2105AFE Introduction to Business Law of Carmichael Coal

The Wangan and Jagalingou Indigenous people have a native title right to the land in question stemming from the fact that there native title falls within statutory meaning. The notion that indigenous communities in Australia are ‘merely wandering tribes and have no identifiable habitation’ is outlandish in todays. An attempt by the courts in the legal battle between Carmichael coal mine company and the natives to be indisposed to uphold the native land title right will be repressive and destabilizing to the native people. The fact that Australia is a British colony does not give an unfetter discretion to an individual, the government and any other entity to divest off the native Australian their interest in the native land. The native right to tile in land is derived from the fact the land was governed by traditional laws and customs before the British colony encroached the land.

The general position is that the native land title right have been recognized under the Australian law and therefore the Wangan and Jagalingou Indigenous people claim is founded has its ground in law. However, a key dimension of the legal battle is whether the lease that has been vested by a statutory right on the Carmichael coal mine company extinguishes the native land title right of the Wangan and Jagalingou Indigenous people. The land mark case that guides the foregoing assertion is Wik Peoples v The State of Queensland. It thus follows that the statutory lease that has been given to the company does not imply that they have been granted an exclusive possession of the land. However, it should be borne in mind that the rights and interests of the parties in the Carmichael coal mine dispute will be determined by the nature and terms that were indicated in the lease.  Assuming that the company does not want to get a free hold title to the land as is the case, it bears noting that where there is a conflict between the native title rights and the and the right of the company pursuant to the lease, the right encapsulated in the lease will prevail.

The cardinal rule is the native title right does not override any other laws or customs in Australia. The Wiki decision created a bewildering lack of certainty on whether pastoral leases could extinguish native title rights. This flexible and unfettered discretion that has been set by precedent is dangerous to the administration of justice. It is however, apparent that the native title may be extinguished by a valid statute that declares the native rights and interest in particular to be inconsistent. It has been argued that the grant of a free hold estate or a lease, fall within the meaning of the statutory rights that are capable of extinguishing the native title rights. It should also be clear in the statute if the pastoral lease holders can be given a freehold title and if the interests and right of the native title holders can be extinguished. 

All in all if the mabo decision and the wiki decision are reconciled the pragmatic position seem to be that the a freehold title may be granted on new terms different from those in the lease title and to uphold the interest of the natives, they ought to compensated by the company after such they are given the free hold title.  In other words, it may be contended that the pastoral lease that the company holds does not make the Wangan and Jagalingou Indigenous people trespassers to the land. This implies that they have a life interest to the land and if the company is to be granted a free hold title by operation of law, their interest will not be extinguished but will be transferred to the company and therefore such a transfer will be complete if they are adequately compensated.  

Conclusion

It can be conceded that there is an acute need for a balance to be created between the rights of the native and the pastoral lease holders. It appears that there is no much judicial ink that has been spilt on the question whether pastoral lease holders can be granted a free hold title. Despite the fact that the court has the discretion to decide such a case and create jurisprudence, the court should reconcile the interest and rights of the Wangan and Jagalingou Indigenous people and those of the Carmichael coal mine company. Furthermore, certainty of law is needed in this legal problem. The rights and interest of the pastoral lease holders must be clearly stated by statute and a clear line be drawn on when the native title rights may be extinguished by the pastoral interest or rights.

Bibliography

Articles

Maureen, Tehan. "A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act" [2003] Melbourne Law Revie 19; (2003) 27(2) Melbourne University Law Review 523

Hiley, Graham. ‘The Wik Case: Issues and Implications, (Butterworths, Sydney, 1997)

Stevenson, Brian, ‘The Wik Decision and After’ (1997) Queensland Parliamentary Library

Legislation

Native Title Act 1993 (Cth)

Cases

MacDonald v Levy (1833) 1 Legge 39 (NSWSC) 45.

Mabo and others v Queensland (No2) (1992) 175 CLR 1

Wik Peoples v Queensland (1996) 187 CLR 1