Meyers, Gary D; Piper, Chloe M; Rumley, Hilary E --- "Asking The Minerals Question: Rights In Minerals As An Incident Of Native Title" [1997] AUIndigLawRpr 28; (1997) 2(2) Australian Indigenous Law Reporter 203

Asking The Minerals Question: Rights In Minerals As An Incident of Native Title

Gary D Meyers*, Chloë M Piper*, Hilary E Rumley*

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Abstract

This essay argues that native title rights in minerals, including rights to commercially exploit those minerals, may exist. Where State mining legislation preserves pre-existing private rights in minerals, arguably among those pre-existing rights preserved are rights held under the rubric of native title by Indigenous Australians. That the rights exist is a question of fact to be determined by the particular customs and traditions of those asserting a native title rights in minerals in the land they occupy (or use solely for exploitation of minerals). Whether such rights have been extinguished is also a question of fact (and law) that depends upon analysis of the mining laws in each Australian jurisdiction.

I. Introduction

Most of the commentary on, and controversy over, the recent decision of the High Court in the case brought by the Wik Peoples of North Queensland, has centred on the issue of whether native title rights can coexist with the rights granted by a pastoral lease. [1] However, the Wik Peoples' claim raises a second fundamental and perhaps more contentious issue, aired in the Federal Court, namely, whether mineral rights may exist as an incident of native title. While Justice Drummond of the Federal Court held that the Queensland legislature has extinguished native title rights to specific listed minerals as a matter of fact, he specifically left open for resolution the exact common law position. [2]

The interplay of common law and legislative activity in the area of mineral ownership is complex, varying as it does between the States and within States over time. However, the common law jurisprudence of native title provides a strong basis for arguing that Indigenous peoples in Australia may be able to claim either or both subsistence or commercial access rights to minerals as a component of native title. This position, although somewhat controversial, can be developed on the basis that positing the existence of a right is far different from and not to be confused with the more complicated task of proving that a particular native title right resides in any particular Aboriginal community.

The existence of native title in minerals depends upon consideration of two essential lines of inquiry. First, can native title be established to the land in which minerals may be found? [3] If yes, is (or was) the use of minerals a traditional activity of the claimant group? And alternatively, or additionally, does the content of the laws and customs of the claimant group mean that the claim to the land is enough to establish a title to the minerals. Second, even if a native title right to minerals is established on one of these two grounds, has the putative native title right to minerals been extinguished by subsequent legislative activity.

The meaning of Minerals

For the purposes of this essay the term `mineral' is used in its broadest possible sense as a naturally occurring substance on or below the surface of the land which is neither animal nor vegetable in origin. [4] Common law and statutory definitions are subsets of this. Whether material is a mineral at common law is a question of fact in each case. [5] At common law, substances such as sand, clay and gravel, as well as substances forming the common ground of the locality, were not generally included within the definition of minerals. [6] However, it has also been held that any substance naturally forming part of the earth which can be ` ... got from underneath the surface of the earth for the purpose of profit ... ' can be a mineral. [7] The term minerals `is wide enough, prima facie to include even those minerals which can only be got by surface workings'. [8] The range of minerals in which native title may be sought to be established could be broader than the position as defined at common law.

The nature of the inquiry

Part II of this essay examines the anthropological and archaeological evidence relating to Aboriginal use of minerals. [9] It considers the Aboriginal conception of and relationship to land; traditional ownership, control, and use rights in the resources of the land; and the ways in which material and social customs, while continuing to be observed and acknowledged by Aboriginal people, have been applied and adapted to the removal and use of mineral resources.

Part III considers whether the common law is capable of recognising native title rights in minerals. The initial question is how a claimant group establishes native title in land. The essay then proceeds on the assumption that a group has established native title to land amounting to exclusive occupancy¹⁰ (although it may be possible to establish mineral rights in land not subject to a claim of exclusive occupancy). The method of establishing rights in the minerals is considered in two alternative modes.

Part III proceeds on the basis that the common law is capable of recognising rights in minerals, the content of which are determined as matters of fact (the "bundle of rights" approach). It examines the recognised flexibility of customary law and the way in which this affects the methods which may be used to exercise rights, and indeed the extent of the rights. In considering the scope of the right, this part examines whether the right is limited to minerals traditionally used or whether it extends to other minerals, as well as whether the right may extend to a commercial interest in the minerals.

In the alternative, Part III compares and contrasts the `bundle of rights approach' with the implications of the Crown's obligation to "fully respect" the rights of the native title holders. We suggest that the `zenith to nadir occupancy approach' shifts the burden of proof from an onus on the claimant party to prove the existence of each individual right, to a burden on the Crown to prove that specific rights have been extinguished.

Part IV begins by examining how native title may be extinguished and comparing the interests of fee simple landholders and native title landholders to the minerals below their land, followed by an assessment of the impact upon these interests of the land and mining legislation of the various states. Also included is a brief review of the impact on native title of existing petroleum legislation and the effect of state legislation confirming ownership in natural resources.

The essay concludes that there is considerable anthropological and archaeological evidence establishing customary use of minerals and mining activity by Indigenous Australians. These minerals were and, in some cases, continue to be used to meet both the subsistence and "commercial" needs of Aboriginal communities. Consequently, where State legislation preserves private ownership of mineral resources, it may be possible for native title claimants to assert a right to minerals on native title lands.

II. Aboriginal use of minerals

While it can readily be accepted that in pre-contact, classical (traditional) Aboriginal societies, the ownership, control and use of natural resources of all kinds were determined by Aboriginal law and custom, since contact the State has, in general, assumed the regulation and management of minerals. Indigenous interests have largely been ignored. [11] Governments, not Aboriginal people, are regarded as the "owners" of minerals, among other resources, even in situations where Aboriginal people may now own the land. That is to say, Aboriginal ownership of the land has not been seen as conferring ownership of subsurface rights, though rights to negotiate over access to minerals may be part of land rights agreements. [12]

This part of the essay demonstrates, through the discussion of several case studies, that there is a factual basis which would allow the common law to recognise Indigenous peoples as having continuing ownership, control and use rights with respect to mineral resources based on their:

* conception of and relationship to the land;

* classical (traditional) ownership, control and use rights of such resources; and

* continuing use of such resources through adaptation of material and social customs to the mining of non-traditional resources.

Aboriginal conception of and relationship with land

It is not intended here to provide a detailed account of the way in which the Dreaming beliefs and stories of Aboriginal people informed their knowledge and understanding of the way in which the landscape they inhabited was created and continued to need nurturing and respect. This has been outlined and discussed in a wide variety of published and unpublished material. [13] But a number of points need to be made for clarity.

The Dreaming constitutes Aboriginal creation mythology, in which ancestral beings roamed the land, engaging in a variety of activities which resulted in the formation or modification of the geographic landscape, water sources and other topographic features which are apparent today. The term "sacred site" refers to contemporary natural features which constitute the tracks, stopping and meeting places of these ancestral beings during their roaming activities, recounted in Dreamtime narratives. Sacred sites continue to maintain direct linkages to the ancestral beings which created them because some of the spirituality embodied in these ancestral beings remains in the places they created. Some of the same spirituality is also believed to reside in individual Aboriginal people by virtue of their site of birth or association with a particular natural species. [14] The mythic beings of the Dreamtime are considered to be the direct ancestors of those Aboriginal people, the custodians or traditional owners, who retain responsibility for looking after tracts of land and particular sites within their country. It is believed that if sites are damaged, or necessary rituals and ceremonies are not regularly performed, then the custodians, as well as important natural species may sicken and die.

The pre-contact nomadic way of life of Aboriginal people consisted of patterned movements of groups of Aboriginal people within a range of territories. Although principles of descent and inheritance to land were fixed in law (generally patrilineal), in practice, landholding and land-using rights were adaptable and flexible to accommodate population imbalances and to recognise the realities of inter-territorial marriages, as a result of which, children would frequently spend as much time in their mother's country as their father's.

Shared religious beliefs (the Dreaming) and associated rituals provide linkages between Aboriginal people over vast distances of the continent. Such beliefs and practices signify the continuity of the spiritual importance of the timeless relationships between Aboriginal people, the landscape and its natural features: faunal, floral and mineral.

Detailed ritual knowledge, songs and ceremonial performances based on Dreamtime narratives and associated with particular tracts of country ("estates") are the prerogative of those people who have ownership rights in that country. Such ownership rights indicate individual and group responsibility for maintaining and looking after the land and its resources. [15]

A particular sacred site which came to national prominence in 1979-1980 illustrates a number of the points made above relating to Dreamtime beliefs about the formation of the natural landscape and associated ritual responsibilities of Aboriginal custodians. In addition, this site indicates how Aboriginal conceptions of the land extended to include clearly defined spiritual beliefs about the subsurface.

The sacred site in question is known in the non-Aboriginal community as Pea Hill and to the Aboriginal owners of the Noonkanbah pastoral lease in the south west Kimberley as Umpampurru. The site became the centre of a major controversy in 1979-1980 when an oil company, Amax, backed by the then Western Australian State Government, proposed undertaking an exploratory drill bore close to Pea Hill. The Aboriginal custodians took great exception to this proposal and made their objections known through legal and political channels.

The importance of the site to the Aboriginal custodians derives from Dreamtime beliefs in which a number of tracks of various important spiritual beings passed in close proximity to Pea Hill/Umpampurru and from the belief that some of these beings actually stopped at the site. [16] Through its associations with the travels and resting places of the great hero, Unyupu and the two snakes he speared; with Nangala, the pregnant wife of the great Janagalajarra and with Looma, the blue tongue lizard woman, Pea Hill/Umpampurru became a significant increase or fertility site (malaji) and the home of a great woman spirit. As Hawke and Gallagher note, "[o]ne feature on the hill provides access through which kangaroos, turkeys, snakes and other reptiles can be summoned. A second feature provides access to goannas." [17] Other, smaller malaji sites are located relatively close to Pea Hill.

Hawke and Gallagher, citing other sources, explain the subsurface spiritual significance of Pea Hill. [18] One Aboriginal community member stated: "The woman is in the hill there." An anthropological report states in part:

[a]t one part of this site goannas are summoned from the surrounding area and `locked up' within the hill. At a certain appropriate time these goannas are `dreamed' out of the hill which is the repository of their body and spirit. They are then sent out underground beyond the tree line which surrounds the hill. Goannas emanating from this site are thus widely available as a Community food source.

Another anthropologist writes:

The expert responsible for the relevant rites can open the hill in his dreams and enter it - providing the female spirit custodian, who lives in it, is willing to admit him. Once inside he meets with her and, when properly approached, she will see to the propagation of snakes, frogs and goannas.

Thus it can be more readily understood why members of the Noonkanbah Aboriginal community resisted exploratory underground drilling for oil which they feared would disturb and possibly destroy one of their significant, sacred increase sites.

In brief, traditional mythological accounts of the activities of Dreamtime beings continue to provide Aboriginal people with, among other things, the basis for continuing beliefs, practices and rituals relating to the maintenance of their spiritual connection to the land and its resources, and specified sites within it; to the allocation of individual and group rights to particular country; as well as to laws relating to marriage and correct social behaviour.

Classical (traditional) ownership, control, and use rights in minerals

This section of the essay reviews traditional mining practices of Indigenous Australians, to indicate, among other things, Aboriginal beliefs about the origins of the sites, mining techniques, rituals associated with procuring minerals, ownership and use rights and trade networks involving minerals. The case studies of ochre mining, stone and rock quarrying, and sand and quartz mining discussed in this section demonstrate that these traditional mining activities for subsistence, trade activities, and cultural and medicinal purposes was widespread among Indigenous peoples in Australia.

Ochre mining

Ochre pigments were/are used, among other things, for body decoration, cosmetics, artefact and cave paintings and were/are traded widely from the main ochre quarries. It should be noted that in addition to the major red ochre mines to be outlined below, there were numerous smaller ochre deposits owned and used by Aboriginal groups. [19] As well as including sites with red ochre, these included others with white, yellow and green ochre pigments.

The four red ochre mines to be described here are:

(a) the Wilgie Mia mine, in the Weld Ranges, Western Australia;

(b) the Bookartoo (or Bookatoo, Pukardu) or Yarrakina (Yerkinna) mine at Parachilna in the Flinders Ranges, South Australia;

(c) a mine in the Campbell Ranges in southern Warlpiri country in the Northern Territory; and

(d) the Toolumbunner mine in the Gog Range of north central Tasmania (near Mt Rowland).

