion in the Torrens Title system.
5.4.4 A strengthening shift in direction by the High Court
A number of recent decisions from the High Court on extinguishment have shifted the thinking on the content of native title and, accordingly, have strengthened its position as a proprietary interest in land by treating native title as a ‘unitary title’ in land.93 In other words, native title is a proprietary title possessing a wholeness in itself, not simply an interest in land that is proprietary. As a unitary title, native title is not subject to the same level of extinguishment as occurs when the content of native title is treated as a bundle of rights. The relevant cases are Akiba v Commonwealth,94 Karpany v Dietman,95 Western Australia v Brown,96 and Queensland v Congoo.97 In Akiba and Karpany the High Court, on examination of the question of extinguishment, found that native title had survived and was able to co-exist with regulatory legislation. The court’s approach was to view native title as a singular title, or in Akiba an ‘underlying right’, with the issue being whether fisheries legislation displayed a clear and plain intention to extinguish the singular title or simply to regulate its
87 Banjima People v Western Australia (2015) 231 FCR 456; Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v WA, unreported, Rares J, 20 July 2017 [2017] FCA 803. 88 Annie Leeks, ‘Realising the Right of Indigenous Peoples to Development through Common Law Recognition of Aboriginal Resource Rights’ (2007) 13(1) Australian Journal of Human Rights 177, 180. 89 Lawrence C Becker, Property Rights: Philosophic Foundations (Routledge and K Paul, 1977). 90 Jeremy Waldron, The Rights to Private Property (Clarendon, 1988). 91 Stephen R Munzer, A Theory of Property (Cambridge University Press, 1990). 92 Penner, above n 63, 713. 93 Edgeworth, above n 11, 33; Zoe Bush, ‘Queensland v Congoo: The Confused Re-emergence of a Rationale of Equality’ (2015) 39(2) University of Western Australia Law Review 451, 452. 94 (2013) 250 CLR 209. 95 (2013) 252 CLR 507. 96 (2014) 253 CLR 507. 97 (2015) 320 ALR 1, French CJ and Keane J [34]; MA Stephenson ‘The Doctrine of Extinguishment: And Then There Was Congoo’ (2016) 6 Property Law Review 3, 12. 80 incidents.98 The case of Brown is significant on the issue of native title as a unitary title, although this is inferred rather than explicitly stated. The court looked at the provisions of mining leases that were granted in accordance with a State Agreement and permitted significant building of a mining town, which, at the time of the litigation, had been removed and the site fully restored.99 The mining leases were found not to have extinguished native title rights either partially or completely, which would have been the likely outcome if native title had been viewed as a bundle of rights.100 Instead, the mining leases had suspended native title, which was capable of being fully exercised after the mining leases were determined.101 Inconsistency was examined as at the time of the grant of the mining leases before any building had occurred.102 That also assisted the court in reaching its conclusion that native title was suspended rather than extinguished.
Congoo, being a split decision, may have less persuasive value than Akiba, Karpany and Brown, although Edgeworth considers that it did clarify that native title is an underlying title, and its incidents are the exercise of the native title rights and interests.103 Extinguishment depends on one test, which is the inconsistency of rights test.104 The implementation and comprehension of that test is informed by the clear and plain intention test.105 If native title is viewed as an underlying title, extinguishment only occurs where there is inconsistency with the underlying title, not with its incidents. Interestingly, the High Court appears to have shifted back to the findings of North J in his Honour’s compelling judgment in Ward at Full Federal Court level where his Honour found that the doctrine of tenure could accommodate native title and its suspension rather than extinguishment.106
A recent case is Northern Territory v Griffiths,107 where the Full Federal Court found that the way the rights were exercised was not the test but instead it was the content of the rights granted that should determine liability and its assessment.108 The compensation found to be owing in this case was
98 (2013) 250 CLR 209, 522–5; (2013) 252 CLR 507, 229; R Bartlett, ‘Tishe Requirement of a Clear and Plain Intention and its Relationship to Equality and the Inconsistency Test in the Extinguishment of Native Title: Akiba Brown and Congoo’ (2015) 34(2) Australian Resources and Energy Law Journal 109, 118. 99 (2014) 253 CLR 503, 517. 100 (2014) 253 CLR 503, 530. 101 Edgeworth, above n 11, 30. 102 (2014) 253 CLR 503, 523. 103 Edgeworth, above n 11, 32; Stephenson, above n 99, 13–15. 104 Queensland v Congoo (2015) 320 ALR 1. 105 Stephenson, above n 99, 25. 106 Reilly, above n 46, 4. 107 [2017] FCAFC 106. 108 [2017] FCAFC 106 [14] 81 considerable, totalling over three million dollars.109 Now, however, the matter is on appeal to the High Court.
In summary, the cases discussed that illustrate a shift in the thinking of the court towards the doctrine of tenure for native title, along with the Anglo-American thinking on the nature of property, indicate that native title is a proprietary interest in land. It therefore satisfies a prerequisite for accommodation in Torrens Title Registers.
5.5 A BRIEF INTRODUCTION TO THE FEATURES OF THE TORRENS TITLE SYSTEM
5.5.1 Title by registration
As native title potentially meets the prerequisites for accommodation in the Torrens Title system, it is now necessary to outline the features and operation of that system. The philosophy underlying the Torrens Title system is that all registrable instruments relating to land within a particular jurisdiction are able to be registered in the Torrens Title registry of that jurisdiction and to achieve indefeasibility.110 Each parcel of land in the Torrens Title system is allocated a unique reference consisting of a volume and folio number, which becomes the identifier of the land that appears on the title to that land. The original folio stays in the Torrens Title registry and the owners of the land hold the duplicate folio as their certificate of title.111 Computerisation has meant that the Torrens Title Registers are now able to be kept electronically112 and the Registers can be searched under a Lot and Plan descriptor number (folio identifier), which is an efficient method of accessing title information. The certificate of title may be phased out completely in time due to computerisation. Administration of the Torrens Title Registers is assisted by other registers of an ancillary nature.113 Significant electronic achievements have occurred in relation to digital geospatial representations linked to the Torrens Title Registers where registered plans and plans of subdivisions can be viewed spatially.114
5.5.2 Mirror principle
The Torrens Title system is underpinned by the ‘mirror principle’, whereby the title is reflected back to the searcher. When the land is sold, leased or mortgaged, these dealings are registered as are other
109 Fiona Martin, ‘Compensation for Extinguishment of Native Title: Griffiths v Northern Territory a Major Step Forward for Native Title Holders’ (2016) 27(8 ) Indigenous Law Bulletin 8. 110 Samantha Hepburn, Real Property Law (Thomson Reuters, 4th ed, 2012) 102. 111 Ibid 212. 112 Anthony P Moore, Scott Grattan and Lynden Griggs, Bradbrook, McCallum and Moore’s Australian Real Property Law (Thomson Reuters, 6th ed, 2016) 192. 113 Whalan, above n 6, 18. 114 New South Wales Torrens Title Registers, New South Wales Land and Property Information Services, Government of New South Wales
5.5.3 Curtain principle
The mirror principle is closely supplemented by the ‘curtain principle’, which provides that a person dealing with Torrens Title land does not have to ‘search behind the face of the Register’ to check the information that appears on the face of the Torrens Title Register. The person registered as the registered proprietor can be taken to be the valid owner of the land. A registered proprietor who is a bona fide purchaser for value in most States takes the land free from any interests that are unregistered that could have been enforced against the previous registered proprietor.116
The curtain principle is not absolute as the curtain can be lifted in the process of litigation, where an exception to indefeasibility applies, for example, when actual fraud on the part of the registered proprietor is involved.117
5.5.4 Insurance principle
Under the ‘insurance principle’ of the Torrens Title system, persons who have lost their land or an interest in land due to the operation of the Torrens Title legislation are able to claim compensation. This is provided by assurance funds established under the Torrens Title legislation for the loss suffered where such purchasers are not at fault. Alternatively, they are compensated from the general revenue of the relevant State or Territory.118
5.5.5 Importance of the mirror, curtain and insurance principles to native title
The mirror, curtain and insurance principles of the Torrens Title system are critical to the concept of indefeasibility. The mirror and curtain principles are important for native title because where native title rights and interests are registered or recorded against the relevant land title this would provide comprehensiveness, currency and certainty to that interest. It would also avoid those intending to deal
115 Emily Walsh, ‘The Monster in the Mirror’, Property and Construction, Royal Institute of Chartered Accountants,
Whether the insurance principle would apply to native title is uncertain. New South Wales has already excluded native title from compensation where the loss or damage arises from the recording or omission of approved determinations of native title or native title issues in the Torrens Title Register.119 This applies unless an error is made by the Registrar-General in the recording of a matter.120 Other States and Territories may follow this example if native title rights and issues were to be registered or recorded in their Torrens Title Registers. Section 53 of the Native Title Act provides an entitlement for compensation on just terms for native title holders in relation to the doing of future acts, but it does not provide for compensation arising from mistakes made by the Native Title Registrar. In the circumstances that native title was to be registered and attract the government guarantee, rather than being recorded in Torrens Title systems, human rights and/or discrimination issues may be involved if the insurance principle was not extended to native title. Robertson supports that the insurance principle may apply to native title,121 which is discussed below.
5.7. The caveat system
As discussed above, the Torrens Title system grants indefeasibility to registered interests in land. In Queensland, the holder of a registered interest in land is not bound by an unregistered interest, even if they have notice.122
However, these principles only apply when dealing with a conflict between a registered and an unregistered interest. There may be multiple unregistered interests in existence, and conflicts between these interests need to be resolved outside of the Torrens Title principles. Torrens Title also caters for unregistered interests in land both by the caveat provisions123 and through a system of priorities based on ‘competing equitable interests in land’ principles.124 Furthermore, it is not the case that all unregistered interests are equitable because some may be legal interests that have arisen contractually and bind the parties to that contract125 or may have arisen by virtue of an unregistered short-term
119 Real Property Act 1900 (NSW) s 129(2)(g). 120 Real Property Act 1900 (NSW) s 129(3). 121 Ian Robertson SC, ‘The Rise and Rise of Aboriginal Title to Land: The Effect on Predecessor Title to Aboriginal Land under the Torrens System’ in Shaun Berg (ed) Coming to Terms: Aboriginal Title in South Australia (Wakefield Press, 2010) 206–21. 122 Land Title Act 1994 (QLD), s 184(2)(a). 123 Butt, above n 21, 760. 124 Ibid 761. 125 Samantha Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’ (2005) 29 Melbourne University Law Review 1, 24; Hepburn, above n 105, 128–9. 84 lease.126 In Western Australia, for example, only leases over five years are required to be registered.127 Statutory provisions may also have made provision for interests or obligations that are not registered in the Torrens Title Registers.128
The main purposes of a caveat, subject to a number of exceptions,129 are to protect equitable and caveatable interests from dealings seeking to be registered and to provide notice. As a caveat can only be lodged to protect a proprietary interest in land, some diverse results have arisen in very similar factual situations, particularly within the family law context. In Bethian Pty Ltd v Green 130 it was found that a caveat could not be lodged to protect an intended cause of action relating to a settlement of matrimonial property in the Family Law Court. Conversely, in Hayes v O’Sullivan,131 where the plaintiff was also intending to apply for a property settlement under the Family Law Act 1975 (Cth), the protection of a constructive trust that arose pursuant to the plaintiff having made contributions to improvements and maintenance of the family home was found to be a caveatable interest. This illustrates that the law relating to caveats is complex.
5.6 NATIVE TITLE AND REGISTERED TORRENS TITLE INTERESTS
As noted above, by virtue of the operation of Torrens legislation, registered interests may extinguish unregistered interests but will not necessarily bind the registered proprietor. If extinguishment occurs this may be an issue for native title and its compatibility with the Torrens Title system, as raised by Callinan in Western Australia v Ward.132 With due respect, his Honour may not be correct on the point that registration under Torrens Title can effect extinguishment of valid unregistered native title rights and interests. The Native Title Act provides that native title can be extinguished only in accordance with that legislation.133 Native title exists and has always existed, irrespective of there being a determination of native title by the Federal or High Courts and whether or not the native title interest has been registered or recorded in Torrens Title systems or in other registration systems. Arguably, unregistered native title rights and interests could not be extinguished by a registered
126 In Queensland see, eg, , Land Title Act s 185(1)(b). 127 Jonanan Ottensooser, ‘Real Property’, Law, Economics and Development, oatsandsugar.com; Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28. 128 Moore, Grattan and Griggs above n 112, 201; Justine Bell and Sharon A Christensen, ‘Use of Property Rights Registers for Sustainability – a Queensland Case Study’ (2009) 17(1) Australian Property Law Journal 86, 86–7. 129 The exceptions generally relate to whether the interest sought to be registered affects the interest represented by the caveat, whether the interest sought to be registered arises pursuant to the death of the registered proprietor and is brought by a joint-tenant or executor of the estate or whether there is an unregistered dealing in registrable form lodged before the date the caveat is lodged: Butt, above n 22, 772. 130 (1977) 3 FamLR 11, 579. 131 (2001) 24 WAR 40 [60]. 132 (2002) 213 CLR 1, 364 [876]. 133 Native Title Act s 11 provides that native title is not able to be extinguished contrary to the Native Title Act. 85 Torrens Title interest pertaining to land that contained native title. For extinguishment to occur, the underlying grant of the tenure or interest supporting the registration would need to have been validly carried out pursuant to both the Native Title Act and the Crown land legislation or other legislation that authorised the grant of the tenure or interest. The situation of invalid interests gaining registration is further discussed under the heading ‘Exceptions to indefeasibility and native title’ below.
5.6.1 Caveats as notice
If an application for a determination of native title has been lodged in the Register of Native Title Claims, or a determination has been lodged in the National Native Title Register or is pending, the lodgement of a caveat would provide valuable notice to persons intending to deal with the land. It would be necessary to show that the native title is a caveatable interest.
One purpose of a caveat is to provide notice to anyone intending to deal in the land. It is envisaged that considerable resistance to the approach of native title being a caveatable interest would be raised by States and Territories. This would be due, in part, to conceptual difficulties. Native title rights and interests that arise from traditional laws and customs are not easily reconciled with a real property system where interests are considered to have arisen from grants of land from the Crown and real property law is considered to have developed out of the common law received into New South Wales from Britain after the establishment of the colony of New South Wales.134 This issue is difficult to overcome as the thinking is ingrained.
5.6.2 Native title as a caveatable interest
It is unclear legally whether native title rights and interests could form the basis for the lodgement of a caveat in Australia135 that requires the interest to be a caveatable interest.136 For native title to be considered a caveatable interest, it needs to be a proprietary interest in land. That issue has been examined in this chapter where it has been argued that native title, as a ‘bundle of rights’, is a proprietary interest in land on the basis on findings of the High Court and that a ‘bundle of rights’ is a well-established property concept.137 The findings of the High Court in Wurridjal v Commonwealth 138 support the proprietary nature of a bundle of rights and the recent High Court
134 Patricia Lane, ‘The End of Property as We Know It’ (2000) Australian Property Law Journal 1, 1–2. 135 Babie, above n 26, 589–90. 136 Butt, above n 21, 764; Babie, above n, 25, 588. 137 Laurence C Becker, Property Rights: Philosophic Foundations (Routledge and K Paul, 1977), 1ff. 138 [2009] HCA 2. Also see the High Court discussion in Yanner v Eaton (1999) 201 CLR 351. 86 cases that have treated native title as a ‘unitary title’139 have strengthened the position that native title is a proprietary interest in land.
Although it has not yet been tested in Australian courts whether native title rights and interests could be the subject of a caveat, Callinan J in Western Australia v Ward 140 provides guidance on the question. That case indicates that the preferable construction of the language of the Transfer of Land Act 1893 (WA) is that all encumbrances should be noted on the Register and this would include native title.141 The wording of that legislation is wide and enables any holder of any estate in land to lodge a caveat which, due to natural extension, includes native title.142 The issue was remarked to have also been considered a number of times in Canadian courts. Callinan J in Ward cites Re Uukw v The Queen in Right of British Columbia,143 where it was held that Aboriginal title could not be registered because the British Columbia Land Title Act provided that marketable interests only could be the subject of a caveat. Native title, the subject of the caveat sought to be lodged in Ward, was inalienable and thus non-marketable. Callinan J observed that the Transfer of Land Act 1893 (WA) had no such prerequisite of marketablility or alienability in its provisions in regard to registration or lodgement of caveats.144
In James Smith Indian Band v Saskatchewan (Master of Titles)145 it was held that Canadian Aboriginal title was not a proprietary interest in Torrens Title land and therefore could not be the subject of a Torrens Title caveat. James Smith Indian Band claimed perpetual interests of hunting (including trapping), fishing and gathering arising from their traditional law and custom, which were supported by a treaty and a transfer agreement in respect of some Crown land that was registered in the Saskatchewan Torrens Title system, over which James Smith Indian Band sought to lodge caveats to protect their interests. The Titling Registrar rejected the caveats and at first instance Gunn J agreed with the Titling Registrar.146 The case went on appeal to the Saskatchewan Court of Appeal and was heard by their Honours Wakeling, Sherstobitoff and Lane JJA.147
Wakeling JA considered it was irrelevant whether Aboriginal title could support a caveat because Aboriginal title was not within the scope of the Torrens Title legislation of Saskatchewan. His Honour
139 Edgeworth, above n 11, 33. 140 Western Australia v Ward (2002) 213 CLR 1, 362–4 [870]–[876]. 141 Western Australia v Ward (2002) 213 CLR 1, 361 [869]. 142 Western Australia v Ward (2002) 213 CLR 1, 361–2 [870]. 143 (1987) 37 DLR (4th) 408. 144 Western Australia v Ward (2002) 213 CLR 1, 362–3 [872]. 145 (1995) 123 DLR (4th) 280 (Saskatchewan Court of Appeal). 146 (1994) 107 DLR (4th) 9. 147 James Smith Indian Band v Sasketchewan (Master of Titles) (1995) 123 DRL (4th) 280. 87 also held that if his conclusion was wrong and a caveat could be lodged it could not challenge the indefeasibility of the registered proprietor. All such a caveat could achieve was to provide notice, which, in any event, was not necessary.148 Sherstobitoff JA, with whom Lane JA agreed, held that there was a possibility that some interests deriving from Aboriginal title may be compatible with the Torrens Title legislation and a case-by-case basis should be applied.149 His Honour also held that Aboriginal title rights created by treaty, as was the situation in James Smith Indian Band, were not interests in Torrens Title land as they were sui generis and common-law concepts of property should not be applied to those rights. On that basis, the Titling Registrar was held to have been correct in rejecting the caveats on the basis that there was no proprietary interest in the Torrens Title land.150
Babie considers that the findings in James Smith Indian Band are not appropriate for Torrens Title jurisdictions in Australia151 and it has been argued in this thesis that Australian native title is proprietary. Babie argues that the opinions of Wakeling, Sherstobitoff and Lane JJA should not prevent native title from being the subject of a caveat lodged in Australian Torrens Title Registers. In that capacity it could protect native title in land before it is recorded in Torrens Title systems. Babie argues that, unlike the findings of Wakeling JA, the notice that a caveat would provide in Australia is necessary and valuable. This is an important distinction. For example, if an application for a determination of native title had been lodged or is pending, the lodgement of a caveat would provide valuable notice to persons intending to deal with the land.152 In addition, if other registered interests remain subject to native title, the lodgement of a caveat would provide notice of the native title issues to the owners of the other registered interests.153 Babie does not mention that the Australian Crown land, to which he refers, would need to have been brought under or able to be brought under the Torrens Title system as, if not, a folio against which a caveat could be lodged would not be available.
Furthermore, in contrast with the findings of Wakeling JA, Babie considers that the fact native title may co-exist with interests that are granted under the Torrens Title system in Australia makes it likely that native title is within the scope of Australian Torrens Title legislation.154 Babie fails to provide examples of where native title co-exists with Torrens Title interests but it is possible he is referring to statutory freehold land granted to Aboriginal Land Councils pursuant to Aboriginal land rights legislation. In such cases, the freehold title is registered under Torrens Title and native title may still
148 James Smith Indian Band v Sasketchewan (Master of Titles) (1995) 123 DLR (4th) 280, 285–6. 149 James Smith Indian Band v Sasketchewan (Master of Titles) (1995) 123 DLR (4th) 280, 287. 150 Babie, above n 25, 593. 151 Ibid 588, 596. 152 Babie, above n 25, 593–4. 153 Ibid 594. 154 Babie, above n 25, 594–5. 88 exist in the statutory freehold land. Alternatively, Babie may be referring to the jurisdictions of New South Wales, Western Australia, Victoria, South Australia, the Northern Territory or the Australian Capital Territory where Crown leases are registered in Torrens Title systems155 but are granted pursuant to Crown land legislation rather than real property legislation.
A further compelling reason why James Smith Indian Band may not be an appropriate precedent for Australia is that the decision may not now be good law in Canada as it was handed down before the Canadian Supreme Court cases Delgamuukw v British Columbia156 and Tsilhgot’in Nation v British Columbia157 where it was respectively held and confirmed that the content of native title in Canada is ‘an interest in land’.158 That being the case, there is a strong possibility that if facts similar to those in James Smith Indian Band came before the courts in Canada today, the decision may be different and Aboriginal title may be held to be capable of supporting the lodgement of a caveat.
5.7 INDEFEASIBILITY OF TITLE
5.7.1 Immediate indefeasibility
The word ‘indefeasible’ is used only in Queensland, South Australia, Tasmania and the Northern Territory real property legislation.159 In legislation of the other States and Territories the concept of indefeasibility of title is gained through a reading of a number of different sections of the legislation.160 In any discussion of indefeasibility of title it needs to be remembered that the legislation of the State and Territories of Australia incorporate exceptions to indefeasibility which although different in each jurisdiction contain many similarities. Mapp comments that the notion of an ‘indefeasible title is deceptive’161 in itself. In spite of Mapp’s views, gaining an indefeasible title in Australia is usually taken to mean that directly upon an interest in land being registered, the interest
155 New South Wales has converted most of its Crown lands to Torrens Title; New South Wales Conversion, New South Wales Land and Property Information Services, New South Wales Government, www.lpi.nsw.gov.au/land_titles/historical-records_online/crown_land_conversion; Western Australia has converted all its Crown land to Torrens Title, Western Australia Government, Western Australia Crown Lands Practice Manual and Conversion,
Immediate indefeasibility is not without its critics and it has been mentioned that it ‘can be an undeniably harsh and cruel doctrine’.169 The decision in Breskvar v Wall 170 demonstrates how this doctrine can operate harshly against certain interest holders. The case involved the mortgagors signing a transfer as security for a loan where a name was omitted from the transfer. The mortgagee fraudulently placed his grandson’s name on the transfer and had it registered. A caveat was lodged by the mortgagor seeking to rescind the transfer to the mortgagee’s grandson but it was lodged subsequent to the grandson, a party to the fraud, selling the land to a bona fides purchaser for value without notice. The mortgagor was criticised by the High Court for not lodging the caveat sooner because that was found to have been a factor in misleading the bona fides purchaser who acquired an interest without notice.171 The critics of immediate indefeasibility question why a person who has undertaken an unlawful action, such as the mortgagee’s grandson in Breskvar v Wall,172 could gain a valid title through fraud, sufficient to be able to sell the property to a bona fides purchaser for value who becomes registered and achieves indefeasibility.
162 Frazer v Walker [1967] 1 AC 569. 163 John Baalman, ‘Approach to the Torrens System’ (1956) 2(1) Sydney Law Review 87, 91. 164 Butt, above n 21, 754. 165 [1998] 1 VR 188. 166 (1995) 64 SASR 387. 167 Chambers, above n 26, 561. 168 Ulla Secher, ‘Native title- An exception to indefeasibility and a ground for invoking the deferred indefeasibility theory’ (2000) 7 James Cook University Law Review 17, 24. 169 Lynden Griggs, ‘Possession, Indefeasibility and Human Rights’ (2008) 8(2) Law and Justice Journal 286, 294. 170 Breskvar v Wall (1971) 126 CLR 376. 171 Breskvar v Wall (1971) 126 CLR 376, 409. 172 (1971) 126 CLR 376. 90 5.7.2 Indefeasibility deferred
Although Australia operates its Torrens Title system on the basis of immediate indefeasibility, certain jurisdictions favour deferred indefeasibility. The registration system of the Metis People in Canada, which is a modified Torrens Title system for registration of Aboriginal title discussed in the following chapter, operates on the principle of deferred indefeasibility.173 Supporters of the doctrine of deferred indefeasibility do so on the basis that, unlike immediate indefeasibility, it does not favour the searcher who is careless or negligent nor does it validate actions that are unlawful or put an owner of land at risk because a registered proprietor becomes registered, pursuant to a forged signature, or a mortgagee suffers loss in the circumstances of a forged mortgage becoming registered.174
5.7.3 Exceptions to indefeasibility
As mentioned, the legislation governing Torrens Title registration is not identical throughout Australia but all real property legislation in Australia does include exceptions to indefeasibility, which are similar. The Land Title Act 1994 (Qld), the Real Property Act 1900 (NSW) and the Transfer of Land Act 1893 (WA) can be used to illustrate the main exceptions to indefeasibility.
Section 38 of the Land Title Act 1994 (Qld) sets out what is meant in Queensland by ‘an indefeasible title for a lot’ when it provides that ‘the indefeasible title for a lot is the current particulars in the freehold land register about the lot’.175 The quality of the registered interest is set out in Land Title Act 1994 (Qld) s 184. There a registered proprietor of an interest in a lot holds that interest subject to other interests that are registered but free of all other interests and is not affected by actual or constructive notice of other interests that are not registered.176 Exceptions to indefeasibility include fraud on the part of the registered proprietor whether or not the fraud has been perpetrated by a person from whom the registered proprietor derived the registered interest and the interests set out in Land Title Act 1994 (Qld) s 185.177 The interests set out in Land Title Act 1994 (Qld) s 185 include:
equities created by the registered proprietor; interests held by lessees of a short-term lease; interests of persons holding easements that have been omitted or misdescribed in the register;
173 Nigel Bankes, Sharon Mascher and Jonnette Watson Hamilton, ‘The Recognition of Aboriginal Title and its Relationship with Settler State Land Title Systems’ (2014) 47(3) University of British Columbia Law Review 829, 861. 174 Robin Edwards and Jennifer O’Reilly, ‘The Duel between Immediate and Deferred Indefeasibility’ (1999) Singapore Journal of Legal Studies 82, 98–101; 175 Land Title Act 1994 (Qld) s 38. 176 Land Title Act 1994 (Qld) ss 184(1)–(2). 177 Land Title Act 1994 (Qld) ss 184(3). 91 interests of adverse possessors; the interest of another registered proprietor who has a valid claim under an indefeasible title for the registered interest; interests of persons who have been affected by failures to cancel the title of one of two registered owners; interests of other registered proprietors where mistakes have been made in relation to the description of the registered lot; and interests of petroleum authority holders, greenhouse gas storage authority holders and geothermal tenure holders under access agreements created prior to the registered proprietor becoming registered where the relevant Act that has provided for the interest.
Furthermore, a number of interests mentioned in Land Title Act 1994 (Qld) s 185(1A), relate to mortgagees recorded in the freehold register. As illustrated, a considerable number of exceptions to indefeasibility exist in Queensland.
The Real Property Act 1900 (NSW) does not use the term ‘indefeasibility’. A reading of s 42 of that Act indicates that the Torrens Title registration system in New South Wales also operates, with some exceptions, on the principle of immediate indefeasibility for the registered proprietor of an estate or interest. This includes registered mortgages, charges or leases that are able to be identified from a folio reference. The exceptions to indefeasibility include fraud, where another proprietor claims the same land as is registered pursuant to registration in a prior folio. The exceptions to indefeasibility also include omission or misdescription of easements created before the land was brought under Torrens Title. Also included are titles that were validly created after land was brought under Torrens Title, omissions or misdescriptions of profit a prendres, wrong description of parcels or boundaries, tenancy interests and options on short-term leases not exceeding three years, which were subject to notice. Section 42 of the Real Property Act 1900 (NSW) has not made any separate provision for Crown lands in spite of most of the Crown lands in New South Wales having been converted to Torrens Title and having been incorporated into the New South Wales Torrens Title systems.178
Section 68(1) of the Transfer of Land Act 1893 (WA) also does not use the term ‘indefeasibility’. This section provides that the estate of the registered proprietor is paramount except in the case of fraud. Section 68(1) states that the registered proprietor holds the title subject to encumbrances that are notified on the registered certificate of title but, with some exceptions, free of all other
178 New South Wales Land and Property Information Services, Government of New South Wales,
5.7.4 Exceptions to indefeasibility and native title
Secher is of the opinion that native title is a common-law exception to indefeasibility in two situations. The first is in respect of statutory grants under State or Territory Aboriginal land rights legislation that are granted subject to native title and the second is invalidity of the tenure held by the registered proprietor.181 The second situation is based on the principle that an invalid interest cannot extinguish a valid interest, such as native title.182 Secher appears to be referring to the situation where the invalidity stems from reasons other than native title. Most interests in Crown land that were invalid prior to the enactment of the Native Title Act because of the existence of native title, but that would have been valid had native title not existed, have been validated by the Native Title Act183 and by the native title legislation of the States and Territories.184 Alternatively, Secher may be referring to an interest granted after the commencement of the Native Title Act that attracts the right to negotiate where native title should have been addressed but that did not occur. This would potentially render the future act invalid.185
179 Transfer of Land Act 1893 (WA) s 68(1A). 180 Transfer of Land Act 1893 (WA) s 68(2). 181 Secher, above n 170, 19. 182 Ibid 21–9. 183 Native Title Act s 23B. 184 Native Title (Queensland) Act 1993; Native Title (New South Wales) Act 1994; Validation (Native Title) Act (NT); Native Title Act 1994 (ACT); Land Titles Validation Act 1994 (Vic); Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA); Native Title (Tasmania) Act 1994; Native Title (South Australia) Act 1994. 185 Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v Queensland (1999) 95 FCR 14; [2001] FCA 414 [33]. 93 By way of explanation, since the enactment of the Native Title Act and the subsequent amendments to that Act that established the future act regime,186 native title must be addressed in one of the ways provided by the Native Title Act when future acts are undertaken over lands that may contain or are known to contain native title. If native title is not addressed, a future act attracting the right to negotiate, which may have been the granting of a fee simple or the building of government infrastructure where rights are to be conferred on third parties, may be invalid. Serious consequences may arise where interests have been granted to third parties by the government that has undertaken the invalid future act. It is conceivable that invalid infrastructure may be required to be removed or compensation may be required to be paid by the offending government to third parties as well as to native title holders.
