NATURE RESERVES, NATIONAL PARKS AND NATIVE TITLE AFTER WARD Raelene Webb * It is doubtless the case that nature reserves and national parks are areas where Aboriginal people may continue to undertake activities in accordance with their laws and customs. Prior to the decision of the High Court in Western Australia v Ward on 8 August 2002, the effect on native title rights and interests of the creation of nature reserves and national parks and applicable conservation legislation was considered minimal. That position no longer pertains. Nature reserves and national parks must now be understood as having an extinguishing effect on native title equivalent at least to that of pastoral leases. Where nature reserves and national parks are vested in a conservation authority, extinguishment may be total. Nevertheless, these areas may well be administered in a manner consistent with ongoing Aboriginal cultural activities on the land. Even if, as a matter of law, native title as defined in the NTA has been extinguished, cooperative arrangements whereby Aboriginal people are involved in the management of nature reserves and national parks will help preserve the cultural heritage of Aboriginal people as well as conserving the natural environment. 1. NATURE RESERVES AND NATIONAL PARKS IN THE EASTERN KIMBERLEY AND NORTHERN TERRITORY In the remote East Kimberley region of Western Australia and the Northern Territory substantial areas of land and waters are established as reserves and parks for conservation purposes. To the east of Kununurra, just over the Northern Territory border, is Keep River National Park 1 noted for its striking landforms and rugged terrain. Two kilometres from the centre of Kununurra is Mirima (Hidden Valley) National Park 2, featuring impressive sandstone hill and valley formations. North of Kununurra, an area of mudflats and inter-tidal zone on the eastern and northern edges of the Cambridge Gulf is reserved for conservation purposes 3. Pelican Island Nature Reserve, 4 ten kilometres off the northern coast, is reserved as a wildlife sanctuary. Other reserves in the East Kimberley region include Point Spring Nature Reserve 5 and a reserve incorporating the Goose Hill area 6, both established for the conservation of flora and fauna. This latter reserve replaced Palm * 1 2 3 4 5 6 Barrister, Northern Territory Keep River National Park comprises two areas of land (NT Portion 1801 and NT Portion 3121) leased in perpetuity to the Conservation Land Corporation (NT) ( the Corporation ) in 1980 and 1987 respectively and managed by the Parks and Wildlife Commission as a park. Reserve 37883. Mirima National Park is a reserve created for the purpose of the national park in 1982 under the Land Act 1933 (WA), s 29 and now vested in the National Parks and Nature Conservation Authority ( the Authority ). Reserve 31967 created in 1973 under the Land Act 1933 (WA), s 29 and now vested in the Authority. Reserve 29541 created in 1968 under the Land Act 1933 (WA), s 29 and now vested in the Authority. Reserve 34585 created in 1982 under the Land Act 1933 (WA), s 29 and now vested in the Authority. Reserve 42155 created in 1992 under the Land Act 1933 (WA), s 29 and now vested in the Authority.
(2002) 21 AMPLJ Nature Reserves, National Parks and Native Title after Ward 283 Springs Nature Reserve 7 for protection of flora and fauna and Parrys Lagoon Nature Reserve 8 for conservation of fauna. All of these reserves are nature reserves for the purposes of s 23 of the Wildlife Conservation Act 1950 (WA) 9 which provides that: nature reserve means land reserved to Her Majesty, or disposed of, under the Land Act 1933 or any other Act, for the conservation of flora or fauna. The national parks and nature reserves identified comprise slightly more than one fifth 10 of the area of land and waters in the north of Western Australia and adjacent land in the Northern Territory in respect of which the Miriuwung and Gajerrong people sought a determination of native title. Members of three subgroups of the Miriuwung and Gajerrong people, the Bindjen, Nyawamnyawam and Dumberal estate groups, also claimed native title rights and interests in the Northern Territory portion of the claim comprising Keep River National Park. National parks are areas of public land set aside for conservation purposes and which members of the public may also access and enjoy. Such parks often contain areas of significance to Aboriginal people. For example, in Keep River National Park there are art sites, rock carvings, shell middens and bird traps of cultural importance to traditional owners. 11 Similarly Mirima National Park has rock paintings, engravings, grinding stones and stone tool-making sites, as well as sites of Dreaming stories 12. Historically there is no doubt that the rugged terrain of places such as Mirima National Park and Keep River National Park provided a physical retreat for Aboriginal people after the advent of European settlement, allowing small groups to maintain a nomadic lifestyle and avoiding the white man as late as the 1930s 13. Because nature reserves are intended to conserve the natural values of an area, in particular flora or fauna, use by the public is usually restricted in some manner. The likely abundance of flora and fauna in nature reserves increases the significance of these areas to Aboriginal people as hunting and foraging grounds. Types of wildlife and landscape found in the nature reserves in the area claimed in the East Kimberley include: (a) mangrove wetlands and wildlife, including salt-water crocodile and migratory birds; 14 (b) a rare species of wallaby and a colony of bats, together with a spring and a small area of rain forest; 15 and (c) a pelican breeding area. 16 7 8 9 10 11 12 13 14 15 16 Reserve 30866 created in 1971 under the Land Act 1933 (WA), s 29 and now part of Reserve 42155. Reserve 31636 created in 1972 under the Land Act 1933 (WA), s 29 and now part of Reserve 42155. Western Australia v Ward (2000) 99 FCR 316 at [496]. Compare the total claim area of 7900 sq km with approximately 1769 sq km set aside as parks and nature reserves. Ward v Western Australia (1998) 159 ALR 483 at 543. At 544. At 516. Reserve 31967. Reserve 34585. Reserve 29541.