(a) Wilgie Mia, in the Weld Ranges, northwest of Cue in the Murchison district of Western Australia, is located on Nganakurakura hill, [20] though Kretchmar names the hill Barlowerrie. [21] Wilgie Mia is a large mass of haematite, red oxide of iron. [22] On the northern side of the hill is an immense open cut excavation. In the Aboriginal language of the area, Wilgie Mia means red house or habitation. [23] In an area of sparse water sources, the mine had the advantage of one of its deeper caves becoming flooded after rains and thus being used by Aboriginal people working in the mine as a water hole. [24]

Bright red ochre from Wilgie Mia was/is highly prized among Aboriginal people as a pigment for decorating their bodies, spears, shields and ceremonial implements for law and festive occasions, as well as a medium for bartering with other tribes in the far northern and eastern areas of Western Australia. [25] Woodward adds that the mine supplied red ochre to Aboriginal people all over central Australia, as far as Queensland. [26]

The quarrying techniques, though utilising relatively simple technology, were evidently impressive. The rich, soft, high-grade red ochre was mined by Aboriginal men who used heavy stone mauls to batter the rock and pry out the ochre with fire-hardened wooden wedges and sharpened wooden tools. After white miners entered the area in the late nineteenth century, Woodward notes that traditional wooden mining implements were mostly replaced by "old picks, tomahawks, shovels etc." [27] Small caves and galleries branched off from the main chamber to extend the workings of soft veins of ochre. Aboriginal ochre miners also used timber staging, a type of pole scaffolding, to reach greater heights. The rock was broken to get the ochre, then it was pulverised with rounded stones, wetted and moulded into balls which are then ready to be traded. While men undertook the mining of the ochre, women transported it to the tribal boundaries. [28] It is estimated that the mine is at least 1000 years old, and was still being worked in 1939.

Woodward provides an account of Aboriginal beliefs concerning the formation of Wilgie Mia. He notes that,

[t]he native story as to the origin of the Wilgie-Mia is that the "Mondong", who is an evil spirit, killed a gigantic kangaroo upon this hill and its blood soaking into the ground formed the red ochre. This spirit is still supposed to inhabit the Wilgie-Mia, ... he is a lover of darkness, therefore never leaves the deeper recesses until after nightfall, when it is a bad lookout for any native he may come across when prowling around. [29]

Flood adds further details to this origin story, noting that in addition to the red ochre representing the kangaroo's blood, the yellow ochre represents his liver and the green ochre his gall. [30]

The belief that Mondong (Mundong), the "Debil-Debil" [31] still inhabited the mine meant that it was greatly feared except by the elders, three of its cultural custodians. [32] If one of these men died, the survivors chose a successor and initiated him into the secrets. Piles of stones marked the boundaries of the area beyond which it was not safe for the uninitiated to enter. [33] Rituals were performed to prevent injury or death during mining operations. For example, after extracting as much "wilgie" as they could manage, Aboriginal miners would walk out of the cave backwards, obliterating their footprints with a leafy bough so that Mundong would not be able to track them and seek revenge. [34]

(b) Parachilna in the north of the Flinders Ranges, South Australia, is the location close to which are several red ochre mines including Bookartoo (Bookatoo or Pukardu Hill) and Yarrakina (Yerkinna). At Bookartoo, a number of tunnels were dug into the hillside over a long period by Aboriginal miners following the haematite lodes to mine the ochre. Sagona notes that the quality of the ochre made it much sought after because, "[i]ts soft, greasy texture, its opacity, and its silvery sheen produced by a component of cinnebar (mercury) led it to be regarded as the "proper" ochre, and it was thought that no other source could match its qualities." [35]

Flood describes the method used to extract and process the ochre. She notes that "[p]aint was made from ochre by crushing up lumps of the soft pigment-bearing rock into a powder and mixing it with water, or sometimes with the blood or fat of fish, emu, possum, or goanna, or with orchid juice for a fixative." [36]

Like Wilgie Mia, this Northern Flinders Ranges ochre mine was also the centre of an organised network of trade and exchange and was the source of a particular type of ochre most valued by Aboriginal people throughout Eastern Central Australia. Referring to McBryde's work, Sagona notes that, "[r]ed ochre from the Flinders Ranges was one of the prized resources exchanged in a far flung and highly organised network which brought pituri (a hallucinatory plant), axeheads, feathers, shields, wooden tools, boomerangs and spears into the Lake Eyre region." [37]

Flood also notes that Aboriginal people undertook long expeditions from as far as Western Queensland to procure the special, sacred, iridescent ochre mined in the Parachilna area. [38] In fact, the well-defined trade track from the mines to Western Queensland was termed by Tindale the "red ochre trade route" and indeed the tracks followed by Aboriginal people seeking to obtain ochre represented mythical routes. Sagona notes that the Eastern boundary of this trade network was the Darling River region of the Barkindji tribes, while the Western boundary was the Mulligan River district. Ochre from the mines was also traded as far as the territory of the Kaurna Aboriginal people in the Adelaide region. [39]

The ochre trading expeditions were not just single item, economic ventures. They were both networks between Aboriginal groups which involved the exchange of many goods, such as those already noted, as well as being of ritual significance both in themselves and in terms of some of the objects which were exchanged in the trading network. Ochre expeditions were accompanied by recognised ritual and protocol and were seen as fraught with perils and dangers. [40] As Sagona observes, "[j]ourneys were viewed as continuing the ancestral tradition of epic adventures and ... the goods acquired became symbols of the expeditions and were attributed great value .... " [41]

The proprietal rights of the traditional owners of the mine were well recognised and they apparently welcomed visiting Aboriginal groups, as long as the correct protocols for entering their tribal territory, requesting use of its resources and bartering for ochre by the appropriate method were followed. In the case of the ochre mines in the Parachilna region, this generally involved the visiting elders sending a message stick both as a token of good faith and tribal identification, as well as conveying their wish to barter for ochre.⁴² Despite these well-defined protocols, Sagona notes that this particular ochre was so highly valued that quarrels did break out in the Lake Eyre district over its trade or access to the mine. [43] Additionally, both the ochre mines at Parachilna and Wilgie Mia were disrupted by the intrusion of European mining activity around the turn of the century. [44]

Many of the foregoing observations are corroborated by Brock, who also refers to the origin myth of the Parachilna mines, as detailed in the following passage:

The invasion of Adnyamathanha territory [North Flinders Ranges and the plains to the east and west], had repercussions on other Aborigines, who valued the special resources of the Ranges, in particular, its high quality ochre. The ochre mines of Parachilna were valued by Aborigines as far north as South-Western Queensland, east into New South Wales, west to Oodnadatta and south of the Ranges. Ochre was of high quality with a distinctive sheen and was traded for a variety of products including pituri from Southern Queensland, green stone axes and flints, spears and decorated boomerangs. The ochre dust was collected and mixed with water or urine and formed into large cakes weighing around 30-40 kilograms with an indentation so they could be carried on the head on the return journey. The journey to the mines, which might cover hundreds of miles, had many purposes. As well as a trading expedition, it was a major ceremonial and religious event. The Aborigines followed the Dreaming track of two mythical dogs ... as they chased an emu ... along the western slopes of the Flinders Ranges and then east through the Ranges until they finally killed the emu at Parachilna. The emu's blood formed the highly valued ochre deposit. Initiation ceremonies were also performed on the ochre collecting expeditions. These expeditions were carefully negotiated ahead of time. As the expedition moved south, men from different communities joined it, but if all the negotiated conditions were not fulfilled, their path could be barred or other retribution sought. One such incident occurred in the late nineteenth century ... when the traditional owners surrounded the mine and attacked the ochre gatherers as they came out. [45]

Brock also cites various violent encounters between Aboriginal people on ochre expeditions and pastoralists, police and other Europeans. She notes that, "Aborigines from the north continued to collect ochre from the Parachilna mines well into the 20th century ... [and] local Aborigines threatened reprisals if the mines were taken over by whites." [46]

After a planned gathering of Aborigines at Brachina Gorge (about 20 kms south of the Bookartoo mine) to discuss this issue and a warning from the tribal leader that whites would be attacked if the mines were not protected, the South Australian Government in 1905 reserved an area around Parachilna from the operation of the Mining Act 1893 (SA). [47]

(c) Campbell Ranges, central Australia

This ochre mine was still being worked by the Warlpiri people in the mid-1980s. As Peterson and Lampert note, the underground deposit is a thick seam of "soft specular hematite" embedded between layers of bedrock. [48] A subterranean shaft connects two chambers from which the ochre has been mined. Peterson and Lampert estimate that about 300 tonnes of ochre have been removed, giving the mine an approximate antiquity of at least 5600 years. [49]

Whereas in the past, the ochre was extracted using long stone choppers, evidenced by their scattered distribution on the floor of the cave, in recent times it has been mined using small metal axes, hammers or metal digging sticks. Electric torches have replaced firelight inside the mine. [50] Another change is evidenced in the way ochre used to be carried away from the mine either in deep wooden dishes (ngami), also used for carrying water, or in temporary bark dishes, whereas today it is transported in flour or sugar bags and plastic buckets.⁵¹ Previously both men and women used to mine the ochre, but in more recent years, only men have entered the mine for the purposes of quarrying. [52] After excavation, the ochre was/is usually treated outside the entrance to the mine, being pulverised to a powder to retain the purest ochre, and then transported back to camp where it was mixed with water and made into a paste to be moulded into balls (kapardu) and wrapped in tea tree bark. [53] Thus, Aboriginal people continue to extract ochres according to their traditions and customs, though using different materials and methods in that extraction.

According to Peterson and Lampert, ochre from the Campbell Ranges mine is as widely exchanged now as it was in the past. [54] Several decades ago, it was exchanged for spears from the Ehrenberg Ranges to the south and to the north for boomerangs, shields, large mulga wood fighting spears and hair string. [55] The authors also note that ochre obtained from the mine by one group in the early 1970s was locally distributed to a range of relatives, with a tendency to emphasise close relatives in the wife's matriline, wives, sisters and the wife's father. Linguistic evidence suggests extensive links in the past with other Aboriginal groups as far as central and south Australia. [56]

The mythology associated with the mine is complex. It is believed that the ochre deposit was created by a Warlpiri man who stole ochre from an Alyawarra deposit and brought it west. The Alyawarra deposit was believed to be the congealed blood of a man who had been killed. On his journey home, the Warlpiri man stopped at two different places, leaving ochre behind before he reached the site of the present mine where he built a hut, placed ochre on the roof and then went hunting. He killed an eagle and a python, which he cooked and ate. He returned to the hut/mine site in the evening. Then two women arrived from the west and drank water from a small rock hole on top of the hill. The hill started to grow as it smelt the sweat of the women, the top rock fell down, and then a rain dreaming came from the west, passing over the mine site as it continued east and north. [57]

The mine lies at the intersection of several dreaming tracks, which makes the question of ownership of the mine somewhat complicated. The mine is situated on the border of two family estates and while it is clear that permission to use the mine has to be gained, it is unclear whether proprietal rights belong to one family or the other or both. [58] Although the potential for competition between the families for outright ownership rights to the mine exists, Peterson and Lampert point out that this is diminished because of the close relationships and obligations between the two family groups. [59]

(d) Toolumbunner near Mt Rowland, in the Gog Range, Tasmania is the site of an ochre mine consisting of Ordovician ferruginous sandstone, which contains about 30 per cent haematite. [60] Most ochre used by Tasmanian Aboriginal people was lateritic in origin and mined locally. Only very highly valued ochre regarded as having superior quality was obtained from more distant sources. [61] Such was the case with the ochre source at Toolumbunner, which had a highly prized, celebrated, almost reverential status in Tasmanian Aboriginal culture, due it seems more to its red colour than the substance itself. [62]

Tasmanian Aborigines used ochre for a variety of purposes. It was common practice among Tasmanian Aboriginal people to ritually decorate their bodies with red ochre, the precise type of ornamentation varying according to the particular occasion. [63] Some men used red ochre paste to rub into their hair or beards and, using a heated fire stick, coil it into clotted ringlets, somewhat like matted dreadlocks. The exact symbolic, cultural or social significance of this use of ochre is not known. [64] Flood describes how Tasmanian Aborigines used to rub their bodies with red ochre mixed with seal or muttonbird fat as a protection from the cold. [65]

Although its existence was previously known to European settlers, the Gog Range mine was first visited by a European in 1834. GA Robinson, the man appointed by Governor Arthur to attempt to conciliate with, protect and eventually gather the remnant Aboriginal population together, gave detailed descriptions of the mine as he witnessed its operations.

The Toolumbunner mine consisted of several long, open cut trenches where the ochre was mined by women levering out the red iron ore using a stone hammer and a stick chisel method. Robinson's account makes clear that ochre mining at Toolumbunner was the exclusive province of women, who would often have to squeeze themselves into narrow crevices to reach the red ochre. Flood notes that there were signs all around the site of strenuous mining, including heaps of stone, old workings and narrow holes. The women packed the ochre into kangaroo skin bags and carried off the heavy loads. [66]

Aboriginal tribal groups from throughout Northern and Eastern Tasmania are known to have visited the Toolumbunner ochre mine, mostly making use of locally available lithic resources to fashion stone implements to extract the ochre. It has been presumed that access to stone quarries was granted under the same terms as access to the ochre mine. [67]

Stone quarrying and mining

As with ochre mining, Aboriginal stone and rock quarrying occurred throughout Australia. A wide variety of minerals were exploited for varying uses. Particular types of stone and rock were sought after by Aboriginal people to manufacture a variety of tools, including axes, spear-heads, knives, grinding stones etc. These items were used as well as traded.