Robertson disagrees with Secher’s opinion and considers that native title would not be an exception to indefeasibility where an invalid tenure, such as where native title is not addressed, achieves Torrens Title registration.187 Accordingly, native title would not be capable of overturning a registered proprietor’s interest in the Torrens Title system because registration would cure any invalidity of the tenure. Callinan J in Western Australia v Ward188 provides support for Robertson’s view because his Honour considered that the grant of an interest that is invalid because of native title does not remain invalid forever and can be ‘subsequently cured by registration’189 under Torrens Title. His Honour does not decide whether native title is a common-law exception to statutory indefeasibility in Ward and does not need to do so because of the finding that native title is extinguished in the leases under consideration for other reasons.190
It would assist if an invalid tenure that contains a native title interest manages to get registered in a relevant Torrens Title system was to be made an express exception to indefeasibility in the Torrens
186 ‘Future acts’ are defined in Native Title Act s 233 and are, with some exceptions mainly relating to legislation, those acts that occur after 1 January 1994 which apart from the Native Title Act validly affect native title, or are invalid to any extent but would be valid to that extent if native title did not exist and if it was valid to that extent it would affect the native title; The future act regime is contained in the Native Title Act pt 2 div 3. Part 2 div 3 comprises provisions setting out the way in which valid future acts may be undertaken and whether or not the non-extinguishment principle, where native title is suspended rather than extinguished, applies to the future act. For example, if a government granted fee simple for the very first time over Crown lands after 23 December 1996 that is after the time frame in which the confirmation of extinguishment provisions of the Native Title Act apply, then the grant of the fee simple will be a future act. Section 233 operates so that a future act will be valid if permitted by the Native Title Act but it will be invalid if it is not permitted by the Native Title Act to the extent it affects native title. See Native Title Act ss 24AA (2), 227, 24OA. It is in the circumstances of invalidity of the future act that the question of indefeasibility of the registered fee simple may come into question. 187 Ian Robertson SC, ‘The Rise and Rise of Aboriginal Title to Land: The Effect on Predecessor Title to Aboriginal Land under the Torrens System’ in Shaun Berg (ed) Coming to Terms: Aboriginal Title in South Australia (Wakefield Press, 2010) 206–21. 188 (2002) 213 CLR 1. 189 (2001) 213 CLR 1, 361–2 [870]. 190 (2002) 213 CLR 1, 364 [875]. 94 Title legislation of the States and Territories of Australia. This would provide an answer to an outstanding question concerning invalid tenures and registration.
5.7.5 Groundwater and surface water
The Water Act 1912 (NSW) applies to groundwater and surface water and provides for the granting of water licences and joint water supply authorities where water sharing plans under the Water Management Act 2000 (NSW) have not yet commenced.191 Where a water sharing plan is in place, conversion to the licensing system under the Water Management Act 2000 (NSW) has occurred since 1 July 2004.192 The Water Act 1912 (NSW) does not establish a licensing register. Details of licences issued under the Water Act 1912 (NSW), however, are contained in the New South Wales Water Register,193 which supplements the Water Access Licence Register. The Water Act 1912 (NSW) makes no provision for native title rights and interests in groundwater or surface water or for it to be registered or recorded even though surface water and groundwater may be claimed in applications for a determination of native title. This is a significant omission because the Native Title Act envisages that groundwater and surface water do contain native title given that s 24HA, involving future acts relating to the management of water and airspace, provides that ‘water’ means ‘water in all its forms’. Registration or recording of native title rights and interests recognised in surface water and groundwater and the amount taken pursuant to native title rights and interests should, ideally, be included in the New South Wales Water Register. Ideally, a geospatial layer should also be developed identifying where native title rights and interests have been registered, determined to exist or have been exercised in surface water and ground water. It is acknowledged that the creation of a geospatial representation involves significant issues to do with labour intensity and resources.
5.8 NATIVE TITLE AND THE TORRENS TITLE INSURANCE PRINCIPLE
Although Robertson disagrees with Secher on the issue of native title being an exception to indefeasibility, he obviously is of the view that native title has some place in the Torrens Title system. Robertson proposes that, on the basis of invalidity of tenure, native title holders in South Australia may be able to claim compensation from the Real Property Assurance Fund established under Torrens Title legislation. This is because the first Crown grants made prior to 1842 were not granted validly as shown in the articles and founding documents of South Australia.194 For such a claim against the
191 New South Wales Government, New South Wales Water Licencing,
5.9 TORRENS REGISTRARS
In Australia the statutory regimes establish a position that attracts responsibility for administering the Torrens Title system and registering the rights in land. In the Australian Capital Territory, Queensland, Victoria and Western Australia the office holder of the statutory position is known as the Registrar of Titles, while in South Australia, New South Wales and the Northern Territory the office holder is known as the Registrar-General. In Tasmania the title of the position is the Recorder of Titles.196 This is confusing and uniformity is the preferred position.
The legislative powers of the Registrar-Generals, Registrars of Titles and Recorder of Titles are relatively wide and many of the powers are discretionary. As an example of the type of discretion that is provided in some legislation, Real Property Act 1900 (NSW) s 12(f) provides that ‘for the protection of any person interested in land under the provisions of this Act the Registrar General may record in the Register a caveat, or may otherwise record the interest of that person in the Register in such manner as appears to the Registrar General to be appropriate’. The discretion of the New South
195 Ibid 222. 196 Mirzai and Kang, above n 6, 32. 96 Wales Registrar-General is sufficiently wide to record all native title rights and interests in land and all matters concerning land subject to native title. This would include a caveat in the New South Wales Torrens Title Register to protect a native title interest. This is significant given that a large percentage of the Crown land in New South Wales that contains native title has already been converted to Torrens Title.197 Whether the Registrar-General of New South Wales could be convinced to do so, on the basis of considering that approach to be appropriate, as required by the legislation, is another matter. In Western Australia, where all the Crown land is included in the Western Australian Torrens Title Register, the powers of the Registrar of Titles are expressly set out in the Transfer of Land Act 1893 (WA).198 A discretion similar to that possessed by the Registrar-General in New South Wales, as discussed above, is not provided.
In Queensland, the Registrar of Titles has discretion to record in the freehold land register anything considered necessary for efficiency and completeness of the freehold title.199 This means that native title as recognised in Crown land may not be able to be recorded in the Queensland Torrens Title Register. Unless the land containing the native title is statutory freehold, native title is likely to have been extinguished by the grant of freehold and would not be relevant to completeness of the freehold title.
It has not been the approach of New South Wales and Western Australia for Crown land to become freehold when converted to Torrens Title. If that had occurred, it would have involved significant payment of compensation to native title holders for extinguishment of their native title. This is an issue Queensland will face if it proceeds to the proposed conversion to freehold of pastoral and agricultural Crown leases which contain native title, pursuant to amendments to the Land Act 1994 (Qld) in 2014.200
5.10 THE REGISTRATION, RECORDING OR NOTATION OF NATIVE TITLE RIGHTS AND INTERESTS IN
TORRENS TITLE SYSTEMS THAT ARE THEMSELVES NOT COMPLETE
The desirability of transferring native title from the existing registration system, which is currently an incomplete record of native title rights and interests, to a Torrens Title system, which is also an incomplete record of all interests, rights and obligations applying to land, becomes an issue that may invoke comment and criticism. The lack of conclusivity of Torrens Title systems arises because, apart
197 New South Wales Registrar General’s discretion, New South Wales Land and Property Information Services, New South Wales Government
Although Torrens Title systems are not currently conclusive, being title based, such systems are capable of expansion to record or note on the title of land all the rights, interests and obligations that exist in the land. It is because of this potential that Torrens Title systems differ from the Registers established pursuant to the Native Title Act, which cannot accommodate recording or noting of native title issues or coexisting interests unless there is a registered entry for a claim, determination or Indigenous Land Use Agreement on a relevant Register.
Recording or noting of an interest or obligation on title in the Torrens Title Register, as opposed to registration, will not secure the government guarantee for that interest but it would provide notice of its existence to persons dealing with the land title. Additionally, such recording or notation may bind successors in title if the legislation under which the interest is created makes provision for that to occur.204 The Native Title Act, arguably, does bind successors in title to the land and waters in respect of approved determinations of native title made by the Federal Court or the High Court as provided for in the Native Title Act. Such determinations are made in rem.205
Butt notes that registered and recorded rights and interests take priority over unrecorded competing interests in Torrens Title.206 A conflict may arise in relation to recorded native title rights and interests when competing with unrecorded co-existing rights and interests granted in Crown land. This situation may occur when rights and interests are not required to be recorded (or registered) in the
201 Sharon Christensen, William D Duncan and Pamela O’Connor, Regulating for Sustainability: Property Issues (Faculties of Law, QUT and Monash University, 2011) 5. 202 Dr Paul White, ‘It Still Doesn’t Seem to Register’ (2008) 16 Australian Property Law Journal 81, 82. 203 Christensen, Duncan and O’Connor, above n 200, 12. 204 Ibid 28; Pamela O’Connor, Sharon Christensen, Bill Duncan ‘Legislating for Sustainability: A Framework for Managing Statutory Rights, Obligations and Restrictions Affecting Private Land’ (2009) 35(2) Monash University Law Review 233, 234. 205 Native Title Act s 81. 206 Butt, above n 5, 349. Butt indicates that recorded interests take priority over competing interests that are not recorded but do not obtain indefeasibility. 98 Torrens Title system, such as in the case of a non-exclusive short-term lease over Crown land. Pursuant to native title law, the activities permitted under a coexisting short-term non-exclusive lease over Crown land that is not registered would take priority over native title rights and interests.207 This is the case even if the native title rights and interests were recorded in the Torrens Title system. Should Torrens Title become the system of choice for native title this would continue to be the case given that provisions in State laws cannot override the provisions of the Native Title Act.
Butt, although not writing with native title in mind, and basing his ideas on the contents of a report issued by a Joint Land Titles Committee of land registration officials from the Canadian provinces and territories other than Quebec,208 notes that the system of recording is novel in Torrens Title. Although novel, Butt does not reject the possibility of Torrens recording. Butt considers there could be two methods of recording by the submission of either the full document or a prescribed form, which would only contain a summary of the contents of the document.209 The latter would be more suitable for recording native title as the native title document may contain information that is confidential. It may be that a native title document itself could be submitted for recording in a redacted format rather than the contents of the document being summarised on a prescribed form. Consistent with Butt’s view, Wallace and Williamson consider that modern registers are able to “mix and match” and Torrens Title systems can provide new recording fields differentiating “below the line” from “above the line” land information’.210 These are referred to by Wallace and Williamson as ‘land administration systems’211 where the government guarantee is attracted only for ‘above the line’ information.212
The idea of recording and noting all interests in Torrens Title Registers has its critics, who caution that a Torrens Title Register that is conclusive may run the risk of ‘eroding the integrity and indefeasibility of the certificate of title’.213 This is because not all of the interests recorded or noted on title would attract the government guarantee. In addition, the certificates of title would become very lengthy documents. The Western Australian Registrar of Titles has indicated that Western Australia prefers the use of a spatial representation of rights and interests to be recorded or noted on
207 Native Title Act s 44H. 208 Renovating the Foundation: Proposals for a Model Land Recording and Registration Act for the Provinces and Territories of Canada (Edmonton Joint Land Titles Committee, July 1990). 209 Butt, above n 5, 349. 210 Jude Wallace and Ian Williamson, ‘Registration of Marine Interests in Asia–Pacific Region’ (2006) 30 Marine Policy 207, 209. 211 Wallace and Williamson, above n 209, 209. 212 Ibid. 213 Justine Bell, ‘Greening the Land Title Register—How can the Land Title Register Assist with Sustainable Decision- Making’ (2010) 18 Australian Property Law Journal 263, 271. 99 title rather than an unwieldy, detailed and voluminous certificate of title.214 The advantages and disadvantages would need to be balanced but a conclusive Torrens Title Register would surely be the ideal future model for which to strive in Australia. Bowen,215 who favours the conclusive approach, notes that a ‘one stop shop’ concept, where native title is simply another layer to the title of land, should be the vision for the future.216
5.11 THE IMPERATIVE TO INCORPORATE NATIVE TITLE WITHIN A LAND REGISTRATION SYSTEM
To date, the States and Territories of Australia appear to have had great difficulty in accommodating native title within their existing land registration systems. In part, an explanation can be found in the judgment of Brennan J in Mabo No 2 217 who held that ‘native title has its origin in and is given its content by the traditional laws acknowledged and the traditional customs observed by the indigenous inhabitants of a territory’.218 This clearly demonstrates that native title is not derived from a Crown grant or from the reception of law into New South Wales, two matters informing Australian real property law. Lane considers that ‘the recognition of native title unleashed at least two and probably three new forces into Australian property law’.219 These three forces are:
(a) that Aboriginal people have the ability to own traditional rights in Crown land; (b) that the Racial Discrimination Act placed the validity of interests granted by the States and Commonwealth over Crown land at risk, invoking the legislative power of the Commonwealth; and (c) the relevance of international law pursuant to international treaties on human rights.220
Accordingly, Mabo No 2 and the Racial Discrimination Act may have made it essential that, on racial discrimination grounds, Australia accommodates native title in the existing State and Territory registration systems. This will be particularly so where Crown land has been converted to Torrens Title. Given the obiter dictum of Callinan J in Western Australia v Ward,221 indicating that an invalid interest that manages to become registered under Torrens Title legislation can extinguish native title, it is vital that native title is included in Torrens Title Registers as a recorded interest. Its inclusion would serve to prevent the registration of invalid native title interests in the event that the obiter
214 Ibid 271. 215 Peter Bowen was formerly the manager of the geospatial section at the National Native Title Tribunal. 216 Peter Bowen ‘Spatial Characteristics of Native Title’ (Paper presented at the Where is Native Title? Native Title and Spatial Information Seminar, Brisbane, August 1997) 7. 217 Mabo v Queensland [No 2] (1992) 175 CLR 23. 218 Mabo v Queensland [No 2] (1992) 175 CLR 23, 58; Lane, above n 134, 6. 219 Lane, above n 136, 1. 220 Ibid 1. 221 (2002) 213 CLR 1, 364, 875. 100 dictum in Ward is accepted in future High Court decisions. Inclusion of native title in the Torrens Title Registers of the States and Territories to supplement the current native title registration system would also ensure that native title information concerning land is current at all times, accurate, inclusive of all the interests of native title holders222 and culturally representative.223
5.12 ASSESSMENT OF WHETHER TORRENS TITLE SYSTEMS CAN ACCOMMODATE NATIVE TITLE
RIGHTS AND INTERESTS IN LANDS
In summary, in making an assessment as to whether the Torrens Title systems of the Australian States and Territories can accommodate native title, the following points, which have been discussed above, are relevant:
(a) Not all the States and Territories of Australia have converted all of their Crown land to Torrens Title. In this conversion it must be understood that the Crown land does not become freehold. Tasmania may be an exception.224 For example, in respect of Crown land converted to Torrens Title in New South Wales, the registered proprietor is shown as ‘The State of New South Wales’225 and a notation appears in Schedule 2 of the certificate of title that the land is Crown land. Converting Crown land to Torrens Title or at least Crown land that is determined to contain native title is, it is argued, a prerequisite for accommodating native title rights and interests in Torrens Title systems. Significant costs are involved if the Crown land has not been surveyed unless the jurisdiction is willing to create limited folios by using plan compilation to define the boundaries of the Crown land as has occurred in New South Wales. Additionally, legislative amendments would be required in the States and Territories that have not converted all their Crown land to Torrens Title although it is noted that the States and Territories, except for Queensland and Tasmania, have already included leased Crown land in their Torrens Title systems. (b) The Native Title Act does not prevent a duplicate registration, recording or noting on the title of land by the States or Territories but, pursuant to express provisions of the Native Title Act, the land titles offices or relevant State and Territory departments are notified only of determinations of native title by the Native Title Registrar.226 The Native Title Act would require amendment to provide for additional notifications to land titles offices to occur if all
222 Hepburn, above n 127, 24. 223 Tatum Hands, ‘Teaching an Old Dog New Tricks: Recognition of Aboriginal Customary Law in Western Australia’ (2006) 6(17) Indigenous Law Bulletin 12, 14. 224 Land Titles Act 1980 (Tas) s 27A (3)(a). 225 Real Property Act 1900 (NSW) s 13D. 226 Native Title Act s 199(1). 101 relevant native title rights and interests were to be registered, recorded or noted in the Torrens Title (c) Consideration would need to be given as to whether it is legally appropriate, as opposed to being appropriate from a human rights perspective, to register, rather than to record or note, native title rights and interests in Torrens Title systems. Doing so would provide native title holders a status similar to a registered proprietor of the fee simple attracting the government guarantee and indefeasibility. Native title is not a fee simple. It is mostly a communal title227 where the interests held cannot be alienated and can only be surrendered to the Crown by the native title holders or perhaps by the registered native title prescribed body corporate nominated as agent or trustee for the native title holders.228 Relevant to this consideration is that rights, other than freehold, are able to be registered in Torrens Title systems.229 Accordingly, the fact that native title is not a freehold should not of itself preclude it from registration. Also relevant is that land that cannot be alienated is already registered in Torrens Title systems.230 Another consideration is that if the insurance principle was to be extended to native title, the issue of double dipping may arise, given that the Native Title Act provides for compensation for extinguishment of native title, although, unlike Torrens Title registration, it does not provide for compensation for loss arising through errors made in the Registers by the Native Title Registrar. In this situation, arguably, compensation should be made available if native title was to be recorded in the Torrens Title systems of the States and Territories. The preferred view is that native title should be recorded rather than registered because only the native title holder and the government are able to deal with it. When the government deals with native title it does so with the knowledge of the native title holder by provision of notice and the giving of other procedural rights as necessary. (d) Native title claim areas and areas of Indigenous Land Use Agreements231 are often determined by anthropology, which is governed by numerous variables and is sometimes considered biased.232 This can result in conflicts arising in relation to the right native title group for the right area. The desirability of registering native title rights and interests in Torrens Title
227 Lauren Butterly, ‘Clear Choices in Murky Waters: Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia’ (2013) 35 Sydney Law Review 237, 240; Some rights in Akiba were held not to be communal. 228 Native Title Act ss 56–57 provide for the native title to be held in trust or as agent by a prescribed body corporate. 229 .Real Property Act 1900 (NSW) s 46A (2) provides for registration of easements. 230 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 19C provides for registration by the Registrar-General of the Northern Territory of inalienable freehold. 231 Indigenous Land Use Agreements are voluntary agreements provided for in the Native Title Act pursuant to sub- divisions B, C or D of Division 3 of Part 2 of that Act. Three types of Indigenous Land Use Agreements exist being Area Agreements, Body Corporate Agreements and Alternative Procedure Agreements. 232 Paul Burke, Law’s Anthropology: From Ethnography to Expert Testimony in Native Title (ANU Press, 2011) 32, 243. 102 systems that guarantee an indefeasible title immediately upon registration may be an issue. This issue would inhibit registration rather than a recording or noting of native title rights and interests on title. The issue of certainty would be resolved, however, once a determination of native title was made but may be present in the recording of Indigenous Land Use Agreements where there has not been a determination. (e) If the native title recognised by the courts is non-exclusive, careful consideration would need to be given as to whether recognised native title rights and interests should be registered, recorded or noted exactly or only in general terms, for example, ‘that native title has been recognised’. As some native title rights and interests may be related to transmission of culture and belief systems it is unclear how these rights could be named sufficiently for separate registration or recording. (f) The Registrar-Generals, Registrars of Titles and Recorder of Titles, as the case may be, may have wide discretionary powers. Many non-native title interests are already recorded or noted on title, including reservations of minerals to the Crown and in New South Wales the s 42 recording pursuant to the Aboriginal Land Rights Act 1983 (NSW). Subject to legislative amendment, where a wide legislative discretion exists nothing would prevent a determination of native title or an Indigenous Land Use Agreement being recorded or noted on title currently in Torrens Title Registers. In this case the relevant Crown land would need to have been converted to Torrens Title and a relevant Torrens folio already created. (g) To the best information available, and as far as is able to be ascertained, no-one has attempted to lodge a caveat in Australia in respect of native title rights and interests. Therefore, it is not known whether native title would be accepted for lodgement as a ‘caveatable interest’. This could be clarified by amendment to real property legislation of the States and Territories although the preferred course of the States and Territories may be that the question is tested by the courts. (h) The Torrens Title system is a model likely to continue for generations. Accordingly, the costs associated with including native title in the Torrens Title Registers, whether pursuant to registration or by recording or noting on title, would be an investment for the future. The World Bank favours the Torrens Title system and ‘the United Nations Capacity Building Guidelines simply assume that land title registration systems will be adopted’.233 Furthermore, the Torrens Title system is adaptable and can accommodate cultural boundaries and has even
233 Murray Raff, ‘Hubbe, Torrens, Stewardship and the Globalisation of Property Law Systems’ (2009) 30(2) Adelaide Law Review 245, 247. 103 been applied to seabed resources.234 This may be significant for the future direction of titling in relation to native title as it applies to resources found in water.
5.13 CONCLUSION
As explained above, certain preconditions do need to be satisfied and a number of issues require significant consideration in order to accommodate native title in land in the Torrens Title Registers of the States and Territories. These issues are not insurmountable and are able to be resolved by the States and Territories if given priority, close attention and funding. It must be kept in mind that matters that affect native title, including future acts,235 can occur over land that has not been claimed, determined or the subject of a native title agreement. Currently the Registers established pursuant to the Native Title Act include no registration entry on which to record such matters. This shortcoming will always be present in the current registration system for native title because it cannot be rectified in a system that fails to use land title as its basis for registration. In Torrens Title systems, land that has not been claimed, determined or the subject of a native title agreement may already be included in the relevant Torrens Title Register and possess a folio on which to make a recording or notation. Alternatively, the Crown land may be able to be converted to Torrens Title when it becomes necessary to make a recording or notation of a native title issue. Additionally, a system that is not title based cannot depict how co-existing interests relate to each other and to native title, which is important for sustainable land management purposes.
All things considered, the Torrens Title systems are the preferable systems for accommodating native title rights and interests in land because they have potential for being conclusive systems. This can provide for ‘the efficient management of land as a finite resource’,236 for correct identification of parcels of land and for inclusion of all the interests and obligations affecting land, as well as for provision of accurate notice. In addition, Torrens Title systems are economically viable in the long term237 in terms of both maintenance of and access to current data. Also, as the Torrens Title Registers are kept electronically and have linking geospatial systems, their capacity to record all the rights, interests and obligations in a time-efficient manner is increased through electronic capabilities.238
234 Ibid 248. 235 Native Title Act s 233. 236 White, above n 200, 86. 237 Luis J Arrieta-Sevilla, ‘A Comparative Approach to the Torrens Title System’ (2012) 20 Australian Property Law Journal 203, 214. 238 Pamela O’Connor, ‘Information, Automation and the Conclusive Land Register’ in David P Grinlinton (ed) Torrens in the Twenty-First Century (LexisNexis, Wellington, 2003) 260–3. 104 The Torrens Title systems of the States and Territories would be appropriate systems to be used to support the current native title registration system for native title rights and interests existing in land. Recording or noting of all native title issues in land in Torrens Title systems would provide the degree of certainty that is required for native title, Crown land and other land that may contain native title. Importantly, recording or noting of native title in land in Torrens Title systems of the States and Territories does not mean that the registration system established pursuant to the Native Title Act requires disbandment, rather it requires amendment through legislative changes both to the Native Title Act and to State and Territory legislation.
As Torrens Title systems may not be the only systems that contain features that are capable of supporting the current native title registration system for land, consideration in the following chapter of a number of other registration systems is warranted.
105 CHAPTER 6 OTHER REGISTRATION SYSTEMS
6.1 INTRODUCTION
The previous chapter noted that Torrens Title has the potential to be an appropriate system in which to record or note native title rights and interests; however, a conclusion about the most efficient system to record or note native title rights and interests can be more fully informed by considering a number of other titling systems besides Torrens Title. These systems may have components that are suitable for use in registering or recording native title rights and interests in Torrens Title systems, such as the use of compatible documents. Further systems for examination include those established by the Nisga’a People of British Columbia and the Metis People of Alberta, which are modelled on Torrens Title systems. These deal in particular with Aboriginal rights, to ascertain if they are appropriate models and if there are pitfalls that could be avoided in the event of setting up alternative registration or recording systems for native title in Australia. The systems set up by Queensland under the Land Act 1994 (Qld) are also appropriate for consideration as those registers have some unique components that may be suitable for registering or recording native title rights and interests. Furthermore, cadastral geospatial systems, which are very sophisticated and may be capable of offering native title comprehensiveness, certainty and currency, will also be examined.
6.2 THE NISGA’A SYSTEM
In 2007, the Registrar of Land Titles – Nisga’a Land Title Office, British Columbia, Canada (‘the Registrar’), submitted a number of papers to the Nisga’a Lisims Government Executive that contained details of a modified Torrens Title system established and operated by the Nisga’a Nation and supported by the Nisga’a Land Title Act.1 The Nisga’a land ownership model was developed during the negotiation of the Nisga’a Final Agreement with the British Columbian and Canadian governments.2 That agreement was about the Nisga’a land but it also included provisions about resources.3 The British Columbian government was not amenable to registering Nisga’a land title in the principal land registration system of British Columbia and this motivated the development of the modified Torrens Title system. Although no documents relating to Nisga’a land are registered in the
1 Dianne Cragg, ‘Land Title Systems Administrative and Structural Considerations for First Nations’ (2007) First Nations Property Ownership Initiative 23; Dianne Cragg, ‘Best Practices in the First Nations Land Title Systems’ (2007) First Nations Property Ownership Initiative 1; Dianne Cragg ‘Nisga’a Land Title System Administrative and Structural Considerations’ (2007) First Nations Property Ownership Initiative 39; See generally Brenna Bandar ‘Title by Registration: Instituting Modern Property Law and Creating Racial Value in the Settler Colony’ (2015) 42(2) Journal of Law and Society 282. 2 Miles Hogan, ‘The Nisga’a’s Final Agreement and International Norms’ (2004) 11(3) International Journal on Minority and Group Rights 299, 325. 3 Andrew Beynon, ‘The Nisga’a Land Question’ (2004) International Journal of Minority and Group Rights 259, 260. 106 principal system, all the documents registered in the Nisga’a Nation’s system are of a registerable standard for the British Columbian land titles system.4 This was in accordance with the objectives of the Nisga’a Land Title system, which were to prevent alienation of the Nisga’a land, to provide certainty and to ensure best practice. The view was that sometime in the future there may be registration of Nisga’a land titles in the registration system of British Columbia.5
Development of the Nisga’a system was also in keeping with the fact that ultimate use of the settler registration systems was very much anticipated for Aboriginal title holders. It is noted that the Tsawwassen First Nation Final Agreement, the Lheidli T’enneh Band Final Agreement and the Maanulth First Nations Final Agreement provide for accommodation of Aboriginal rights and interests in the British Columbia Land Title System.6 Another motivating factor for setting up the Nisga’a land title system was that tracing First Nations land interests involved searching many registers, which was time consuming and inefficient. In Western Canada alone, the following registries required searching: the Indian Lands Registry, the First Nations Land Register system, the Nunavut Land Title Office, the Metis Settlements Land Registry and many internal registries and file systems operated by Aboriginal title holders themselves.7
A feature of the Nisga’a modified Torrens Title system is that the Nisga’a Land Title Act provides that the Registrar is responsible for security of the system and the documents registered. The system is backed up and copies of the documents are stored off site for added security. The system provides for indefeasibility subject to a number of exceptions, which include fraud or forgery by the registered proprietor.8 Persons who suffer deprivation of their fee simple estate or a charge on the land are able to claim on an assurance fund, which is maintained by the Nisga’a Lisims Government.9 The victims of fraud or wrongful act may proceed in a court to recover from the person who has defrauded or wronged them.10 The description of the land is able to be guaranteed by the Registrar because the land is required to be surveyed before it is registered and the plans that are drawn up are subject to checking to ascertain whether they conform to the standards set by the Nisga’a Land Title Act. Survey of all the land has been possible because the total extent of the land granted to Nisga’a is 1 992 000
4 Dianne Cragg, ‘Best Practices in the First Nations Land Title Systems’ (2007) First Nations Property Ownership Initiative 1, 6. 5 Dianne Cragg, ‘Nisga’a Land Title System Administrative and Structural Considerations’ (2007) First Nations Property Ownership Initiative 39, 55–6. 6 Dianne Cragg, ‘Land Title Systems Administrative and Structural Considerations for First Nations’ (2007) First Nations Property Ownership Initiative 23, 24. 7 Cragg, above n 4, 9. 8 Nigel Bankes, Sharon Mascher and Jonnette Watson Hamilton, ‘The Recognition of Aboriginal Title and its Relationship with Settler State Land Title Systems’ (2014) 47(3) University of British Columbia Law Review 829, 861. 9 Ibid 861–2. 10 Bankes, Mascher and Watson Hamilton, above n 8, 862. 107 hectares and 6200 hectares of that amount was existing Nisga’a reserve. The grant amounted to around 125 hectares per family.11 If any of the Nisga’a land or an interest in that land escheats to the Crown of British Columbia, the Nisga’a Final Agreement provides that the Crown will transfer the parcel or the interest, whichever the case may be, back to the Nisga’a Nation.12
In considering the Nisga’a system, one important distinction needs to be made, which is that the Nisga’a Nation owns its land in freehold,13 whereas native title holders in Australia do not own the freehold title over areas where there have been determinations of native title. This means there is more than one register containing entries for freehold land, raising management issues in British Columbia. The Nisga’a Final Agreement does contain safeguards that ensure the Nisga’a land stays with the Nisga’a Nation. In Australia, however, there can be co-existing interests where the non- native title interests take precedence over the native title rights and interests. Accordingly, from a titling perspective, the Nisga’a land holdings may be more akin to land granted pursuant to New South Wales Aboriginal land rights legislation although there are also differences because the title granted pursuant to New South Wales Aboriginal land rights legislation in Australia is a freehold that may be subject to native title. In New South Wales the statutory freehold title of land granted to claimant Aboriginal Land Councils is registered in the Torrens Title system of New South Wales and bears a recording on title that, subject to some explicit exceptions provided in the Aboriginal Land Rights Act 1983 (NSW), before the land is dealt with there must be an approved determination of native title.14 To deal with the land, that approved determination of native title must be that native title does not exist.
