Answer

Property Law Exam: Case Study of The Wandura People

The present case of the Wandura people centers on the issue of native title over three pieces of land- areas A, B and C. Specifically, the Wandura people are making a native tile claim on the basis that they have a right to access the areas for camping, taking fauna, flora, and fish, and performing rituals and ceremonies. However, various other rights have been granted to the same pieces of land. These include a freehold estate (area A), a 20-yearl old Crown agricultural lease (area B), and a mining license (area C). Whereas the freehold extinguishes the native title rights in area A, it only suspends the rights for the period of the lease in area B. However, the native title rights can coexist with those of the holders of mining license in area C.

Question 1: Legal Issues

Based on a closer examination of the case, the dispute between the respective parties centers on the following legal issues:-

1. Whether A Native Title Rights Exists in Respect of Areas A, B, And C.

In in order for the indigenous people to get compensation, they have to prove that they had native title rights and interests over the areas in question.[1]^{, [2]} As such, in the present case, there is an issue of the existence or otherwise of the native title rights with regards to areas A, B, and C.

2. Which Persons/Group or Persons Hold the Common/Group Rights in The Native Title

Before the establishment of a claim, it is vital to establish the claim group. After the group has been established, the claimants must name the members of the claim group or provide a specific description of them such that it can be clearly ascertained whether any particular person forms part of that group.[3]

3. Nature and Extent of Any Native Title Rights and Interests in The Areas A, B And C

The nature of the title is used to denote the legal nature of the rights and interests therein[4]. Also, the rights and interests are derived from traditional laws and interests as opposed to common law[5] holds that. The issue is thus, the nature and extent of the native title rights is they exist.

4. Whether the Native Title Confers Possession, Occupation, Or Use and Enjoyment of The Land

Possession is related to having a certain degree of control and excluding other persons. Occupation, on the other hand, requires the proof of an overriding interest. The question that arises is which type of right does the Wandura people have over the areas A, B, and C.

Question 2: Whether Claim Over Respective Areas Is Likely to Succeed and What They Need to Prove

The Australian land and property law recognize that the aboriginal people have different rights and interests of their land, which are based on both their traditional laws and customs. The concept of native title is used to recognize that in some instances, the aboriginal communities have a continued beneficial legal interest in land that they survived from the radical title given by the crown during the time of sovereignty.[6] Such a title that coexists with the proprietary rights of non-aboriginals and in some instances, the aboriginal groups are allowed to exercise their native title over the land.[7] The decision in the Mabo (No.2)[8] case demonstrates that the native rights and interests in land could burden the radical title of the Crown.

The claim by the Wandura people over the native land titles of areas A, B, and C is likely to succeed if they prove four key elements. One of those is that they possess rights and interests over the three areas under traditional customs recognized before sovereignty. Additionally, they should prove that through the aforesaid traditions and customs, they have a connection with the land. Also, they should have continued to acknowledge and observe the customs and traditions over the lands. Also, they should show that the rights and interests they claim to hold over the land are recognized under common law of Australia. The requirements for a successful claim are based on the law[9] as well as case law. The claimants for a native title must demonstrate that they held rights recognizable under common law.[10] Common law recognizes the customary native title.[11] However, they must also prove that the retained native title rights were not extinguished when the land was annexed to the government.

1. Claim Over Area A

            The claim to maintain and protect sites over land area A is likely to succeed if the Wandura people can prove that; through their traditions and customs, they have become connected to land area A. Notably, social connections with a land serves to give laws their normative content. Some of the connections that can be demonstrated include the activities that they continue to undertake in the land and the effects that the cessation of those activities would have on their traditions and customs.[12] Based on the case study, the Wandura people can prove that they have been doing this continuously because the elders have been undertaking these activities twice a year and hence, their claim is likely to succeed.

2. Claim Over Area B

            The claim of the right to access a camp on area B will succeed if the Wandura people (claimants) ;as a group, demonstrate the continued acknowledgement and observance of the laws and customs in question over land after their descendants. The continued acknowledgement and observance should not be absolute but rather substantial.[13] However, the Court also recognized the difficulty of proving the elements because it is inevitable that the cultural practices and structures of the people and their societies will go many changes over the years. Mansfield J[14] held that the observance and acknowledgement of the laws and customs must be proved to have substantially continued uninterrupted by subsequent generations after sovereignty.[15] Also, the claimants must show how they have maintained their traditional connection to the claimed areas and that they had actually maintained such connections to the present day. The claimants have once a year been celebrating their family culture by camping on this land and taking flora, fauna, and fish form the river as well as performing rituals and ceremonies hence their claim will succeed.