Aboriginal quarry sites are not necessarily immediately obvious to an untrained observer. Flood defines a quarry as:

a place where a source of raw material such as ... stone has been exploited, often consisting of pits and hollows where material has been dug out of the ground. Stone quarries are often identifiable by a dense scatter of broken stone, flakes, chips and roughly shaped artefacts or axe-blanks. [68]

She also outlines how the same stone tools and manufacturing techniques continued in Australia from the ice age to historic times, but points out that increased Aboriginal use of better raw materials, such as chert, spongolite and siliceous breccia, brought from quarries often quite far distant from home territories, improved the efficiency of stone tool manufacture and use. New raw materials were carried over long distances because of better flaking qualities. [69]

Archaeologists have recorded, documented and/or excavated hundreds of quarry and reduction sites throughout Australia. [70] Whereas a quarry, as noted above, is the location where the stone was/is extracted, a reduction site is the location where people manufactured the extracted stone into artefacts. These two activities may not necessarily have taken place at the same locality. [71] So for example, Hiscock and Mitchell provide figures which indicate the number of recorded quarries in Queensland, New South Wales and Victoria as being 404 and the number of reduction sites in the same states as being 2349. [72] Obviously, the total number of quarries and reduction sites for the whole of Australia is considerably more. Many of these quarries and reduction sites throughout the continent contain vast numbers of stone artefacts. Flood, giving just one example, points out that the West Point people of North West Tasmania manufactured thousands of stone tools. [73]

In the next part of this section, a closer examination is made of a limited number of quarry sites to illustrate the features outlined at the beginning of the section. One of the most significant quarry sites on the continent and one about which a considerable amount has been written lies on the south east slopes of Mt William near Lancefield in Victoria. Flood notes the evidence of intensive exploitation of rock outcrops in this area and points out that stone-working activity is found for over a kilometre along a ridge. [74] The stone is a volcanic greenstone, which has the hardness, toughness and fine grain needed to make heavy-duty stone axes with a ground edge.

Work at the quarry would have consisted of the stone being extracted and roughly trimmed into `blanks', that is, pieces of a convenient size and shape for making into axes. The final trimming of the axe and the grinding of the blade would have been done elsewhere because the sandstone and water needed for the grinding process was not found on Mt William. [75]

Aboriginal use of the Mt William axe quarry became known to the non-Aboriginal community through the work of the early anthropologist, AW Howitt, whose Aboriginal informant, Barak, witnessed the final operations of the mine in the mid-nineteenth century. The last man responsible for working the outcrops was Billi-billeri, who died in 1846. Mt William was the centre of a vast trade and exchange system. Aboriginal tribal groups came from more than 100 kms away to conduct negotiations for the exchange of goods. [76] For example, Flood notes that the axe stone from Mt William was traded for red spear shafts from the Swan Hill district on the Murray River, 300 kms away to the northwest. Mt. William stone was also exchanged for sandstone from the St. Kilda district of Melbourne, 160 kms to the south. [77] Rates of exchange are largely unknown, except that in the 1840s, one possum skin rug (sewn together from dozens of possum skins) was traded for three axe blanks, which gives an indication of the high value placed on the axe stone from the Mt William quarry. [78]

Howitt's own words give detailed insight into other features of ownership and use rights of the stone quarry. He notes that,

... there were places ... in which the whole tribe had an interest. Such a place was the "stone quarry" at Mt William near Lancefield, from which the material for making tomahawks was procured. The family proprietorship in this quarry had wide ramifications, including more than Wurunjerri people. ... But it was Billi-billeri, the head of the family whose country included the quarry, who lived on it, and took care of it for the whole of the Wurunjerri community. When he went away, his place was taken by the son of his sister ... when it may be assumed, like Billi-billeri, he occupied himself in splitting stones to supply demands. The enormous amount of broken stone lying about on this mountain shows that generations of the predecessors of Billi-billeri must have laboured at this work.

When neighbouring tribes wished for some stone they sent a messenger to Billi-billeri saying that they would send goods in exchange for it, for instance, such as skin rugs ... If, however, people came and took stone without leave, it caused trouble and perhaps a fight between Billi-billeri's people and them. [79]

Another important stone quarry site is described by Jones and White. [80] They discuss the manufacture and distribution of flaked stone points from Ngilipitji (Ngilibitji) quarry in the upper reaches of the Walker River in Eastern Arnhem Land in the Northern Territory. These flaked stone points were/are used by Aboriginal people in making spears for hunting game as well as in warfare and homicide. [81] More recently, they have also become a craft item for sale. [82] The first non-Aboriginal person to visit the quarry was the anthropologist Donald Thomson in the 1930s. He is cited by Jones and White as being impressed by the aura of the importance of the site. [83]

Thomson argues that these flint spearheads are central to an extensive trade network covering Eastern Arnhem Land and beyond, and notes that, "[t]he traded objects were called gerri - meaning valuables or wealth." [84] Items traded in this network included, among other things, boomerangs, yam slicers, hafted adzes, woven headbands, woomeras, smoking pipes, tobacco, bottle glass, iron axes, shovel-nosed spears, emu-feather fly whisks, ceremonial string, fire sticks and pandanus fibre dilly bags. [85]

The stone spears derived from Ngilipitji quarry are not merely of functional and exchange value, but also have significance in the ceremonial life of the area. They are associated in myth with the Wawilak sisters, who rank among the ancestral beings of Arnhem Land who instituted various religious rituals and ceremonies. Thompson notes that, "[i]t is the connection of these beings with the quarries that is said to give the stone its special properties and to imbue the place with its major spiritual significance." [86]

Small stones, "baby stones", are put back into the earth to grow. As the Aboriginal custodians state: "The stone grows as all things grow: men, animals, everything"; and "My spirit is one with that of the stone"; and "No-one must steal the stone. My spirit would be robbed." Special protocols are followed when manufacturing the stone to make the points in order to avoid being cut. In addition, the stone point is licked before being thrown in order to make it sharper and thus penetrate its victim more easily.

In an article summarising the geological sources of stone used by Aboriginal people for manufacturing artefacts located by archaeologists in the 750 km north-south extending narrow coastal Perth Basin, Glover discusses the interaction of geology and prehistory in attempting to ascertain the geological provenance of stone artefacts found in the basin, possible prehistoric trade routes and changes in types of stone usage over long periods of time.

Glover notes that stone suitable for tool-making was relatively abundant in the northern part of the Perth Basin, but had to be brought in to the south and central parts because of the scarcity of locally suitable material. He observes that many of the stone types used by Aboriginal people for making artefacts, eg quartzite, quartz, mylonite, dolerite, granite and non-fossiliferous chert, came from the ancient rocks on the Precambrian shield to the east of the Perth Basin. [87]

But a problem is encountered in attempting to locate the source of fossiliferous chert, one of the most abundant types of stone used in the making of pre-historical artefacts found in the Perth Basin. This particular stone was especially useful as a raw material in producing cutting tools.

Taking account of a number of considerations, Glover postulates that these artefacts came from a number of different quarries located in a north-south belt parallelling the Perth Basin and were most likely carried latitudinally eastward to their present locations. The evidence he provides suggests that this fossiliferous chert was quarried from a belt of Eocene strata which crops out west of the present coastline and was exploited by Aboriginal people for tool making for over 30,000 years before it was inundated by rising sea levels which attained their present level about 6,500 years BP.

After the unavailability of the submerged chert quarries for raw material, Aboriginal people re-used already quarried material or used chert nodules washed ashore. By 4,500 BP, Glover notes that chert from the west ceased generally to be used and Aboriginal people continued to use other available raw material. [88] Glover mentions a number of these other rocks and stone, including quartzite which was used for large and small tools; dolerite, used for grinding stones and for flakes; granite also used for grinding stones; and mylonite used for flakes. [89] He also refers to the Northcliffe quarry, excavated by Dortch, which penetrates soil and sand in an area of silcrete outcrop and which was quarried by prehistoric Aboriginal people for manufacturing flake artefacts. [90]

In an article on Aboriginal quarrying techniques in the south east Kimberley of Western Australia, Akerman draws attention to a number of interesting and relevant issues relating not only to the particular techniques used to obtain the lithic materials, but also to processing the stone and trading the finished products. [91] He outlines how Aboriginal people used heat, including the technique of lighting fires on rock platforms, to separate the sandstone/quartzite (gimbu) from its bedrock. [92]

Akerman focuses on the manufacture of large, finely flaked biface points made from a white chert, and notes that the stone " ... has a particularly noticeable greasy lustre and extremely smooth opalescent texture". [93] He surmises that the point specimens he examines are of relatively recent manufacture because they were collected from living people whom, he assumes, would be well acquainted with the associated quarry sites from which the stone was derived. Such indeed was the case. Quarry sites for white chert were well known by Aboriginal people in the region. One elderly Kidja man described to Akerman how chert was obtained from the quarry sites and then how large biface blanks, cores, primary flakes and chunks of the material were heat-treated in a specially excavated pit over a three-day period. This procedure made the big cores and blocks easier to split and flake into the desired points. [94] Akerman was presented with seven stone flakes from a white chert (yelka) quarry located on Nicholson Station, east of Halls Creek, adjacent to the Northern Territory border. He states that this particular quarry is known throughout the Eastern Kimberley region. [95]

Akerman makes the observation that most of the points which he observed to have been heat treated are larger than the typical Kimberley biface points and that these large points

... were prized as beautiful objects, and were given as prestigious gifts in wunan exchanges. To the areas east,
southeast and southwest of the Kimberley bloc, these blades were especially valuable trade items, often used as sorcery objects ... and as ceremonial knives ... large glass or stone points command prices of $50 around Alice Springs, being still sought after for use in rain-making rituals ... Only especially skilled men were capable of producing these points and I believe the knowledge techniques of thermal alteration were restricted to them. [96]

In Akerman's view, the demand for and prestige accorded to the large points is based on their `mystical character' and `aesthetic qualities' rather than on their functional role as implements. [97] He also observes that the annealing (heat treatment) process in the South Eastern Kimberley region is relatively recent and local in origin. He concludes with the further observation that because the process for manufacturing these long thin points for exchange on the traditional wunan trade route was known and used only by a small number of master craftsmen, they were able to control the marketing of these particular spearheads. [98] The number of such skilled stone tool makers has decreased dramatically in recent times and the points which they manufactured have been replaced by more easily made glass points, produced for the tourist trade. [99]

McBryde describes a variety of quarry sites on the tablelands of New England in New South Wales, including the "spectacular quarry site at Moore Creek", north of Tamworth, the largest quarry in the region, as well as a number of smaller sites based on isolated outcrops. [100] The impressive Moore Creek site is located on the crest of a ridge, consisting of an approximately 300 metre long outcrop of andesitic greywacke, with some radiolarian cherts. McBryde notes that the site has been extensively quarried, "resulting in a deep scatter of broken rock, flakes, and roughed-out pieces on both sides of a deep trough." [101] She states that petrological analysis of surface material taken from the site indicates "a wide geographical distribution for the products of this quarry, some travelling as far as the Darling River in Western New South Wales." [102]

McBryde also describes another extensive quarry site at Graman, on the western slopes of the New England tablelands. This consists of outcrops of quartzite in a narrow gully. She notes that,

... these have been quarried to gain stone for tool making; the area for several hundred yards is covered with a deep scatter of quartzite flakes and cores, together with very large roughly worked spherical pieces of quartzite from which smaller lumps have been have been struck to form the cores for working. Some finished artefacts, large flakes, scrapers, were also noticed. There were as well cores, flakes and retouched artefacts in the common opal which occurs in the gully. [103]

Byrne examines archaeological sites surrounding a silcrete quarry covering approximately 27 hectares situated on the lower slopes of Pillawarra Hill, an outlier of the steep scarp which forms the edge of the plateau where it meets the sandplain in the general vicinity of the lower Murchison River valley in Western Australia. [104] Silcrete was used by Aboriginal people for making flaked stone artefacts. As a raw material for stone tools, silcrete ("... composed mainly of quartz grains in a very finely divided siliceous matrix") [105] was preferred as a raw material for making stone tools to chert and quartz, sources for which existed in relative abundance in the general area. Silcrete from the quarry was dispersed up to a radius of at least 27 kms from the site by mobile individual and/or groups of Aboriginal people. Cores extracted from the quarry constituted portable sources of the raw material.