The issues of survey and allocation of land per family raise other important distinctions in relation to determinations of native title in Australia. The areas subject to native title determinations in Australia can be so vast that survey may be out of the question from a cost perspective. For example, the Barkandji claim in New South Wales is 128,000 square kilometres.15 Also, the land that is the subject of determinations of native title in mainland Australia is usually held communally and, unlike the Nisga’a system, is not divided up between individuals or families who are part of the native title claim
11 Stewart Adams, ‘12 points about the Nisga’a Agreement and Alternatives’ 17 Public Policy Sources 1. 12 Nigsa’a Lisms Government, ‘Nisga’a Final Agreement’, Chapter 3 Lands, Clause 7, Nisga’a Lands,
Irrespective of the differences, the Nisga’a modified Torrens Title system is an important initiative that offers guidance to Australia. This is in the area of ensuring that all documents or forms that are developed for any future modified Torrens Title system or other system that may be established for registering, recording or noting native title rights and interests in Australia should be compatible with the forms used for the relevant jurisdiction’s Torrens Title system. If the States and Territories of Australia are able to convert all their Crown land to Torrens Title in the future this would ensure compatibility should native title seek to be included.
6.3 METIS SETTLEMENT LAND REGISTRATION SYSTEM
The Metis Peoples of Alberta are one of the Aboriginal Peoples of Canada pursuant to Canadian Constitution Act 1982 s 3516 and are persons of European and Aboriginal descent who identify with the Metis culture and history.17 After 1.24 million acres of land for Metis Settlements was granted to the Metis Peoples,18 they established the Metis land registration system, which is a system that can be managed by the Metis settlement members without needing to engage lawyers.19 In this sense, the Metis registration system is designed to manage the rights of Aboriginal People rather than prevent conflicts with non-Indigenous owners of freehold land. The Metis land registration system is based on the Torrens Title model but differs from the Nisga’a land title system because it incorporates both registration and recording of interests. Similar to the Nisga’a land, the Metis settlements land is also freehold, unlike native title rights and interests in Australia.
In spite of its recording provisions, the Metis land registration system is not a conclusive system as interests such as the right to use traditional access paths and the right to gather berries are not recorded.20 Recording of an interest in the Metis land registry provides priority over other later interests that are recorded and registration, even if not authorised, provides priority over recorded interests provided the registered interest is in accordance with the Metis Settlements Land Registry
16 Registry Metis Nation of Alberta, Regional Office, Metis Nation of Alberta (2018) ‘The Metis Nation of Alberta’
Easements, leases and licences are able to be transferred to settlement members and non-settlement persons25 for a duration of not more than 10 years.26 The full fee simple is able to be alienated by a registered proprietor/settlement member and is also able to be devised by will but only to members of the Metis settlements. A provisional title for five years is the usual method of alienation by the Settlement Associations to a settlement member whereby the recipient of the provisional title is able to build a house and use the land for farming or for approved business purposes. After the five years have passed and the conditions attached to the provisional title have been met satisfactorily, a full fee simple may be granted to the holder of the provisional title or, where conditions are not met, the provisional title may be extended.27 A further feature of the Metis land registration system is that a title held in the name of more than one person is not able to be registered, which means there ‘can be no joint tenancy or tenancy in common in Settlement lands’.28 This is different from the Torrens Title registration in Australia. The Metis land registration system also includes an assurance fund for those who have sustained loss through the operation of the Metis land registration system.29
A lesson that can be learned from the Metis land registration system is that it is possible to successfully record interests, as well as register interests, including native title rights and interests, in Torrens Title models. Similar to the Nisga’a system, the Metis interests are not accommodated in the relevant State’s land title registers nor linked to them but there is the potential for that to occur sometime in the future. Another lesson to be learned is that disbanding the current native title registration system in favour of developing a dedicated stand-alone system for each State and Territory in Australia to register, record or note native title rights and interests would not be an
21 Ibid 860. 22 Bankes, Mascher and Watson Hamilton, above n 8, 860. 23 A C McEwan, ‘The Metis Settlements Land Registry in Alberta’ (1995) 33(256) Survey Review 77, 82. 24 Bell, above n 19, 26. 25 Ibid. 26 McEwan, above n 23, 79. 27 Ibid. 28 McEwan, above n 23, 80. 29 Bankes, Mascher and Watson Hamilton, above n 8, 861. 110 appropriate model for Australia. This is from the viewpoint of efficiency, uniformity, cost- effectiveness and provision of the ability to ascertain how co-existing rights and interests relate to each other and to native title rights and interests. A national system based on Torrens Title principles, which utilises a land title approach to register, record or note native title rights and interests in land and matters pertaining to such native title, is a possible model; however, that model also has shortcomings. If such a system incorporated only native title rights and interests and matters pertaining to native title, it would have no potential as a conclusive register and no capability of showing the relationship between co-existing rights and interests and native title rights and interests. If, however, the system could be linked to the Torrens Title systems of the States and Territories that would resolve the issue of co-existing relationships. Registers established pursuant to the Land Act 1994 (Qld). Section 275 of the Land Act 1994 (Qld) establishes a number of registers including a register of leasehold land, a register of reserves, a register of State forests and timber reserves, a register of specified national parks, a register of nature conservation areas, a register of licences and permits and a register of unallocated State land in Queensland (‘the Queensland Registers’). The Queensland Registers accommodate the type of land where native title is often held to exist and they form part of and are administered within the Queensland Automated Titles System along with the freehold land register (Torrens Title system) and the Water Allocations Register, which contains interests granted in inland water. All registers within the Queensland Automated Titles System are accessible by the public through Queensland Globe, which is available on Google Earth.30 The register of unallocated State land is important from a native title perspective, as often the type of land registered in that register has not had interests granted in the past that have had any extinguishing or inconsistent effect on native title. Accordingly, native title may continue to exist unimpaired in unallocated State land, and exclusive native title may be determined by the Federal Court to exist in such land.31 The definition of ‘unallocated State land’ in the Land Act 1994 (Qld) is all the land within the State of Queensland that is not a fee simple or the subject of a contract for sale or grant or that is not subject to a road or reserve, a national park, conservation park, State forest or timber reserve or that is not leased, licensed or subject to a permit issued by or for the State of Queensland except where a Permit to Occupy is issued under the Land Act 1994 (Qld).32 Before registration in the register of unallocated State land, every parcel of unallocated State land is provided with a title
30 Queensland Department of Natural Resources and Mines, Queensland Government, Queensland Land Title Practice Manual
33Queensland Department of Natural Resources and Mines, Queensland Government, Queensland Land Title Practice Manual,
6.4 CADASTRAL GEOSPATIAL MAPPING SYSTEMS
It has been argued that cadastral geospatial mapping systems are the direction that titling will take in future38 and are potentially appropriate systems for registration of native title rights and interests. Simply described, a cadastre is an arrangement of geographic data concerning defined geometric boundaries of land.39 Cadastral geospatial mapping systems exist in every State and Territory of Australia but, historically, due to differences in the law of the States and Territories, these systems were not established with the aim of being identical.40 Also, historically, Crown land titles and the titles of private land had different cadastral and surveying systems.41 These were significant obstacles that had to be overcome in the development of a national cadastral mapping system, which now exists and is kept by the Public Sector Mapping Agency.42
The national cadastral mapping system contains a number of digital mapping datasets with the Land Tenure dataset claiming to support ‘improved management of native title, environmental assets and heritage protection’.43 There is no doctrinal substantiation of that claim. Geoscience Australia44 is also a national geospatial mapping agency that has bathymetry maps (underwater depth maps) and topographic maps of Australia’s external territories among its holdings, but that organisation does not appear to hold native title geospatial information in relation to the sea or inland water. Additionally, Google Earth is an important innovation that provides online searchable satellite images of Australia where many different geographical features are depicted including street views, earth terrains and three-dimensional buildings.45 Queensland Globe can be opened within Google Earth, and this system permits viewing and downloading of Queensland maps, land titles searches including titles in the
38 Ian P Williamson, ‘Land Administration “Best Practice” Providing the Infrastructure for Land Policy Implementation’ (2001) 18 Land Use Policy 297, 297, 305. 39 Wolfgang Effenberg, Spatial Cadastral Information Systems: The Maintenance of Digital Cadastral Maps, (PhD Thesis, The University of Melbourne, 2001) 2. 40 Kate Dalrymple, Ian Williamson and Jude Wallace, ‘Cadastral Systems within Australia’ (2003) 48(1) The Australian Surveyor 37, 37–8. 41 Ibid 39. 42 Public Sector Mapping, Land Tenure, Commonwealth Government
An initial step in establishing cadastral geospatial mapping systems is an on-site survey of land or identification of land boundaries by plan compilation. Most of the cadastral surveys and plan compilations are now connected to a geographical coordinate datum and geographical coordinates are shown on the cadastral surveys.47 The corresponding ownership of the relevant title of the surveyed land or of the land depicted in the compiled plan is recorded in a folio in the Torrens Title system or other alternative register of the relevant State or Territory. This means that an efficient cadastral system incorporates two components being a geometric depiction of parcels of land linked to a legal component consisting of registers that describe ownership of the parcels and the type of interest held.48
A basic digital cadastral map usually contains parcel boundaries, easements, cadastral administration boundaries, property boundaries, occupation boundaries which may be physical features such as roads and railway lines, general administration boundaries and land use boundaries.49 Depending on what needs to be depicted, the digital cadastral map can be upgraded to contain other features, for example Aboriginal Land Council boundaries, determination of native title boundaries, application for determination of native title boundaries and Indigenous Land Use Agreement boundaries. Separate geospatial layering for different features can also be created and superimposed over the basic digital cadastral map or the layers can be viewed and evaluated separately. In addition, unlike paper maps, the spatial data in cadastral mapping systems can be updated easily to maintain the necessary high degree of accuracy.50
As the geospatial representation of an interest in a cadastral system does not have the force of law,51 it must be linked to a legal register for the interest to be legally upheld. Accordingly, cadastral geospatial mapping systems have the potential to offer efficient and sustainable support for registration systems concerned with the registration, recording or noting of native title rights and interests. Their analytical ability means geospatial systems are likely to be the future direction of
46 Queensland Business, Government of Queensland,
Irrespective of technological advances enabling Aboriginal values to be represented in geospatial mapping systems, native title holders in Australia may not be supportive of this type of mapping, although this is likely to be the future direction of both mapping and titling in Australia. Elliot notes that there is a view among writers in this area that maps have been ‘used to impose European concepts of space on Aboriginal [People] and to dissemble and destroy the traditional Aboriginal connection to the land’.55 This may well be the sentiment of native title holders and very extensive consultation with traditional owners would need to occur before guiding registration of native title rights and interests in this direction. In addition, a valid criticism of geospatial mapping systems is that they require a degree of interpretative skill, which many persons requiring native title information do not possess. As noted by Turnbull, maps are often culturally biased and not easy to interpret by persons who come from a different culture from that of the map maker. Turnbull demonstrated this by comparing western maps with maps of the Yolngu People.56 Also, it cannot be disputed that there are difficulties in mapping native title from a European perspective because the exercise of native title and its extent does not exactly conform to European geospatial measurements.
Because of the issues discussed above, cadastral systems are not recommended as the main registration system for accommodating native title rights and interests but they would be highly recommended as very important support systems for the native title process.
52 Nancy Elliot, Including Aboriginal Values in Resource Management through Enhanced Geospatial Communication, (PhD Thesis, University of British Columbia, 2008), 38–42. 53 Ibid 17. 54 Andreas Nuchter, Kai Lingemann and Joachim Hertaberg, ‘6D Slam—3D Mapping Outdoor Environments’ (2007) 24 Journal of Field Robotics 699, 700. 55 Elliot, above n 52, 18. 56 David Turnbull, Maps are Territories, Science is an Atlas: A Portfolio of Exhibits (University of Chicago Press, 1993) Exhibit 5 maps. 115 6.5 CONCLUSION
The systems discussed in this chapter are not considered ideal for the registration, recording or noting of native title rights and interests in land and fall short of what the Torrens Title systems of the States and Territories are able to offer in the way of support to the current registration system for native title rights and interests in land. Some aspects of geospatial systems discussed in this chapter, however, would add support to the recording of native title rights and interests in the Torrens Title systems of the States and Territories. Recording documents should be compatible with those required for Torrens Title recording. Geospatial systems could provide invaluable support to the current native title registration system by the inclusion of many more detailed native title layers including a layer for Section 31 Future Act Agreements and other aspects of native title. For example, where subdivision L has been used to undertake a future act, where the non-extinguishment principle applies and where the provisions of the subdivision for construction of facilities for the public has been used for undertaking a future act.57
As native title rights and interests are found to exist in water as well as in land, the next two chapters of this thesis will consider inland water and the sea and the registration or recording methods that may be appropriate given that these interests are also subject to a lack of comprehensiveness, certainty and currency.
57 Native Title Act s 24K. 116 CHAPTER 7 NATIVE TITLE AND INLAND WATER
7.1 INTRODUCTION
Native title may be found to exist in both land and water.1 Having considered the registration of native title rights and interests in land in the earlier chapters of this thesis it is now appropriate and necessary to consider inland water and the registration of native title rights and interests existing therein. The registration system for native title kept by the Native Title Registrar provides for the registration of native title rights and interests in all forms of water and land in a single system. Accordingly, the registration of native title rights and interests in water and in land are subject to the same problems. Rights in inland water are as registerable and as important as rights in land if not more so because of scarcity. Non-native title rights are registered in registration systems established under the various water legislations. Therefore, native title rights and interests in inland water should receive similar treatment as non-native title rights and interests in inland water to provide them with comprehensiveness, certainty and currency.
Water exists in many forms including the coastal sea, other tidal water and inland water. For the purpose of this thesis, inland water incorporates surface water, groundwater, water in streams both above and below ground, rivers, lakes and water storage facilities. If the water has not been separated legally from the land, and the land is in Torrens Title, then native title in that water could be recorded, at least in New South Wales, which has legislatively provided for the recording of native title, but not in other States and Territories that have not legislatively so provided. Whether the current registration process for native title rights and interests in inland water could be supported by accommodating native title rights and interests in inland water in the existing State and Territory registration systems that apply to non-native rights and interests in inland water (ie coexisting interests in inland water) will be assessed. In making this assessment, it will be necessary to consider what remains that may be practised of the native title rights and interests that have been recognised or may be recognised in inland water by the Federal and High Courts of Australia, subsequent to the enactment of State and Territory legislation2 that applies to inland water. This consideration will be confined to the case study states of Queensland, New South Wales and Western Australia. Interestingly, Queensland and New
1 Native Title Act s 6. 2 Water Industry Act 1994 (Vic), Water Act 1898 (Vic); Water Management Act 1999 (Tas); Water Industry Act 2012 (SA); Water Resources Act 2007 (ACT); Water Act 2000 (Qld); Water Management Act 2000 (NSW), Water Act 1912 (NSW); Rights in Water and Irrigation Act 1914 (WA); Water Act (NT). 117 South Wales have made reference to native title in their water legislation while Western Australia has not.
It will also be necessary to consider the sea and other tidal water in Chapter 8.
7.2 INLAND WATER
When Australia was settled, the common law relating to access to water and its use that operated in Britain became the law of Australia. The colonies received British water law related to the ownership of surface water and riparian rights.3 Water was treated as being incidental to the ownership or occupation of the land that either contained or was adjacent to the water.4 Embrey v Owen5 settled that ‘flowing water is publici juris in the sense that no-one has property in water itself, but a simple usufruct while it passes along’ as cited by French CJ, Gummow and Crennan JJ in ICM Agriculture Pty Ltd v Commonwealth.6 In Gartner v Kidman7 it was held by Windeyer J that ‘by the common law the proprietor of land upon the banks of a natural stream of running water, is entitled to have, and is obliged to accept, the flow of water past his land. He cannot deprive those lower down the stream of its flow nor pen it back upon the land of his neighbour higher up’.8
Accordingly, a landholder’s common-law riparian rights can be stated as the reasonable use of water domestically and/or to water livestock,9 the right to use all the water available in a stream provided that to do so is reasonable,10 the extraordinary use of water and the right to construct a dam, provided that does not interfere with riparian neighbours’ rights of use.11 As shown, the riparian rights were not exclusive rights and had to be exercised in a manner so as the rights of other riparian users up and down the stream would not be harmed or materially diminished.12 Riparian rights did not apply at common law to surface water flowing randomly over the land.13 Also they did not apply to
3 Australian Courts Act 1828 (UK) s 24. 4 Paul Babie, ‘Sovereignty as Governance: An Organising Theme for Australian Property Law’ (2013) 36(3) UNSW Law Journal 1075, 1104. 5 [1851] EngR 386. 6 (2009) 240 CLR 140 [55]. 7 (1962) 108 CLR 12. 8 (1962) 108 CLR 12 [7], Windeyer J. 9 Miner v Gilmour (1858) 14 ER 861, 870. 10 McCartney v Londonderry & Lough Swilly Railway Co Ltd [1904] AC 301, 307. 11 McCartney v Londonderry & Lough Swilly Railway Co Ltd [1904] AC 301, 307; Kate Stoeckel et al, Australian Water Law (Lawbook, 2012) 15. 12 D E Fisher, Water Law (Lawbook, 2000) 69. 13 Katie O’Bryan, ‘Issues in Natural Resource Management—Inland Water Resources—Implications of Native Title and the Future of Indigenous Control and Management of Inland Waters’ (2007) 14(2) Murdoch University E Law Journal 280, 284. 118 groundwater that rose through the soil above the ground but they did apply to groundwater flowing in subterranean channels situated below ground level.14
Although the received water law of Britain became part of Australian law, the conditions in Australia, which has a severe shortage of water, were not entirely suitable for that inheritance. This was one of the reasons for changes brought about through the water legislation enacted by the States and Territories of Australia, which impacted significantly on riparian rights.15 Also native title rights and interests were impacted upon although native title had not been recognised by the High Court when the water legislation was enacted. Clark considers there were a number of other reasons for the enactment of water legislation, one being a trend towards public investment in large water infrastructure rather than private ownership.16 Another was that all life is dependent on water and it needs to be looked after for future generations.17 Caring for water was difficult in a very arid country such as Australia, where water was shared on a wide distribution basis18 and high demands were being imposed by irrigation to support the developing pastoral and agricultural industries. Also relevant to the need for water legislation was the way in which early cases interpreted breaches of riparian rights. Actual damage did not have to be suffered by persons lower down or higher up the water source.19
If the common law relating to water and the riparian rights continued to exist in the manner of its inheritance from Britain, it may well have accommodated the practice of native title rights and interests because the native title rights and interests recognised to date in inland water are not unlike the inherited common-law riparian rights. The statutory water regimes enacted in Australia, however, have had a considerable impact on the practice of native title rights and interests. Irrespective of whether native title rights and interests are recognised by the courts through litigation or by consent of the parties, these rights and interests are held by native title holders subject to the water laws of the Commonwealth, States and Territories.
7.3 STATUTORY REGIMES FOR NON-TIDAL WATER
Fisher is of the view that in spite of the considerable statutory action impacting on riparian rights, the common law still underpins water law in Australia.20 The recognition of native title by the common
14 Ibid 284. 15 Kate Stoeckel et al, Australian Water Law (Lawbook, 2012) 2. 16 Sandford D Clark and Jan A Renard, ‘The Riparian Doctrine and Australian Legislation’ (1970) Melbourne University Law Review 475, 476–7. 17 Ibid 476. 18 Clark and Renard, above n 16, 477. 19 Ibid 479. 20 Fisher, above n 13, 64. 119 law is important because, pursuant to Native Title Act s 223, the existence of native title, including in water, depends on its recognition at common law. That prerequisite may be difficult to satisfy if the subject water itself is not recognised at common law. Two views exist as to whether common-law riparian rights have been fully abolished by the Australian water legislation or whether some common-law rights continue, provided they are not inconsistent with the enacted legislation.21 In New South Wales, the statutory regime has expressly abolished all the riparian common-law rights to access water.22 In Queensland, although the Water Act 2000 (Qld) provides that all rights in water are vested in the State,23 Kneipp J24 has held that the owner of land higher up a stream has a ‘riparian right to the free flow away from his land of water which naturally falls or comes on to his land’25 which is not affected by the Water Act 1926 (Qld). That Act included similar vesting provisions as provided the Water Act 2000 (Qld).26 In Western Australia, natural waters are vested in the Crown pursuant to the Rights in Water and Irrigation Act 1914 (WA)27 and riparian rights are preserved in that legislation.28 Virtue J29 in Western Australia has held that common-law riparian rights to access water and the statutory water rights are coexisting.30
7.4 FEATURES OF THE WATER LEGISLATIVE SYSTEMS
The water legislation of Queensland, New South Wales and Western Australia are not identical nor are the registration or recording systems established by their legislation.31 Common features of the legislation in the jurisdictions under consideration include the legislative vesting to the Crown of the use and access to water, which is discussed in depth below, the water trading entitlement and the establishment of registers.32 New South Wales and Queensland have made provision for native title whereas Western Australia has not33 as commented upon in the discussion for those States. New South Wales and Queensland have also separated the water interests from the land that contains them whereas Western Australia has not.34
21 Clark and Renard, above n 16, 495. 22 Water Management Act 2000 (NSW) s 393; Natural Resources Management Act 2004 (SA) s 124(8); Water Management Act 1999 (Tas) s 7(1); Water Act 1989 (Vic) s 8(7). 23 Water Act 2000 (Qld) s 26. 24 Nalder v Commissioner for Railways [1983] Qd R 620; Stoekel, above n 7, 19. 25 Nalder v Commissioner for Railways [1893] Qd R 620, 624; Stoekel et al, above n 16, 19. 26 Water Act 1926 (Qld) s 4. 27 Rights in Water and Irrigation Act 1914 (WA) s 5A. 28 Rights in Water and Irrigation Act 1914 (WA) s 9. 29 Rapoff v Velios [1975] WAR 2. 30 Rapoff v Velios [1975] WAR 27, 31; Stoekel et al, above n 16, 19. 31 Water Act 2000 (Qld) s 168; See footnote 62 for New South Wales; See footnote 83 for Western Australia. 32 See footnote 32. 33 Water Act 2000 (Qld) s 95; Water Management Act 2000 (NSW) s 55. 34 Stoekel et al, above n 15, 153. 120 7.5 WATER TRADING
Registration of interests in inland water has been impacted by water trading because registration of inland water interests in the State systems under consideration is linked to the right to trade inland water. Trading has not, to date, been recognised in relation to native title rights and interests existing in inland water. This is even though trading in resources was a feature of traditional laws and customs in certain Indigenous communities both before and subsequent to European settlement.35 It is important that future State and Territory strategic planning for inland water addresses the interests of native title holders including the possibility that a commercial right to inland water may be possessed by native title holders.36 This is particularly so given the direction of the National Water Initiative 2004, which has provided for the interests of Aboriginal people to be addressed in water planning.37 The National Water Initiative resulted from Commonwealth water reform, whereby, linked to funding being made available, the States referred their constitutional powers to the Commonwealth and as a result the Commonwealth passed the Water Act 2007 (Cth), which provides for sustainable water planning, water use and registration of tradeable water rights in the Murray–Darling Basin.38
7.6 QUEENSLAND SYSTEM
7.6.1 Legislative provision
In Queensland, access to and the use of inland water is governed by the Water Act 2000 (Qld) and the Water Regulation 2002 (Qld). The Water Act 2000 (Qld) provides for the making of water plans,39 water use plans,40 grants of water allocations,41operation licences,42water licences43and water permits.44 A Water Allocations Register is established by the legislation45 for the recording of water allocations and is administered within the Queensland Automated Titles System.
35 Marcia Langton and Robyn Sloggett, ‘Trepang: China and the Story of Macassan–Aboriginal Trade—Examining Historical Accounts as Research Tools for Cultural Materials Conservation’ 2014 (35) AICCM Bulletin 4, 4–13. 36 C C MacKnight, ‘Macassans and the Aboriginal Past’ (1986) 21 Archaeology in Oceania 69, 60–75; Rrumburriya Borroloola Claim Group v NT unreported, Mansfield J, 30 June 2016 [2016] FCA 776. 37 Lily O’Neill et al, ‘Australia, Wet or Dry, North or South: Addressing Environmental Impacts and the Exclusion of Aboriginal Peoples in Northern Water Development’ (2016) 33(4) Environmental and Planning Law Journal 402, 409. 38 Ibid 408; Water Act 2007 (Cth) s 26. 39 Water Act 2000 (Qld) s 42; Water plans provide for allocation and management of water in Queensland. 40 Water Act 2000 (Qld) s 57; Water use plans are prepared to regulate water usage in particular areas. Under a water use plan, water users must comply with imposed conditions, which often relate to environmental protection. 41 Water Act 2000 (Qld) s 147; Water allocations are the principal grant of water entitlement in Queensland. 42 Water Act 2000 (Qld) s 209; Resource operation licences and distribution operation licences are able to be granted to operators of water supply schemes and authorise the licensee to operate a water infrastructure or to distribute water. 43 Water Act 2000 (Qld) s 114; Water licences are held by land owners and enable the licensee to use or take water on their land and to interfere with water flowing on or under their land or from adjoining land. 44 Water Act 2000 (Qld) s 139; Water permits are issued for particular activities with finite durations. 45 Water Act 2000 (Qld) s 168. 121 Water licences are not recorded in the Water Allocations Register as these are mainly interests that attach to relevant land.46 Instead, they are recorded in departmental records.47 Water allocations are personal property,48 although this is open to debate because asserting that something is personal property does not necessarily make it so.49 Apart from Western Australia, other Australian jurisdictions have considered it convenient to separate water allocations from the relevant land and treat them as personal property for ease of trading.50 Caveats are permitted to be registered in the Water Allocations Register and these serve to prevent any dealing being registered that affects a water allocation.51
Details relating to water allocations that may be registered are those interests or dealings that may be registered for land under the Land Title Act 1994 (Qld) apart from matters covered under Part 4 of that Act. These relate to alienated State land and land that is held by the State.52 Arguably, the Part 4 exemption provision is to ensure that interests relating to land owned by the State are not registered in the Torrens Title Register but instead are registered in the Queensland Registers. Details that must be registered in the Water Allocations Register include the name of the person holding the water allocation, how the allocation is held, the nominal volume, the location where the allocation was taken, the purpose for the taking, any conditions attaching thereto, the relevant water plan and any matters prescribed.53 Provisions that apply to water allocations managed under a resource operations licence are different from provisions that apply to those not so managed.54
7.6.2 Queensland legislative provision for native title in inland water
Some provision is made in the Water Act 2000 (Qld) for native title rights and interests in inland water,55 although the terms used are ‘Aboriginal party’ or ‘Torres Strait Islander party’.56 These terms have the same meaning as defined under the Aboriginal Cultural Heritage Act 2003 (Qld) and the
46 Water Act 2000 (Qld) s 106. 47 Water Act 2000 (Qld) s 131. 48 Stoeckel, above n 16, 254. 49 Neva Collings, ‘The Rights of Indigenous People to Water: International Environmental and Human Rights Standards’ (2006) 6 The Journal of Indigenous Policy 60. 50 New South Wales Land Title Practice Manual, New South Wales Department of Natural Resources and Mines l Land Title Practice Manual, 13
As taking inland water for the exercise of these traditional activities does not involve the grant of an allocation or entitlement, accordingly, no provision is made for recording of inland water taken as a native title right and interest in the Water Allocations Register. It would be appropriate, however, for an additional section and, ideally, a geographical layer to be added to the Water Allocations Register that records such details. Adding an additional native title section would involve either a mandatory provision in the Water Act 2000 (Qld) to provide that the records of the taking of inland water from a water source be kept by registered native title claimants, native title holders or native title prescribed bodies corporate and be provided to the Brisbane Titles Registry Office annually. Alternatively, relevant information about native title interests in water could be sought and retained pursuant to Water Act 2000 (Qld) s 35, which provides for notices by the Chief Executive for obtaining water information. This would ensure that the correct native title holders for an area take water for traditional activities or cultural purposes. The amount of water taken for traditional activities or cultural purposes may be insubstantial in quantity; however, the quantity should not determine the need or lack thereof for registration, recording or noting. This is particularly so given the traditional and spiritual significance, storylines and Dreaming attaching to inland water. Also significant are the permissions from native title holders that are required in relation to other Aboriginal people, not being the native title holders, taking inland water from a registered or determined native title area.