284 Articles (2002) 21 AMPLJ Despite the vastness of the Australian landscape, development has encroached upon, and critically reduced, the areas which Aboriginal people can access as of right and use for traditional purposes, including hunting and foraging. National parks, in particular, conserve not only the landscape and nature, they also play a significant role in protecting Aboriginal cultural activities which are often promoted as attractions for tourists. It is not surprising therefore that native title claimants and their lawyers considered that resolution of questions concerning the effect of national parks and nature reserves on native title not only had symbolic importance, but was also of practical significance. In particular, the question of accommodating within a native title determination co-existing non-native title rights was identified as an issue for the High Court by one commentator in the context of national parks and reserves 17. The question there posed was whether a public right of access to a national park impairs what might otherwise be a right to exclusive possession held by native title holders, or whether it is a right created by law to which an otherwise exclusive native title is subjected? 18 The underlying presumption was that the creation of a national park or nature reserve is not inconsistent with the continued enjoyment of native title rights and interests, including a right to make decisions about the use and enjoyment of the land. That presumption accorded with the view of the majority of the Full Court of the Federal Court in Ward v Western Australia 19 that the mere reservation of land did not extinguish native title. That underlying presumption can no longer be maintained in view of the decision of the High Court in Western Australia v Ward 20 handed down on 8 August 2002. 2. THE FINDINGS OF THE FULL COURT OF THE FEDERAL COURT The relevant findings of the Full Court are here summarized. (a) The mere reservation of land did not extinguish native title. 21 (b) (c) (d) The vesting of reserves conferred powers of control and management for the purposes of the reserve. Further extinguishment depended upon the actual use of the reserves. 22 Reservation and dedication of Mirima National Park, to the extent that it created rights in the public, would have the effect of extinguishing exclusivity of native title rights to possess, occupy, use and enjoy. 23 The exercise of control by the Authority over nature reserves and wildlife sanctuaries evidenced a clear and plain intention to control access and make decisions regarding 17 18 19 20 21 22 23 J Basten QC, Recent Developments in Native Title Law and Practice: Issues for the High Court, in Land, Rights, Laws: Issues of Native Title 2 (13) February 2002: 1-12, at 11. Ibid. (2000) 99 FCR 316 at [389] per Beaumont and von Doussa JJ. (2002) 76 ALJR 1098. Ward v Western Australia (2000) 99 FCR 316 at [389]. At [389], [391] and [455] ff. At [446].