Reference to trade in ochre and other resources and artefacts has previously been made. Trade routes across Australia were part of a complex social and economic network. A number of the archaeological sites from the last 1000 years provide revealing evidence of Aboriginal religious life, ceremonial exchange and trading networks. [106] As Flood states, there existed a:

... far-flung Aboriginal network of exchange based on social and ritual needs as well as utilitarian requirements and the laws of supply and demand ... Not just artefacts were exchanged, but also raw materials such as ochre and spinifex gum etc axe stone from quarry sites was a utilitarian item that was traded great distances. In South Eastern Australia, axes have been shown to have been traded 600 to 700 kms from their source, some as far as 800 kms. [107]

Sand and Quartz

It is relevant to include a brief reference to sand and quartz mining to indicate not only the variety of minerals exploited by Aboriginal Australians, but also the variety of traditional uses for minerals. As the following brief account illustrates, minerals were used to meet the cultural, aesthetic, and spiritual needs of Aboriginal peoples.

Aboriginal use of sand provided a medium through which ritual drawings could be made and symbolic associations represented. Even though these sand drawings were temporary in nature, particularly good sandy clearings were valued for the opportunity they afforded to create these drawings at appropriate ritual times.

The Berndts note that sand or ground drawings were/are mainly found in Central Australia, though they also occurred elsewhere. [108] They write that,

[t]hey are made by smoothing out a piece of ground, hardened and dampened with water, and covering it with a layer of red or yellow ochre, or both, on which white and black are superimposed. The design is marked out first, then sprinkled with blood; and upon this white and red feathered down is arranged ... . They have mythical and ritual significance: one such design may represent the country and travels of a particular being. Apart from the ground drawings as such, there are others which are simply marked out on the ground ... Mountford mentions children's drawings on sand at Yirrkalla ... and Barrett and Croll note some for the Wessels. [109]

Another type of mineral which was obtained and valued by Aboriginal people was quartz crystals. There are not many sources of information on where or how this particular mineral was obtained. But in the following quotation from Howitt, it is interesting to note both the use made of quartz crystals and what they were replaced with after contact. Howitt observes that, "... quartz crystals are always, in many parts of Australia, carried as part of the stock in trade of the medicine-man, and are usually carefully concealed from sight ... Since the advent of white men pieces of broken bottle have taken the place of quartz crystals." [110]

Summary

The anthropological and archaeological evidence of traditional Indigenous mining practices establishes several important points. First, it highlights the significant continuing spiritual connection which many Indigenous people have with the subsurface of the land. The spiritual connection determines who has a `proprietary' interest in mineral resources. This interest allows the holder to regulate who may extract minerals and how this may be done. The spiritual connection is also reflected in some of the uses of the minerals. Moreover, the case studies demonstrate the way in which this connection has been maintained in a flexible form incorporating changes in the methods of extraction.

Second, the case studies demonstrate that mining activity among Aboriginal peoples was widespread. Moreover, a considerable variety of minerals were and are used by Aboriginal peoples for a variety of purposes, to meet subsistence needs, for trade with other groups, for cultural purposes, and for spiritual and medicinal purposes.

Third, the material, while providing ample evidence of the use of minerals for subsistence purposes, also demonstrates significant trade in mineral resources. The case studies demonstrate that this trade was/is regulated by rituals and protocols arising from the spiritual nature of the connection with the mineral resource, and occurs over vast distances. Minerals such as ochre can be highly valued for both spiritual and material reasons and the rates and methods of exchange reflect this.

Finally, the evidence provides support for the argument that Indigenous use of the land was/is full use for contemporary purposes, and that the onus should therefore be on the Crown to prove that specific rights have been extinguished.

III. The Existence of Native Title Rights in Minerals

Establishing Native Title in the Land

The foundation of native title is the ongoing acknowledgment of traditional law and the observance of traditional customs. [111] Thus to establish native title, a claimant group must establish that they hold a continuing connection to, occupancy of, or right to use and occupy the land subject to the claim. [112]

The common law recognises and protects native title, but does not define it. [113] As the essential philosophical basis of the common law is anglocentric, interpreting Aboriginal interests through this frame may distort the nature of these interests and perpetuate the colonisation process. Justice Brennan acknowledges this, and notes, "it would be wrong [by importing and applying inappropriate definitions of property] ... to deny that the Indigenous people owned their land." [114] Instead, the connection with the land, its use and occupation, is defined in terms which are meaningful from the perspective of the claimant group. [115] The Court asks whether rights and interests exist which are "possessed under the traditional laws acknowledged by and the traditional customs observed by the Indigenous inhabitants." [116] This is not to suggest that definitions of property are inappropriate or should not be applied per se, rather that inappropriate definitions which derive from a particular socio-legal perception of reality should not be used in a way which would distort the nature of the interests in issue.

The content of native title in a specific claim is determined by reference to a claimant group's traditional laws and customs acknowledged and observed in relation to the land. The nature and incidents of this title are questions of fact to be ascertained by evidence of that particular group's traditions, laws and customs. [117] The scope of native title is therefore necessarily variable. Although one general statement which can be made is that these laws and customs do not generally allow for alienation of the interest in the land. Where this is the case native title will be inalienable at common law. [118]

The nature of native title may be proprietary or usufructuary. [119] The broadest form of native title is analogous to the fee simple estate. [120] Justice Brennan recognises the ability of an Aboriginal community to effectively assert "that none but its members has any right to occupy or use the land." [121] Justice Brennan makes this statement in the course of an argument establishing the nature of native title as a proprietary interest. He states that, "[t]he ownership of land within a territory in the exclusive occupation of a people must be vested in that people: land is susceptible of ownership, and there are no other owners." [122]

This argument recognises that "traditional proprietary community title" could inhere in a group even if the individual members of the community enjoy only "usufructuary rights which are not proprietary in nature." [123] Individual non-proprietary title may be derived from the community's "laws and customs and [is] dependent on the community title." [124] Furthermore, Justice Brennan holds that if traditional community title is capable of being recognised by the common law of Australia then it must also be possible to hold individual native title interests which are proprietary in nature. [125]

Narrower rights may be held exclusively by, or shared among, Aboriginal groups. [126] The narrowest right is the right to cross over the land; which is analogous to an easement. [127] In between the traditional proprietary community title and the narrow right to cross over the land, is the right to what Justice Lee in North Ganalanja Aboriginal Corp v Qld referred to as interests in land which are for "usufructuary or cultural purposes." [128] The usufructuary rights of hunting, fishing and gathering are analogous to profits a pendre. [129] Justice Toohey stresses the fact that the traditional right claimed may even be legitimately vague, so long as "reasonably coherent rights and duties were exercised ... ." [130]

It is difficult to define the concepts of occupancy, possession and use as they are employed in Mabo No 2. Justice Brennan refers to exclusive possession as being a community's right to effectively assert "that none but its members has any right to occupy or use the land", [131] Justices Deane and Gaudron articulate "an entitlement to occupy or use" [132] which can amount to "full ownership", [133] and Justice Toohey refers to "presence amounting to occupancy" which is not precluded by a nomadic lifestyle. [134]

In each case the rights incident to native title are determined as a matter of fact by reference to the traditional laws and customs acknowledged and observed by the Indigenous group. [135] As a matter of fact, the laws and customs of any particular Indigenous group may amount to, or include, the right to exclude all others from the land, that is, exclusive occupancy rights. These rights are analogous to freehold title. An incident of the rights of exclusive occupancy could be the ability to grant conditional access to another group, analogous to the right to grant a revocable licence. The essence of exclusive occupancy is therefore not permanent presence upon, or use of, a particular piece of land, nor the absence of other occupiers or users, but the right of the native title holder to exclude all others from that land.

There are thus two distinct situations in which mineral rights could be posited as incidents of native title. The first situation is where an Aboriginal community has established its right to effectively assert that "none but its members has any right to occupy or use the land", ie, exclusive occupancy. [136] The second is where the traditions of the claimants and their use of the land in the way they treat minerals is analogous to a claim to harvest fish, wildlife, plants or other resources of the land. [137]

Establishing native title in the minerals

The use argument

Establishing Existence of the Custom

This essay proceeds on the basis that a claim for exclusive occupancy has been established, resulting in the recognition of native title. The analysis is not, however, different from a claim based on traditional use of an area rather than the occupancy of the area. Whether rights in minerals may be an incident of this native title claim is a question of fact to be ascertained by evidence of the laws and customs acknowledged and observed by the claimant group. [138] If there is evidence that a people removed minerals from the ground and used those minerals in their daily lives, then it is clearly arguable that this is a customary use sufficient to establish a valid claim to mineral rights. [139] Michael Hunt, perhaps Australia's most prominent mining industry commentator, argues that even accepting this argument, native title rights cannot include rights to minerals because there is virtually no evidence of any Aboriginal groups conducting mining operations. [140] Hunt observes that he "is aware of only one instance of an Aboriginal community ever having carried on mining - except, of course for the making of tools and artefacts and of digging of small quantities of minerals for use in ceremonial paints." [141]

However, as evidenced earlier in this essay, it is well established by anthropologists and archaeologists that Aboriginal peoples have been significantly involved in mining activities. [142] Moreover, the Geological Survey of Western Australia notes, in an Overview of Minerals and Energy in Western Australia that, "[m]ining in Western Australia probably commenced some 40,000 years ago when the Aborigines first arrived here and began quarrying stone for use as tools and weapons, and ochre for decorative use." [143]

Clearly, part of the issue in this debate is one of differing perspectives, resulting from both personal standpoints and professional backgrounds, as to what constitutes sufficient evidence of mining amounting to customary use. The argument against the sufficiency of the evidence seems to be partially based on the scale of the mining. This would obviously have been affected by the technology available to the Indigenous people which did not allow for large scale mining. However, surely the first point of inquiry, when establishing the content of native title by evidence of the facts, is not whether Aboriginal peoples conducted activities which resembled what non-Indigenous people think of as "mining" today, but whether a claimant group had access to and used minerals in a way which is consistent with their traditional laws and customs. It is a right in minerals which is sought to be established, not congruence with western mining methods, and Aboriginal peoples are known to have used and traded ochres, flint, and other minerals for decoration, painting and tool making. This removal of rock and other minerals from the ground can be defined as mining, as a use evidencing observed custom, despite the absence of advanced technology to accomplish that removal on a scale comparable with non-Indigenous mining activity.

Evolution of Custom

Assuming then that a claimant group has established customary removal and use of minerals, a question then arises as to whether the custom is in a form recognisable by the common law. Such recognition requires both that the Aboriginal law in question be flexible enough to permit the custom to change with time and that the common law be flexible enough to recognise this development. In relation to the common law, one argument advanced is that the laws, customs, and usages must remain in the form that they were in at the time of assertion of sovereignty. [144] However, Justices Deane and Gaudron make clear, the traditional law or custom, which evidence of use is put to establish, "is not ... frozen as at the moment of establishment of a colony." [145] Justice Brennan makes the same point in the following words, "[i]t is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connection between the Indigenous people and the land remains." [146]

That the content of native title may change and mature seems to be fairly readily accepted by commentators [147] and the highest courts of Canada and the US. However, it is disputed in one sense by Hunt. He argues that Justices Deane and Gaudron were not discussing the content of native title, rather "a different point, namely whether changes in use extinguish native title." [148] While this is an interesting distinction, the comments were made in the course of discussion of how the content of native title is to be identified. Furthermore, the majority judges employed a broad interpretive approach, beneficial in its application to Indigenous Australians, the validity and durability of which is supported by the equivalent North American jurisprudence. [149] The comments made by Justice Brennan do not focus on the outward appearance of the custom but rather the "... general nature of the connection between the Indigenous people and the land... ." [150] As such, it is submitted that the comments establish the necessarily flexible content of native title and do not relate to extinguishment.

What methods of mining may be invoked to establish a right to minerals

While it may be accepted that the laws and customs of the claimant group may change and mature, it remains to be established what this actually means. The courts have not specifically dealt with which methods of mining may be invoked to establish a right in minerals. However, overseas courts have looked at the issue of method, or "technology", in the context of the right to hunt, gather and fish. These cases establish that what the group holds is a right to hunt, a right to gather, or a right to fish, not a right to hunt by using particular methods. [151] By analogy, the right to take minerals would be exactly that, and not the right to take minerals by using a particular method. Therefore, the methods of extraction which may be included as evidence of a custom which would enable a court to find that mineral rights are an incident of native title is not unduly constrained by the common law.