Adding a geographical representation to the native title layer would help identify where native title rights and interests in inland water are registered, determined to exist and have been extracted. It is recognised that establishing geographical identification for areas containing native title rights and interests in inland water may meet with State resistance given that the water interests registered in the
57 Aboriginal Cultural Heritage Act 2003 (Qld) s 35; Torres Strait Islander Cultural Heritage Act 2003 (Qld) s 35. 58 Water Act 2000 (Qld) s 95. 59 Water Act 2000 (Qld) ss 95(2) (a)–(b). 60 Water Act 2000 (Qld) ss 95(2) (a)–(c). 123 Water Allocations Register have been separated from the land. Accordingly, a land title approach is unlikely to be utilised currently in the Water Allocations Register. Establishing that approach for native title rights and interests in inland water would be labour and resource intensive.
7.7 NEW SOUTH WALES SYSTEM
7.7.1 Legislative provision
In New South Wales, the main system for gaining access to water is governed by the Water Management Act 2000 (NSW), the Water Act 1912 (NSW), the Water Management (General) Regulation 2011 (NSW) and the Water NSW Regulation 2013. New South Wales has also enacted a number of Acts and Regulations that pertain to particular water sources, including, but not confined to, the Murrumbidgee system and the New South Wales border rivers systems. All water rights are vested in the Crown in New South Wales and this includes all water in rivers, lakes and aquifers, all waters conserved by works under the control of the Minister and, with some exceptions, all waters on or below the ground.61
The Water Management Act 2000 (NSW) provides for water sharing management plans62 and the granting of access licences and approvals63 and establishes a number of registers including the Water Access Licence Register.64 This appears the most appropriate register to consider as it adopts a folio identification approach to registration. The Water Access Licence Register has both a General Division65 and an Assignment Division.66 Matters that must be recorded in the General Division relating to the licence or holding are Ministerial actions, general dealings, dealings on default, caveats lodged, security interests held, devolutions, alterations in tenancy of a co-holder and any other prescribed matters.67 In the Assignment Division, any assignment dealings in an access licence must be recorded as must any other prescribed matters.68
61 Water Management Act 2000 (NSW) s 392(1). 62 Water Management Act 2000 (NSW) ch 2 pt 3 provides for the preparation of Water Management Plans and establishes requirements for their content. 63 Water Management Act 2000 (NSW) ch 3 pts 2–3provide for the granting of access licences and approvals. 64 Water Management Act 2000 (NSW) s 71 provides for a Water Access Licence Register; Water Management Act 2000 (NSW) s 84 provides for a Register of available water determinations; Water Management Act 2000 (NSW) s 113 provides for a Register of approvals; Water Management Act 2000 (NSW) s 138 provides for a Register of licences, audits and management programs. 65 Water Management Act 2000 (NSW) s 71A (1). 66 Water Management Act 2000 (NSW) s 71A (2). 67 Water Management Act 2000 (NSW) ss 71 (1) (a)–(h). 68 Water Management Act 2000 (NSW) ss 71A (2) (a)–(b). 124 The Water Access Licence Register is online and can be accessed via New South Wales Land and Property Information Services.69 There is a separate folio for each water access licence granted, showing the volume, extraction amount allowable, the water source and the date of expiry. The licence conditions attaching thereto are also shown, as well as the owner of the licence and details of mortgages and charges attaching to the licence.70 On registration, a certificate is issued to the licensee but unlike Torrens Title registration the title of the water access licence is not guaranteed by the government. The water access licence is separated from the land title to which it applies where a water sharing plan is in place. Proving title to a water access licence where a water sharing plan is in place involves searching for a chain of title for the licence.
7.7.2 Native title
As the exercise of native title does not require a water access licence, there is no provision made in the Water Access Licence Register for registering native title rights and interests in water. Subcategories of the water access licences that can be issued are water access licences for Aboriginal purposes including Aboriginal cultural purposes. These purposes are not to be confused with native title rights and interests. Native title rights and interests are expressly mentioned in the Water Management Act 2000 (NSW)71 whereby native title holders are able to take and use inland water in the exercise of native title rights, annually, in the amount prescribed by the regulations. Native title rights in inland water are defined in the legislation. That means the
non-exclusive rights to take and use water for personal, domestic and non-commercial communal purposes including the purposes of drinking, food preparation, washing, manufacturing traditional artefacts, watering domestic gardens, hunting, fishing, gathering and recreation, cultural and ceremonial purposes.72
It is unclear how the government of New South Wales establishes adherence to the prescribed allocation under the regulations for native title rights and interests in inland water. Presently, native title rights and interests, the quantity of inland water taken pursuant to native title rights and interests, the location of the water source from where the water is taken and by whom it is taken are not registered or recorded. Clearly, a native title division needs to be established as part of the Water Access Licence Register to register or record such native title matters. Regulatory provision also
69 New South Wales Government, New South Wales Land and Property Information Services, New South Wales Water Access Licence Register
7.8 WESTERN AUSTRALIAN SYSTEM
7.8.1 Legislative provision
In Western Australia, the main legislation and regulations that apply to surface- and groundwater are the Rights in Water and Irrigation Act 1914 (WA) and the Rights in Water and Irrigation Regulations 2000 (WA). The Water Services Act 2012 (WA) also applies to inland water licensing. There are moves by the Western Australian Government to reform the legislation by enacting the Water Resources Management Bill73 because, under the current regime, the water licences are not separated from the land as is the preferred legal position for facilitating trade in water interests.74 In spite of the preferred legal position, separating the water licences from the land can create difficulty in identifying where the water subject to the water licence is located because removal from a land register is usually removal from a supporting geospatial system.75
The Conservation and Land Management Act 1984 (WA) additionally has some impact on inland water because ‘land’ is defined in that Act to include tidal and non-tidal waters.76 The Conservation and Land Management Act 1984 (WA) applies to defined land. This includes the types of Crown land and water where native title is generally found to exist, including State forests, timber reserves, national parks, nature reserves and reserved land under the Land Administration Act 1997 (WA).77 Pursuant to Rights in Water and Irrigation Act 1914 (WA) s 5A, the water in a watercourse, wetland or underground water source is vested in the Crown except for water that is allocated under that legislation or other written law.78 In Western Australia, most riparian rights have been codified. The owner or occupier of land has a right pursuant to the legislation to take water from a watercourse or wetland that is within the land or that runs contiguous with the land, free of charge for domestic use and watering of stock.79 Gardner has noted, however, that surface water that does not flow in a defined
73 Western Australia Government, Western Australia Water Registers,
To take and use water from a watercourse, wetland or underground source in Western Australia, where the area is proclaimed, involves the issue of a licence unless an exception operates. The exception may be where the water is surface water, as discussed above, or is in a non-artesian well, in which case the water usage must be for defined purposes.81
The Rights in Water and Irrigation Act 1914 (WA) establishes a Register of Instruments, which is to be kept by the Chief Executive Officer of the Department principally assisting in the administration of that Act.82 The Register must contain details of the instrument registered, including the term, the name and business address of the person holding the interest, a description of the water source, its locality and a title description of the land on which the water source is situated.83 The Chief Executive Officer has discretion to amend, add to and correct the register in such manner as is necessary to make the Register accurate.84 The Register has a noting capacity as well as a registration function and where a person has a security interest in a registered licence they may apply to have that interest noted in the Register. Provided the application contains all the details required, the Chief Executive Officer must note the security interest in the Register.85
The Water Services Act 2012 (WA) does not establish a dedicated register. As the water to which the licences granted relate is not separated from the land, there appears no reason, apart from requiring possible legislative amendment, why registration of water licences could not occur in the Torrens Title Register.
7.8.2 Western Australia legislative provision for native title in inland water
Unlike the water legislation of Queensland and New South Wales, native title rights and interests in water are not provided for in the Rights in Water and Irrigation Act 1914 (WA). Accordingly, there
80 Alex Gardner, ‘Water Resources Law Reform in Western Australia—Implementing the CoAG Water Reforms’ (2002) 19(1) Environmental and Planning Law Journal 6, 8–9. 81 Rights in Water and Irrigation Act 1914 (WA) s 25A (2). 82 Rights in Water and Irrigation Act 1914 (WA) s 26GZI. 83 Rights in Water and Irrigation Act 1914 (WA) s 26GZJ. 84 Rights in Water and Irrigation Act 1914 (WA) s 26GZR. 85 Rights in Water and Irrigation Act 1914 (WA) s 26GZM. 127 is no accommodation in the Register of Instruments for native title rights and interests. In spite of this omission, potentially there is no reason why native title rights and interests in inland water could not be accommodated in the Western Australian Register of Instruments as a separate native title division if the legislation was amended, as necessary, for that to occur. The registration decision result or the Federal Court determination of native title would constitute the registered instrument. Ideally, a geospatial layer should also be developed to show geographically where native title rights and interests have been registered, determined to exist or have been exercised although the same labour intensity and resource issues exist as for Queensland and New South Wales.
7.9 LEGISLATIVE VESTING TO THE CROWN
Relevant to the impact on the practice of native title rights and interests in inland water that arises pursuant to the legislative vesting in State water legislation is the fact that the Native Title Act confirms the existing rights of the Crown in relation to the use, control and regulation of the flow of water in s 212. Conversely, the Native Title Act also preserves the exercise of certain native title rights and interests in water for particular classes of activity pursuant to s 211. Native title holders are able to carry out an activity contained within the class. They are able to access water for that purpose where they are satisfying their personal, domestic or non-commercial needs and in exercising or enjoying their native title without a licence in situations where a licence would otherwise be required for undertaking the activity. As State water legislation that includes legislative vesting provisions cannot override Commonwealth legislation, State water legislation needs to be read in conjunction with the provisions of Native Title Act ss 211–212.
‘Vesting’ can mean ‘accrued, fixed, settled, absolute, having the character of giving the rights of absolute ownership, not contingent, not subject to be defeated by a condition precedent’.86 Accordingly, some vesting to the Crown is capable of extinguishing all interests, including native title rights and interests.87 The legislative vesting contained in the Water Act 2000 (Qld), the Water Management Act 2000 (NSW) and the Rights in Water and Irrigation Act 1914 (WA), however, is arguably not a true vesting because it has not extinguished all native title rights and interests in inland water.88 Instead, the legislative vesting has ensured that native title rights and interests are dominated by non-native title interests89 and subjected to the provisions of the water legislation. This is where,
86 Law Dictionaries, Black’s Law Dictionary and The Law Director, Black’s Law Dictionary Free (2nd ed); http://thelawdictionary.org. 87 Western Australia v Ward (2002) 213 CLR 1 [964] re irrigation works. 88 Neowarra v Western Australia [2004] FCA1092. 89 O’Bryan, above n 13, 301. 128 invariably, in applications for determinations of native title, inland water is expressly claimed as being subject to Commonwealth, State or Territory laws and traditional laws.
The High Court has considered the effect of the legislative vesting provisions in the Rights in Water and Irrigation Act 1914 (WA) in Western Australia v Ward.90 Gleeson CJ, Gaudron, Gummow and Hayne JJ in a joint judgment held that native title rights and interests in inland water were not extinguished by the vesting provisions contained in the Rights in Water and Irrigation Act 1914 (WA) and that only partial extinguishment had occurred. The exclusivity of native title rights and interests in inland water had been extinguished but other rights and interests remained.91 Callinan J gave the only judgment in Ward that dissented from the majority on this point as he considered native title was extinguished in inland water and the statutory rights created by the Rights in Water and Irrigation Act 1914 (WA) were new inland water rights.92
The decision in Ward in relation to the partial extinguishing effect of the legislative vesting provisions in the Rights in Water and Irrigation Act 1914 (WA) may not be able to be generally applied in Western Australia without considering the relevant water and its underlying tenure details. This is because Ward also considered the vesting provisions in Land Act 1933 (WA) s 33, which is now repealed. Gleeson CJ, Gaudron, Gummow and Hayne JJ held that Land Act 1933 (WA) s 33, which enabled the vesting of land to a named person or body to be held in trust for a charitable purpose, had the effect of extinguishing all native title rights and interests.93 Section 5(1)(g) of the Conservation and Land Management Act 1984 (WA), which deals with land to which that Act applies, includes ‘any other land reserved under the Land Act 1933 and vested under a written law in the [Conservation] Commission’.94 As any reference to ‘land’ in the Conservation and Land Management Act 1984 (WA) includes both ‘land and waters’ the effect of the finding in Ward in relation to the vesting under Land Act 1933 (WA) s 33 has, arguably, extinguished native title rights and interests very widely in inland water in Western Australia.95
With an exception relating to roads,96 Queensland does not have similar vesting provisions in its historical acts relating to non-freehold land97 nor in the current Land Act 1994 (Qld). New South
90 Western Australia v Ward (2002)213 CLR 1. 91 Western Australia v Ward (2002) 213 CLR 1 [263]. 92 Western Australia v Ward (2002) 213 CLR 1 [821]; O’Bryan, above n 14, 304. 93 Western Australia v Ward (2002) 213 CLR 1 [249]. 94 Conservation and Land Management Act 1984 (WA) s 5(1)(g). 95 O’Bryan, above n 13, 306. 96 Land Act 1994 (Qld) s 95. 97 Land Act 1902 (Qld) 2 Edw 7, No 18. 129 Wales had vesting provisions in historical Crown lands acts98 and the Crown Lands Act 1989 (NSW) contained vesting provisions to Councils as Trustees for public purposes.99 Also, the Crown Land Management Act 2016 (NSW) contains vesting provisions that are explicitly provided to be subject to native title rights and interests existing immediately before the vesting.100 Significantly, ‘Crown land’, as defined in historical and current New South Wales legislation, does not include ‘water’.101 Arguably, Ward cannot be applied on the point of the extinguishing effect of legislative vesting on water pursuant to Crown land legislation in Queensland and New South Wales. Ward can be applied, however, in respect of the non-extinguishing effect of legislative vesting contained in the water legislation of those States.
7.9.1 Impact of vesting on the practice of native title rights and interests
The water legislation has extinguished the exclusivity of native title rights and interests in inland water. It has not, however, extinguished other native title rights and interests. The question arises as to exactly what effect the water legislation has on the practice of native title rights and interests in inland water. Guidance on this issue can be found in Yanner v Eaton,102 which, although it did not involve water legislation, did involve the Fauna Conservation Act 1974 (Qld) and the vesting of property in the Crown of things ‘wild by nature’,103 such as flora, fauna and, arguably, water. It was held that ‘regulating the way in which a right may be exercised presupposes that the right exists … [but] of course regulation may shade into prohibition and the line between the two may be difficult to discern’.104 Beaumont and von Doussa JJ in the Full Federal Court in Western Australia v Ward105 also stated that all that was vested in the Crown by the Rights in Water and Irrigation Act 1914 (WA) were the necessary powers of control and management for Western Australia to discharge its statutory functions under that legislation.106
In the Water Act 2000 (Qld) and in the Water Management Act 2000 (NSW) the activities constituting the exercise of native title rights and interests in inland water are expressly set out.107 Wider or different native title water rights and interests than those set out in the legislation may potentially be
98 Crown Lands Consolidation Act 1913 (NSW) s 5 provides that Crown lands means lands vested in Her Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee-simple under the Crown Lands Acts. 99 Crown Lands Act 1989 (NSW) s 76. 100 Crown Land Management Act 2016 (NSW) s 4.9. 101 Crown Lands Act 1989 (NSW) s 3. 102 (1999) 201 CLR 351. 103 (1999) 201 CLR 351. 104 (1999) 201 CLR 351 [37]. 105 (2000) 99 FCR 316. 106 Western Australia v Ward (2000) 99 FCR 316 [400]. 107 Water Management Act 2000 (NSW) s 55 and Dictionary definition of ‘native title’; Water Act 2000 (Qld) s 95. 130 found to exist by the courts or be settled by consent. If that is the case, then arguably those rights are regulated by the State legislation and may only be exercised in accordance with the Water Act 2000 (Qld) and the Water Management Act 2000 (NSW), whichever applies. In relation to New South Wales, the native title rights and interests are subject additionally to volumetric regulation so native title rights and interests in inland waters can only be practised in the manner set out in the legislation within the prescribed volume.
The Water Act 1912 (NSW) does not provide an express manner in which native title rights and interests in surface water or groundwater in New South Wales are to be exercised. In addition, the Rights in Water and Irrigation Act 1994 (WA) does not expressly provide for the manner of exercise of native title rights and interests in inland water in Western Australia. It is more difficult to determine exactly how the legislation affects the exercise of native title rights and interests in inland water when the manner of exercise is not expressly provided for in the legislation. In that case it is clear, however, that because of the legislative provisions the exercise of native title rights and interests in inland water cannot occur in the manner of private ownership where there is a right to exclude all others from an area.
7.10 COURT FINDINGS OF NATIVE TITLE IN INLAND WATER
In spite of substantial extinguishment of native title in inland water in Western Australia and the regulatory impact of the water legislation in the three States under consideration, there have been a number of court findings and consent determinations recognising native title in inland water in Western Australia and Queensland. A small number have occurred in New South Wales. A selection of these cases are chosen because they include waters and will be examined to ascertain the type of native title rights and interests in inland water that may be able to be registered or recorded in the dedicated State water registers. The manner in which that should occur will be considered.
In Anderson on behalf of the Wulli Wulli People v Queensland (No 3),108 which was a consent determination, the native title rights and interests in inland water were recognised by consent. They were the non-exclusive rights to take and use the water for personal, domestic and non-commercial communal purposes, to access water, fish, gather, take, use and exchange natural resources from the water for personal, domestic and non-commercial communal purposes. ‘Water’ was defined to mean
108 QUD6000/2000, registered 13 August 2015 but which came into effect on 29 January 2016; unreported, Collier J, 13 August 2015 [2015] FCA 821. 131 water that flows, whether permanently or intermittently, within a river, creek or stream and any natural collection of water whether permanent or intermittent.
In Dempsey on behalf of the Bularnu Waluwarra & Wangkayujuru People v Queensland (No 2),109 which was a litigated application for a determination of native title, the native title rights and interests were recognised in inland water. They were the non-exclusive rights to hunt, fish, gather, take, use natural water resources and to take and use the water for personal, domestic and non-commercial communal purposes. ‘Water’ was also defined to mean water that flows, whether permanently or intermittently, within a river, creek or stream and any natural collection of water whether permanent or intermittent. In both matters, the native title rights and interests recognised in inland water were expressly stated to be subject to the laws of the Commonwealth and Queensland and to interests granted under such laws.
As shown, the native title rights and interests recognised in inland water in Wulli Wulli and in Bularnu, Waluwarra and Wangkayujuru Peoples discussed above were non-exclusive. In Congoo on behalf of the Bar-Barrum People v Queensland,110 however, which was a consent determination, the right to make decisions about and to control the access to and the use and enjoyment of the land and water and its natural resources was recognised. ‘Natural resources’ were defined to include water. The recognition in Bar-Barrum is more in keeping with exclusive native title rights and interests in inland water, although the rights and interests recognised were subject to the force and operation of the laws of the Commonwealth, laws of the State and traditional laws and customs. Exclusive native title rights and interests in inland waters have also been recognised in Western Australia in Ngalpil v Western Australia,111 which was a consent determination in favour of the Tjurabalan People. The native title recognised was to possess, occupy and enjoy the land and water in the determination area to the exclusion of all others and included the right to hunt, gather and take water for the purpose of satisfying personal, domestic, social, cultural, religious, spiritual and communal needs. Only the rights in relation to flowing and subterranean water that existed at law were conferred on the native title holders. Likewise in Nangkiriny v Western Australia,112 which was a consent determination in favour of the Karajarri People. The rights recognised were also more in keeping with exclusive native title rights and were the rights to possess, occupy, use and enjoy the land and waters to the exclusion of all others. Included were the rights to take and use the waters and other resources accessed in accordance with traditional laws and customs for personal, domestic, social, religious, spiritual and
109 QUD6115/1998, registered 27 May 2014; unreported, Mortimer J, 23 May 2015 [2014] FCA 528. 110 QUD6222/1998, registered 28 June 2001; unreported, Hely J, 28 June 2001 [2001] FCA 868. 111 WAD160/1997, registered 20 August 2001; unreported, Carr J, 20 August 2001 [2001] FCA 1140. 112 WAD6100/1998, Area A, registered 12 February 2002; unreported, North J, 12 February 2002 [2002] FCA 660. 132 communal needs and the right to control access to and activities conducted by others on the land and water. The right to give permission to others to enter and conduct activities on the land and water on such conditions as the Karajarri People see fit was also included as was the right to enjoy the flowing and subterranean waters, including the right to hunt, gather and fish from the flowing and subterranean waters in accordance with traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs. ‘The waters were defined to exclude flowing and subterranean waters’.113 ‘Flowing and subterranean waters’ meant
those waters within the determination area which flow, whether permanently, intermittently or occasionally within any river, creek, stream or brook; and any natural collection of water into, through or out of which a river, creek, stream or brook flows and water from and including an underground water source, including water that percolates from the ground.114
In New South Wales, Barkandji Traditional Owners #8 v Attorney-General of New South Wales,115 which was a consent determination, included both exclusive and non-exclusive rights and interests in water. In the exclusive area the rights recognised were possession, occupation, use and enjoyment to the exclusion of all others but subject to the laws of the State and Commonwealth. In the non- exclusive areas the native title rights and interests recognised in water were the rights to take and use water for personal, domestic and communal purposes (including cultural purposes and for watering native animals, cattle and other stock, and watering gardens not exceeding two hectares). The claim over water did not extend to a right to control the use and flow of the water in any rivers or lakes that flow through or past or are situated within the land of two or more occupiers. The non-exclusive right to fish was also recognised. ‘Water’ was not defined in the Barkandji consent determination although ‘naturally occurring water body’ was defined but that term was not used in the recognition of native title rights and interests in the determination of native title.
In Yaegl People #1 v Attorney-General of New South Wales,116 which was also a consent determination, the rights recognised in relation to inland water were the right to fish in the water of the determination area. Also claimed were
the right to take and use the water of the determination area for personal, domestic and communal purposes (including cultural purposes) but not extending to a right to control the use and flow of the
113 WAD6100/1998, Area A, registered 12 February 2002; unreported, North J, 12 February 2002 [2002] FCA 660, see Consent Determination [1]. 114 WAD6100/1998, Area A, registered 12 February 2002; unreported, North J, 12 February 2002 [2002] FCA 660, see Consent Determination [1]. 115 NSD6084/1998, registered 16 June 2015; unreported, Jagot J, 16 June 2015 [2015] FCA 604. 116 NSD6052/1998 registered 25 June 2015; unreported Jagot J, 25 June 2015 [2015] FCA 647. 133 water in any rivers or lakes which flowed through or past or are situated within the land of two or more occupiers.117
There were general qualifiers whereby the native title rights and interests were expressly stated not to confer possession or occupation, use or enjoyment to the exclusion of all others. Also they did not include the right to control public access to or public use of the water of the determination area. The native title rights and interests were expressly stated to be subject to the laws of the Commonwealth and the State of New South Wales. ‘Water’ was not defined in the determination. Accordingly, the rights recognised were non-exclusive.
There is, however, an unusual aspect flowing from the wording of the native title determinations in Barkandji and Yaegl. The native title holders cannot control the use and flow of water flowing through or past or contained within the land of two or more occupiers. That wording suggests the native title holders may be able to control the use and flow of the water in any rivers or lakes that flowed through or past or are situated within the land of one occupier. This presents as an exclusive right but again this right would be subject to the general qualifiers contained in the native title determinations and to the laws of the Commonwealth and the State of New South Wales. These would operate to render this right non-exclusive.
7.11 METHOD OF RECORDING NATIVE TITLE RIGHTS AND INTERESTS IN INLAND WATER
The native title rights and interests recognised in inland water, either by the court or by consent, are not identical. As native title law develops, other rights not claimed in the early applications for a determination of native title may commence to be claimed.118 For that reason, a recording in general terms that native title rights and interests in inland water have been found to exist would not be satisfactory. Each native title right and interest would be required to be recorded separately in a native title section, layer or division of the applicable inland water Registers of the States of Queensland, New South Wales and Western Australia. By implication, this would extend to the other States and Territories of Australia. To be more meaningful a title descriptor as part of the recorded details for native title rights and interests recognised in inland water would be desirable. This is in spite of the fact that the Registers for inland water may not use a title approach to registration. It may also be an issue that the established Registers for inland water do not accommodate the type of inland water where native title rights and interests have been recognised, for example, water subject to a
117 [2015] FCA 647, unreported, Jagot J, 25 June 2015 [6(f)]. 118 Rrumburriya Borroloola Claim Group v Northern Territory, unreported, Mansfield J, 30 June 2016 [2016] FCA 776 where a commercial use of resources extending to water was found to be possible by his Honour. 134 Queensland water licence. In Queensland, if water is subject to a water licence it is recorded in departmental records and is not included in the Water Allocations Register. This is a matter that would be required to be addressed in accommodating native title rights and interests in inland water in the Water Allocations Register of Queensland where the native title rights and interests co-exist with a water licence. As Queensland water licences remain attached to land, the water licences potentially may be able to appear on a title contained in a land register such as the Torrens Title Register if they relate to freehold land. Alternatively, they may be able to appear in the Queensland Registers if they relate to non-freehold land.
7.12 CONCLUSION
This chapter has demonstrated that the State and Territories that have not recognised native title in their water legislation will be required to make amendments in relation to inland water. Inland water is very important in Australia because of its scarcity and its value to native title culture. Without inland water, native title could not be practised and traditional food would not be available. Accordingly, culture may be lost and, once extinguished, it does not revive. All States and Territories would be required to develop a register, section or native title layer in which to record native title rights and interests. This would add comprehensiveness, currency and certainty to native title rights and interests in inland water and it would be possible to see the relationship of co-existing rights and interests to native title. A possible result would be that challenges by other water users may occur but this is not negative and would make other users more aware that native title is an issue and must be protected. Native title rights and interests in the sea, which are not covered by the inland water legislation of the States and Territories and require a different treatment, will be considered in the following chapter.
135 CHAPTER 8 NATIVE TITLE AND THE SEA
8.1 INTRODUCTION
Chapter 7 dealt with native title and inland water and set out what is required to provide comprehensiveness, certainty and currency for native title. This chapter will deal with native title and the sea.
Native title may also be found to exist in the sea. The Native Title Act defines ‘waters’ to include the sea, a tidal inlet, a bay, an estuary, a harbour or the shore and includes the subsoil under and the airspace over any waters and the shore between the high-water and the low-water marks.1 The Native Title Act includes other definitions in the subdivisions used for carrying out future acts involving water, which may also be relevant. ‘Offshore place’ means any land or waters within a State or Territory to which the Native Title Act extends other than land or waters in an ‘onshore place’.2 ‘Onshore place’ means land or waters within the limits of a State or Territory to which the Native Title Act extends.3 Therefore, native title may exist in the sea, but it is not covered by the water legislation pertaining to inland water of the States and Territories, nor is it part of native title rights and interests in land.