(2002) 21 AMPLJ Nature Reserves, National Parks and Native Title after Ward 285 (e) (f) (g) (h) human activities on the land, thereby extinguishing the exclusivity of native title rights to control access and to possess and occupy the land. 24 Stringent regulations controlling and regulating activities that may be carried out on the land did not extinguish those native title rights; regulations permitting otherwise prohibited activities left room for the accommodation of customary Aboriginal practices. 25 In all nature reserves or wildlife sanctuaries created in the determination area before the commencement of the RDA, native title rights to take flora and fauna have been wholly extinguished. 26 The declaration of Keep River National Park and vesting in the Corporation did not effect a vesting of fee simple and did not extinguish native title. 27 Leases granted in perpetuity to the Corporation had no greater extinguishing effect than the previous grant of pastoral leases which had extinguished the exclusivity of native title rights and interests and the right to make decisions about the use of the land for pastoral purposes. 28 3. THE FINDINGS OF THE HIGH COURT The decision of the High Court as to the effect of nature reserves and national parks on native title departs significantly from the conclusions reached by the majority of the Full Court. With respect to reserves generally the High Court held as follows: (a) (b) Reserving land in Western Australia pursuant to the Land Acts was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used, but not necessarily inconsistent with the right to continue to use the land according to traditional laws and customs. 29 Whether a native title right to use a reserved area continued unextinguished depends on other considerations, particularly what, if any, rights in others were created by the reservation or later exerted by the executive, not the way in which they may have been exercised from time to time. 30 24 25 26 27 28 29 30 At [508]. Ibid. Ward v Western Australia (2000) 99 FCR 316 at [504]. At [353] [355]. At [356]. Western Australia v Ward (2002) 76 ALJR 1098 at [219] and [468.12]: compare with Ward v Western Australia (2000) 99 FCR 316 at [389]. Western Australia v Ward (2002) 76 ALJR 1098 at [220] and [234]: compare with Ward v Western Australia (2000) 99 FCR 316 at [391] and [455]ff.
286 Articles (2002) 21 AMPLJ (c) (d) The mere designation of land as a reserve for a certain purpose did not, without more, create any rights in the public which were inconsistent with native title rights. 31 The vesting of land in a body or person under s 33 of the Land Act 1933 (WA) vests the legal estate of fee simple and confers a right of exclusive possession. 32 Those findings extend also to nature reserves and to the reservation of Mirima National Park 33. Relevant to subparagraph (b) above it should be noted that the High Court refused special leave to appeal against the finding of the majority of the Full Court that any native title right or interest to hunt or gather over land in a nature reserve created before the commencement of the Racial Discrimination Act 1975 (Cth) ( RDA ) was extinguished. 34 The decision of the High Court in respect of Keep River National Park that the declaration of the park in 1981 under s 12(1) of the Territory Parks and Wildlife Conservation Act (NT) ( TPWCA ) was ultra vires, to the extent that there remained native title rights and interests at that date 35, turns on the provisions of the relevant legislation. That issue aside, the High Court concluded that the grant of leases in perpetuity under the Special Purposes Leases Act 1953 (NT) and the Crown Lands Act 1931 (NT) to a statutory authority of the Crown to establish a Territory park, conferred a right of exclusive possession which was inconsistent with all native title rights and interests then existing. 36 4. THE EFFECT OF RESERVATION A reservation of land under the relevant Western Australian provisions was held by the High Court to be inconsistent with any native title right to be asked permission and to decide how land could or could not be used, on the basis that the executive, pursuant to legislative authority, was exercising a power to decide how the land could be used. 37 The same reasoning applies to the reservation of land for conservation purposes under other legislation. Any further question of extinguishment of native title rights to use the land is to be answered by having regard to inconsistencies between the particular use of, and activities undertaken on, the land by native title holders in accordance with traditional laws and customs and rights and interests created by the reservation or later asserted by the executive. 38 The extinguishing effect of conservation legislation on native title rights to use nature reserves and national parks is considered further below. 31 32 33 34 35 36 37 38 Western Australia v Ward (2002) 76 ALJR 1098 at [221]: compare with Ward v Western Australia (2000) 99 FCR 316 at [446]. Western Australia v Ward (2002) 76 ALJR 1098 at [240] [241] and [468.14]: compare with Ward v Western Australia (2000) 99 FCR 316 at [390]. Western Australia v Ward (2002) 76 ALJR 1098 at [248]. Western Australia v Ward (2002) 76 ALJR 1098 at [246]. See also Ward v Western Australia (2000) 99 FCR 316 at [504]. Western Australia v Ward (2002) 76 ALJR 1098 at [458]. At [439]. At [219]. At [220].