In the Canadian case of Simon v The Queen the Court considered whether an Aboriginal right to hunt could be exercised by use of a shot gun. Dickson CJC, delivering the judgment of the Court, held that to limit Aboriginal rights to the methods of hunting in use at the time that the treaty was signed (the time of settlement), "would place upon the ability of the Micmac to hunt an unnecessary and artificial constraint ... ." [152] The case of R v Sparrow further establishes that fishing rights, "must be interpreted flexibly so as to permit their evolution over time ... [and be] affirmed in a contemporary form rather than in their primeval simplicity and vigour." [153] The Court also notes that, "it would be artificial to try to create a hard distinction between the right to fish and the particular manner in which that right is exercised." [154]

A similar approach has been taken in the US in dealing with Indigenous rights under treaty. United States v Michigan stands as authority for the proposition that:

[t]he Indian's right to fish, like the Aboriginal use of the fishery on which it is based, is not a static right. The reserved fishing right is not affected by passage of time or changing conditions. The right is not limited as to ... manner of takings. The right may be exercised utilising improvements in fishing techniques, methods and gear. [155]

These statements of the North American courts are clearly consistent with the tenor of those in Mabo
[No. 2] and can be applied by analogy to any evidence which may be brought to establish a right to take minerals. They indicate that the content of Aboriginal rights should not be limited to the exact form and methods of use of land contemporaneous with the time of settlement. The technology used to exercise rights is irrelevant to the question at issue. Thus, while traditional methods of accessing minerals would clearly fall within any established right, it is arguably open to a court to hold that methods which implement modern capabilities may also be acceptable. [156]

The extent of claimable mineral rights

Assuming that the claimant group can establish traditional use, and that a court follows existing authority and decides that the method of use is not an issue, two subsidiary issues are presented to determine the extent of any claimable mineral rights. The first of these issues is whether a native title right in minerals is limited to those minerals traditionally used by a people or whether, once a right to mine is established, this is sufficient to encompass all minerals, regardless of whether they were used in a traditional manner. The second subsidiary issue is whether a native title right to minerals is limited to subsistence uses of the minerals or whether the right may extend to commercial use.

Traditional minerals or all minerals?

As outlined above, in Mabo No. 2 the Court recognises that Indigenous law and custom is not static but may change and mature over time. As Justice Brennan observes, the common law can continue to recognise and protect evolving customs, " ... provided the general nature of the connexion between the Indigenous people and the land remains." [157] Arguably, the principle applies both to the situation where the method of taking changes over time and where what is being taken changes over time.

An example of this would arise where an Indigenous group has extracted minerals, either for its own use or for trade with another Indigenous group, in accordance with its laws and customs. If upon settlement of Australia the Indigenous group discovers that a mineral which they have both access to and the knowledge to exploit is considered valuable by the settlers, it is arguable the group would be entitled to employ this access and knowledge in accordance with its laws and customs, to obtain that mineral without abandoning, or being deemed to have abandoned, their native title rights.

As stated, this principle would be consistent with the notion of custom being flexible over time. It is also consistent with the interpretive method employed by the courts. As well as interpreting the rights liberally, the Australian courts have stated that they will take a beneficial approach to the interpretation of native title rights and interests. Support for the efficacy of this interpretive approach is evidenced in North American jurisprudence which again emphasises the remedial nature of native title. [158]

North American jurisprudence has developed a number of principles to be applied when interpreting treaties which are derived from the, "different legal conceptions brought to the negotiating table by the Indians and the white negotiators." [159] It is important to note that the treaties in question reserve pre-existing Aboriginal rights, recognised by the common law, to the Indian Tribes and First Nations. The contents of these rights are to be determined as a matter of fact in each case as evidenced by Indian or Aboriginal law. As such, the principles are arguably, equally applicable in the Australian context because of the need to give full recognition and scope to the Indigenous laws and customs which are protected by the common law. [160] Without such principles, there is a greater danger of denying and distorting the nature of Indigenous property rights. The overriding and summarising principle is that "treaties are to be liberally construed in favour of the Indians, an approach which allows the incorporation of the Indigenous parties practical understanding of the treaty's terms to resolve any questions of meaning." [161] This is applicable by analogy to the exploration of the content of native title in the Australian context, and supports the interpretive approach of our courts.

As the content of native title is defined by reference to the traditional laws and customs of the claimant group, a degree of cultural relativity is needed in assessing whether a particular activity constitutes part of native title. [162] It can be argued that any people extracted the type of minerals and used them in the way which was fully consistent with the needs of their life at that time. The laws and customs of Indigenous Australians currently exist in a different context. This context includes knowledge that other minerals exist and can be extracted, and the present possession of the technology to extract them.

Indigenous Australians, with their cultures and laws, live in a modern industrialised nation. Obviously, the degree to which and the way in which particular Indigenous groups choose to participate, or have the opportunity to participate in this society vary greatly. However, the point remains that pre-colonisation Indigenous Australians used particular minerals in the way then best suited to maintaining and developing their cultures. Given these purposes and that it is allowable for customs to change and mature, it is clearly arguable that rights may inhere in the wider range of minerals which can now be accessed by a native title holder.

Subsistence v Commercial Rights

Subsistence

The second sub-issue relating to the extent of the claimable rights accruing under native title, is whether the native title right to minerals is limited to subsistence uses of the minerals or whether the right may include commercial interests. Arguably, the question is one of fact to be established by evidence of the traditional practices of the claimant group.

A restrictive interpretation of a subsistence right to minerals would include the construction of materials such as tools and weapons used to sustain the physical life of the community, and the use of minerals to sustain the community's spiritual and cultural practices in their contemporary form. However, a key notion within the concept of subsistence is that of maintenance and continuing existence. Thus an interpretation of subsistence rights which required stasis and denied the element of change which enables the continuing existence of the right into the future would be in opposition to the notions central to the concept of subsistence.

A broader interpretation of subsistence rights may be posited. This encompasses the right to sell the minerals to obtain the revenue necessary to achieve subsistence objectives within the context of the present day, that is to sustain the physical, spiritual and cultural life of the community in its contemporary form. [163]

The interpretive methods embraced by the courts provide two bases of support for the broader interpretation of subsistence rights. First, the principle that the "traditional law or custom is not ... frozen as at the moment of establishment of the colony" [164] suggests that the rights must be given effect in their contemporary form. The societal context in which these traditional land use practices have developed, and the pressures exerted by the broader Australian society facilitate the argument that the scope of the subsistence right should be interpreted broadly. The second and more fundamental basis of support is the principle which requires according a full measure of respect to, and giving full effect to native title rights. [165] The direction of the courts to "fully respect" native title rights arguably impels a broad interpretation of what is included in the notion of subsistence. [165]

Commercial Rights

Anthropological and historical studies demonstrate that Indigenous Australians traded goods, including minerals, in significant volumes and over vast distances. Trade and barter was carried out according to custom with recognised means and rates of exchange. [167] The question for present purposes is whether the common law will recognise this aspect of Indigenous law and custom as giving rise to a commercial interest in the minerals. There is very little commentary and no Australian case law directly on point. However, the North American courts have touched on the issue of whether hunting and fishing rights include the right to commercial exploitation.

These cases are arguably distinguishable on the grounds that they deal with native title rights over migratory (wildlife and fisheries) resources, which are in some cases exerciseable in common with a non-native title right over the same resource. However, the question at issue in this element of the discussion is not primarily whether commercial rights may accrue in relation to fish (or minerals for that matter) but whether trade carried on in observance of traditional law and custom may give rise to a commercial right as an incident of native title.

In the United States v Washington litigation series, the courts interpret a treaty provision which reserves the right to take fish "in common with all citizens of the territory" to the Tribes. In this thoroughly researched litigation, it was demonstrated and accepted that when the treaties were negotiated, "[t]hese fish were vital to the Indian diet, played an important role in their religious life, and constituted a major element of their trade and economy." [168] This was acknowledged by those negotiating the treaties; indeed the Indians supplied most of their fish. [169] In negotiating the treaties, it is well established that the Indians were reserving rights to themselves and granting rights to the settlers; they were not receiving grants. It is acknowledged that an essential element of what they were negotiating for was "the right to continue fishing as they had always done ...", [170] "and that the settlers would not qualify, restrict or interfere with their right to take fish." [171] This was well understood by the white negotiators and repeatedly emphasised by the Territorial Governor. Governor Stevens promised "[t]hat the treaties would protect the source of food and commerce", a promise which was crucial to obtaining the Indians' consent. [172]

Implicit in these judgments is the acknowledgment that the Indians' right to fish, which was protected but not created by treaty, includes the right to fish for commercial purposes. This right is conceived of as derived from the practices of the Indians in engaging in "sale and trade beyond the local community and sometimes over great distances." [173]

This right to fish for commercial purposes is not challenged in the cases and is seen as intrinsic to the integrity of the right as a whole. For example, the US District Court in United States v Washington [174] notes that, "the Indian cultural identification with fishing is primarily dietary, related to the subsistence fishery, and secondarily associated with religious ceremonies and commercial fishing. Indian commercial fishermen share the same economic motivation as non-Indian commercial fishermen to maximise their harvest and fishing opportunities." [175]

The right to fish for religious and subsistence purposes was acknowledged to be so important that it could not be restricted at all, while the right to commercial fishing was subject to the provision that Indians could fish "in common with all other citizens." This provision has been interpreted as meaning that environmental regulations for the preservation of the very resource which is the subject of the treaty could apply to restrict this right, but that no other regulations could legitimately do so. [176]

Thus sale, barter and trade of this wildlife resource in pre-treaty times lead to a right which is protected in present day law, which includes a right to fish for commercial purposes. Arguably, where Indigenous Australians have engaged in extensive trade, that is a fact giving rise to a right to exploit minerals resources for commercial purposes.

R v Van der Peet

In August 1996 the Supreme Court of Canada handed down a trilogy of cases on the scope and extent of native title. Consistently with Justice Brennan's comments in Mabo [No. 2], [171] the cases emphasise that "the existence of an Aboriginal right will depend entirely on the traditions, customs and practices of the particular Aboriginal group claiming the right. [And that] their scope and content must be determined on a case by case basis". [178] The full reasoning of the judges is set out in R v Van der Peet [179] and applied in R v Gladstone [180] and R v NTC Smokehouse. [181]

In each of these cases, as in R v Sparrow, [182] a non-treaty Aboriginal right was raised as a defence to a prosecution for breach of conditions of an Indian food fish licence, that prohibited the exchange of, or attempt to exchange, fish resources for money. [183] Dorothy Van der Peet, a member of the Sto:lo band, was charged with selling ten salmon caught by her spouse; NTC Smokehouse was charged with purchasing and selling approximately 119,000 pounds of salmon (harvested over 2-3 days) which it purchased from eighty members of the Sheshalt and Opetchesaht bands; and in Gladstone, members of the Heiltsuk band sold and attempted to sell roughly 450 pounds of herring spawn on kelp, harvested under licence.

Section 35 of the Canadian Constitution recognises and protects existing Aboriginal rights. Following
R v Sparrow,¹⁸⁴ Chief Justice Lamer for the majority held that Aboriginal rights (and thus s. 35) should be given a "generous and liberal interpretation in favour of Aboriginal peoples" with "any doubt or ambiguity" to be resolved in their favour. [185] While this approach springs partially from the need for a constitution to be a living text, the majority's focus recognises that this process of definition involves a process of reconciling the pre-existence of Aboriginal societies, which "mandates their special legal status", with the acquisition of sovereignty by the Canadian Crown. [186]

Having established the fundamental rationale for the discussion of Aboriginal rights, the majority holds that for an activity to be identified as an Aboriginal right it "must be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right." [187] Applying this test, the Chief Justice states that the court must be "sensitive to the Aboriginal perspective", with the caution that " ... [this] perspective must be framed in terms cognizable to the Canadian legal and constitutional structure." [188] This is reminiscent of Justice Brennan's opinion in Mabo [No. 2] that the content of native title should be viewed from the perspective of the claimant group and broadly but without fracturing the "skeletal principle which gives the body of our law its shape and internal consistency". [189]

As to the nature of the claim, the majority holds that the activity must be:

* delineated in terms of the Aboriginal community's traditions, customs or practices themselves; * considered at a general rather than a specific level; and * taken in its modern form. [190]

The more specifically the claim is delineated, the harder it is to prove that the activity is relevantly integral. The majority also require that the practice, tradition or custom be "a defining and central attribute of a society" today so that a present culture would be "fundamentally altered" if the practice were not there. [191] Evolution and interruption of practices, customs and traditions is permitted by the majority provided that there is continuity with pre-contact practices, customs, and traditions. [192] Chief Justice Lamer finds support from Justice Brennan in Mabo [No. 2] for the need for continuity with pre-contact customs. Justice Brennan notes that, " ... when the tide of history has washed away any real acknowledgment of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition." [193]

Importantly, the Van der Peet majority holds that the practice, custom or tradition must be "independently significant to the Aboriginal community claiming the right." Thus under this analysis, a custom which is categorised as incidental to an integral custom will not support an Aboriginal right. [194] The Aboriginal group must also prove that the custom in question "makes the culture what it is", that it is an element of a distinctive, though not necessarily distinct culture. [195] The majority holds that as the nature of the custom is determined relative to the Aboriginal culture itself and not in relation to European culture, the fact that a custom which existed prior to contact has adapted to in response to that contact does not weaken the claim. If, however, the custom "arose solely as a response to European influences" it will not be recognised by the Canadian courts as an Aboriginal right. [196]

Finally, the majority notes that "[i]n considering whether a claim to an Aboriginal right has been made out, courts must look at both relationship of an Aboriginal claimant to the land and at the practices, customs and traditions arising from the claimant's distinctive society" without over-emphasising one or the other. [197]

The majority characterises the activity at issue in all these cases as the exchange of fish for money or for other goods, and asks whether this activity is an integral part of a distinctive culture. [198] Different results were reached in the three cases before the Canadian Court.