3. Claim Over Area C

The rights to perform rituals and ceremonies on the land on area C will succeed because a majority of the Wandura people meet once a year and perform rituals and ceremonies. As such the observance of the customs and traditions over the land can be proved. However, it is not clear whether the rights they claim to possess are recognized under the common law of Australia. Notably, although native title originates from traditional laws and customs, it is recognized by common law.[16] As such, the Wandura people will have to prove that the pre-sovereignty interests and rights they had over the land areas in question were legal and recognizable under then then existing laws and customs. The common law consists of a body of norms that were observed.[17] However, the laws may have changed because of European settlement. Though, the changes in customs and laws after the possession of the land by the Crown must not be fatal.[18] By proving the activities such as performing rituals and traditional ceremonies and taking fauna and flora in the areas C, the Wandura people’s claim will succeed.

Question 3: Whether Their Claim Over the Respective Areas Have Been Extinguished

Extinguishment of the native title is one of the ways in which the native title is terminated.[19] The other methods for termination are expiry and surrender. Extinguishment of the native title can arise from an express legislative provision, an inconsistent grant of interest over land with a native title,[20] and acquisition of beneficial ownership by the Crown. The claim over area A extinguishes the native tile because the grant of freehold and exclusive possession. However, the native title rights are only suspended for the 20-year period of the agricultural lease. The grant of mining license is does not extinguish native title because it is not inconsistent with exercise of native title. The following are the impacts of the grant of the different rights:-

1. Freehold in Respect of Area “A”-

With regards to the freehold granted in respect of area A, the claim has been extinguishment because such a right is not consistent with the native rights; a clear intention to extinguish the native title.[21] Notably, the grant of leasehold is one of the grounds that can lead to the native title being distinguished. Also, a fee simple could extinguish a native title.[22] The reasoning behind such a position is that the rights granted through a fee simple are inconsistent with the native title holders. Notably, in a freehold, the owners have the outright ownership of the land because they have no limitation with regards to the period of ownership. The grant of such a right is inconsistent with the native rights of the Wandura people and thus extinguishes their claim.

The extinguishment of the native title because of the grant of freehold estate is based on the rights of those being granted freehold rights being incompatible with those of the natives. Additionally, the native title cannot take away the valid rights and interests of those with freehold. Moreover, the Australian law cannot recognize the coexistence of two different rights that cannot be exercised at the same time. However, if the exclusive possession of the land by those granted freehold can be exercised together with the rights of the natives, then the native title will not be extinguished. Nevertheless, the issue of the extinguishment of the native title rights by the grant of incompatible rights is determined by the facts of the case and an intention test, which is objectively done.[23] The grant of freehold in area A was meant to limit the native title and ultimately extinguish it. As such, this right extinguishes the native title rights that the Wandura people had in such a piece of land.

2. Agricultural Lease

The agricultural lease granted suspends the native title because both rights cannot co-exist. A pastoral lease is one of the land titles that extinguish the native titles. The perfect example of how partial leases such as an agricultural lease suspend native title rights.[24] In this case, it was the position of the Court that the pastoral lease granted could only confer exclusive possession and hence extinguish the native title where there was found to be a practical inconsistency between the exercise of the rights under the pastoral leases and the exercise of the native title rights. As such, upon the confer of the exclusive possession, the pastoral leases suspend the native title rights during the term of the lease.

Based on the established legal position that the grant of exclusion possession only suspends the native title rights, then it is evident that the agricultural lease would suspend the land rights of the Wandura people and; at the end of the lease, the Crown will regain the radical title to the land and hence the Wandura people will be able to continue to exercise their native title rights. As such, the native tile of the Wandura people will only be suspended for the 20 years that the agricultural lease granted to Andrews Farm shall be in operation and the native title will revert back to them after the Crown has regained the radical title.