(2002) 21 AMPLJ Nature Reserves, National Parks and Native Title after Ward 287 Where nature reserves and national parks have been created prior to the commencement of the RDA, any native title right to control the use of, or access to, the land has been extinguished at common law. In the case of reserves and parks created after 31 October 1975, consideration must be given to the operation of the RDA. Different considerations arise depending on whether or not any native title right to make decisions about how the land could or could not be used had already been extinguished, for example, by the grant of pastoral leases 39 or by the creation of previous reserves. If the right of native title holders to control the use of or access to land had already been extinguished prior to 31 October 1975, subsequent establishment of a nature reserve or national park would not affect that right and no issue of discrimination under the RDA could arise in respect of the reservation of the land. 40 After the commencement of the RDA, the creation of a nature reserve or national park on land that was always vacant Crown land, without provision for compensation for the destruction of any native title rights and interests, would be an arbitrary deprivation of property and would be invalid 41. If the act took place before 1 January 1994, it would be a past act 42 and validated by s 19 of the NTA and the relevant State or Territory validation provision as a category D past act. The non-extinguishment principle would apply and native title rights to control access to and use of the land would, in effect, be suspended for as long as the reserve or park remained. 43 Nature reserves or national parks established after 1 January 1994, or proposed for the future, on land that has always been vacant Crown land and where native title persists will be invalid unless the future act provisions of the NTA have been, or are, followed. 44 No question of a non-exclusive native title right to make decisions about nature reserves or national parks can arise. Even if legislation which enables the creation of the reserve or park provides for joint management (ie joint decision making) by native title holders and the Crown, there remains an inconsistency with any native title right to control what does or does not happen on the land, if such a right existed at the relevant date. Whilst that native title right will remain suspended for the duration of the reserve or park, the legislation itself confers a statutory right to make decisions about the land in the context of joint management of the reserve or park. 5. THE EFFECT OF VESTING Each of Reserves 29541 for Wildlife Sanctuary, and 31967, 34585 and 42155 for Conservation of Flora and Fauna and Reserve 37883 for the Mirima National Park is vested in the Authority. 45 By that vesting the reserved land has been dedicated to the purpose for which the land was reserved, 39 40 41 42 43 44 45 At [222]. Ibid. Ibid. See NTA, s 228(2). Western Australia v Ward (2002) 76 ALJR 1098 at [222]; NTA, ss 15(1), 19, 238. See also relevant provisions of State or Territory validating legislation. See Subdivision M of Division 3 of Part 2, NTA. Western Australia v Ward (2002) 76 ALJR 1098 at [231].
288 Articles (2002) 21 AMPLJ creating a statutory trust, compliance with which could be enforced by the Attorney-General. 46 The High Court held that vesting a reserve in a body or person to be held for a particular purpose having a public element was to confer on that body or person an estate in fee simple. 47 This vesting of an estate in fee simple in a body or person with responsibilities for control and management of the nature reserve or national park is to be contrasted with placing a reserve or park under the control or management of a body or person. In the case of the vesting, exclusive possession is conferred which is inconsistent with any native title rights, including rights to use the land which were not extinguished by the reservation. In the case of conferring control and management, the inconsistency goes no further than does the establishment of the reserve or park; that is, inconsistency with any native title right to make decisions about use of and access to the land. As with the establishment of a nature reserve or national park, in determining the effect of the vesting on native title temporal questions arise. In the case under consideration, current Reserves 29541 and 31967 and Reserves 30866 and 31636 (now subsumed by Reserve 42155) are all nature reserves established and vested in the Authority or its predecessor prior to the commencement of the RDA. In respect of those nature reserves, all native title rights and interests have been extinguished by the vestings which conferred exclusive possession and were inconsistent with the continued existence of any native title rights and interests in the land. 48 For those nature reserves and national parks established and vested in a body or person after the commencement of the RDA 49, other considerations arise. Close attention to the relevant legislation is required to ascertain whether its practical operation results in different treatment of native title rights and interests and non-native title rights and interests. In the case of the Land Act 1933 (WA) provision was made for certain non-native title interests to be resumed for purposes of reservation under s 29 of the Act, with an entitlement to compensation for that resumption. 50 The result is that, if as a step to creating a reserve and the subsequent vesting, it was necessary to bring to an end any of the non-native title interests which could be resumed, the holder of that interest was entitled to compensation. That consequence flowed from the terms of the grant. 51 As the Land Act 1933 (WA) provided for extinguishment of land titles but compensation was available only for non-native title, the effect of s 10(1) of the RDA was to provide a right of compensation to native title holders for the extinguishment of their native title, without invalidating the extinguishing act. 52 The result is that the vestings, after 31 October 1975, of Reserves 34585, 37883 and that part of Reserve 42155 created in 1992 are valid but the RDA conferred on native title holders a right of compensation under the State law. By the operation of s 45(1) of the NTA, that right to 46 47 48 49 50 51 52 At [241]. At [241] and [244]. At [249]. In the present case, Reserves 34585, 37883 & that part of 42155 created in 1992. Land Act 1933 (WA), s 11. See Western Australia v Ward (2002) 76 ALJR 1098 at [250]. Western Australia v Ward (2002) 76 ALJR 1098 at [251]. At [108]. See Gerhardy v Brown (1985) 159 CLR 70 at 98 per Mason J, passage set out in Western Australia v Ward (2002) 76 ALJR 1098 at [106].