In Van der Peet, the Court considers that although there were some exchanges of salmon prior to contact, they took place only with surplus left after food and ceremonial purposes had been satisfied, and were "primarily linked to the kinship and family relationships on which Sto:lo society was based." [199] Moreover, the majority notes the absence of storage techniques, the fact that harvesting was not a specialised activity, and the "casual" and "opportunistic" nature of the exchanges. Exchange did not occur in any regularised or marketed manner and was not the primary purpose of harvesting the fish. Thus the Court holds that, as a matter of fact, the exchange of fish for money or other goods is not an integral part of a distinctive Sto:lo culture. [200]

In the case of R v Gladstone, the evidence showed that, prior to European contact, there was an "extensive trade in herring spawn among native groups along the coast." Tons of spawn were processed, packaged and transported in canoes. These activities were held to be integral to the distinctive culture of the Heiltsuk band whose current activities were in significant part based upon pre-contract trade. [201]

The majority emphasises that the difference between this case and the Van der Peet and NTC Smokehouse cases, "lies in the fact that for the Heiltsuk Band trading in herring spawn on kelp was not an activity taking place as an incident to the social and ceremonial activities of the community; rather, trading in herring spawn on kelp was, in itself, a central and significant feature of Heiltsuk society." As such it holds that "the band had demonstrated an Aboriginal right to sell [the spawn] to an extent best described as commercial." [202]

The Van der Peet Dissent

Both of the dissenting justices in Van der Peet (one of whom would have held that the appellant possessed a commercial native title right) raise considerable concern with the test for commercial rights articulated by the majority. Justice L'Heureux-Dubé notes that the term "distinctive culture" used in Sparrow is misconstrued and confused by the majority with the concept of a "distinct culture." [203] She notes that, "[w]hile `distinct' mandates comparison and evaluation from a separate vantage point, `distinctive' requires the object [right asserted] to be observed on its own." [204] There is, in Justice L'Heureux-Dubé's view, no requirement for Aboriginal rights to be different from rights held by those in the non-Indigenous community [205] She continues that, " ... holding what is common to both Aboriginal and non-Aboriginal cultures must necessarily be non-Aboriginal for the purpose of s. 35(1) is ... an overly majoritarian approach ... diametrically opposed to the view propounded in Sparrow ... that the interpretation of Aboriginal rights be informed by the fiduciary responsibility of the Crown vis-a-vis Aboriginal people as well as by the Aboriginal perspective on the meaning of the rights." [206] In essence, applying the approach sanctioned by the Van der Peet majority,
"... literally amounts to defining Aboriginal culture and Aboriginal rights as that which is left over after features of non-Aboriginal culture have been taken away." [207]

Justice L'Heureux-Dubé suggests instead that rights which form an integral part of distinctive Aboriginal cultures need to be viewed and defined more generally and abstractly, that is, not in competition or comparison with non-Aboriginal culture. [208] The articulation of particular Aboriginal rights also needs to be grounded in the fundamental purposes (protection and preservation) for which they were entrenched in the Canadian Constitution. [209] Thus the protection afforded by s. 35(1) extends not to "a catalogue of individual practices, ... but [to] the `distinctive cultures' of which Aboriginal activities are manifestations." [210] Those "practices, traditions and customs protected ... should be those that are sufficiently significant and fundamental to the culture and social organization of a particular group of Aboriginal people." [211]

Justice McLachlin agrees with Justice L'Heureux-Dubé that the majority's approach is far too narrow, requiring evidence of such particularity of practice as to enable the court to find no right when such a right arguably exists. [212] Her approach to defining Aboriginal rights is similar to Justice L'Heureux-Dubé's, however, it is less abstract, and perhaps more purposive, [213] in line with the general view of interpreting Canadian native rights. Justice McLachlin observes that, "... the critical question is not whether the sale of fish is commerce or non-commerce, but whether the sale can be defended as an exercise of a more basic right to continue the Aboriginal people's historic use of the resource." [114] In her view, one potential outcome of the majority's approach is that defining Aboriginal "commerce" by reference to what is presumed to constitute non-Aboriginal commerce may eliminate virtually any Aboriginal claim to commercial rights in resources. [115]

Taken together, the two dissenting judgments in Van der Peet potentially raise a serious dilemma for

Aboriginal peoples claiming commercial rights in living and non-living resources. If, as Justice L'Heureux-Dubé argues, a particular practice asserted by an Aboriginal group as a native title right has a counterpart in non-Aboriginal culture, it can not be considered a distinctive Aboriginal tradition. If, on the other hand, as Justice McLachlin notes, the "commercial" right asserted by a group of Aboriginal people is not sufficient in scale to compare with non-Aboriginal commerce, again it will not be recognised as a native title right to use a resource for other than subsistence purposes.

Given the similar finding in the NTC Smokehouse case to that in Van der Peet as opposed to the holding in Gladstone that the Aboriginal group had extensively engaged in trade sufficient for a commercial fisheries right to be established, [216] the difference between the majority and the dissenters in Van der Peet may be more than semantic. Of the two, Justice McLachlin's concerns with the "scale of trade" approach of the Van der Peet court may pose the greatest problem in the Australian context. There is a danger, as Justice L'Heureux-Dubé points out and as the Mabo [No. 2] Court acknowledges, [217] of attempting to equate Aboriginal property rights with non-Aboriginal property rights. In our view, there is less danger of the Australian courts adopting a position which eliminates Indigenous rights on the basis that those rights have a counter part in non-Indigenous culture. However, there is potentially greater danger in finding that no Indigenous rights exist because the scale of practice supporting the alleged right is so small that it can conveniently be described as not a regular practice of a particular people, that is, not an integral part of their culture.

The regularity (not the scale) of a particular traditional practice seems to be the essential element in the Canadian Court's analysis. If one examines (perhaps, generously or perhaps, reading between the lines) the outcomes in the three cases decided by the Canadian Supreme Court, arguably, if a particular practice rises to the level of tradition or custom, that is, regularity rather than episodic behaviour, then that practice will be protected as a native title right. "Scale" in this reading is thus equated with community rather than individual behaviour, as well as with seasonal, ceremonial, historical, and socio-cultural practices as opposed to occasional events. This is arguably, more in step with the "purposive" reasoning in Sparrow and with the views expressed by the United States Supreme Court in US v Washington, where the Court notes that fishing and barter formed a central part of the tribe's culture. [218]

Summary

Regardless of the appropriateness of requiring Aboriginal communities to exhibit a regularised, market-based commerce, a majority of the Canadian Supreme Court has held that where a primary purpose of the harvesting of fish (or for that matter other resources) is trade or barter, and where this right has continuity with the people's traditional laws and customs, then a right to sell the resources may exist. In such a case, the fact that the methods of extraction and dissemination and the value of the goods is regulated by kin and family relationships and religious observance, should not detract from the fact that there is an Indigenous custom, the primary purpose of which is the exchange of goods.

North American jurisprudence clearly establishes that traditional native title rights may include rights to commercially exploit lands and other resources. The anthropological and historical evidence demonstrate that Aboriginal peoples in Australia operated complex trading networks which involved the exchange of many goods, both for utilitarian purposes and in fulfilment of religious and social observances. [219] Thus it is possible to establish as a matter of fact, all manner of traditional access to and uses of minerals including commercial rights in minerals.

The Zenith to Nadir Occupancy Approach

The typical approach to establishing native title rights and interests has been to identify the rights and interests which flow from particular laws and customs, to aggregate these and present this aggregate as the embodiment of native title in a native title claim. This approach is illustrated above and emerges from the practicalities of establishing native title rights within the philosophical frame of the Australian legal system. The Mabo [No. 2] Court emphasises the need to view the content of native title both from the perspective of the claimant group, and liberally. However, the process of establishing the content of native title by employing the "bundle of rights" approach necessarily involves a filtering and reconstitution of Indigenous perspectives. It compartmentalises and dissociates elements which Aboriginal law conceptualises as connected. [220]

A second effect of this approach is to subtly alter, in real terms, the burden of proof. Although the Crown is still required to discharge the onerous burden of proving that native title has been extinguished once it has been proved to exist, the "bundle of rights" approach eases the burden by both delaying it, and by restricting the scope of discussion (to the individual rights asserted).

Indigenous laws and customs, however, do not compartmentalise the rights and interests in land in the way that Eurocentric legal thought does. Instead, the dreaming stories involve the land, the sky and the subsurface, with customs equally relating to all three. It is arguable then that the preferable approach is to work from the assumption that Indigenous Australians held full title to the land now called Australia and that their laws and customs and spirituality encompass(ed) the totality of land and land use. It then falls upon the Crown to establish that particular rights, otherwise within the entire ambit of native title, have been extinguished by valid governmental action.

This approach is suggested by Noel Pearson in his recent examination of "The Concept of Native Title" at a Land Rights Conference in August of 1996. [221] Pearson identifies Aboriginal law, common law and native title as three separate concepts with Aboriginal law being much broader than native title and "recognis[ing] title where the common law will not." [222] Pearson proceeds from the fundamental proposition that native title is a "recognition concept", that it "is, for want of a better formulation the recognition space between the common law and the Aboriginal law which [is] now afforded recognition in particular circumstances." [223]

One end point of Pearson's discussion is that:

[w]here native title, usufructuary and otherwise, is to be established, the task of the common law courts is to assume the existence of a full proprietary title and to then identify those valid acts of the Crown which have qualified that title by regulation or by partial extinguishment of recognition by the creation of an inconsistent interest. The notion that the content of the native title is solely to be determined by reference to the rights established under Aboriginal law and custom as a matter of fact is misconceived. [224]

The full proprietary title approach is consistent with the notion of the content of native title being defined by the laws and customs of the claimant group as altered by valid governmental action. It does, however, rest on a different philosophical base than the "bundle of rights" approach and the practical effects are therefore substantial. For one, in comparison, the Crown's burden of proving extinguishment is brought forward. Second, and importantly, the recognition of a form of title amounting to exclusive occupancy allows the exercise of a greater degree of autonomy. Indeed it opens the possibility of a form of sovereignty definable through the doctrine of native title at common law.

Hal Wootten recognises that the bundle of rights approach has the effect of fragmenting Aboriginal control over land subject to native title. That leads to land titles being arbitrarily fragmented in terms of the rights that they give. Wootten observes that:

[o]ne tendency has been to regard native title on mainland Australia not as a holistic relationship with land akin to freehold ... but as a bundle of rights to do on the land the things which Aboriginals did before white people came along. On this view, originally advanced by mining company lawyers but very effectively brainwashed into some Aboriginal leaders and their advisers, Aboriginal communities were never `owners' of their lands but just users, and have only the right to continue their traditional uses, that is to traverse the land, to hunt on it, to perform ceremonies on it, presumably even to defecate and urinate on it, but not to mine it or run cattle on it. Amazingly, it has even been suggested that it may not be intrinsically an invasion of native title at common law for a mining company to mine native title land, because mining was not a traditional use. [225]

Wootten suggests that "the concept of native title as a bundle of rights defined by previous use is based on a misreading of the Mabo judgements, as well as a misunderstanding of Aboriginal relationships to land", and as such is an "injustice to Aboriginal people [and] an impediment to good land management." [226]

Professor Richard Bartlett also notes that the specific dicta of the High Court results in a perceived need to determine the content of native title as a matter of fact by reference to the laws and customs of the claimant group. He argues, however, that this is at odds with the fundamental rationale of the concept of native title outlined by the Court. [227]

Bartlett locates this rationale in Justice Brennan's statement that, "[t]he preferable rule equates the Indigenous inhabitants of a settled colony with the inhabitants of a conquered colony" [228] and in the adoption in judgments by Justices Brennan and Deane and Gaudron of the statement of Lord Denning speaking for the Privy Council in Adeyinka Oyekan v Musendiki Adele, [229] where he notes that the guiding principle is that "the courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected." [230] Justices Deane and Gaudron declare that this "guiding principle accords with fundamental notions of justice" and accept it as a "correct general statement of the common law." [231]

Professor Bartlett concludes that:

[i]f rights to land are to be "fully respected" and the Indigenous inhabitants of a settled colony are to be equated with the inhabitants of a conquered colony, the rights should not be confined within the strictures of traditional uses of the land, but should extend to the exclusive right to use and possess the land for any and all purposes. [232]

This conclusion has a greater congruence with Indigenous law than does the "bundle of rights approach". The general approach is also consistent with the approach of the High Court in Mabo [No. 1]). In the initial Mabo decision, Justices Brennan, Deane and Gaudron identify the human right at issue as "immunity from arbitrary deprivation of legal rights" [233] which derives from the human right to own and inherit property, expressed in the Convention on the Elimination of All Forms of Racial Discrimination. These rights form the basis for much of the majority's decision. While human rights may be broader than the legal rights which constitute them, the concern of the majority in Mabo [No. 1]) to protect these rights supports the argument that the legal rights which are held to exist must be interpreted broadly, with the intention of giving effect to the full legal and philosophical scope of the rights. The question then becomes, which particular rights have been extinguished by the legislature in specific exercise of the powers flowing from the acquisition of sovereignty.