8.2 DETERMINATION OF NATIVE TITLE RIGHTS AND INTERESTS IN THE SEA
It is also necessary to consider the type of native title rights and interests that have been recognised pursuant to a number of litigated native title applications decided by the High Court and Federal Court of Australia to ascertain how the courts have looked at native title in the sea. Commonwealth v Yarmirr4 was the first of the litigated native title applications involving the sea. The High Court found that, as a result of sovereignty acquired by the Crown over the territorial sea, the common law could extend to the territorial sea, but this should be determined on a case-by-case basis depending on the type of action involved.5 The High Court found there were some limitations on the Crown’s sovereignty in respect of the public rights to fish and of navigation.6 The Australian territorial sea was held to be the area of 12 nautical miles from the low-water mark.7 The High Court in Yarmirr
1 Native Title Act s 253. 2 Native Title Act s 253. 3 Native Title Act s 253. 4 (2001) 208 CLR 1. 5 Gleeson CJ, Gaudron, Gummow and Hayne JJ gave a joint judgment and Kirby J delivered a separate judgment making the finding that the common law in the native title factual situation before the court could extend past the low-water mark; (2001) 208 CLR 1 [35], [259]. 6 Ulla Secher, ‘The Crown’s Radical Title and Native Title: Lessons from the Sea: Part Two: Yarmirr and Beyond’ (2011) 35(3) Melbourne University Law Review 1099, 1105. 7 Seas and Submerged Lands Act 1973 (Cth) s 7. 136 discussed the State of New South Wales v Commonwealth of Australia,8 where it was held that the common law of Australia extended only to the low-water mark. That decision resulted in the passing of the Coastal Waters (State Powers) Act 1980 (Cth) and the State and Territory counterparts to ensure the States had jurisdiction over their coastal waters, which the High Court noted in Yarmirr.9
It is clear that the application of the Native Title Act is to extend to the Australian territorial sea. Section 6 of the Native Title Act expressly states that ‘this Act extends to each external territory, to the coastal sea of Australia and of each external territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973 [Cth]’.10 The issue of the common law extending to the territorial sea is significant because Native Title Act s 223 imposes the precondition that, for native title to exist, it must be recognised by the common law. It is difficult to see how this precondition could be met if the common law did not apply to the territorial sea. The Commonwealth’s submission in Yarmirr, however, in reliance on R v Keyn,11 was that each country’s limits extend only to the low-water mark.12 Keyn had already been distinguished by the High Court in New South Wales v Commonwealth13 as being a case invoking a narrower question of the limits of criminal jurisdiction.14 The High Court took that into account in not accepting the Commonwealth’s submission in Yarmirr.15
The native title holders were the Mandilarri-Ildugij, Mangalara, Muran, Gadura, Minaga, Ngayndjagar and Mayorram Peoples in Yarmirr.16 The area claimed was within the outer areas of the 12 nautical mile limit off the Northern Territory coast but not including islands granted under Aboriginal land rights legislation.17 The rights claimed were exclusive possession of the claim area including control of access of other people to the waters and land and the exclusive ownership of the living marine resources of the waters, seabed and subsoil.18 The exclusive native title rights and interests, as claimed, were not recognised by Olney J who heard the case at first instance; however, non-exclusive rights were recognised:
8 (1975) 135 CLR 337 (Seas and Submerged Lands Case). 9 (2001) 208 CLR 1 [63]. 10 Jelita Gardner-Rush, ‘Judicial Treatment of International Law in Yarmirr’ (2004) 23 Australian Year Book of International Law 177, 180. 11 (1876) 2 Ex D 63. 12 Damien J Cremean, ‘The Common Law of the Realm (Commonwealth of Australia v Yarmirr)’ (2002) Oxford University Commonwealth Law Journal 257, 259. 13 (1975) 135 CLR 337. 14 Cremean, above n 12, 258. 15 (2001) 208 CLR 1 [30]. 16 Yarmirr v Northern Territory (No 2) (1998) 101 FCR 171. 17 Lisa Strelein, ‘Native Title Offshore: Commonwealth v Yarmirr’ in Lisa Strelein, Compromised Jurisprudence: Native Title Cases since Mabo (Aboriginal Studies Press, 2nd ed, 2009) 49–50. 18 (2001) 208 CLR 1 [111]. 137 to travel through or within the claimed area; the right to fish, hunt and gather for the purpose of satisfying personal, domestic or non-commercial communal needs, including for the purpose of observing traditional, cultural, ritual and spiritual laws and customs; the right to visit and protect places which are of cultural and spiritual importance; and the right to safeguard cultural and spiritual knowledge.19
The native title applicant and the Commonwealth appealed the decision of Olney J and their appeals were dismissed by the Full Federal Court.20 On further appeals from the Full Federal Court to the High Court, Gleeson CJ, Gaudron, Gummow and Hayne JJ dismissed the appeals of the both the Commonwealth and the native title applicant.21 This meant the native title rights and interests in the claimed area were those recognised by Olney J. The High Court found that there was tension between the native title claim of rights to possess, occupy, use and enjoy the offshore waters in the claimed area to the exclusion of all others and the public rights of fishing, navigation and free passage.22
Subsequent to Yarmirr, Lardil Peoples v State of Queensland 23 attempted to gain a finding from the court of exclusive rights to the sea, subject to the public rights of navigation and fishing. The Lardil, Yangkaal, Kaiadilt and Gangalidda Peoples had claimed the right of ‘exclusive and undisturbed occupation, possession, use and enjoyment of the land and waters’24 situated in the Gulf of Carpentaria. The applicants amended their claim, however, after the findings in Yarmirr25 and Western Australia v Ward 26 to a claim for non-exclusive native title rights. In spite of the claim amendment, Cooper J considered on close analysis that elements of exclusive possession were being maintained by the applicant that could not be recognised. The extent of the native title rights and interests recognised by Cooper J were as follows:
(a) The right to access the land and waters seaward of the high water line in accordance with and for the purposes allowed by and under their traditional laws and customs; (b) The right to fish, hunt and gather living plant and resources, including the right to hunt and take turtle and dugong, in the intertidal zone and waters above and adjacent thereto for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under their traditional laws and customs;
19 Mary Yarmirr v Northern Territory (No 2) (1998) 101 FCR 171 [1]–[6]. 20 Commonwealth v Yarmirr (2001) 208 CLR 1 [113]. 21 Commonwealth v Yarmirr (2001) 208 CLR 1 [80], [113]. 22 Commonwealth v Yarmirr (2001) 208 CLR 1 [96]. 23 Unreported, Cooper J, 23 March 2004 [2004] FCA 298. 24 Sean Huber, ‘The Wellesley Island Decision: Offshore Native Title Post Yarmirr and Ward’ (2004) 23(1) University of Queensland Law Journal 242, 242–3. 25 (2001) 208 CLR 1. 26 (2002) 213 CLR 1. 138 (c) The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under their traditional laws and customs; (d) The right to access the land and waters seaward of the high water line in accordance with and for the purpose allowed under their traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within their respective traditional territory for the purposes of ritual or ceremony; … the native title rights held by each of the native title holder groups did not confer possession, occupation use and enjoyment of the land and waters to which they related to the exclusion of all others.27
Apart from the right to take and consume fresh drinking water, similar native title rights and interests were recognised by Cooper J in relation to the Albert River.28 All rights recognised were subject to the laws of the Commonwealth and the State operating in the claim area and to valid interests granted pursuant to those laws.29 The decision of Cooper J is interesting from the aspect that his Honour is very firm on the point that any native title claim of exclusive possession over tidal waters offshore that ‘admits of an exception in favour of the traditional rights of navigation and fishing given by the common law to the public at large’ will be rejected.30 His Honour, quoting from Ward, did acknowledge that the right to be asked for permission and to speak for country equated with how Aboriginal persons view ownership and that under traditional laws and customs ownership included the right to control access and conduct.31 That acknowledgement could not result in a finding of ownership constituting the right to exclude all others, being recognised as a native title right in relation to tidal waters offshore, because his Honour was bound by Yarmirr.32
Secher is critical of the findings of the High Court that exclusive native title in the sea cannot exist subject to the public rights of fishing and navigation and raises pre–Magna Carta times when the British Crown granted exclusive fisheries that were subject to the public rights of fishing and navigation.33 In addition, Secher is of the view that the High Court has wrongly introduced ‘a double inconsistency of incidents test to deny exclusivity of native title to the sea’.34 The introduction is contrary to ‘the presumptive recognition of native title in Mabo’.35 The double inconsistency of
27 Unreported, Cooper J, 23 March 2004 [2004] FCA 298, 298–299 [7]–[8]. 28 Unreported, Cooper J, 23 March 2004 [2004] FCA 298, 298–299. 29 Huber, above n 24, 243. 30 Unreported, Cooper J, 23 March 2004 [2004] FCA 298 [164]. 31 Unreported, Cooper J, 23 March 2004 [2004] FCA 298 [73]–[74]. 32 Jason Behrendt, ‘Lardil Peoples v State of Queensland [2004] FCA 298’ (2004) 6(2) Indigenous Law Bulletin 14, 15. 33 Secher, above n 6, 1106. 34 Ibid. 35 Secher, above n 6, 1108. 139 incidents test fails to take into account the position before the Magna Carta. The exclusive native title rights and the public rights to fish and navigate are able to stand together in Secher’s opinion.36 Secher has some support for her opinion from Strelein37 and Grey who consider that the inconsistency of incidents test, even if not doubled, has been made more onerous in Yarmirr38 and they are correct.
An issue that is important to whether native title rights and interests found to exist in the intertidal zone in the Northern Territory should be registered, recorded or noted as land or as water or as both land and water arose in Gumana v Northern Territory.39 The application dealt with the sea and raised two questions. The first question was the power held by the Northern Territory Government to issue fishing licences over the intertidal zone and the area seaward for two kilometres commencing at the low-water mark in an area north-east of Arnhem Land. This area was the subject of a grant pursuant to Northern Territory Aboriginal land rights legislation (‘the Land Rights issue’). The second question was whether the Yolngu People held non-exclusive native title rights over the sea and the intertidal zone in that area, save for areas of sacred sites where exclusive native title was claimed (‘the Native Title issue’). Selway J at first instance declined to make any of the declarations sought in relation to the Land Rights issue that concerned whether grants under Aboriginal land rights legislation were sufficient to exclude the public right to fish. In relation to the Native Title issue, his Honour found that the Yolungu People had non-exclusive native title rights similar to those found in Commonwealth v Yarmir.40 Selway J found that where Native Title Act s 47A applies and prior native title extinguishment must be disregarded, that does not include that any extinguishing effect of the common law received at sovereignty, which does not recognise exclusive native title in relation to the intertidal zone, must be disregarded.41
Orders made by Mansfield J in accordance with the judgment of Selway J confirmed the native title rights and interests in the outer waters and also in the intertidal zone to be as follows:
(a) The right to hunt, fish, gather and use resources within the area (including the rights to hunt and take turtle and dugong) for personal, domestic or non-commercial exchange or communal consumption for the purposes allowed by and under their traditional laws and customs; (b) The right to access, use and travel over and visit any part of the area in accordance with and for the purposes allowed by and under their traditional laws and customs including;
36 Ibid. 37 Strelein, above n 17, 49–50. 38 Alexandra Grey, ‘Offshore Native Title: Currents in Sea Claims Jurisprudence’ (2007) 11(2) Australian Indigenous Law Review 55, 66. 39 (2005) 141 FCR 457. 40 (2001) 208 CLR 1. 41 (2005) 141 FCR 457 [263]. 140 i. to access the area for religious, spiritual or cultural purposes or to engage in religious, spiritual or cultural practices; ii. to visit, have access to and maintain sites, places and areas of religious, spiritual or cultural importance or significance within the area; (c) The right to make decisions about access to and use and enjoyment of the area by Aboriginal people who recognise themselves as governed by the traditional laws and customs acknowledged and observed by the native title holders. The native title rights and interests recognised did not confer on the native title holders, possession, occupation, use and enjoyment of the inter-tidal zone and outer waters to the exclusion of others.42
The rights were subject to other validly granted statutory interests or interests created by exercise of the Crown’s executive power.
The decision of Selway J was appealed to the Full Federal Court in respect of both the Land Rights issue43 and the Native Title issue where the appeal of the applicants on the Native Title issue was dismissed. The cross appeal of the Northern Territory and the Commonwealth of Australia on the Native Title issue was allowed to the extent that the native title ‘right to make decisions about access to and use and enjoyment of the area by Aboriginal people who recognise themselves as governed by the traditional laws and customs acknowledged and observed by the native title holders’44 was set aside.45 On the Land Rights issue there was a further appeal to the High Court, which confirmed that the holder of a fishing licence issued by the Northern Territory did not have the right to enter land granted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to the mean low-water mark and, accordingly, containing the intertidal zone.46 The Land Rights issue is relevant in relation to registration, recording or noting of native title rights and interests from the perspective that the intertidal zone was determined to consist of a land column and a water column (two columns).47 Accordingly, if the current native title registration system was to be supported by State and Territory registration systems that utilise a titling approach, the dual aspect of the two columns existing in the intertidal zone may need to be taken into account. This is so in the Northern Territory registration process and also in States that have land rights legislation similar to that of the Northern Territory.
42 Judgment of Mansfield J, 11 October 2005 [7] as attached to Gumana v Northern Territory (2007) 158 FCR 349 [7]– [8]. 43 Sean Brennan and Peta MacGillivray, ‘Fishing Case Tests Economic Waters for Traditional Owners’ (2007) 7(2) Indigenous Law Bulletin 18, 18–20. 44 Judgment of Mansfield J, 11 October 2005 [7(c)] as attached to Gumana v Northern Territory (2007) 158 FCR 349. 45 Gumana v Northern Territory (2007) 158 FCR 349 [3]. 46 Sean Brennan, ‘Wet or Dry, It’s Aboriginal Land: The Blue Mud Bay Decision on the Intertidal Zone’ (2008) 7(7) Indigenous Law Bulletin 6, 6–7. 47 Northern Territory v Arnhem Land Aboriginal Trust (2008) CLR 24 [90]–[91]. 141 To reiterate, as shown so far, the types of native title rights and interests recognised in the sea after Gumana was decided in 2008 are similar between native title claim groups. This is from the perspective that they are non-exclusive and non-commercial and do not include the right to make decisions about access or the right to control the use of the sea by Aboriginal people. At this point in time a general registration, recording or noting that native title has been recognised may have been appropriate. In 2013, Akiba v Commonwealth48 brought about a change in direction.49 The result of this direction, arguably, requires individual registration, recording or noting of each recognised native title right and interest in the sea. At first instance, Akiba v Queensland (No 2)50 involved a claim for native title in the ‘territorial sea, the seabed surrounding the islands of the Torres Strait, in international waters of Papua New Guinea and in the high seas within the protected zone’.51 The protected zone was an area aimed at preserving the marine resources and protecting traditional Aboriginal resource gathering practices.52 Australia had acquired some of the claim area involved pursuant to treaties made with Papua New Guinea.53
When filed, the claim included the right to control access, occupation, use and enjoyment of persons who were not members of the claim group and, additionally, to control members of the claim group.54 In light of the decision in Yarmirr, however, these claims were abandoned. Hepburn describes the native title rights and interests remaining after the abandonment of exclusive native title rights and interests in Akiba as being compartmentalised into three areas:
(a) the right to enter, remain in, use and enjoy; (b) the right to access and take resources both living and inanimate, including seawater, but excluding minerals and petroleum, and including the right to a livelihood based on those rights; and (c) the right to protect resources, places of habitat and places of importance.55
Finn J at first instance recognised the non-exclusive rights and interests claimed over the claim area for the most part had been established and were held by the island communities of Mer, Erub, Ugar,
48 (2013) 250 CLR 209. 49 Lauren Butterly, ‘Changing Tack: Akiba and the Way Forward for Indigenous Governance of Sea Country’ (2013) 17(1) Australia Indigenous Law Review 2. 50 (2010) 204 FCR 1. 51 Samantha Hepburn, ‘Native Title Rights in the Territorial Sea and Beyond: Exclusivity and Commerce in the Akiba Decision’ (2011) 34(1) University of New South Wales Law Journal 159, 177. 52 Ibid 177. 53 Hepburn, above n 51, 177. 54 (2010) 204 FCR 1 [64]. 55 Hepburn, above n 51, 177. 142 Masig, Poruma, Warraber, Iama, Mua, Badu, Mabuiag, Saibai, Boigu and Dauan.56 Although there was one society, all rights were not necessarily communal rights and the traditional laws and customs would govern who held the rights and interests in the different areas.57 The rights to protect were not established by the evidence and, in any event, these rights required exclusivity. Nor were reciprocal rights recognised.58 His Honour found that, although the applicant did not explicitly claim commercial rights, the rights claimed would include trading and commercial purposes, but it was acknowledged that these rights were in contention.59 The State of Queensland argued that trading and commercial exploitation existed as a right only where there was exclusive possession. Finn J could not accept this proposition in relation to the sea and found that the traditional laws and customs of the applicant did not demonstrate that a right to exclusive possession was necessary in order to trade or carry out commercial exploitation of resources.60 Accordingly, the native title right to take marine resources included for trading or commercial purposes and that use was recognised at common law.61
An appeal to the Full Federal Court by the applicant, and a cross appeal by the Commonwealth, the State of Queensland and other fishing parties in Commonwealth v Akiba on behalf of the Torres Strait Islanders of the Regional Sea Claim Group62 occurred. Keane CJ and Dowsett J overturned Finn J on the issue that native title rights could be commercial and the order made by Finn J regarding the native title right of taking fish and other aquatic life was amended to provide that it did not extend to sale or trade.63 Both the Commonwealth and the State of Queensland argued in the Full Federal Court that the right to take marine resources was a severable right from the general native title right to take marine resources and it had been extinguished by State and Commonwealth legislation. The Commonwealth relied on Harper v Minister for Sea Fisheries64 to argue that Commonwealth legislation had created new rights that were inconsistent with native title.65 It was found that the regulatory regimes had extinguished all common-law rights including native title because if native title had survived the regulatory regimes it would be elevated above all other common-law rights and this view was not supported by authorities such as Yarmirr and Ward.66 Butterly rightly questions
56 Paragraph 4 of the Order made by Finn J on 23 August 2010; Lauren Butterly, ‘Unfinished Business in the Straits;Akiba v Commonwealth [2013] HCA 33’ (2013) 8(8) Indigenous Law Bulletin 3. 57 Lauren Butterly, ‘Clear Choices in Murky Waters: Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia’ (2013) 35 Sydney Law Review 237, 240. 58 Hepburn, above n 51, 178; Lauren Butterly, ‘Unfinished Business in the Straits: Akiba v Commonwealth of Australia’ (2013) 8 Indigenous Law Bulletin 1, 5. 59 (2010) 204 FCR 1 [751]. 60 (2010) 204 FCR 1 [755]–[756]. 61 (2010) 204 FCR 1 [16]. 62 (2012) 204 FCR 260. 63 (2012) 204 FCR 260 [84]. 64 Harper v Minister for Sea Fisheries (1989) 168 CLR 314. 65 (2012) 204 FCR 260 [13], [224]. 66 (2012) 204 FCR 260 [63]–[87]. 143 where the approach that legislation may regulate rather than prohibit activities, as raised in Yanner v Eaton,67 fits into the methodology adopted by the majority of the Full Federal Court sitting in Akiba.68 In respect of a native title right to fish commercially pursuant to a licence, it was found that the conferral of a licence to fish commercially on an individual would not authorise the exercise of a group right to fish commercially.69
Two questions of importance came before the High Court when Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth70 was appealed from the Full Federal Court’s decision. Both questions had the capacity to influence the way in which native title rights and interests in the sea may be able to be registered, recorded or noted. These questions were whether the native title right to fish commercially had been extinguished by Commonwealth and Queensland fisheries legislation and whether reciprocal native title rights and interests could exist pursuant to Native Title Act s 223(1). Reciprocal native title rights and interests were of two kinds, being those associated with occupation and those linked to relationships with persons in occupation. The two questions were answered by the High Court unanimously when it found that the statutory fishing regimes of the Commonwealth and the State had not extinguished the native title right to fish for any purpose, including commercially, and that reciprocal native title rights and interests did not exist.
The joint judgment of French CJ and Crennan J illustrates that the test in relation to the extinguishment question was not one of ‘clear and plain intention’ but one of ‘inconsistency’.71 In applying the inconsistency test, it was found that the fishing legislation of the Commonwealth and Queensland was not inconsistent with the recognition by the common law of the native title right to fish commercially, but that right was subject to the licensing provisions required by the legislation in respect of all commercial fishing.72 In relation to the reciprocal rights question, it was found that the reciprocal rights claimed were personal in nature and did not satisfy the criteria that they be connected to the land or waters as required by Native Title Act s 223(1).73 Hayne, Kiefel and Bell JJ who gave a joint judgment summed up the inconsistency test as requiring a comparison between ‘the legal nature and incidents of the right granted or asserted and the native title rights asserted’.74 This was a different approach from that of French CJ and Crennan J, who indicated that the case was not about inconsistency of rights but whether ‘successive statutory regimes were inconsistent with the
67 (1999) 201 CLR 351. 68 Butterly, above n 57, 242. 69 (2012) 204 FCR 260 [85]. 70 (2013) 250 CLR 209. 71 (2013) 250 CLR 209 [35]. 72 (2013) 250 CLR 209 [34]–[39]. 73 (2013) 250 CLR 209 [40]–[45]. 74 (2013) 250 CLR 209 [61]. 144 recognition by the common law of an asserted native title right’.75 In spite of the differences in approach, which have confused the inconsistency test, Hayne, Kiefel and Bell JJ also found that the native title holders could fish for trade and sale with a licence.76 Although their Honours did not examine the reciprocal rights question they agreed with French CJ and Crennan J77 and affirmed the orders proposed.78 The finding of Finn J that the native title right to protect had not been proven by the applicant was not overturned by the High Court.
8.3 NEED FOR A CONCLUSIVE MARINE REGISTRATION SYSTEM IN WHICH TO ACCOMMODATE NATIVE
TITLE RIGHTS AND INTERESTS IN THE SEA AND OTHER TIDAL WATERS
The decision in Akiba means that native title rights and interests in the sea and other tidal waters are valuable rights in relation to native title holders pursuing a livelihood from trade and commerce involving fishing. Quota exemptions for fish species on the basis of holding native title, as shown in Karpany v Dietman,79 are also important economically. These native title rights and interests must be protected and preserved for future generations and are not identical between native title holders. For that reason a general registration, recording or noting that native title has been recognised is not adequate. In Gumana the right to access places for the purposes allowed under traditional laws and customs, which arguably includes protection of places, has been recognised. Protection of important cultural and spiritual places has been recognised in Yarmirr. In Akiba, however, rights of protection were not recognised. In Akiba, the native title right to fish commercially with a licence has been recognised, but in other cases that right has either not been claimed or has not been recognised by the High Court. Accordingly, to be meaningful, each native title right and interest recognised should be registered, recorded or noted separately along with all the other co-existing non-native title rights in the same area of marine space.
The question arises as to whether the registration system established pursuant to the Native Title Act is meaningful or able to offer the necessary protection for native title rights and interests in the sea for future generations. The current native title registration system does not register or spatially represent all the interests that exist in the sea, which generates uncertainty. It is not possible to ascertain how other interests relate to native title rights and interests or to each other. Accordingly, it is very difficult to manage marine interests for those involved in that endeavour. Also, Native Title Act sub-s 23HA (7) does not adequately protect native title rights and interests in water. Section
75 (2013) 250 CLR 209 [35]. 76 (2013) 250 CLR 209 [75]. 77 (2013) 250 CLR 209 [47]. 78 (2013) 250 CLR 209 [76]. 79 (2013) 253 CLR 507. 145 23HA(7) provides for notification and a right to comment to native title holders in relation to future acts concerned with the management or regulation of water or airspace. The right to comment was demonstrated not to be a right of veto in Harris v Great Barrier Reef Marine Park Authority.80 There it was said that the decision-maker could make such use of the comment as was considered appropriate and that the comment was not a right to participate in the decision-making process nor a right to seek information about the decision.81 The lack of protection provided by the Native Title Act for native title rights and interests in water is further illustrated by Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland 82 in the Full Federal Court. It was said that the validity of the future act to which sub-s 23HA applied would not be affected by a failure to notify pursuant to Native Title Act sub-s 24HA (3).83 Invalidity would be attracted when the Native Title Act expressly provided for that, which was only when future acts came within the provisions of Native Title Act sub-div P and attracted the right to negotiate.84 Additionally, the procedural rights provisions relating to future acts under the Native Title Act did not appear to be available before determination of native title to registered native title claimants because a future act could not be an act that might affect native title; rather, it must be an act that affects native title. This is of persuasive value only, but other courts may follow Lardil if a similar question was before them. Accordingly, there is very little a native title holder can do to protect native title in relation to future acts concerning management of water or airspace apart from proceeding down the very expensive process of seeking an injunction from the Federal Court if governments do not heed the advice provided in a comment from native title holders in response to a s 24HA future act notice. If the aggrieved are registered native title claimants, the injunction available may only be interlocutory.85 In the case of complete lack of notification, Merkel J has commented in Lardil 86 that equity may intervene, which again would be a very expensive process and one where final relief would not be available to registered native title claimants within the Lardil obiter dictum.87 The appellants argued in Lardil that there would be no incentive for
80 (2000) 98 FCR 60. 81 (2000) 98 FCR 60 [38]; Katie O’Bryan, ‘More Aqua Nullius? The Traditional Owner Settlement Act 2010 (Vic) and the Neglect of Indigenous Rights to Manage Inland Water Resources’ (2017) 40(2) Melbourne University Law Review 547, 557. 82 (2001) 108 FCR 453. 83 (2001) 108 FCR 453 [117]. 84 (2001)108 FCR 453 [58]. 85 Phillipa Hetherton, ‘When is a Future Act a Future Act: Lardil, Kaiadilt, Yangkaal amd Gangalidda Peoples v State of Queensland’ (2001) 5(9) Indigenous Law Bulletin 16, 17. 86 (2001)108 FCR 453 [73]. 87 Edwards v Santos Limited (2010) 185 FCR 280 [20]. 146 governments to follow the procedural provisions of the future act regime88 and that, without doubt, is the likely outcome of the Lardil decision.
Additionally, Native Title Act s 24NA, which deals with future acts on offshore places, provides native title holders with the same procedural rights that they would be entitled to if they held ordinary title to an offshore place. This is not adequate protection of native title because it does not take into account that native title rights and interests cannot revive when they are extinguished. Their loss may result in a loss of culture, which is not the case with ordinary title. Accordingly, native title requires a higher mode of protection than ordinary title, which the current native title system is unable to provide.
A conclusive ocean portal system incorporating a register and a three-dimensional marine cadastre that operates spatially as a source for all marine interests would be an ideal, safer and more protective model to supplement the registration system provided in the Native Title Act for native title in the sea. Such a model would assure knowledge of the existence of native title when future acts are being carried out.89 It would also demonstrate how competing interests relate to each other and to native title. The cadastral system’s three-dimensional capacity would reflect individual native title rights and interests and their geographical location whether in the water itself, in the subsurface below the water or in the airspace above the water.90 It is well recognised that spatial information about the marine environment underpins planning, allocation of resources91 and good marine governance.92
Australia currently has a number of ocean portals incorporating cadastres mainly used to monitor climatic conditions or to service one particular area of oceanography and it may be feasible to convert one or more of these portals to create a conclusive portal. The existing portals include the following:
(a) Australian Ocean Data Network Portal, which contains data contributed by the Integrated Marine Observing System and various Commonwealth agencies with responsibilities in the marine jurisdiction;93
88 Simeon Beckett, ‘Federal Court Strikes Blow to Protections for Native Title Claimants: Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland’ (2000) 4 (30) Indigenous Law Bulletin 16, 17. 89 Nathan D Quandros and Phillip A Collier, ‘A New Approach to Delineating the Littoral Zone for an Australian Marine Cadastre’ (2008) 24(3) Journal of Coastal Research 780, 780–1. 90 Sara Cockburn, Marine Cadastres and the Law:Using Modern Developments in Marine Boundary Law to Construct a Legal Framework for Offshore and Coastal Spaces (Masters Thesis, University of New Brunswick, 2005) 3. 91 Lisa Strain, Abbas Rajabifard and Ian Williamson, ‘Marine Administration and Spatial Data Infrastructure’ (2006) 30 Marine Policy 431, 433. 92 Sam Ng’ang’a et al, ‘Towards a 3D Marine Cadastre in Support of Good Ocean Governance: A Review of the Technical Framework Requirements’ (2004) 28 Computers, Environment and Urban Systems 443, 444. 93 University of Tasmania,
Out of the above systems, the system that may have potential for conversion to a conclusive marine cadastre is AMSIS, given its aim is to support industry and regional planning by providing current integrated spatial marine information. At present, AMSIS contains a number of native title layers, including those depicting boundaries of applications for a determination of native title, determinations of native title and Indigenous Land Use Agreements. There are also a number of navigation tools that can be used to identify the native title holders and native title claimants. However, the information in the layers is not complete, which detracts from the usefulness of the system.