(2002) 21 AMPLJ Nature Reserves, National Parks and Native Title after Ward 289 compensation becomes a right to compensation to be determined in accordance with the NTA. 53 Having concluded that the vesting of a reserve created under the Land Act 1933 (WA) after 31 October 1975 was not invalid by the operation of the RDA, the necessary consequence of the vesting is that it is not a past act requiring validation by the State validating legislation. 54 Where the conclusion is reached that a vesting of a nature reserve or national park after the commencement of the RDA is valid, the operation of Division 2B of Part 2 of the NTA and the corresponding provisions of the State or Territory validating legislation require consideration to ascertain whether there is any further extinguishing effect under the statute. Section 23B(2)(c)(ii) provides that an act which consists of the valid vesting of a freehold estate 55 taking place on or before 23 December 1996 is a previous exclusive possession act. If the vesting confers a right of exclusive possession, s 23B(3) of the NTA provides that the vesting is taken to be the vesting of a freehold estate for the purposes of s 23B(2)(c). The result is that a valid vesting, on or before 23 December 1996, of a nature reserve or national park will prima facie fall within the definition of previous exclusive possession act in s 23B(2) of the NTA. However, it is necessary also to consider the operation of provisions which exclude certain acts from that definition. Of relevance to nature reserves and national parks is s 23B(9A) of the NTA which provides: An act is not a previous exclusive possession act if the grant or vesting concerns the establishment of an area, such as a national, State or Territory park, for the purpose of preserving the natural environment of the area. In the present case, the vesting of Reserves 34585, 37883 and that part of Reserve 42155 established in 1992 would be excluded from the definition of previous exclusive possession act in s 23B of the NTA on that basis and the corresponding provisions of the State validating legislation are not then relevant 56. Nonetheless, because the vesting of the right of exclusive possession was valid in each case, all native title rights and interests in those Reserves have been extinguished 57, albeit that there is a right of compensation for that extinguishment. In summary, the High Court held that vesting of nature reserves and national parks conferred a right of exclusive possession and effected an extinguishment of any subsisting native title rights. In respect of vestings after 31 October 1975, if compensation is provided for extinguishment of non-native title then s 10(1) of the RDA confers a right of compensation on native title holders whose rights have been extinguished. That compensation is to be determined in accordance with the NTA. For the future, a consequence of the vesting of reserves in any body or person conferring a right to exclusive possession is that the valid creation of any nature reserve or national park, the 53 54 55 56 57 See Western Australia v Ward (2002) 76 ALJR 1098 at [12]. The discussion of compensation payable is beyond the scope of this article. At [254]. Including because of the operation of Division 2 or Division 2A of Pt 2 of the NTA: see NTA, s 23B(2)(a). Western Australia v Ward (2002) 76 ALJR 1098 at [258]. Ibid.