The recent Wik [234] decision might be read as contradicting this full occupancy approach. In that case the High Court considers some of the questions which were put to Justice Drummond of the Federal Court. The minerals question was not raised on appeal. The High Court rules upon the effect of two pastoral leases which affected land with connections to the Wik and Thayore people.

The majority of the High Court holds that pastoral leases are a statutory form of lease which does not necessarily grant exclusive possession to the lessee and which, therefore, does not necessarily extinguish native title. [235] Given this, the majority holds that it is necessary to determine the rights and interests which are held by the Indigenous group, and the rights and interests held by the pastoral lessee. This is done in the first instance by reference to the Indigenous group's traditional laws and customs as acknowledged and observed, and in the second instance by reference to the lease itself and the legislation under which it was granted, informed by the common law. The respective rights and interests are then measured against each other to determine the degree of inconsistency. Rights held by the pastoral lessee which are inconsistent with the native title rights prevail, rendering native title unenforceable to the extent of the inconsistency. [236]

The Court emphasises that the finding in each case will depend on complex issues of law and fact and must be decided on a case by case basis. [237] Despite this apparent exercise in itemisation and tallying of rights and interests in land it is possible to read the majority's judgments as accepting the proposition that pre-existing Aboriginal title gives rise to a full set of occupancy rights. The issue of fact is whether the Government has extinguished particular rights.

In sum, the proof of native title may be approached from one of two directions, either by proving the existence of individual and specific rights, or by assuming that the primary Indigenous holders of land hold full title subject to the sovereign identifying which particular rights are not included in that title. The second approach is arguably more congruent with the underlying philosophical basis of native title as it enables the common law courts to take a broad, flexible and beneficial approach to the determination of which Indigenous rights may be recognised by the common law. It also provides the opportunity for Indigenous communities to attain a greater degree of autonomy. Support for this approach is evident in the treatment of Indigenous land rights in North America.

In the US, "Indians ... generally control the development of mineral resources on their lands. The Tribes are considered beneficial owners of the minerals, collectively representing the interests of their members, though the United States holds legal title in trust for each tribe." [238] As well as this "considerable proprietary power over minerals development", the Tribes exercise "sovereign powers, such as the right to tax and otherwise regulate the activities of mineral developers found within their jurisdiction." [239] The degree of control exercised by the Native Americans is partially due to the fact that the Tribes reserved land to themselves, the land was not set aside for them. The Australian situation is somewhat analogous as the common law is recognising pre-existing rights , held by previously sovereign groups of people.

The Canadian position is similar to that in Australia in that the Crown holds radical title to all land. However, the First Nations People do hold various rights with respect to minerals. These derive from legislation and vary across the provinces. Thus as Woodward notes, in contrast to the US, in Canada "[t]he benefits Indian bands now receive from the minerals wealth under their reserves are not equivalent to full ownership." [240]

Whichever approach is adopted with respect to the manner of establishing native title, the point remains that it is open to claimant parties to establish a title before the courts which includes a right in minerals. Whether, and to what extent this right may be exercised by the claimant parties leads to the inquiry: Has any putative native title right in minerals been extinguished?

The Burden of Proof

Before moving to a discussion of the extinguishment on any putative native title mineral rights, it is useful to examine in brief detail questions surrounding the issue of who carries the burden of proof of native title in native title claims. Whether addressed using the bundle of rights or zenith to nadir approach, it is clear that native title claimants carry the burden of proving the elements of a native title claim, namely: occupancy and/or use of the land and resources prior to European settlement by an acknowledged Indigenous group; and continuing occupancy or use of the land and resources by the descendants or inheritors of the Indigenous group, observing the traditional customs, practices, and laws respecting the land's use. [241] The law in Australia is less clear, however, regarding who has the burden of proving that native title has been extinguished.

Both the NNTT President [242] and the former Chief Justice of the High Court [243] have suggested that the burden may lie with a native title claimant to prove non-extinguishment. In the Waanyi Determination, Justice French observes,"[o]n the question of extinguishment it is necessary that the applicants [under the NTA] show that on the known tenure history they can make out a prima facie case that native title has not been extinguished ... [but], it is not necessary that they identify comprehensive evidence of non-extinguishment of a claim." [244] While it is clear from the cases that the President cites that native title may be extinguished by executive or legislative action of the Commonwealth and State/Territory parliaments [245] , it is far from certain that the cited cases establish that the burden of proof rests with native title claimants to demonstrate non-extinguishment of rights asserted in a claim. [246]

In Coe, claims of sovereignty, breach of fiduciary duty, and native title were struck out by a single justice of the High Court, former Chief Justice Mason. [247] Arguably, the claim filed prior to enactment of the NTA was brought as a "political" claim rather than as a legal claim to native title lands. [248] However, in addressing the adequacy of the claim to native title, Mason asserts (despite the concession of the New South Wales Attorney General to the contrary) that the onus of proof rests with the native title claimant to prove that native title subsists in land which necessarily includes proof that native title has not been extinguished by the Crown. [249]

The Waanyi Determination and Coe lack the authority of fully litigated cases and provide little foundation for the proposition that native title claimants carry the burden of proving non-extinguishment of their rights and interests in land. The better view, supported by North American jurisprudence is that the sovereign carries the burden of proving extinguishment of native title. [250] Similarly, as Peter Butt notes, the Privy Council took a position similar to that of the Canadian Supreme Court in Amodu Tijani v Secretary, Southern Nigeria. [251]

Both the Mabo [No. 2] and Native Title Act case judgments support the view, that the burden rests with the one claiming extinguishment (the Crown) to prove extinguishment of native title. In Mabo [No. 2], Justice Toohey notes that "the onus [to show that native title interests in land have been extinguished by annexation of the land] rests with those claiming traditional title does not exist." [252] Similarly, in the Native Title Act case, the joint judgement of six of the justices states that the Crown bears the burden of rebutting the presumption that its legislation does not intend to extinguish native title, that is, the Crown must "discharge the onus [of proving an] intention to extinguish native title." [253]

Finally, given the consequences of extinguishment of native title to Indigenous peoples, there are equitable reasons for laying the burden of proving extinguishment of native title on the government. [254] And perhaps, more fundamentally, from a practical point of view, the balance of evidentiary convenience supports placing the burden on the party in the best position to present the factual evidence regarding extinguishment of native title. [255] As both Bartlett and Fitzgerald note, given the lack of written records among Indigenous peoples in Australia, governments are best able to produce records, documents, and other written evidence of contrary titles to land. [256]

In sum, the better rule extracted from both overseas and Australian courts is that while native title applicants carry the burden of proving the essential elements of any claim, those opposing the claim bear the burden of proving the extinguishment of those claims. The next section of this essay examines the question of whether existing state legislation has extinguished any potential native title claims to minerals in Australia.

IV. The Potential Extinguishment of Native Title Mineral Rights

The connection of Australia's Indigenous peoples with the land and its subsoil is well established. Indigenous spirituality is not confined by what can be seen in a physical sense and extends beyond the land into the ocean, as well as deep into the subsoil of the nation. [257] In many instances, this spiritual connection may be coupled with established access to and use of minerals within the context of traditional laws and customs, providing a concrete basis for the proposition that native title in minerals does exist. [258] Assuming that the right to this "title" has been established, the next question that must be addressed is whether native title rights in minerals have been extinguished and, if so, how?

Historically, the legislatures of the Australian colonies and states have been quite active in the area of mineral ownership, and many people assume that the land and mining legislation which does exist vests full beneficial title to minerals in the Crown. It is, however, arguable that where the State's mining legislation specifically preserves private interests in minerals derived through fee simple title, the intention of the Crown was to assert full radical and beneficial title only to those lands not in possession of private land holders. It is also arguable that where the assertion of title was of such a general rather than specific nature, the intention to extinguish native title is insufficiently established.

Establishing Extinguishment of Native Title

Native title may be extinguished by governments through executive or legislative action. [259] Two competing theoretical bases are put forward in Mabo [No. 2] for the vulnerability of native title to extinguishment by executive action. Justice Brennan views this vulnerability as arising from the fact that native title does not originate from a crown grant [260] and is not therefore protected by the rule that the Crown may not affect the title gained from one grant by the issue of a later inconsistent grant. Justices Deane and Gaudron assert that this vulnerability arises from the inherent common law limitations on native title, namely, that it is unsupported by crown grant and is (on their construction) only a personal right. [261] The ability to extinguish native title by legislative action derives from the political sovereignty and the radical title which was acquired on the acquisition of the Australian territory.

In Mabo [No 2], the High Court holds that the Crown "acquired a radical title to land and a sovereign political power over land, the sum of which is not tantamount to absolute ownership of land." [262] The Crown's radical title gives it the power to grant an interest in land to others and its plenary title enables it to exercise its sovereign power to appropriate ownership of crown land to itself. [263] Where the Crown has not granted or appropriated beneficial title in property, its radical title is subject to existing native title. [264]

In relation to the compulsory acquisition of property without compensation, "[i]t is a settled rule of construction that such an intention cannot be imputed to the Legislature unless expressed in unequivocal terms incapable of any other meaning." [265] In Mabo [No. 2], Justices Deane and Gaudron recognise that this principle of construction applies in the case of native title to require that, "clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation." [266] Justice Brennan also requires the legislature to express a "clear and plain intention" to extinguish native title, [267] although he founds this requirement on the "seriousness of the consequences to Indigenous inhabitants of extinguishing their traditional rights and interests in land ... " [268]

In the Mabo [No. 2] and The Native Title Act cases, [269] the Court examines the history of settlement in NSW and Queensland, and WA respectively. In both cases it holds that the Crown did not intend to effect a general extinguishment of native title but was content to "dispossess" the Aborigines of their land "parcel by parcel." [270] The Court in The Native Title Act Case restates the presumption, rebuttable by the Crown, that the Crown does not intend to extinguish native title. [271] The Crown bears the onus of rebutting this presumption, or as the Court notes "[t]o discharge the onus, it is necessary to show at least that the Crown has manifested clearly and plainly an intention to extinguish all native title." [272] In both cases the Court finds that this intention had not been established in the words of the Commissions of the Governors, correspondence between the Colonial Office and the colonies, nor the regulations of the colonies and states, of either NSW and Queensland, or WA. [273]

In Mabo [No. 2], Justice Brennan notes that whether there is a clear and plain intention to extinguish native title may be a question of fact, law, or fact and law. [274] Therefore, to determine whether any particular native title mineral rights have been extinguished, the words of each State's original and amended mining legislation are therefore in issue.

However, before a clear and plain intention to remove any mining rights can be identified, it is first necessary to outline the rights potentially affected. The position varies among the states, with WA and NSW at opposite ends of the legislative spectrum. The common law rules of what rights and interests form a fee simple estate apply in all cases, as modified by statute.

In Western Australia, for example, all grants of fee simple prior to the Land Regulations of 1887 were made free from Crown reservations of minerals other than Royal minerals. [275] The Land Regulations of 1887²⁷⁶ gave the Crown in right of WA a discretion to reserve minerals in addition to the prerogative vesting of gold, silver and precious metals. The broad reservations which exist today were first legislated in 1898. [277] Thus the rights of holders of land granted before 1887 and some land granted between then and 1 January 1899 are defined almost exclusively by the common law.

Initially in NSW, there was no general statutory provision reserving any minerals to the Crown. Reservations of specific minerals were, however, entered in some land grants. The exact nature of the reservations were specific to each grant and need to be examined individually, where they exist. The common law was modified in NSW by grant only until the Crown Land Alienation Act of 1861. Therefore, the position can vary not only with respect to which lands and which minerals are affected across time, but also between grantees within time periods.

Rights of holders of fee simple estates at Common Law

It is a maxim of the common law that to whomsoever the surface belongs, owns to the depths and the skies. [278] This presumption was qualified by the rule in the Mines Case of 1568, [279] to the effect that the ownership of property in gold and silver (the "royal minerals") was vested in the Crown by virtue of the royal prerogative. This is firmly established in Australian law by Wooley v AG for Victoria. [280] In this case, the Privy Council states that, "... the prerogative right of the Crown to gold and silver found in mines will not pass under a grant of land from the Crown, unless by apt and precise words the intention of the Crown be expressed that it shall pass." [281] Base minerals are owned by the fee holder unless they are expressly reserved to the Crown. They are not within the Crown's prerogative. [282] These propositions were confirmed in the well accepted High Court case of The Commonwealth v NSW. [283]

Until the enactment of wastelands legislation, full power of disposal of wastelands was vested in the various colonial Governors by their commissions. [284] Prerogative rights of the Crown, which are expressions of executive intent could therefore take effect and operate to extinguish common law interests within the bounds prescribed by the common law for executive action. It is generally acknowledged that in vesting gold and silver in the crown by prerogative right, both the common law rights of fee simple holders to gold and silver below their land and any native title rights which existed in gold and silver were extinguished.