Quandros and Collier quoting from Binns et al101 have listed native title and interests that could be included in an ocean register and three-dimensional linking conclusive marine cadastre.102 The non- native title co-existing interests noted by Quandros and Collier include ‘tourism and recreation [interests], shipping [routes], ocean waste disposal [areas], cables and pipelines, aquaculture leases, fishing zones, minerals and energy [interests], marine protected areas and tidal interface [areas]’.103
94 University of Tasmania,
8.4 DIFFICULTIES IN CREATING A CONCLUSIVE MARINE CADASTRE IN WHICH TO ACCOMMODATE
NATIVE TITLE RIGHTS AND INTERESTS
Development of a marine register and conclusive three-dimensional cadastre for all the interests in the sea, including native title rights and interests, is not without challenges. There would be complex boundary and tenure issues to address because in the sea, resources and rights can co-exist and operate ‘over time and space’.104 One of the most difficult issues concerns the area referred to in the Native Title Act in its definition of ‘waters’105 as the ‘shore’. Although not made absolutely clear in the definition of ‘waters’, the ‘shore’ is taken to be the intertidal zone, being that area between mean high-water mark and mean low-water mark, where native title may be found to exist. Part of the importance of the intertidal zone relates to the fact that it is often used to form the landward boundary of native title sea claims or the seaward boundary of native title coastal land claims. It is also used as a boundary to ‘delineate the marine and terrestrial environments and form the basis for the generation of many local, state, national, and international maritime limits’.106 In native title coastal land and sea claims, if there is ambiguity as to where a boundary line described as the intertidal zone is located, that may contribute to intrusion into the country of another native title group and impinging on their fishing, hunting and gathering rights.
Boundary ambiguity may also arise because different datum are employed for delineating purposes. The mean high-water mark is used as the boundary for land abutting the sea, whereas for defining the exclusive economic zone and the territorial sea, the lowest astronomical tide may be used.107 The United Nations uses the ‘low water line along the coast as marked on large-scale charts officially recognised by the coastal State’ to define the breadth of the territorial sea in the United Nations Convention on the Law of the Sea.108 The choice of datum can depend on the shape of the coast.109 The confusion caused by the use of different datum is increased considerably by natural processes whereby the mean high-water mark and the mean low-water mark are not stationary. Accretion and erosion operate to shift the location of the mean high-water mark and mean low-water mark, resulting in gradual changes over time, but sometimes the shift occurs suddenly due to severe storms or
104 Ng’ang’a et al, above n 92, 445. 105 Native Title Act s 253. 106 Quandros and Collier, above n 89, 781. 107 David J Mitchell et al, ‘The United Nations Law of the Sea and the Delimitation of Australia’s Maritime Boundaries’ (2001) 4 The TransTasman Surveyor 50, 50–7. 108 United Nations Convention on the Law of the Sea (UN General Assembly, 10 December 1982) art 5. 109 Geoscience Australia, Maritime Boundary Definitions
To address the situation of the intertidal zone being ambulatory with frequent recalculations being necessary, there has been a move in Australian ocean mapping towards delineation of a tidal line based on mathematical calculations, which avoids the need for aerial photography.111 It also avoids hyperspectral imaging using electromagnetic techniques when frequent recalculations of the intertidal zone are required.112 Quandros and Collier consider that the success of this approach depends on having relatively accurate digital datasets of the terrain of the foreshore and of the tides. In this case, the intersection of the two sets of data can be computed mathematically to produce a tidal line.113 As the success of the mathematical approach for calculating a tidal line depends on reliable data of the terrain of the foreshore and the tides, those datasets need to be readily available and this involves complex technology.
8.4.1 Data on the foreshore terrain
In relation to capturing reliable data on the terrain of the foreshore, topographic and bathymetric charts and maps or land and hydrographic surveys114 were techniques used in the past, but several technologies are emerging, including:
(a) airborne electromagnetic induction;115 (b) synthetic aperture radar;116 (c) aerial photogrammetry and high resolution satellite imagery;117 and (d) laser induced detection118 and ranging systems.119
These will be discussed in turn.
110 Pamela A O Abuodha and Colin D Woodroffe, ‘Assessing Vulnerability to Sea-Level Rise Using a Coastal Sensitivity Index: A Case Study from Southeast Australia’ (2010) 14 Journal of Coastal Conservation 189, 190–201. 111 Ng’ang’a et al, above n 92, 449. 112 Quandros and Collier, above n 89, 782. 113 Ibid 782. 114 Quandros and Collier, above n 89, 783. 115 Julian Vrbancich, ‘Mapping Turbid Coastal Waters’ (2006) 26 Position Magazine 64, 64–9. 116 Clive S Fraser et al, Summary of DEM Availability for Coastal Vulnerability Assessment (CRC for Coastal Information, 2006) 1–29. 117 Li-Guang Leu and Heng-Wen Chang, ‘Remotely Sensing in Detecting Water Depths and Bed Load of Shallow Water and Their Changes’ (2005) 32(10) Ocean Engineering 1174. 118 Jennifer M Wozencraft, ‘SHOALS Airborne Coastal Mapping: Past, Present and Future’ (2003) Special Issue No 38 Journal of Coastal Research 207, 208. 119 Quandros and Collier, above n 89, 783. 150 8.4.2 Airborne electromagnetic induction
Airborne electromagnetic induction involves the use of an aircraft carrying electromagnetic instruments that transmit electric currents to create a primary magnetic field whereby the surface below the aircraft is penetrated.120 A second currency that can be measured is established because of the reflection of the electrical resistance of the ground.121 The applicability of this approach over water is limited to relatively shallow waters because the accuracy of the measurement decreases as the water deepens.122 This technique would only be useful where deep water does not cover the intertidal zone.
8.4.3 Synthetic aperture radar
In synthetic aperture radar technology, images of a landscape are created by transmitting successive pulses of radio waves over a target from an aircraft or spacecraft.123 The echo of all the pulses is received by an antenna and, as the aircraft or spacecraft moves, the antenna receives the echo from different positions, creating a spatial resolution.124 This technique has been used for coastline capture and it can depict bathymetry from the sea’s currents and the roughness of the sea’s surface but to do so with accuracy requires other information concerning currents and ocean meteorological processes.125 Because that data is not readily available, the use of synthetic aperture radar has largely been superseded by other more reliable methods for collecting data on foreshore terrain.126
8.4.4 Aerial photogrammetry and high resolution satellite imagery
Aerial photogrammetry and high resolution satellite imagery is a method by which, using high-speed imagery and remote sensing, measurements can be made from photographs to facilitate the generation of two-dimensional or three-dimensional foreshore terrain models.127 The technique has not proven to be particularly useful for bathymetry as considerable additional data, including data on water depth,
120 Ibid. 121 Quandros and Collier, above n 89, 783. 122 Julian Vrbancich and Peter K Fullagar, ‘Improved Seawater Depth Determination Using Corrected Helicopter Time- Domain Electromagnetic Data’ (2007) 55 Geophysical Prospecting 407, 408. 123 Vishal M Patel et al, ‘Compressed Synthetic Aperture Radar’ (2010) 4(2) IEEE Journal of Selected Topics in Signal Processing 244, 244–5. 124 Ibid 244. 125 Doug Alsdorf et al, ‘Measuring Global Oceans and Terrestrial Freshwater from Space’ (2007) 88(24) Eos Transactions American Geophysical Union 253, 253–4. 126 Quandros and Collier, above n 89, 783. 127 Khalid LA El-Ahsmawy, ‘A Comparison between Analytical Aerial Photogrammetry, Laser Scanning, Total Station and Global Positioning System Surveys for Generation of Digital Terrain Model’ (2015) 30(2) Geocarto International 154, 155. 151 water clarity and quality, wind speed, tidal currents and features of the sea floor, is needed to deliver accurate results, which makes the method impractical for mapping the intertidal zone.
8.4.5 Laser induced detection and ranging systems (‘LIDAR’)
Laser induced detection and ranging systems (‘LIDAR’) have proven to be more effective than the other techniques mentioned above in capturing data on the terrain of the foreshore and the subsurface of the ocean.128 In this technique, distance is measured by focusing a laser on a target. The laser instruments are usually fitted to an aircraft or satellite and, airborne, are capable of mapping at high resolution and at depths of 60 m over water providing there is water clarity.129 Quandros and Collier are of the opinion that a LIDAR spaceborne platform is required in Australia to dispense with the need for utilising aircraft to map the foreshore terrain on a large scale. In 2008, when Quandros and Collier published, this had not occurred although there had been foreshore mapping on a small scale by employment of LIDAR.130 Currently, spaceborne platform technology is continuing to develop in Australia.131
8.5 DATA ON THE TIDES
The success of calculating a tidal line mathematically not only depends on accurate data about the foreshore terrain, but also depends on accurate tidal data being available. Accordingly, the availability of a mathematical model that can accurately determine the height of tides at a particular time and in a particular place is important. Accurate tidal data can potentially be generated from observations taken from tide gauges placed at fixed locations, but those observations may be hampered by physical limitations on the placement of tide gauges, by the infrequency of the full tidal cycle and by coastal geographical features that impact on the behaviour of tides.132 Mathematical tide modelling can occur by placing tide heights between the tide gauges or by using a hydrodynamic tide model.133 This consists of two components: the astronomical tide, being the level and character of the tide resulting from gravitation of the earth, sun and moon, and the meteorological tide, being the level and character of the tide resulting from variations in the weather.134 Sophisticated versions of hydrodynamic tide
128 Robert Arnone et al, ‘Probing the Subsurface Ocean Processes Using Ocean LIDARS’ Volume 8372, Proceedings of the Ocean Sensing and Monitoring IV Conference, 23-27 April 2012, Baltimore, 1–2. 129 Wozencraft, above n 118, 209. 130 Quandros and Collier, above n 89, 784. 131 Qiang Dou, Shuangna Zhang and Shaobo Wang, ‘Schematic of Space-Borne Lidar Surveying Neritic Seabed Terrain’ Proceedings of the International Symposium on Photoelectronic Detection and Imaging, Volume 8905, Beijing, September 2013, 890520.5. 132 David Edgar Cartwright, Tides: A Scientific History (Cambridge University Press, 1999) Chapters 13–15. 133 J N Aldridge and A M Davies, ‘A High Resolution Three-Dimensional Hydrodynamic Tidal Model of the Eastern Irish Sea’ (1993) 23 Journal of Physical Oceanography 207. 134 Quandros and Collier, above n 89, 784. 152 models exist that use harmonic analysis whereby wave forms are decomposed into mathematical parts at particular frequencies to generate data.135 Satellites are also utilised as modern technology to observe and chart the height of the surface of the sea.
8.6 THREE-DIMENSIONAL APPROACH
Assuming that foreshore terrain data and tidal data become readily available in Australia to enable mathematical calculation of an accurate tidal line, which is necessary for dependable delineation of the various ocean boundaries, including the intertidal zone, native title limits and State and Commonwealth territorial limits, the difficulties in developing a marine register and supporting conclusive cadastre would still not be fully resolved. Ng’ang’a et al consider that most marine interests have a three-dimensional aspect.136 This can certainly be said of native title rights and interests in the sea because many native title rights and interests are not practised purely on the surface of the water. Instead, the activity is carried out in the volume of the water, in the subsoil below or in the airspace above the water. Development of a three-dimensional marine cadastre involves the task of defining vertical and horizontal datum for datum harmonisation purposes and to ensure the exact position and identification of the various marine interests.137 The task of defining vertical datum is complex because the problems discussed above are encountered whereby the charts use different definitions for vertical datum, such as mean high-water mark, mean low-water mark and lowest astronomical tide. Accordingly, there would need to be conversion to a standardised definition.
In recent times, the horizontal and vertical datum identified by the Global Positioning System (‘GPS’) and known as ‘WGS84 datum’ appears to be widely used in a global context and is applicable in the marine environment, although it is not necessarily completely accurate.138 Accuracy can be improved by the use of a differential GPS service where corrections to accuracy are transmitted by a GPS receiver to other nearby GPS receivers.139 The Australian Marine Safety Authority operates a Differential Global Positioning System in various places along the coast of Australia, including the Great Barrier Reef and in the Torres Strait,140 primarily as an aid to navigation for commercial shipping. This may not be the only purpose for which improvement in the accuracy of the GPS can be utilised. It may well assist in the development of a three-dimensional marine cadastre that would accommodate native title rights and interests in the sea. In addition, there are commercial systems in
135 Ibid 785. 136 Ng’ang’a et al, above n 92, 447. 137 Ibid 449. 138 Hasanuddin Z Abidin et al, ‘Geodetic Datum of Indonesian Maritime Boundaries: Status and Problems’ (2005) 28(4) Marine Geodesy 291, 295. 139 Ng’ang’a et al, above n 92, 451. 140Australian Maritime Safety Authority,
SURFACE - access, native title, navigation, fishing
WATER COLUMN- public rights, native title, fishing, navigation
SEA BED AND SUBSOIL -
pipelines, native title, mining, aquaculture
8.7 IDENTIFICATION OF MARINE AREAS
Specific marine areas where particular marine interests are held are more difficult to identify than land areas, which can be surveyed relatively easily and allocated a unique title identifier. Identification of marine areas is usually carried out using survey platforms and the GPS technology; however, other technologies, including precise point positioning, are continuing to improve and to assist in the endeavour of providing legal and geographical certainty for marine areas.142 Precise point positioning is a method used in the marine environment involving the use of a global navigation satellite system and a single receiver to calculate highly precise positions. Its utilisation has depended on the availability of precise reference satellite orbits and clock products,143 which are currently available, having been developed over the last 20 years.
8.8 ABORIGINAL IDENTIFICATION OF MARINE AREAS
A further difficulty in developing a three-dimensional marine cadastre that links to a register relates to the way in which Aboriginal people identify areas, including marine areas. All water has a story, a song and a totemic ancestor, which help to define the native title area extending as far as the reaches of the story line, the song line and the totemic ancestor.144 In addition, many native title holders
141 John Magee and Volker Janssen, ‘Comparison of Community and Commercial DGPS Correction Sources in Tasmania, Australia’ (2008) 10(1–2) Journal of Geospatial Engineering 28, 29. 142 J Geng et al, ‘Kinematic Precise Point Positioning at Remote Marine Platforms’ (2010) 14(4) GPS Solutions 343, 344. 143 Cai Changsheng and Gao Yang, ‘Precise Point Positioning Using Combined GPS and GLONASS Observations’ (2007) 6(1) Journal of Global Positioning Systems 13. 144 Luise Hercus, Flavia Hodges and Jane Simpson (eds), The Land Is a Map: Placenames of Indigenous Origin in Australia (ANU Press, 2009). 154 consider place to be an entity rather than a spatial relationship.145 This translates linguistically and in a study by Wilkins, the Mparntwe Arrernte People, whose traditional country is in Central Australia, were noted to refer to ‘places as “camp” or “country” [which are of] social, functional or religious significance to people’. These references are used146 rather than a geographical name. In addition, the same word used for ‘place’ can have different meanings in Aboriginal language. For example ngurra in Gurindji language can mean ‘place’ or ‘site’ or ‘camp’ or ‘a wider country’.147 This has implications for defining marine areas that contain native title rights and interests because the vocabulary of native title holders may be misinterpreted by mapping professionals, surveyors and geospatial experts. Additionally, ‘Aboriginal connections to country (which includes water) are complex and can encompass values and interests that are difficult to engage with from the perspective of the broader society’.148 Furthermore, it is common for Aboriginal people not to view water as distinct from land, and separate registration/recording of native title rights and interests in water may be converse to Aboriginal cultural values and interests.149 Accordingly, the areas of native title rights and interests in the sea may not be easy to define by survey, by geographical coordinates or by the use of the technologies discussed above. Effective communication with native title holders, transparency and inclusion should assist in resolving the difficult issues of identifying marine areas that contain native title rights and interests.
8.9 DEFINING THE MARINE INTERESTS
Unlike the land environment, the marine environment is not usually considered in the context of parcels. It may be appropriate to view an area of the marine environment as a layered parcel, made up of the water surface, the water column, the air above the water, the seabed and the subsoil beneath the water. This would capture the three-dimensional aspect of the marine environment.150 Different marine interests, including native title rights and interests, can exist and be carried out in a single layer or in multiple layers of a marine parcel. For example, the native title right of fishing may be carried out in the water column, whereas the native title right of access may be mainly carried out on the surface of the water. The native title right of gathering marine resources may be carried out in the seabed, the subsoil and the water column. It is likely that most native title rights and interests will be
145 David P Wilkins, ‘The Concept of Place among the Arrernte’ in Luise Hercus, Flavia Hodges and Jane Simpson (eds), The Land is a Map: Placenames of Indigenous Origin in Australia (ANU Press, 2009) 26. 146 Ibid 29. 147 Patrick McConvell, ‘Changing Places: European and Aboriginal Styles’ in Luise Hercus, Flavia Hodges and Jane Simpson (eds), The Land Is a Map: Placenames of Indigenous Origin in Australia (ANU Press, 2009) 55. 148 Richard J Martin and David Trigger ‘“Nothing never change”: Mapping Land, Water and Aboriginal Identity in the Changing Environments of Northern Australia’s Gulf Country’ (2015) 5(4) Settler Colonial Studies 317, 318. 149 Ibid 319. 150 Ng’ang’a et al, above n 92, 460. 155 carried out in multiple layers of a marine parcel. In the process of layering, all the interests that relate to each of the marine layers are grouped together151 and each interest can be identified as a single entity. In this approach, the relationship to the other interests in the same layered parcel can be identified. Importantly, the interests do not have to be similar for their relationship to be recognised nor need they be owned by one person but they can be owned communally as is usually the case in respect of native title rights and interests. This is not always the case, however, as demonstrated in Akiba.152 Wallace and Williamson consider that when layering is undertaken, much thought needs to be given as to how activities that are in competition with each other in a particular marine space can be simultaneously accommodated and managed.153
8.10 NAMING THE MARINE INTERESTS
An issue associated with layering the marine interests is the naming of all the grouped rights and interests that exist in a marine space, so that all persons who have a need for the information recognise the particular right and interest. This may be difficult because the interests are diverse. They may include oil and gas pipelines, cables, leases and licences for various aquatic and marine interests, mining leases and licences, shipping lanes, rights of navigation, limit of coastal waters (3 nautical mile limit), limit of the territorial sea (12 nautical mile limit), fishing zones and exclusive economic zones. Naming becomes increasingly difficult in relation to native title rights and interests. For example, in Yarmirr the right to safeguard cultural and spiritual knowledge was recognised, which is a general description of the native title right and interest. Persons having a need for the information would not understand exactly what is entailed in this particular right and interest. Naming this right and interest would involve a more specific description that is known to the Muran, Gadura, Menaga, Ngayndjagar and Mayorram Peoples who are the native title holders. Also in Akiba the right to a livelihood based on the native title right to fish, including to fish commercially with a licence, was recognised as a native title right. This right would need to be named in a definitive manner to be recognisable by all persons who have a need for the information. This highlights the need to work closely with native title holders as well as other interest holders in the development of a three- dimensional marine cadastre in which to accommodate native title rights and interests in the sea.
151 Jude Wallace and Ian Williamson, ‘Registration of Marine Interests in Asia–Pacific Region’ (2006) 30 Marine Policy 207, 211. 152 Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v Queensland (No 2) [2010] FCA 643 [542]. 153 Wallace and Williamson, above n 151, 211. 156 8.11 DEVELOPING A VISION
Currently, although there are numerous Australian ocean portals that incorporate cadastres and serve different functions and stakeholders, there is no plan-based approach or vision being applied to the development of a marine register and conclusive cadastre to manage and conserve marine ecosystems to manage user activities.154 Protection of native title rights and interests in the sea does not utilise a plan-based approach or vision. This may lead to impingement on the rights of others by the various users and to a lack of connection between the various marine uses and their dependent economies. Eventually, there may be an impact on the livelihood of native title holders in the Torres Strait and coastal areas elsewhere. In addition, without a three-dimensional marine cadastre there is likely to be diminished conservation of sensitive marine areas.155 This may have a very serious impact on the species that are hunted and fished in the sea by native title holders.
The essential elements for developing a plan-based approach or vision, sometimes referred to as an ‘ecosystem based approach’,156 for a comprehensive three-dimensional marine cadastre include carrying out research as to whether the existing portals can be modified and/or amalgamated. An appropriate body needs to to identify what is required in terms of growth of the economy, the social and economic interests of Australia and to ascertain access availability, who should have access, reduction of duplication and management.157Also involved are securing finance for the project, planning and analysing alternative options, forming sustainable partnerships, implementing a strategic, integrated management framework and monitoring inputs and outputs as well as evaluating throughout the development of the project and during its implementation.158
8.12 SUSTAINABLE PARTNERSHIPS
Strain, Rajabifard and Williamson list forming sustainable partnerships as one of the most important aspects in developing a conclusive marine cadastre because collection of data from many sources is required where the partnerships involved may include people from private enterprise and governments at all levels.159 In addition, for native title rights and interests to be included in a
154 Fanny Douvere, ‘The Importance of Marine Spatial Planning in Advancing Ecosystem-Based Sea Use Management’ (2008) 32(5) Marine Policy 762, 763. 155 Ibid. 156 Douvere, above n 154, 762. 157 M. Sigit Widodo, Joseph Leach, Ian Williamson ‘Marine Cadastre and Spatial Data Infrastructures in Marine Environment’ paper delivered at Joint AURISA and Institution of Surveyors Conference Adelaide, 25-30 November, 2002, 5-8. 158 Fanny Douvere and C Ehler, ‘New Perspectives on Sea Use Management: Initial Findings from European Experience with Marine Spatial Planning’ (2009) 90(1) Journal of Environmental Management 77, 78. 159 Strain, Rajabifard and Williamson, above n 91, 438. 157 conclusive three-dimensional marine cadastre it is very important that partnerships be formed with native title holders in coastal areas and on islands situated within State and Territory limits. Barriers may exist in relation to forming partnerships as often there is a reluctance to share data and the fact that similar standards have not be used in collecting and storing data may involve expensive conversion processes.160 These barriers are accompanied by a lack of incentive in Australia for national endeavours in contrast to State-based operations.161 In the case of native title holders, the data required to reflect each native title right and interest in a geospatial format is not recorded or centralised as it may be held by the elders of a tribe pursuant to oral tradition where there may be confidentiality, communication and gender issues to be resolved when partnerships are formed.
8.13 THE MARINE REGISTER
As a three-dimensional marine cadastre is unlikely to have the force of law, a legal register would also be required. Currently, as well as the Registers kept by the Native Title Registrar — where registration of native title rights and interests in land and waters occurs in the same Registers — and the ocean portals referred to above, there are numerous other legal registers. These are kept for registration of marine interests for different purposes by different authorities within Australia and none are uniform. With regard to offshore petroleum and gas, a designated Commonwealth authority is required to keep a register of permits, licences, pipeline licences and access authorities granted pursuant to the Petroleum (Submerged Lands) Act 1967 (Cth).162 The Commonwealth also keeps a register of statutory fishing rights granted by the Commonwealth or a joint Commonwealth authority responsible for managing a fishery pursuant to Commonwealth law.163 A register of historic shipwrecks pursuant to the Historic Shipwrecks Act 1976 (Cth)164 is also kept. The registers kept by the States and Territories include those for offshore petroleum, offshore minerals,165 fishing interests and shipwrecks. As a means of illustration, in Queensland a register of authorities and fisheries development approvals166 is required to be kept under the Fisheries Act 1994 (Qld), and historical shipwrecks, within the defined legislative meaning of that term, are registered under the Queensland
160 Ibid 440. 161 Jude Wallace and Ian Williamson, ‘Developing Cadastres to Service Complex Property Markets’ (2006) 30(5) Computers, Environment and Urban Systems 614, 614. 162 Petroleum (Submerged Lands) Act 1967 (Cth) s 76(1). 163 Fisheries Management Act 1991 (Cth) s 44. 164 Historic Shipwrecks Act 1976 (Cth) s 12. 165 Petroleum (Submerged Lands) Act 1982 (WA) ss 75, 76; Offshore Minerals Act 2003 (WA) s 328; Petroleum (Offshore) Act 1982 (NSW) s 76; Petroleum (Onshore) Act 1991 (NSW) s 97; Offshore Minerals Act 1999 (NSW) s 330; Petroleum (Submerged Lands) Act 1982 (Qld) s 75; Offshore Minerals Act 1998 (Qld) s 328. 166 Fisheries Act 1994 (Qld) s 73. 158 Heritage Act 1992 (Qld). In New South Wales a share register,167 a register of permits,168 a register of fishing business determinations,169 a register of critical habitat170 and a register of licences171 are required to be kept under the Fisheries Management Act 1994 (NSW). Pursuant to the Heritage Act 1977 (NSW), New South Wales also keeps a register of shipwrecks. In Western Australia, the Fish Resources Management Act 1994 (WA) provides that the Registrar is to keep a register of authorisations, temporary aquaculture permits, aquaculture leases and exemptions.172 The Maritime Archaeology Act 1973 (WA) provides for a register of discoverers of shipwrecks, which lists the name of the shipwreck and its approximate ocean location.173
This uncoordinated collection of legal marine registers is confusing and inefficient. Wallace and Williamson are far more critical and consider that when the marine registers that exist in Australia are tested against contemporary registration theory they are ‘barely at the initial stage of development [because] the registers concentrate on recordation of existing narrow and sectoral rights and in some cases transactions related to them’.174 Some of the problems created by the approach where each legal register accommodates a dedicated marine purpose include the lack of a holistic approach in allocating marine resources and the inability to identify, manage or monitor the effects of the external environment and third parties on the marine interests and the ocean environment.175 Wallace and Williamson’s proposal that there be developed a national marine register linked to a conclusive cadastre is based on their opinion that it would assist in the development of a marine regime that provides more comprehensive management, protection and planning.176 The management aspects include the maintenance of shipping channels and the intertidal zone, while the protection regime would help guard against pollution and shipping disasters, including piracy and the planning regime would assist with determining severe weather events and collecting data on the tides.177
Unfortunately, Wallace and Williamson do not include native title in their proposal for a national three-dimensional marine cadastre and register and a possible reason for that omission may be that Yarmirr was the only relevant native title determination in the sea when Wallace and Williamson published in 2006. Irrespective of the omission, native title rights and interests could be
167 Fisheries Management Act 1994 (NSW) s 89. 168 Fisheries Management Act 1994 (NSW) s 154. 169 Fisheries Management Act 1994 (NSW) s 34S. 170 Fisheries Management Act 1994 (NSW) s 220X. 171 Fisheries Management Act 1994 (NSW) s 221H. 172 Fish Resources Management Act 1994 (WA) s 125. 173 Maritime Archaelogical Act 1973 (WA) sch 3. 174 Wallace and Williamson, above n 151, 214. 175 Ibid 217. 176 Wallace and Williamson, above n 151, 217. 177 Ibid. 159 accommodated in the model proposed by Wallace and Williamson. This would serve to protect native title rights and interests in the sea by providing a one-stop shop for searching the marine environment where notice of the native title rights and interests is assured and the native title holders and their rights and interests can be accurately and promptly identified. It would also demonstrate how the non- exclusive native title rights and interests in the sea co-exist and relate to other interests in the same marine space and provide the comprehensiveness, certainty and efficiency for native title rights and interests that is currently lacking.
The native title details that would be required to be registered in a conclusive marine register where there has been a determination of native title would be the Federal or High Court file number, the case name and the name of the native title holders. The name of the native title claim group, the date of the determination, the determination area description in both written and geographical format, full details of all the native title rights and interests that are recognised, the name of the registered native title body corporate, a contact person and their contact details would also be required. The details that would be required to be registered in relation to an application for a determination of native title are the Federal Court file number, the date of filing, the name of the application, the name of the applicant, the name of the claim group, the name of the representative Aboriginal/Torres Strait Islander body, the area claimed both in written and geographical format, the contact person and their contact details.
In relation to Indigenous Land Use Agreements, the details to be registered would include the parties to the Indigenous Land Use Agreement and their contact details. The name of the Indigenous Land Use Agreement, its date of registration, the type of Indigenous Land Use Agreement, the area in written and geographical format, the subject matter of the Indigenous Land Use Agreement and the term of the Indigenous Land Use Agreement. Details of extinguishment, validation, consent to and change of the effect of future acts or intermediate period acts plus any details about contracting out of the provisions of the Native Title Act would also be required. The details required for Section 31 Future Act Agreements would be similar to those for Indigenous Land Use Agreements.
As the marine register would be doubling up on scarce and expensive resources perhaps it could be suggested by those investigating and working on the cadastre that it be accepted as legally correct and the need for a register be dispensed with although whether this would be accepted is not known.
8.13.1 Above the line or below the line registration
It is unlikely that a national conclusive marine register would be able to offer government-backed indefeasibility for registered interests in the manner offered by Torrens Title land registration systems because it would be very expensive and native title is different from freehold land and cannot be sold.