3. Mining License

A mining lease is one of the land titles rights that does not extinguish the native title because such a license is not inconsistent with native title rights- both rights can co-exist. Additionally, the government is required to notify the native title holders of any new proposal for exploration after the grant of a mining license. However, in the current case, the mining license was renewed in 2016 for a term of 10 years without the Wandura people being notified of the same. Such an action is inconsistent with the requirement that the indigenous people be notified of any exploration activities and their interests and rights protected during such an activity. However, such a notification should not be given if the government thinks that such an exploration will not affect the native title holders because it will not involve much digging.

The grant of mining license does not extinguish the native title rights if there exists no inconsistency between the mining license and the native title. Specifically, although the grant of a mining lease gives exclusive control for the mining purposes, the grant of such a license will not necessarily extinguish all native title rights in the bundle if; on evidence, the native title rights and interests do not relate to the minerals or petroleum.[25] Also, a mineral lease granted only had the right to prevent third parties form using the land for mining purposes.[26] However, in the establishment of whether the rights granted by a mining lease are inconsistent with those of the native title rights, the courts deploy an objective comparison of the two sets of rights. Based on these legal positions, the mining license does not extinguish the native title rights of the Wandura people, because the two sets of rights are not inconsistent. Both rights can co-exist in the same piece of right and thus, the Wandura people will continue to have native title rights in this piece of land.

In conclusion, the grant of native title rights to land ensure that the rights of the Aboriginal and Torres Strait Islander populations in Australia can coexist with those of the non-aboriginals who hold proprietary rights to the land. In the present case of the Wandura people and the government, the legal issues evidently relate to whether they have a valid native title to the different parcels of land and the rights and interests; if any that they hold over areas A, B, and C.       Their claim for a native title will only succeed if they are able to demonstrate that they have rights and interests over the three parcels of land based on traditions and customs. Additionally, they should show that such traditions and customs have made them be connected to them. Moreover, they will successfully claim native title if they show that they have continually observed and acknowledged their traditions and customs over the land. Moreover, although the freehold rights granted to area A extinguishes the native title rights, the agricultural lease only suspends them. However, the mining license does not extinguish the native title rights because such rights are not inconsistent with the rights and interests of the holder of the mining license.

[1]See Jango v Northern Territory of Australia [2006] FCA 318.

[2]Native Title Act 1993, s.61(1).

[3]see Western Australia v Ward [2002] HCA 28.

[4] Western Australia v Brown [2014] HCA 8.

[5] Native Title Act 1993, s.223(1).

[6] Nick, Duff. What’s Needed to Prove Native Title? Finding Flexibility Within the Law on Connection. (AIATSIS Research Publications, 2014) 5.

[7]See Ibid.

[8] Mabo v Queensland (No 2) [1992] HCA 23.

[9] Native Title Act 1993, s.223.

[10] See Ibid.

[11] See Members of the Yorta Yorta Aboriginal Community v Victoria [2002] 214 CLR 422.

[12] Samantha, Hepburn. Australian Property Law: Cases, Materials and Analysis. (LexisNexis Butterworths, 2008) 394.

[13] See Members of the Yorta Yorta Aboriginal Community v Victoria [2002] 214 CLR 422.

[14] See Risk v Northern Territory [2006] FCA 404.

[15] Cf. Harrington-Smith on behalf of the Wongatha People v Western Australia (No. 9) [2007] FCA 31 at

[328].

[16] Australian Law Reform Commission. “Connection to Country: Review of The Native Title Act 1993.” (2015) ALRC Report 126, 8.

[17] See De Rose v South Australia (No. 2) [2005] FCAFC 110 at [64].

[18] Nick, Duff. What’s Needed to Prove Native Title? Finding Flexibility Within the Law on Connection. (AIATSIS Research Publications, 2014) 5.

[19] See Wik Peoples v Queensland [1996] 187 CLR 1.

[20] See also Mabo [no.8].

[21] See Mabo [no.8].

[22] See Fejo v. Commonwealth [1998] 195 CLR 96.

[23] See also WA v Ward [2002] HCA 28.

[24] See Wik Peoples v The State of Queensland [1996] HCA 40.

[25] See WA v Ward [2002] HCA 28.

[26]See also WA v Brown [2014] HCA 8.