290 Articles (2002) 21 AMPLJ establishment of which involves a vesting, requires compliance with the future act provisions of the NTA, namely Subdivision M of Division 3 of Part 2. 6. THE EFFECT OF LEGISLATION The High Court having concluded that the establishment of Western Australian nature reserves and Mirima National Park extinguished all native title rights and interests, it was not then necessary to consider the effect of legislation applying to those areas, save only to confirm the correctness of the finding by the majority of the Full Court that any native title right to hunt or gather over land in a nature reserve created before 1975 was extinguished. 58 Whilst s 23(1) of the Wildlife Conservation Act 1950 (WA) authorized an Aboriginal person to take flora and fauna from Crown land as an exception to otherwise protective provisions, 59 that exception did not extend to nature reserves. In the case of nature reserves Aboriginal people, along with all others, were prohibited from hunting and gathering. In those jurisdictions where nature reserves and national parks are not vested in any body or person and native title rights of use are not necessarily extinguished, it will be important to give close attention to the particular legislative provisions which apply to those areas to ascertain the impact upon, and inconsistency with, activities of native title holders undertaken in accordance with traditional laws and customs. This exercise cannot be done without clear and specific findings as to the actual use and activities of native titleholders on reserves and parks. However there can be no doubt that provisions intended to conserve the natural environment and control use of natural resources of the type commonly applying in nature reserves and national parks will conflict to some extent with any subsisting native title rights of use. This may still be so even where there is specific legislative provision permitting traditional use of the land by Aboriginals, for example, previous s 122(1) of the TPWCA which subject to s 122(2) which contemplated regulations for conservation purposes which might expressly affect traditional use. Section 122 of the TPWCA was amended in 2000 removing the qualification in previous subsection (2) and inserting the following: 60 (2) The operation and effect of this Act is subject to the Native Title Act 1993 of the Commonwealth. This amendment reflects the requirement in s 11(1) of the NTA that native title is not able to be extinguished contrary to that Act. 58 59 60 At [246]; Ward v Western Australia (2000) 99 FCR 316 at [504]. See for example, Wildlife Conservation Act, ss 14(1) and 22; Wildlife Conservation Regulations, regs 42 and 46. See Territory Parks and Wildlife Conservation Amendment Act 2000, s30.
(2002) 21 AMPLJ Nature Reserves, National Parks and Native Title after Ward 291 7. KEEP RIVER NATIONAL PARK 7.1 The grant of leases in perpetuity The area known as Keep River National Park comprises NT Portions 1801 and 3121 leased in perpetuity to the Corporation in 1980 61 and 1987 62 respectively, and managed by the Parks and Wildlife Commission as a park. Both leases were granted for the purposes of carrying out the functions of the Conservation Commission (now the Parks and Wildlife Commission) and both leases are subject to a covenant that the land will be used only for the purposes for which it is leased. The functions of the Parks and Wildlife Commission include: 63 (a) (b) (c) promoting the conservation and protection of the natural environment; establishing and managing parks, reserves and sanctuaries; and carrying out such other functions as are conferred on it by the Act. One such function is to have the care, control and management of all land acquired by the Corporation. 64 In stark contrast to the decision of the primary judge and the majority of the Full Court that the grant of SPL 475 and CLP 581 to the Corporation was in effect little different from the reservation of Crown land for a public purpose, or the vesting of powers of management and control, 65 the High Court held that the leases conferred exclusive possession upon the Corporation. 66 The consequence of the conferral of exclusive possession on the Corporation was inconsistency with any surviving native title rights; subject to the operation of the RDA, those rights would be extinguished 67. Because the grants under the relevant legislation had effect only on native title rights, s 10(1) of the RDA invalidated the leases. 68 The Corporation was held to be a statutory authority within the meaning of the definition of that term in s 253 of the NTA. 69 Accordingly the leases were validated by Territory validating legislation as Category D past acts such that the non-extinguishment principle applied 70. Relevantly, as the grants were wholly inconsistent with the continued existence, enjoyment or exercise of native title rights, the effect of s 238(3) of the NTA is that the subsisting native title at the date of the grants continues to exist in its entirety, but the rights and interests have no effect in relation to the grants. 71 Because of the findings of fact and the terms of the determination, the High Court was not able to reach a conclusion as to the totality of the native 61 62 63 64 65 66 67 68 69 70 71 SPL 475 granted under the Special Purposes Leases Act 1953 (NT). CLP 581 granted under the Crown Lands Act 1931 (NT). Parks and Wildlife Commission Act (NT), s 19. Parks and Wildlife Commission Act (NT), s 39(6). Ward v Western Australia (1998) 159 ALR 483 at 563; Western Australia v Ward (2000) 99 FCR 316 at [355]. Western Australia v Ward (2002) 76 ALJR 1098 at [433] and [439]. At [439]. At [441]. At [446]. At [448]. Ibid.