160 This would preclude increasing the purchase price to cover insurance costs. An insurance scheme developed by the national agency responsible for the marine register may be an option that could be considered as a means of compensating persons who suffer loss through operation of the register. The types of loss that would attract insurance would need to be clearly defined because not all losses would be compensable.178 For example, loss may be suffered through diminution of marine species or by protection of species that become endangered and it is doubtful that loss of this nature could be covered by insurance.179 In any event, these types of losses would not be due to operation of the register. If insurance, registration and not recording was to be a facet of a marine register, it would need to be considered whether the ‘above the line or below the line’180 method of registration should be employed, with insurance only being available to those interests registered above the line. It is likely that native title rights and interests would be registered below the line because the Native Title Act provides for compensation on just terms for the doing of any future act that causes acquisition of property within the provisions of para 51(xxxi).181 Where there is no acquisition of property involved, the future act provisions of the Native Title Act also provide for compensation for extinguishment or impairment of native title.182 This does not address loss suffered through mistakes made in the registration process. Insurance provisions may need to extend to native title rights and interests registered below the line in that situation.
8.14 CONCLUSION
At some point in the short- to medium-term future, Australia will need to develop a marine register and supporting three-dimensional conclusive marine cadastre because the uses of the marine environment continue to increase and become more complex, which presents difficulties with management and protection. It is argued that native title rights and interests in the sea could be accommodated in that system. This would be a way of ensuring comprehensiveness, currency and certainty for native title rights and interests. Although the development of the three-dimensional marine cadastre would be expensive, the financial costs would be well justified for native title and concurrent non-native title rights and interests, not to mention other interests as well. National interests in the sea are significant183 and responsibility for setting up a working group should rest with the Commonwealth. By establishing a register and conclusive three-dimensional cadastre, the
178 Ibid 217. 179 Wallace and Williamson, above n 151, 217. 180 Ibid 209. 181 Native Title Act s 43. 182 Native Title Act s 48. 183 Natalie Klein and Nikolas Hughes, ‘National Litigation and International Law: Repercussions for Australia’s Protection of Marine Resources’ (2009) 33 Melbourne University Law Review 163, 167–71. 161 relationship of all interests in the sea would then be provided. There is nothing in the Native Title Act currently precluding this approach to provide a more comprehensive coverage of the native title rights and interests held in Australia and a geospatial representation of how native title rights and interests relate to other co-existing rights and interests in the same marine space.
162 CHAPTER 9 CONCLUSION
9.1 INTRODUCTION
This thesis started with the proposition that the current system for the registration or recording of native title lacks comprehensives, certainty and currency. This assertion was tested with documentary evidence in Chapter 4, which confirmed this proposition. To alleviate this problem, this thesis has examined a number of solutions, focusing on land registration systems that utilise a land title approach to registration. There are other registration systems relating to deeds and personal property that have not been considered, as a land title approach is not utilised in those systems and it would not be possible to see how coexisting rights and interests relate to native title rights and interests if those systems were recommended.
This thesis has made recommendations regarding native title in three distinct geographic areas: land, inland water, and the sea, and has recommended supplementing the current registration system of native title in land with accompanying notation of native title rights in the Torrens Title Registers of the States and Territories. Native title in inland waters has also been considered, and it has been recommended that the registers established under the water legislation of the States and Territories to register or record non-native title interests in inland waters are extended to cover native title. As these non-native title rights and interests have been separated from the land, these systems are not title based. However, as these are the only systems established for the registration of rights in inland water, they are a logical repository for native title rights and interests in inland water. As there is currently no comprehensive register and conclusive cadastre of sea interests, this thesis also recommends an entirely new registration system and conclusive cadastre for the sea, which would include native title rights and interests in the sea to supplement the current Registers. This would also provide co-benefits for other critical national interests in areas of the sea.
The major rationale for recommending retention of the current native title registration system, as opposed to an entirely new system, is the potential for loss of valuable native title expertise. This issue will be considered in this chapter. However, as noted in this thesis, the current registration process for native title established under the Native Title Act does require revision to meet the goals of comprehensiveness, certainty and currency. This includes significant updating of the Registers kept by the Native Title Registrar and the inclusion of omitted interests, such as Section 31 Future Act Agreements. Most recommendations require legislative amendment and this chapter will also consider this aspect hereunder.
163 9.2 RATIONALE FOR RETENTION OF CURRENT SYSTEM
The current registration system is closely and significantly interwoven with the powers of the Native Title Registrar. For example, the Native Title Registrar has numerous powers set out in Native Title Act pt 5 including those related to keeping the Registers and making necessary amendments.1 The Native Title Registrar also has a role in respect of notification of applications and amended applications for a determination of native title,2 notification of Indigenous Land Use Agreements3 and notification that applications for a determination of native title cannot be registered with provision of reasons for that decision.4 The Native Title Registrar’s powers relating to Indigenous Land Use Agreements include making decisions as to whether agreements should be registered as Indigenous Land Use Agreements and considering whether there is compliance with regulations, procedures and conditions relating to registration of agreements.5 In addition, the Native Title Registrar has a role to play in relation to future acts taking place over registered or determined native title areas and with monitoring future act notices in that regard.6 Furthermore, the Native Title Registrar has powers concerning the confidentiality of information that is registered. The role includes making decisions about accompanying mandatory obligations to have due regard to the customary and cultural concerns of Aboriginal People and Torres Strait Islanders. Also included is whether it is in the public interest to make registered information available to the public in relation to determinations.7
If the above powers were to be decentralised through the establishment of an alternative registration system for native title in land, such as the Torrens Title systems of the States and Territories, there would be risks and benefits. Although there may be an increase in certainty as to the land that contains native title, this would be counterbalanced by a possible decrease in the overall efficiency of the native title process. Should the Torrens Title systems of the States and Territories become the principal registration systems for native title in land, each office holder responsible for registration in the relevant State or Territory would assume the jurisdiction’s native title registration process. The potential decrease in overall efficiency in the native title process would be due predominately to a loss of native title expertise. The Native Title Registrar and delegates are required to have expertise in the native title area and sensitivity to cultural issues. In comparison, the positions of Registrar-
1 Native Title Act s 190. 2 Native Title Act ss 66, 66A. 3 Native Title Act ss 24BH, 24CH, 24DI. 4 Native Title Act s 190D. 5 Native Title Act ss 24DK, 24DM 24CJ, 24CK, 24CL, 24BI. 6 Native Title Act s 66C. 7 Native Title Act s 98A. 164 General, Recorder of Titles and Registrar of Titles, as the case may be, do not usually require expertise in the native title area.
9.3 OVERVIEW OF THE PROPOSED MODEL FOR CHANGE
The proposed model for change would include the updating of tenure and native title details in the National Native Title Register and the Register of Indigenous Land Use Agreements. It would also involve preserving a historical searching approach so that registration details could be ascertained at any particular time from the date of registration. The Native Title Act would require amendment to mandate the inclusion of omitted interests and to require updating of the National Native Title Register and the Register of Indigenous Land Use Agreements subsequent to registration of determinations and Indigenous Land Use Agreements.
It is also recommended that amendments are made to facilitate interaction between the Native Title Registers and the State Torrens Title Registers. In particular, it would be desirable to require State and Territory land titles offices to be notified where an application for a determination of native title has been registered. It is noted that the State or Territory Minister for native title is currently provided with notice of an application for a determination of native title given after the registration test is applied.8 The notice must state whether the claim has been accepted for registration. That notification process is not considered sufficient, however, and it would be expedient to also notify land titles offices that an application for a determination of native title has passed the registration test. The fact native title holders have gained procedural rights would then immediately be known by the person responsible for keeping the Torrens Title Register, who can advise others if need be.
To ensure updated information is supplied to the Native Title Registrar by the States and Territories, the State and Territory Crown land, real property and water legislation would require amendment. With the exception of Queensland,9 the proposed model would additionally include the recording of native title rights and interests in land in the Torrens Title Registers of all States and Territories, where Crown land is already included or is able to be included in the relevant Torrens Title Register. This would require amendment to real property legislation of all States and Territories, apart from New South Wales and Queensland. In New South Wales, such amendments have already been made10 and recording of native title rights and interests takes place in the New South Wales Torrens Title
8 Native Title Act s 66(6). 9 Queensland has established the Queensland Registers for its non-freehold land including that which contains native title pursuant to the Land Act 1994 (Qld). The Queensland Registers form part of the Queensland Automated Titles System, which also contains the Queensland Torrens Title Register and the Water Allocations Register. 10 Real Property Act 1900 (NSW) s 12C; Real Property Act 1900 (NSW) s 129(2)(g) relating to the non-payment of compensation due to damage arising from the recording or failure to record native title rights and interests. 165 Register, while in Queensland the separate ‘Queensland Registers’ have been established for non- freehold land and these have already accommodated the registration and recording of native title rights and interests.11 The Queensland Registers are not recommended for other States and Territories, but it would be appropriate to conduct an audit in Queensland to ensure that the Queensland Registers have captured all retrospective native title issues for land as the searches of the Queensland Registers in Chapter 4 of this thesis reveal that this has not always occurred.
Native title rights and interests in inland waters require a native title section and, ideally, a native title geospatial layer to be included in the dedicated registers established under State and Territory water legislation. Native title rights and interests in the sea require inclusion in a register and supporting conclusive three-dimensional cadastre yet to be developed. The establishment of Commonwealth working groups to conduct feasibility studies in that regard is recommended.
9.4 SPECIFIC LEGISLATIVE AMENDMENTS RECOMMENDED
9.4.1 Commonwealth legislation—the Native Title Act
To ensure that records are up to date, it is proposed that legislative amendments are required to ensure the National Native Title Register is updated when changes occur to information subsequent to registration of a determination of native title involving Native Title Act s 193.
9.4.1.1 Changes to entries in the National Native Title Register
It is proposed that s 193(6) be inserted as follows:
(6) If the Registrar:
(a) is provided with information from a State or Territory to indicate there have been changes to the title of land or waters covered by the determination; or
(b) is provided with changes to the native title rights and interests of the land or waters covered by the determination;
The Registrar must update the Register to reflect the change and must also maintain a historical searching approach in the Register.
11 Land Act 1994 (Qld) s 275. 166 9.4.1.2 Updating the Register of Indigenous Land Use Agreements
It is also recommended that legislative amendments are made in order to require updating of the Register of Indigenous Land Use Agreements when changes occur to information subsequent to the registration of an Indigenous Land Use Agreement.
This would involve of the Native Title Act s 199B being amended to insert a s199B (5) as follows:
(5) If: (a) the Registrar is provided with information from a State or Territory to indicate there have been changes to the title of land or waters covered by the agreement; or (b) is provided with changes to the native title rights and interests of the land or waters covered by the agreement
The Registrar must update the Register to reflect the change and must also maintain a historical searching approach in the Register.
9.4.1.3 Recording of Section 31 Future Act Agreements
Providing a recording system for Section 31 Future Act Agreements is also recommended, and this would involve establishing a new system. A recording system is the recommended model because a registration system may require conformity in relation to the form of the agreements in order to gain registration. Notification and objection provisions may also be required in a registration system. It would not be desirable to introduce these requirements into the Section 31 Future Act Agreement process. Commercial activities are usually the subject matter of Section 31 Future Act Agreements and these would not benefit from the potential delay that notification and objection provisions may create. Section 31 Future Act Agreements are already numerous and are very difficult to trace for those who do not work for relevant representative bodies or who have not been involved with making the agreement. To facilitate these changes, the following amendments to the Native Title Act are proposed:
‘Part 5—Native Title Registrar’ would be amended to include a new s 98A providing that the Native Title Registrar must keep a recording system for Section 31 Future Act Agreements; and In accommodating the change, a new Native Title Act pt 8B, as discussed below, would also be required and the provisions of s 98A as they currently exist would become s 98B of the Native Title Act.
167 The new s 98A would provide as follows:
Power of Registrar with respect to recording system for future act agreements made pursuant to section 31.
(1) The Registrar must keep a recording system for future act agreements made pursuant to section 31 in the manner set out in Part 8B and must make parts of the recording system available to the public. (2) The Registrar must not make any part of the information in the recording system available to the public if the Registrar considers that it would not be in the public interest for the information to be available to the public. (3) In determining whether it would not be in the public interest for information in the recording system to be available to the public, the Registrar must have regard to the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.12
The new Native Title Act pt 8B would be required to provide that:
the recording system for Section 31 Future Act Agreements is able to be kept by computer; it must contain the information that the Native Title Registrar determines should be included; and information on where and how the record may be inspected by the public. Given that the Register contains sensitive information on cultural and customary practices of Aboriginal and Torres Strait Islander people, a public interest test should be applied when deciding whether information should be made available to the public.
A further requirement would be a mandatory obligation for the Native Title Registrar to enter details of the Section 31 Future Act Agreements in the recording system. This would also involve an obligation to update the recorded entries as required, while also maintaining a historical searching approach in the recording system.
A delegation power to a recognised State and Territory body would be an appropriate inclusion in respect of the Native Title Registrar’s powers and duties under the new pt 8B. The current Native Title Act s 41A would require amendment to make it clear that if the National Native Title Tribunal is not the arbitral body in respect of a proposed future act, the negotiation parties must give a copy of
12 The wording of the current s 98A has been followed closely in the drafting of the recommended new s 98A for consistency with the current provisions of the Native Title Act. 168 the Section 31 Future Act Agreement to the Native Title Registrar. The National Native Title Tribunal may not be the arbitral body if a State or Territory establishes a recognised State and Territory body that is permitted by law to assume the role of arbitral body.13 Ideally, to accompany the recording system for Section 31 Future Act Agreements, a dataset showing the geographical details of the agreement areas should be developed and made available as part of the National Native Title Tribunal’s data download and web services.
9.4.1.4 Notifying State or Territory Registrar
As discussed in Chapter 3 of this thesis registered native title claims attract procedural and other rights in a similar manner to determinations of native title. It is important that details of the registration of an application for a determination of native title are provided directly to the Registrar-General, the Registrar of Titles or the Recorder of Titles, as the case may be, for recording in the relevant Torrens Title Registers and water registers without delay.
Accordingly, Native Title Act s 190A should be amended to insert s190A(8) as follows:
(1) If the Registrar accepts the claim for registration the Registrar must, as soon as is practicable, notify the relevant land titles office. (2) In this section ‘relevant land titles office’ has the same meaning as in section 199.
9.4.1.5 Amendments required to definition section
Part 15 of the Native Title Act should be amended to insert a definition for ‘historical searching approach’. Historical searching approach could be defined as ‘information appearing on a register at any particular date’. ‘Recording system for Section 31 Future Act Agreements’ would also require a definition. Recording system for Section 31 Future Act Agreements could be defined as ‘the recording system established under Part 8B’.
9.4.2 State and Territory land and water legislation
9.4.2.1 Information to be supplied to the Native Title Registrar
The proposed changes to State and Territory land and water legislation would require the co-operation of the States and Territories because, as further discussed below, it is unlikely that the Commonwealth has the capacity to legislate for the States and Territories in that regard. Amended information about
13 Native Title Act s 27(1). 169 land title and native title subsequent to registration must be provided by the States and Territories to the Native Title Registrar for updating the National Native Title Register and the Register of Indigenous Land Use Agreements. This would require amendment of the Crown land legislation,14 the real property legislation15 and the water legislation16 of the States and Territories.
By way of further explanation, subsequent to registration, native title may be extinguished by future acts or may revive if the non-extinguishment principle is practised again. Such occurrences result in changes to the registered native title information. Subdivisions and amalgamation of titles occurring subsequent to registration may also change the title description of registered land or water. Without express legislative provisions requiring updated information to be notified to the Native Title Registrar, the States and Territories may lack the incentive to provide such information may be lacking. The amendment required would be as follows:
When changes occur to the native title details or the underlying tenure [land title details and/or water interest details] in respect of a determination of native title which is registered in the National Native Title Register ;or
in respect of an Indigenous Land Use Agreement which is registered in the Register of Indigenous Land Use Agreements; or
or in respect of an agreement recorded in the Section 31 Future Act Agreement recording system, the [Minister administering the Act] must, as soon as practicable, provide details of the changes to the Native Title Registrar.
9.4.3 State and Territory Torrens Title legislation
The current inability to ascertain how native title rights and interests in land relate to co-existing non- native title rights and interests in the same land can be resolved in the new model by the recording of native title rights and interests in the Torrens Title Registers of the States and Territories. In considering State and Territory legislative amendments that are required to facilitate the recording of native title rights and interests in land in the Torrens Title Registers of the States and Territories,
14 Land Act 1994 (Qld); Crown Land Management Act 2016 (NSW); Crown Lands Act (NT); Crown Land Management Act 2009 (SA); Crown Lands Act 1976 (Tas); Crown Land (Reserves) Act 1978 (Vic); Land Administration Act 1997 (WA). 15 Land Titles Act 1925 (ACT); Real Property Act 1900 (NSW); Land Title Act (NT); Land Title Act 1994 (Qld); Real Property Act 1886 (SA); Land Titles Act 1980 (Tas); Transfer of Land Act 1958 (Vic); Transfer of Land Act 1893 (WA). 16 Water Management Act 1999 (Tas); Water Act 1989 (Vic); Rights in Water and Irrigation Act 1914 (WA); Water Act 2000 (Qld); Water Management Act 2000 (NSW); Water Resources Act 2007 (ACT); Water Act (NT); Water Industry Act 2012 (SA). 170 some guidance may be taken from the Real Property Act 1900 (NSW), which has already provided for this. Section 12C (1) of that Act provides as follows:
the Registrar General may, on evidence that appears to the Registrar-General sufficient, record in the Register, determinations of native title made under the law of this State or of the Commonwealth and any other matters relating to native title rights and interests that the Registrar-General considers appropriate.17
Section 12C (2) also provides that ‘the information referred to in subsection (1) may be recorded in a manner and form that the Registrar-General considers appropriate.’18
If similar provisions are enacted across all Australian jurisdictions, there is no reason in principle why there could not be a recording on title of the following events in relation to native title:
(a) where the non-extinguishment principle applies; (b) where Native Title Act s 47 operates;
where s 24 FA protection has been gained pursuant to a Non-Claimant Application that has been withdrawn by consent of the parties without proceeding to a determination of native title; and
(c) where sub-div L of the Native Title Act has been used to undertake a future act that cannot continue in the event of a determination of native title over the same land or water.
Section 129(2)(g) of the Real Property Act 1900 (NSW) also excludes persons, including native title holders and native title claimants, from claiming compensation ‘where loss or damage results from the recording or the omitting to record, in the Register of an approved determination of native title or other matter relating to native title rights or interests’.19 Pursuant to s 129(3) this does not exclude the claiming and payment of compensation if the loss or damage arises from an ‘error made by the Registrar-General in the recording of [native title] matter in the Register’.20
It is acknowledged that the accommodation of native title rights and interests in Torrens Title Registers may present financial difficulty for States and Territories that have not already accommodated most of their Crown land in their Torrens Title systems, as has occurred in New South Wales, Western Australia and the Australian Capital Territory. This is because of the need to define
17 Real Property Act 1900 (NSW) s 12C(1). 18 Real Property Act 1900 (NSW) s 12C(2). 19 Real Property Act 1900 (NSW) s 129(2)(g). 20 Real Property Act 1900 (NSW) s 129(3). 171 boundaries, either by survey, which is very expensive, or by plan compilation, before the Crown land is allocated a Torrens Title folio identifier.
The process of including Crown land in Torrens Title systems will be assisted by some conversion to Torrens having occurred already. With the exception of Queensland and Tasmania,21 all States and Territories have incorporated Crown land leases, including those that contain native title,22 in their Torrens Title Registers. In accommodating the Crown land leases, provision has already been made in their real property legislation23 for allocated Crown land to be included in Torrens Title Registers. Crown land that has not been allocated is not able to be accommodated in the relevant Torrens Title Registers without appropriate legislative amendment.
An example of the type of legislative amendment that would be required for accommodation of unallocated Crown land, vacant Crown lands, unallocated State land, non-freehold lands (as the terminology may be), can be identified in the New South Wales legislation. Section 13(D) of the Real Property Act 1900 (NSW) provides that other Crown land, being Crown land other than that subject to Crown land leases, may be brought under the Real Property Act 1900 (NSW) whereupon a folio is created showing the State of New South Wales as the registered proprietor. In that case, the Registrar- General may record on title information relating to dedications, reservations, leases, licences, permits or occupancies on the Crown land.24 It is recommended that when Crown land that has not been allocated is brought under Torrens Title legislation, the relevant legislation explicitly clarifies that the conversion to Torrens Title is subject to any native title rights and interests that exist in the Crown land immediately before the conversion takes place.
The remaining States and Territories would need to amend their Torrens Title legislation in a similar manner to New South Wales to accommodate Crown land that has not been allocated. The exceptions are Queensland, Western Australia and the Australian Capital Territory. Queensland has established the Queensland Registers for the registration of its non-freehold land and Western Australia and the Australian Capital Territory have already accommodated unallocated Crown land in their Torrens Title systems. They have not taken the further step of providing for recording of native title rights and interests on the title. In the event that the remaining States and Territories are unable to convert
21 Robert Chambers, An Introduction to Property Law in Australia (Lawbook, 3rd ed, 2013) 529. 22 Wik type leases for grazing and other leases that did not confer exclusive possession on the lessee and are not on the Schedules to the Native Title Act and have not extinguished native title. 23 Land Title Act (NT) ss 48(3)–(4); Real Property (Registration of Titles) Act 1945 (SA) s 3; Real Property Act 1886 (SA) s 93(3); Transfer of Land Act 1958 (Vic) s 11; Land Titles Act 1925 (ACT) s 70. 24 Real Property Act 1900 (NSW) s 13D(2). 172 their Crown land that has not been allocated to Torrens Title they may need to consider establishing one dedicated register using a relevant part of the Queensland Registers as a precedent.
The Queensland Registers are title based, and allow for registration or recording of interests in land. Each interest in the non-freehold land is registered or recorded in the relevant register established as part of the Queensland Registers for that interest, with unallocated State land being registered in the register of unallocated State land.25 As illustrated in Chapter 4 of this thesis, when the Queensland Registers were searched, determinations of native title were found to be recorded on title in the relevant register, pursuant to administrative advices. When the native title rights and interests concern land registered in a number of the Queensland Registers, multiple entries may be made in the relevant registers of the native title rights and interests. All registers forming the Queensland Registers are included in the Queensland Automated Titles System (‘ATS’), which also includes the Torrens Title Register and the Water Allocations Register. As native title rights and interests can currently be registered or recorded on title in the Queensland Registers,26 Queensland is not likely to favour changing its system. A recommendation, however, that other States and Territories follow the Queensland example and establish multiple registers for their non-freehold land would not be appropriate. The Queensland system is novel, given that no other State or Territory appears to have established multiple registers or recording systems for its Crown land (non-freehold land). Also, to recommend adoption of the Queensland system more broadly would violate the fundamental titling philosophy and efficient land governance ideal. One conclusive register that contains all rights, interests, restrictions and obligations applying to all land within a jurisdiction, be those either registered or recorded on title, is the model for which to aim.27
9.4.4 Amendments to accommodate native title rights and interests in inland waters in the water registers
In considering the amendments that would be required to State and Territory water legislation to accommodate native title rights and interests in the water registers it is noted that Queensland28 and
25 Land Act 1994 (Qld) s 276(h). 26 Land Act 1994 (Qld) s 280, which provides a discretion to record anything to ensure the register is accurate and comprehensive, which arguably includes determinations of native title; Land Act 1994 (Qld) s 373ZD provides for the registration of Indigenous Land Use Agreements if a cultural interest relating to the agreement is registered. 27 See generally Justine Bell, ‘Greening the Land Title Register – How Can the Land Title Register Assist with Sustainable Decision Making?’ (2010) 18(3) Australian Property Law Journal 263. This article considers privately owned land; however, the thrust of the article applies equally to Crown lands; Rohan Bennett, Jude Wallace and Ian Williamson, ‘Organising Land Information for Sustainable Land Administration’ (2008) 25 Land Use Policy 126 discusses how restrictions and obligations may be recorded on title. Greater incentive to record occurs when the obligation or restriction takes effect only when recorded on title. 28 Water Act 2000 (Qld) s 20B. 173 New South Wales29 legislation applying to inland water already makes provision for native title. However, the legislation of Western Australia and of the remaining States and Territories30 does not. To record or register native title rights and interests in the registration systems that exist under the water legislation for interests in inland water, legislation of each State and Territory, where it has not done so, would need to make provision for native title.
9.4.4.1 Queensland
The Queensland water legislation allows for inland water to be taken by native title holders for traditional activities or cultural purposes and explicitly names these purposes as ‘hunting, fishing, gathering or camping, performing rites or other ceremonies [and] visiting sites of significance’.31 Arguably, native title may include activities beyond those listed in the Water Act 2000 (Qld), and for that reason a recommendation that the Queensland legislation is the precedent to be followed by other States and Territories is not preferred.
In order to establish a native title section in the Queensland Water Allocations Register, an amendment would be required to the Water Act 2000 (Qld) to allow native title rights and interests in inland water attaching to land owned by the State to be registered or recorded in a native title section of the Queensland Water Allocations Register.32 Where the native title rights and interests co-exist with water interests that have been separated from the relevant land, these also need to be registered or recorded in a native title section of the Queensland Water Allocations Register.
9.4.4.2 New South Wales
New South Wales has accommodated native title in its water legislation through an entitlement to take and use inland water for native title purposes without the need for an access licence or work or use approval up to a prescribed annual volume. This provides an appropriate precedent that could be followed by other States and Territories. It is open to the conclusion that, as the exercise of native title rights and interests in inland water in New South Wales authorises the taking of inland water up to a prescribed annual volume, there is only one way to monitor adherence to the regulated annual volume. That way is to record native title rights and interests that exist in inland water as well, as the volume taken pursuant to the exercise of native title rights and interests, in a native title section or
29 Water Management Act 2000 (NSW) s 55. 30 Water Resources Act 2007 (ACT); Water Act (NT); Water Industry Act 2012 (SA); Water Management Act 1999 (Tas); Water Act 1989 (Vic); Rights in Water and Irrigation Act 1914 (WA). 31 Water Act 2000 (Qld) s 20B. 32 Water Act 2000 (Qld) ss 170, 173(c); Land Title Act 1994 (Qld) ss 47–48. 174 new register established under the Water Management Act 2000 (NSW). New South Wales has a number of registers under that Act, including a register of available water determinations,33 a register of approvals,34 a register of licences, audits and management programs,35 and a water access licence register.36
A separate native title register could be established by amendment to the Water Management Act 2000 (NSW), given that the exercise of native title rights and interests in inland water does not require an available water determination, access licence or approval so, arguably, native title rights and interests in inland water do not clearly fit within the existing registers. The entries that would be required in the separate native title register are the areas of inland water where native title has been determined to exist, the areas of inland water where native title claims have been registered, the name of the registered native title holders, the prescribed native title body corporate, the name of the registered native title claimants, the names of any co-existing interest holders, details of the co- existing interests held, details of the exercise of native title, the inland water source involved, the names of the persons exercising the native title rights and interests and the annual amount of water taken in exercise of native title rights and interests.
Legislative amendment would be required to the current water legislation to provide for the separate native title register or native title section in one of the existing registers. Amendment would also be required to oblige native title holders to notify the Minister administering the Water Management Act 2000 (NSW) annually of the taking of inland water pursuant to native title rights and interests. Obtaining this information may be difficult, given that water is very scarce in Australia and highly important culturally to native title holders. The registration of this type of information, however, is not inappropriate. It would ensure that sufficient water remains available for the exercise of native title rights and interests in inland water by the correct native title holders of the inland water source into the future. It would also be very useful for a geographical cadastre to be created to support the native title register or native title section, although it is noted that interests in inland water have been removed from land title, which may present difficulty in that regard. Ideally native title rights and interests existing in surface water and groundwater should be accommodated in the New South Wales Water Register, which supports the registers established under the Water Management Act 2000 (NSW). The Water Act 1912 (NSW), which governs surface water and groundwater, requires
33 Water Management Act 2000 (NSW) s 84. 34 Water Management Act 2000 (NSW) s 113. 35 Water Management Act 2000 (NSW) s 138. 36 Water Management Act 2000 (NSW) s 71. 175 amendment to provide for that to occur and for information to be sought concerning the exercise of native title rights and interests involving that type of water.
9.4.5 Legislation required for rights in the sea
To accommodate native title rights and interests in the sea, the new model would include the development of a marine register and conclusive three-dimensional cadastre for all marine rights and interests, including native title rights and interests. A marine cadastre that contains all rights and interests in the sea has not been developed in Australia, although there has been worldwide recognition that a conclusive marine cadastre for the marine environment would improve marine administration and management.37 There have been several Australian research projects in that regard including those funded by the Australian Research Council.38
To advance towards the goal of a register and conclusive three-dimensional marine cadastre, it is recommended that a Commonwealth working group be established to undertake feasibility studies and examine the Australian marine systems that currently exist.39 Ideally this would include representatives of the Australian Marine Spatial Information Systems (AMSIS), which contains native title boundaries. The purpose would be to ascertain if there is a model that could be expanded to incorporate all the marine interests, including native title rights and interests, or if an entirely new model is required. In conducting this feasibility study, the definition and clarification of marine boundaries would be important matters for inclusion. The working group would also need to consider a number of other matters including how access to all marine spatial data can be secured and maintained, how standardised datasets can be developed and how relevant marine policies and laws operate.40 As the law relating to the marine environment differs among the Australian jurisdictions, the working group would need to develop a clear understanding of the legal differences.41 Additionally, the working group would need to assess how the needs of potential users can be
37 Lisa Strain, Abbas Rajabifard and Ian Williamson ‘Marine Administration and Spatial Data Infrastructure’ (2006) 30(4) Marine Policy 431. 38 Ibid 4.1. 39 University of Tasmania, National Research Infrastructure for Australia, Australian Ocean Data Network Portal,
9.5 DIVISION OF POWERS—COMMONWEALTH AND STATE
This thesis has recommended amendments to the Native Title Act and to State and Territory legislation. At issue is whether the Commonwealth could pass legislation to impose the necessary amendments to State and Territory legislation. It is relevant that some Commonwealth and State laws may apply concurrently to the same individuals or things,43 whereas in other areas the Commonwealth has exclusive jurisdiction. In the latter case, laws may fall into one of a number of categories. Some laws of the Commonwealth are exclusive to the Commonwealth, as expressed explicitly in those laws. Other Commonwealth laws by their operation deny State competency over relevant subject matter, so by operation are exclusive to the Commonwealth. Finally, other Commonwealth laws are inherently exclusive to the Commonwealth.44
In the situation where Commonwealth and State laws can operate concurrently, Australian Constitution s 109 addresses potential conflict, in providing ‘when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’.45 The question of whether the Commonwealth could legislate to impose the required amendments to State and Territory legislation also involves a consideration of Commonwealth of Australia Constitution Act 1900(‘the Constitution’) ss 106–7 in relation to the States. In relation to the Territories, the Constitution s 122 is relevant. Section 106 of the Constitution explicitly provides that the constitution of each State continues on establishment of the Constitution or on admission of a State to the Commonwealth or until altered pursuant to a State constitution. This was confirmed in Victoria v Commonwealth,46 where it was held that the Constitution s 106 guarantees the operation and scheme of the government of a State.47 Section 107 of the Constitution saves the powers of State Parliaments that existed at the establishment of the Commonwealth or at the admission of the State to the Commonwealth or on establishment of the State. This is unless the power is vested in the Commonwealth exclusively or the power is withdrawn from the State.
42 Jude Wallace and Ian Williamson ‘Registration of Marine Interests in Asia–Pacific Region’ (2006) 30 Marine Policy 207, 217. 43 Commonwealth Constitution s 107. 44 Peter Hanks, Frances Gordon and Graeme Hill, Constitutional Law in Australia (Butterworths, 3rd ed, 2012) 289. 45 Ibid. 46 (1971) 122 CLR 353. 47 Victoria v Commonwealth (1971) 122 CLR 353, 371–2. 177 Section 122 of the Constitution provides that the Commonwealth Parliament may make laws for the government of any Territory surrendered by the State to the Commonwealth. This is provided the Commonwealth accepts the surrender, where the Queen places the Territory under the Commonwealth and the Commonwealth accepts the placement or where the Territory is otherwise acquired by the Commonwealth. This provision is very wide and, accordingly, if taken purely at face value, it is likely the Commonwealth could pass legislation to effect the amendments required in the Northern Territory and the Australian Capital Territory. It is doubtful, however, that the Commonwealth would be inclined to do so if it would not do so for the States. As noted by Hanks:
Territories such as the ACT and the NT and Jervis Bay are internal and the people and economies of those territories are, for most practical purposes, indistinguishable from those of the Australian States. The variety of circumstances to which s122 must apply explains the generality of its language.48
The authority that extinguishment of native title is exclusively held by the Commonwealth is Native Title Act s 11(1), which provides that native title cannot be extinguished contrary to the Native Title Act. In relation to the States, Western Australia v Commonwealth49 confirms that the power in relation to native title is vested in the Commonwealth exclusively. In a joint judgment by Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ it was held that, with respect to extinguishment of native title, the Commonwealth does hold the power exclusively. The Commonwealth can exclude State laws completely and accordingly, pursuant to the exclusive power held, the Commonwealth is also able to exclude State laws partially and define the conditions on which State laws may operate.50 Additionally, a Commonwealth law that protects native title from extinguishment is supported by s 51(xxvi) (the race power) and perhaps by s 51(xxix) (the external affairs power) of the Constitution.51 The areas defined by the Commonwealth where the laws of the States and Territories may operate in relation to extinguishment of native title are set out in Native Title Act s 11(2). Pursuant to that section, extinguishment of native title under a State or Territory Act may occur but only by compliance with Native Title Act pt 2 div 3 or by the validation of past acts or intermediate period acts. Other areas where State and Territory native title laws are defined by the Commonwealth to be able to operate are provided in Native Title Act s 19.52 This section deals with the power of the
48 Jennifer Clarke, Patrick Keyzer and James Stellios, Hanks Australian Constitutional Law: Materials and Commentary (Butterworths, 9th ed, 2013) 410. 49 (1995) 183 CLR 373. 50 Western Australia v Commonwealth (1995) 183 CLR 373, 467. 51 Western Australia v Commonwealth (1995) 183 CLR 373 [113]–[114]; Melissa Castan, ‘Constitutional deficiencies in the protection of Indigenous rights: reforming the” races power”’ (2011) 7(25) Indigenous Law Bulletin 12. 52 Native Title Act s 19 provides that a law of the State or Territory is able to validate past acts of a State or Territory, which, with some exceptions, are those acts carried out before 1 July 1993 or 1 January 1994 over land or waters where native title existed and which are invalid apart from the Native Title Act to any extent but would be valid to that extent if native title did not exist. 178 States and Territories to validate State and Territory laws while Native Title Act s 2353 deals with confirmation of past extinguishment by the States and Territories by particular valid or validated acts.
The required amendments to State and Territory laws, as discussed in this thesis, are not within the native title matters explicitly provided in the Native Title Act where the States and Territories have been provided with the power to legislate. Additionally, the required amendments to State and Territory laws do not concern validation, extinguishment and confirmation of extinguishment. Also, arguably, the required amendments to State and Territory laws are not areas where the native title jurisdiction is concurrent with the Commonwealth because the required amendments are not purely related to native title. Instead, they are involved with the supply of information for the accurate keeping of registers and with the recording of accurate information in registers that concern State and Territory Crown land and water and native title rights and interests existing therein. Additionally, these matters do not involve the exclusive jurisdiction of the Commonwealth.
For these reasons, it is argued that it is entirely appropriate for the required amendments to be made to Crown land, real property land and water legislation of the States and Territories by the States and Territories. As the Northern Territory and the Australian Capital Territory are, ‘for most purposes, indistinguishable from the States’,54 they will not be discussed separately from the States in relation to whether the Commonwealth would legislate to impinge on State and Territory land and water legislation.
9.5.1 The Melbourne Corporation doctrine
Should the Commonwealth attempt to legislate to bind the States and Territories in relation to land and water legislation, there are some principles that govern State immunity from Commonwealth legislation. These were established in Melbourne Corporation v Commonwealth55 where a test consisting of two limbs was developed as follows:
First Limb: a Commonwealth law must not discriminate in respect that it places a special burden or disability on the States;56
53 Native Title Act s 23A summarises s 23 and provides that the division ‘allows States and Territories to extinguish native title in relation to some acts involving the conferral of exclusive possession through the passing of legislation in the same way as section 23C of the Native Title Act permits the Commonwealth to do’. 54 Clarke, Keyzer and Stellios, above n 48, 410. 55 (1947) 74 CLR 31. 56 Melbourne Corporation v Commonwealth (1947) 47 CLR 31, 84. 179 Second Limb: a Commonwealth law must not impair the States’ autonomy to operate as a sovereign jurisdiction.57
In Victoria v Commonwealth (payroll tax case)58 the High Court, in considering the first limb of the Melbourne Corporation doctrine, made it clear that even if a burden was imposed, that does not necessarily mean that a State cannot exercise its constitutional power.59 Later High Court cases such as Austin v Commonwealth60 and Clarke v Commissioner of Taxation61 have refined the Melbourne Corporation doctrine. In Austin, Gaudron, Gummow and Hayne JJ found that the two limbs of the test were but a single limitation although the expression of the limitation could vary between different legislation.62 Kirby and McHugh JJ considered the test was a two limb test while Gleeson CJ did not provide a definitive opinion on the point. Accordingly, the High Court was not particularly strong in Austin in its finding that the Melbourne Corporation doctrine consists of a single limitation. In Clarke, which was a later case, it was found by the High Court that the Melbourne Corporation doctrine does consist of a single limitation. The test was whether the States’ constitutional power had been significantly compressed and constricted by the Commonwealth law so as to impair the autonomy of the State. Although the test was found to be a single limitation, the issue of whether a burden was imposed was also discussed and it was found that the practical effect on the functioning of the States was not the only determinative factor of whether a burden was imposed by a Commonwealth law.63 Whether it was feasible for a similar burden to be imposed generally on the public was also relevant to the determination of whether a Commonwealth law imposed a burden on a State.64
In applying the single limitation test, as the amendments are to be made to legislation governing land and water that may contain native title, situated within State and Territory boundaries, and as these are matters of State and Territory exclusive jurisdiction, Commonwealth intrusion would arguably impinge on the independence of the States and Territories without perceptible reason. The Commonwealth law would be likely to impair the autonomy of the States and Territories and would potentially be invalid. Should the States and Territories, however, refer such of their legislative power to the Commonwealth as required to enact the amendments, and should the Commonwealth accept the referral, the situation would be different.
57 Melbourne Corporation v Commonwealth (1947) 47 CLR 31, 66, 70. 58 (1971) 122 CLR 353. 59 Victoria v Commonwealth (1971) 122 CLR 353, 398, 411, 425. 60 (2003) 215 CLR 185. 61 (2009) 240 CLR 272. 62 Austin v Commonwealth (2003) 215 CLR 185 [124]. 63 Clarke v Commissioner of Taxation (2009) 240 CLR 272 [32]. 64 Graeme Hill, ‘Discrimination and the Melbourne Corporation Doctrine’ (2003) 14 Public Law Review 80, 83. 180 9.6 CONCLUSION
In conclusion, this thesis has set out the current problems with the native title registration system and has highlighted how it is not current, complete or certain. It has established the reasons why interests in land should be registered and has outlined the native title registration process. Documentary evidence has tested and proved the arguments that the current registration process for native title is inadequate. Various State and Territory systems have been recommended to supplement the current native title registration system. The sea requires a different approach, which has been recommended in this thesis. A number of legislative amendments are also suggested.
Amendments that are able to be enacted by the Commonwealth are as follows:
the securing of information from the States and Territories to enable the Native Title Registrar to update the National Native Title Register and the Register of Indigenous Land Use Agreements; the establishment of a recording system for Section 31 Future Act Agreements; and the provision of notice to the Land Titles Offices when claims are registered.
These amendments can clearly be made to the Native Title Act. Some complementary amendments would be required to be made by the States and Territories to the Crown lands legislation, the real property legislation and the water legislation. Those amendments would include providing updated information to the Native Title Registrar to facilitate the updating of the National Native Title Register, the Register of Indigenous Land Use Agreements and the Section 31 Future Act Agreement recording system. Complimentary amendments regarding the provision of notice about registration of an application to the Land Title Registrar, Recorder of Titles or Registrar of Titles as the case may be would also be desirable.
The substance of the State and Territory amendments concern the operation of State and Territory land and water registration systems and the registration or recording of rights and interests existing therein. Those rights and interests are native title rights and interests; however, the amendments are appropriate to be made by the States and Territories to State and Territory legislation rather than by the Commonwealth.
The key amendments in relation to native title in land concern the conversion of Crown land to Torrens Title and the recording of native title rights and interests on the title of land that has been converted. The exception here is Queensland, which has already established the Queensland Registers. This system is not ideal, as many different interests are included in many different registers. This inhibits the ability to quickly ascertain how one interest relates to another and is far removed 181 from the ideal of a conclusive land register. This problem is alleviated somewhat because the Queensland Registers, along with the Torrens Title Register and the Water Allocations Register, form part of the Queensland Automated Titling System and that automated system is efficient. The amendments also concern making provision for native title in the water legislation of the States and Territories, with the exception of Queensland and New South Wales which have already done so. Furthermore, the amendments concern the establishment of native title registers, layers or sections within the inland water registration systems by all States and Territories.
The development of a registration system for interests in the sea that could accommodate all marine interests including native title rights and interests has not been advanced in Australia. Instead, a number of different cadastres for specific rights have been created.65 Accordingly, feasibility studies as to the appropriateness of the development of a marine registration system and conclusive three- dimensional cadastre that could accommodate native title rights and interests in the sea is recommended rather than amendments to legislation at this point in time.
Should the proposed model be accepted this would provide comprehensiveness, certainty and currency for native title rights and interests and for land and water that contains native title. It would also provide the recognition and protection required to ensure an efficient system of land and water management is available into the future thereby securing prosperity and growth for Australia and its population.
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Cases Aiken on behalf of the Bunuba People #3 v Western Australia, unreported, Barker J, 22 December 2015 [2015] FCA 1482
Akiba on behalf of the Torres Strait Regional Seas Claim People v Commonwealth (2013) 250 CLR 209
Akiba v Queensland (No 2) (2010) 204 FCR 1
Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v Queensland (No 2) [2010] FCA 643
Anderson on behalf of the Wulli Wulli People v Queensland (No 3), unreported, Collier J, 13 August 2015 [2015] FCA 821
Assets Company Ltd v Mere Roihi [1905] AC 176
Austin v Commonwealth (2003) 215 CLR 185
Baker on behalf of the Muluridji People v Queensland, unreported, Logan J, 14 December 2011 [2011] FCA 1432
Banjima People v Western Australia (2015) 231 FCR 456
Banjima People v Western Australia (No 2) (2013) 305 ALR 1
Barkandji Traditional Owners #8 v Attorney-General of New South Wales, unreported, Jagot J, 16 June 2015 [2015] FCA 604
Bennell v Western Australia, unreported, Wilcox J, 19 September 2006 [2006] FCA 1243
Breskvar v Wall (1971) 126 CLR 376
Bropho v Western Australia, unreported, Nicholson J, 13 April 2007 [2007] FCA 519
Brown on behalf of the Ngarla People v Western Australia, unreported, Bennett J, 30 May 2007 208 [2007] FCA 1025
Brown v Western Australia, unreported, French J, 19 October 2001 [2001] FCA 1462
Bethian Pty Ltd v Green (1977) 3 FamLR 11
Champion v Western Australia, unreported, McKerracher J, 12 April 2011 [2011] FCA 345
Clarke v Commissioner of Taxation (2009) 240 CLR 272
Clarrie Smith v Western Australia, unreported, Madgwick J, 29 August 2000 [2000] FCA 1249
Commonwealth v ACT (2013) 250 CLR 441
Commonwealth v Akiba on behalf of the Torres Strait Islanders of the Regional Sea Claim Group (2012) 204 FCR 260
Commonwealth v Yarmirr (2001) 208 CLR 1, (1999) 101 FCR 171
Congoo on behalf of the Bar-Barrum People #2 v Queensland, unreported, Reeves J, 10 June 2016 [2016] FCA 693
Congoo on behalf of the Bar-Barrum People v Queensland, unreported, Hely J, 28 June 2001 [2001] FCA 868
Daniel v Western Australia, unreported, Nicholson J, 2 May 2005 [2005] FCA 536
Delaney on behalf of the Quandamooka People v Queensland #2 unreported, Dowsett J, 4 July 2011 [2011] FCA 741
Delaney on behalf of the Quandamooka People #1 v Queensland, unreported, Dowsett J, 4 July 2011 [2011] FCA 741
Delgamuukw v British Columbia (1997) 153 DLR (4th) 193
Dempsey on behalf of the Bularnu Waluwarra & Wangkayujuru People v Queensland (No 2), unreported, Mortimer J, 23 May 2014 [2014] FCA 528
De Rose v South Australia (No 2) (2005)145 FCR 290
Donnelly for the Wahlabul People v Registrar National Native Title Tribunal, unreported, Hely J, 19 September 2000 [2000] FCA 1330
Doyle on behalf of the Iman people #2 v Queensland, unreported, Reeves J, 23 June 2016 [2016] FCA 743
Eaton v Yanner; Ex parte Eaton [1998] QCA 20
Edwards v Santos Ltd (2010) 185 FCR 280
209 Embrey v Owen [1851] EngR 386
Fazeldean on behalf of the Thalanyji People (No 2) v Western Australia, unreported, North J, 7 March 2012, [2012] FCA 1163
Fejo v Northern Territory (1998) 195 CLR 96
Fesl v Delegate of the Native Title Registrar (2008)173 FCR 1469
Gartner v Kidman (1962) 108 CLR 12
Gateway Developments Pty Ltd v Grech (1970) SR NSW 161
George on behalf of the Gurambilbarra People v Queensland, unreported, Logan J, 10 October 2008 [2008] FCA 1518
Gibbs v Messer [1891] AC 248
Guerin v R (1984) 13 DLR 4th 321
Gumana v Northern Territory (2005) 141 FCR 457
Gumana v Northern Territory, unreported, French, Finn and Sundberg JJ, 9 November 2007 [2007] FCAFC 23
Harper v Minister for Sea Fisheries (1989) 168 CLR 314
Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60
Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1
Hayes v O’Sullivan (2001) 24 WAR 40
Hunter v Western Australia, unreported, North J, 11 June 2009 [2009] FCA 654
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140
James on behalf of the Martu People v Western Australia, unreported, French J, 27 September 2002 [2002] FCA 1208
James Smith Indian Band v Sasketchewan (Master of Titles) (1995) 123 DLR (4th) 280
Jango v Northern Territory (2007) 159 FCR 531
Karpany v Dietman (2013) 253 C LR 507, (2013) 303 ALR 216
Kemp v Native Title Registrar (2006) 153 FCR 38
Lardil Peoples v Queensland, unreported, Cooper J, 23 March 2004 [2004] FCA 298
Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v Queensland (1999) 95 FCR 14
210 Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v Queensland (2001) 108 FCR 453
Lapin v Abigail (1930) 44 CLR 166
Mabo v Queensland (No 2) (1992) 175 CLR 1
Mary-Lou Buck v New South Wales, unreported, Lockhart J, 7 April 1997 [1997] FCA 1624
Mason v Tritton (1994) 34 NSWLR 572
Mayagna (sumo) Awas-Tingni v Nicaragua, Inter-American Court of Human Rights (Ser C) No 79 (31 August 2001)
McCartney v Londonderry & Lough Swilly Railway Co Ltd [1904] AC 301
McGlade v Native Title Registrar, unreported, North, Barker and Mortimer JJ, 2 February 2017 [2017] FCAFC 10
Melbourne Corporation v Commonwealth (1947) 47 CLR 31
Miner v Gilmour (1858) 14 ER 861
Nalder v Commissioner for Railways [1983] Qd R 620
Nangkiriny v Western Australia (2002) 117 FCR 6
Neowarra v Western Australia, unreported, Sundberg J, 27 August 2004 [2004] FCA 1092
Ngalpil v Western Australia, unreported, Carr J, 20 August 2001 [2001] FCA 1140
New South Wales v Commonwealth (1975) 135 CLR 337
North Ganalanja Aboriginal Corporation and Waanyi People v Queensland (1996) 185 CLR 595
Northern Territory v Arnhem Land Aboriginal Trust, unreported, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ, 30 July 2008 [2008] HCA 29
Northern Territory v Griffiths [2017] FCAFC 106 (2017) 346 ALR 249
Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28
Public Trustee v Paradiso (1995) 64 SASR 387
Pyramid Building Society v Scorpion Hotels Pty Ltd [1998] 1 VR 188
QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412
Queensland v Congoo (2015) 320 ALR 1
R v Keyn (1876) 2 Ex D 63
R v Sparrow [1990] 1 SCR 1075
211 R v Toohey: Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
R v Van Der Peet [1996] 2 SCR 540
Warrie (formerly TJ) (on behalf of the Yindjabarndi People), unreported, Rares J, 20 July 2017 [2017] FCA 803
Western Australia v Brown (2014) 253 CLR 507
Western Australia v Commonwealth (1995) 183 CLR 373
Western Australia v Ward (2000) 99 FCR 316
Western Australia v Ward (2002) 213 CLR 1
Whalebone v Western Australia, unreported, McKerracher J, 12 November 2008 [2008] FCA 1678
Wik People v Queensland (1996) 187 CLR 1
Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 71 LGRA 149
Wurridjal v Commonwealth (2009) 237 CLR 309
Wynan on behalf of the Bidjara People v Queensland (No 2), unreported, Jagot J, 6 December 2013 [2013] FCA 1229
Yaegl People #2 v Attorney General of New South Wales, unreported, Jagot J, 25 June 2015 [2015] FCA 647
Yanner v Eaton (1999) 201 CLR 351
Yarmirr v Northern Territory (No 2) (1998) 101 FCR 171
Legislation
Commonwealth Aboriginal Land Rights Act (NT) 1976 (Cth)
Commonwealth of Australia Constitution Act 1901 (Cth)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Family Law Act 1975 (Cth)
Fisheries Management Act 1991 (Cth)
Historic Shipwrecks Act 1991 (Cth)
Lighthouses Act 1911 (Cth)
212 Meteorology Act 1955 (Cth)
Native Title Act 1993 (Cth)
Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth)
Personal Property Securities Act 2009 (Cth)
Petroleum (Submerged Lands) Act 1967 (Cth)
Post and Telegraph Act 1901 (Cth)
Racial Discrimination Act 1975 (Cth)
Seas and Submerged Lands Act 1973 (Cth)
Telecommunications Act 1975 (Cth)
Water Act 2007 (Cth)
Rapoff v Velios [1975] WAR 27
Rrumburriya Borroloola Claim Group v Northern Territory, unreported, Mansfield J, 30 June 2016 [2016] FCA 776
Sampi v Western Australia, unreported, French J, 10 June 2005 [2005] FCA 777
Stanley Mervyn, Adrian Young and Livingstone West on behalf of the Peoples of the Ngaanyatjarra Lands v Western Australia, unreported, Black CJ, 29 June 2005 [2005] FCA 831
New South Wales v Commonwealth (1975) 135 CLR 337
Tsilhgot’in Nation v British Columbia [2014] SCC 44
Victoria v Commonwealth (1971) 122 CLR 353
Vrkic v Otta International Pty Ltd (2003) 12 BPR 22
Wall v Doyle, unreported, Robin J, 19 February 2008 [2008] QPEC 23
Ward v Western Australia (1998) 159 ALR 483
Ward v Wynan on behalf of the Bidjara People v Queensland (No 2), unreported, Jagot J, 6 December 2013, [2013] FCA 1229;
Yaegl People #2 v Attorney General of New South Wales, unreported, Jagot J, 25 June 2015, [2015] FCA 647;
Yanner v Eaton (1999) 201 CLR 351;
Yarmirr v Northern Territory (No 2) (1998) 101 FCR 171;
213 Legislation
Commonwealth Aboriginal Land Rights Act (NT) 1976 (Cth);
Western Australia (2000) 179 ALR 159
Wurridjal v Commonwealth (2009) 237 CLR 309;
Commonwealth of Australia Constitution Act 1901 (Cth);
Environment Protection and Biodiversity Conservation Act 1999 (Cth);
Family Law Act 1975 (Cth);
Fisheries Management Act 1991 (Cth);
Historic Shipwrecks Act 1991 (Cth);
Lighthouses Act 1911 (Cth);
Meteorology Act 1955 (Cth);
Native Title Act 1993 (Cth);
Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth);
Personal Property Securities Act 2009 (Cth)
Petroleum (Submerged Lands) Act 1967 (Cth);
Post and Telegraph Act 1901 (Cth);
Racial Discrimination Act 1975 (Cth);
Seas and Submerged Lands Act 1973 (Cth);
Telecommunications Act 1975 (Cth);
Water Act 2007 (Cth);
ACT Land Titles Act 1925 (ACT)
Native Title Act 1994 (ACT)
Water Resources Act 2007 (ACT)
NSW Aboriginal Land Rights Act 1983 (NSW)
Conveyancing Act 1919 (NSW) 214 Crown Land Management Act 2016 (NSW)
Crown Lands Act 1989 (NSW)
Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW)
Fisheries Management Act 1994 (NSW)
Heritage Act 1977 (NSW)
Native Title (New South Wales) Act 1994 (NSW)
Offshore Minerals Act 1999 (NSW)
Petroleum (Offshore) Act 1982 (NSW)
Petroleum (Onshore) Act 1991 (NSW)
Real Property Act 1900 (NSW)
Water Act 1912 (NSW)
Water Management Act 2000 (NSW)
NT Crown Lands Act (NT)
Land Title Act (NT)
Law of Property Act (NT)
Validation (Native Title) Act 1994 (NT)
Water Act (NT)
Qld Aboriginal Cultural Heritage Act 2003 (Qld)
Aboriginal Land Act 1991 (Qld)
Ambulance Service Act 1991 (Qld)
Coastal Protection and Management Act 1995 (Qld)
Electricity Act 1994 (Qld)
Electronic Conveyancing National Law (Queensland) Act 2013 (Qld)
Fauna Conservation Act 1974 (Qld)
Fire and Rescue Services Act 1990 (Qld)
Fisheries Act 1994 (Qld) 215 Forestry Act 1959 (Qld)
Integrated Planning Act 1997 (Qld)
Land Act 1994 (Qld)
Land Title Act 1994 (Qld)
Local Government Act 2009 (Qld)
Marine Parks Act 2004 (Qld)
Mineral Resources Act 1989 (Qld)
Nature Conservation Act 1992 (Qld)
Native Title (Queensland) Act 1993 (Qld)
Offshore Minerals Act 1998 (Qld)
Petroleum (Submerged Lands) Act 1982 (Qld)
Sustainable Planning Act 2009 (Qld)
Torres Strait Islander Act 1991 (Qld)
Torres Strait Islander Cultural Heritage Act 2003 (Qld)
Transport Infrastructure Act 1994 (Qld)
Transport Operations (Marine Safety) Act 1994 (Qld)
Transport Operations (Marine Pollution) Act 1995 (Qld)
Water Act 2000 (Qld)
SA Anangu Pitantjatjara Yankunyttjatjara Land Rights Act 1981 (SA)
Crown Land Management Act 2009 (SA)
Electronic Conveyancing National Law (South Australia) Act 2013 (SA)
Fisheries Management Act 2007 (SA)
Fisheries Management (General) Regulations 2007 (SA)
Maralinga Tjarutja Land Rights Act 1984 (SA)
Native Title (South Australia) Act 1994 (SA)
Real Property Act 1886 (SA)
216 Real Property (Registration of Titles) Act 1945 (SA)
Water Industry Act 2012 (SA)
Tas Crown Lands Act 1976 (Tas)
Electronic Conveyancing (Adoption of National Law) Act 2013 (Tas)
Land Titles Act 1980 (Tas)
Native Title (Tasmania) Act 1994 (Tas)
Water Management Act 1999 (Tas)
Vic Aboriginal Lands Act 1970 (Vic)
Crown Land (Reserves) Act 1978 (Vic)
Electronic Conveyancing (Adoption of National Law) Act 2013 (Vic)
Land Titles Validation Act 1994 (Vic)
Property Law Act 1958 (Vic)
Transfer of Land Act 1958 (Vic)
Water Industry Act 1994 (Vic)
WA Conservation and Land Management Act 1984 (WA)
Electronic Conveyancing Act 2014 (WA)
Fish Resources Management Act 1994 (WA)
Land Administration Act 1997 (WA)
Maritime Archaelogical Act 1973 (WA)
Offshore Minerals Act 1999 (WA)
Petroleum (Submerged Lands) Act 1982 (WA)
Rights in Water and Irrigation Act 1914 (WA)
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)
Transfer of Land Act 1893 (WA)
Water Resources Management Bill (WA)
217 Other Jurisdictions Australian Courts Act 1828 (UK)
Canadian Constitution Act 1982 (Canada)
Metis Settlements Land Registry Regulation (Canada)
National Land Code 1965 (Malaysia)
Nisga’a Land Title Act (Canada)
International Treaties and UN Documents and International Documents American Convention on Human Rights
The Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979 (entered into force 3 September 1981) [1983] ATS 9
International Covenant on Civil and Political Rights, opened for signature 16 December 1966 (entered into force 23 March 1976) No 14668
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966 (entered into force 3 January 1976) [1976] ATS 5
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965 (entered into force 4 January 1969) [1975] ATS 40
United Nations Convention on the Law of the Sea 1982, opened for signature 10 December 1982 (entered into force 16 November 1994)
United Nations Declaration on the Elimination of all Forms of Racial Discrimination, adopted 20 November 1963, UN General Assembly
Computer References Adams, Stewart, ‘12 Points about the Nisga’a Agreement and Alternatives’, 17 Public Policy Sources 1
Australian Broadcasting Commission, ABC News www.abc.net.au/news/2016-04-03/aboriginal- people-concerned-about-land-claims-backlog/7281316>
Australian Broadcasting Commission, ABC News ‘ Backlog of Aboriginal Land Claims will Take
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