292 Articles (2002) 21 AMPLJ title rights extinguished by the grant of pastoral leases and the extent of the rights which survived 72 which are, in effect, suspended for the term of the lease, that is, in perpetuity. No further extinguishment is effected by Division 2B of Part 2 of the NTA. As with vesting of nature reserves after the commencement of the RDA, the grants to the Corporation involved the establishment of an area as a Territory park for the purpose of preserving the natural environment, thus excluding the grants from the definition of previous exclusive possession act. 73 Unlike the vesting of a reserve which was valid and effective to extinguish native title at common law, the grants of leases to the Corporation did not, apart from the NTA, have any extinguishing effect on native title. The conclusion that any subsisting native title rights are suspended for the duration of leases granted in perpetuity, but not extinguished, has little, if any, practical consequence for management of Keep River National Park. It does, however, have consequences in respect of the declaration of the area subject to SPL 451 as a park. 7.2 Declaration of Keep River National Park In 1981 NT Portion 1801 was purportedly declared a park pursuant to s 12(1) of the TPWCA. That section provided that the Administrator may: (a) by notice in the Gazette, declare an area of land in respect of which (i) all right, title and interest is vested in the Territory; or (ii) no person, other than the Territory or the Corporation, holds a right, title or interest, to be a park or reserve. If, in 1981, there remained any unextinguished native title rights and interests, albeit suspended, the power in s 12(1) could not be enlivened and the declaration was ultra vires 74. In 1998, s 12(1)(a) of the TPWCA was amended to provide that a declaration of a park or reserve could be made, whether or not a person, other than the Territory holds a right, title or interest in the land, including any native title rights and interests. 75 Provision was also made to override the statutory vesting of land in the Corporation under s 12(7) by a declaration that the land declared a park or reserve does not vest in the Corporation. 76 A further provision was inserted to the effect that notwithstanding the declaration of the park or reserve, nothing in the TPWCA is to be taken to 72 73 74 75 76 At [425]. Note that the comment at [448] that no conclusion can be reached as to whether the respective grants to the Corporation were wholly or partly inconsistent with the native title rights which survived the grant of pastoral leases is at odds with the conclusion in [439]. See NTA, s 23(9A) and the corresponding provision in the Territory validating legislation. The grants would also be excluded from that definition by the Territory equivalent of NTA, s 23B(9C). Western Australia v Ward (2002) 76 ALJR 1098 at [458]. See Territory Parks and Wildlife Conservation Amendment Act 1998, s 2 replacing TWPCA, s 12(1)(a). Territory Parks and Wildlife Conservation Act, s 12(1)(aa).
(2002) 21 AMPLJ Nature Reserves, National Parks and Native Title after Ward 293 affect or derogate from a right or interest of a person other than the Territory or the Corporation, including any native title rights and interests. 77 The declaration of a park or reserve under the TPWCA, without subsequent vesting in the Corporation, would have the same effect on native title as the reservation of nature reserves. That is, any subsisting native title right to control use of or access to the land would be inconsistent with and affected by the Crown s exercise of the power to say how the land could be used. What then is the effect of a provision stating that nothing in the TPWCA affects native title consequent upon the declaration of a park? Where a declaration is made in respect of land which has been subject to a pastoral lease, the effect of the provision may be to protect native title rights to use the land. For example, regulations and by-laws made under the TPWCA which would otherwise affect native title rights to use the land may not apply to native title holders. If a declaration is made in respect of land which has always been vacant Crown land, more difficult questions would arise, possibly involving co-existing rights to make decisions about the land and perhaps again raising questions as to the effectiveness of the declaration. Given that almost all of the Territory has, at some stage, been subject to the grant of a pastoral lease, these questions may well be academic. 8. CONCLUSION The decision of the High Court as to the extinguishing effect of the reservation of and vesting of national parks will not necessarily exclude or limit the continuation of cultural activities in these areas. For example, in Keep River National Park cooperative and friendly arrangements exist between Territory and Aboriginal representatives in relation to management of the Park, indicative of an intention to maintain, not destroy, the cultural practices of the Aboriginal people who live in and around the area 78. Similar arrangements doubtless exist in other parks throughout Australia. However, future involvement of Aboriginal people in decision-making concerning national parks and nature reserves will not rely upon native title rights to make decisions about the land but will depend upon joint management and similar cooperative arrangements. The preservation and protection of the environment, including the cultural heritage of Aboriginal people, is important for all Australians, irrespective of whether continuing Aboriginal practices fall within the legal definition of native title in s 223 of the NTA. 77 78 Territory Parks and Wildlife Conservation Act, s 12(1A). Western Australia v Ward (2000) 99 FCR 316 at [362].