Thus interests in land of all pre-legislative activity holders of fee simple and native title holders with a claim to full occupancy and mineral rights would be in similar positions. Each would have held the beneficial title to any base minerals on their fee, or on their native title land subject to the content of their native title. It is these rights which are subject to extinguishment by clear and plain legislative intention.

The Preservation of Private Rights

The position in Queensland was considered in the Wik decision of Justice Drummond of the Federal Court, in which he observes that:

[i]n broad outline, the policy adopted by successive Queensland governments since 1909 has been to extend Crown ownership to all minerals in all lands in Queensland, whether or not those lands have been alienated in fee simple, and to vest in the Crown the sole right to grant authority to mine any minerals in Queensland, including the very limited range of minerals which remain in private ownership viz, coal in land alienated in fee simple prior to the commencement of the Mining on Private Land Act 1909 ... [285]

Section 6 of the Mining on Private Land Act 1909 (Qld) expropriated all gold, most silver, [286] and "copper, tin, opal, antimony and coal in certain classes of land", [287] but did not otherwise disturb private title to minerals granted before 1 March 1910. The Act also contained a prospective declaration that:

all other minerals on or below the surface of the all land which is not alienated in fee-simple from the Crown at the commencement of this Act are the property of the Crown, [and that]

All Crown grants and leases under any Act relating to Crown land issued after the commencement of this Act shall contain a reservation of all gold and minerals on and below the surface of the land comprised therein, and also a reservation of the right of access for the purpose of searching for or working any mines of gold or minerals in any part of the land. [288]

Justice Drummond notes that these provisions were "designed to ensure that future grants of Crown land would not carry with them title to any minerals at all and that the Crown would retain, in addition to mineral ownership, power to authorise the search for and the extraction of those minerals, notwithstanding the subsequent alienation in fee of the land in which they were contained ... ." [289] Arguably, the Crown does not need to hold full beneficial title in minerals to be able to regulate their extraction and use. The Crown is fully empowered to regulate the use of property which it does not hold title to. [290] Nevertheless, it is the effect of the existing and not potential legislative action which is in issue.

The Mining on Private Lands Act 1909 (Qld) was amended in 1925 by the insertion of s. 21A which declared that, "gold and all minerals ... on or below the surface of all land in Queensland, whether alienated in fee simple or not so alienated from the Crown, and if so alienated whenever so alienated, are and each of them is the property of the Crown." Justice Drummond notes that this section,

... operated as a general expropriation to the Crown of all minerals then in private ownership and, in particular, of all privately owned minerals [other than coal] in land alienated in fee simple prior to the commencement of the 1909 Act, which had for the most part not been touched by that Act. [291]

In consequence, he holds that "the general expropriation of all (save a limited range of) minerals anywhere in Queensland effected by the 1925 amendment to the 1909 Act puts beyond doubt the Crown's intention to acquire full beneficial ownership and public control of the entire mineral resources of the State, irrespective of who, if anyone, beneficially owned any interests in the land, apart from the minerals." [292]

The Mineral Resources Act 1989 and the Petroleum Act 1923 provide the current framework for the reservation of minerals in the State of Queensland. [293] Gold, coal and all other minerals are stated
to be the property of the Crown, [294] and the definition of minerals in s. 18 is particularly extensive. The provisions relating to reservation of minerals from grants of private interests in these two Acts cover all grants made within the State of Queensland, under any Act.

Section 1.9 of the Act also specifies exceptions to this framework of reservation. Where land was alienated in fee simple by the Crown before 1 March 1910 without coal being reserved, the coal remains in private ownership. Likewise, minerals in land alienated in fee simple under s. 22 of The Crown Lands Alienation Act of 1860, s. 32 of The Crown Lands Alienation Act of 1868, or s. 21 of the Mineral Lands Act of 1872 continue as private property.

With the exception of coal, the minerals alienated from the Crown under these provisions were expropriated by the amendments of 1925. While the current legislation may constitute a regrant of the interests which had been expropriated (a question Justice Drummond declines to decide) any such regrant may be of little use to native title holders. This is because of the holding in the Mabo cases that native title cannot be revived once extinguishment has occurred. [295]

It is possible that if both native title and non-native title title holders had rights in minerals which were extinguished, any legislation which purported to "regrant" the rights to minerals previously held by the non-native title holders, would be contrary to the Racial Discrimination Act 1975 (Cth) unless it simultaneously reinstated equivalent native title interests in the minerals in holders of native title. [296] However, the "regrants" were effected by 1971 amendments to the 1968 Mining Act. Thus the equalising provisions of the Racial Discrimination Act 1975 do not apply. If it is accepted that the Queensland legislation as enacted has extinguished native title in these minerals, native title may remain in minerals not covered by the legislation. [297]

Given the statutory provisions outlined above, Justice Drummond finds himself unable to accept arguments that the Crown intended to assert anything less than full beneficial ownership. Accepting Justice Drummond's decision regarding Queensland's minerals regime as correct, it is arguable that native title may, however, still exist in some states. The words of the various states' statutes are critical.

The Radical Title of the Crown

Mabo [No. 1] and [No. 2] and The Native Title Act case establish that the only title which was asserted by the Crown in relation to Crown lands was radical title. For the Crown to prove otherwise it is necessary for it to establish a clear and plain intention to extinguish native title. It failed to do so in Mabo [No 2] and the Native Title Act case. Section 3 of the Western Australian Constitution Act (Imp) 1890 is typical of the provisions which grant the legislatures of the various states power over Crown lands. This section provides that:

The entire management and control of the wastelands of the Crown in the colony of Western Australia, and of the proceeds of the sale, letting, and disposal thereof, including all mines and minerals shall be vested in the legislature of that colony.

The nature of the Crown's title with respect to mines and minerals is thus the same as with respect to the surface of Crown land. Therefore, the Crown holds radical title over minerals until it legislates to expand that title.

Australian states have all legislated to take full beneficial ownership in at least some of the minerals in their boundaries. Importantly for native title holders, however, some states have specifically preserved certain private rights in minerals. Where the legislature of a state has preserved the rights of fee simple holders to the minerals under their land it is reasonable to presume that the intention of the Crown was to assert full radical and beneficial title only to those lands not in possession of "private" land owners. This suggests a general assertion of title rather than the specific and manifest intention to divest native title holders of any native title rights they may otherwise have. Arguably, in the context of common law protection of native title rights and interests, pre-existing native title rights should be treated in the same manner as pre-existing non-native title rights at the time of state assertions of "ownership" of sub-surface minerals, particularly where these provisions persist today.

Western Australia

The original land grants in WA were made under the Land Regulations in force from time to time. Initially only gold, silver and precious metals were reserved to the Crown and in 1887 the Governor in Council was empowered to direct at his discretion whether any other minerals were also to be reserved. [298] The Land Act 1989 provided that, "... all Crown grants issued under this Act shall contain a reservation of all gold, silver, copper, tin, or other metals, ore, mineral, or other substances containing metals, and all gems or precious stones, and coal, or mineral oil in or upon the land comprised therein ... ." [299] The Act was prospective in its operation and did not purport to extinguish existing private rights obtained through Crown grant (or through the customs and traditions of Indigenous Australians as protected by the common law).

This position was reinforced with the enactment of the Mining Act 1904. [300] Section 117 of the Act provided:

SUBJECT to the provisions of this Act and the regulations-

(1) Gold, silver, and other precious metals on or below the surface of all land in Western Australia, whether alienated or not alienated from the Crown, and if alienated whensoever alienated, are the property of the Crown.

(2) All other minerals on or below the surface of any land in Western Australia which was not alienated in fee simple from the Crown before the first day of January, One thousand eight hundred and ninety-nine, are the property of the Crown." [301]

The current Mining Act [302] is the same in substance. All of these enactments specifically preserve private rights in land alienated in fee simple from the Crown prior to the coming into effect of the Land Act on the first of January 1899. A native title claim amounting to exclusive possession (or perhaps an exclusive right to access a particular mineral sites), is clearly not a grant in fee simple and perhaps, strictly construed, would not come within the legislation. However, the position is certainly analogous. Land granted in fee simple before 1 January 1899 would have entitled the holder to exclusive possession to the surface of the land and the rights to the minerals below that land as defined by the cujus est solum doctrine. Where an Indigenous group has established both a claim over land amounting to exclusive possession and customary rights to minerals, the legal positions of the two land owners would be almost identical at common law. Thus if it were found that WA legislation extinguishes the native title rights in minerals, that determination would amount to a finding that the Western Australian legislature extinguished one set of rights implicitly and without compensation at the same time it enacted provisions specifically protecting a virtually identical set of rights.

The arguments above are supported by the comments of Justice Lee in Western Australia v Ben Ward et al [303] in deciding whether the grant of an exploration licence under the Mining Act 1978 (WA) would attract the expedited procedure [304] under the Native Title Act 1993 (Cth). He notes that:

[i]t should be assumed that any hypothetical holding of "ordinary title" referred to in subpara 235(b)(i) of the Act would include the rights of a freehold estate that would have applied in the period during which native title has been held, and, therefore, with regard to most land in respect of which native title is claimed the rights of an estate in freehold created before 1 January 1899 are likely to be relevant. [305]

Native title rights do not originate from Crown grant. These rights are thus denied the protections which this status brings. However, as a separate right acknowledged to be special, they are afforded special protections. As a set of existing rights which are protected by the common law they may only be extinguished by clear and plain intention. The fact that native title was not necessarily uppermost in the minds of Western Australian parliamentarians at the turn of the century is not itself enough to extinguish native title. [306] The intention must be expressed in clear and plain terms incapable of any other meaning. [307] Here the legislation sits comfortably with the interpretation that the legislature was intending to protect all "private" land holders whose interest extended to ownership of the minerals. [308]

Holders of land alienated in fee simple before 1 January 1899 are entitled to exploit minerals under their land in accordance with the common law right to mine. If this legislation is interpreted as having "saved" the rights of native title holders, they would be legally entitled to exploit the minerals on the land in their exclusive possession in accordance with their common law native title right to mine. Section 3 of the Western Australian Constitution Act 1890 (Imp) endows the Crown in right of Western Australia with radical title to mines and minerals and empowers it to regulate mining activity. Thus both categories of private land holders are subject to the provisions of the Mining Act which entitle any person to apply to the Minister "to have any private land alienated before 1 January 1899 brought within the operation of the [Mining Act] ... for the purpose of mining for minerals other than gold, silver and precious metals." [309]

New South Wales

The position in New South Wales is more varied than in Western Australia. The first enactment reserving "all minerals" to the Crown was the Crown Lands Act 1884. [310] Section 7 provided that "all grants of land issued under the authority of this Act shall contain a reservation of all minerals in such land ... ." Again this Act is prospective in its operation and following the argument outlined above, does not seem to have evinced a clear and plain intention to extinguish native title.

As outlined above, however, the Coal Acquisition Act 1981 is both prospective and retrospective in form and applies to all coal that would otherwise be vested in a body other than Crown in right of NSW to vest it in the Crown. [311] Coal would therefore appear to be an exception to this argument in the state of NSW.

Tasmania

The Crown Lands Act 1976 declares that under this Act, "[n]o grant deed or transfer of any Crown land shall include or convey gold, silver, copper, tin or other metals, ore, mineral, or other substances containing metals, or gems or precious stones, or coal or mineral oil, in or upon that land, and the same shall be deemed to have been excepted and reserved to the Crown." [312] This is a restatement of the reservations as originally outlined in The Crown Land Acts of 1905 and 1911.

Crown reservations in minerals in Tasmanian Crown lands are prospective, but not from 1905. In 1911 the Tasmanian Parliament enacted the Mining Act. Section 339 of this Act declared that gold and silver whether or not alienated, and if so whenever alienated, are the "property of the Crown", and that all other minerals were likewise the property of the Crown, except those in land granted before 14 November 1893. This Act was later repealed [313] but "its effect in establishing Crown ownership in minerals was not reversed. Accordingly, it seems that 14 November 1893 (and not 1905) marks the commencement of the policy of reservation of minerals from Crown grants in Tasmania." [314]

The point remains that there are exceptions to the reservation of ownership in minerals to the Crown. The same arguments applicable to Western Australia and NSW also apply to Tasmania. Some native title rights in minerals might, therefore, survive in Tasmania.

Victoria

The Victorian regime is more complex. While it began with prospective reservation of minerals, it later enacted legislation which purports to be both prospective and retrospective. The Lands Act 1891 [315] declared in s. 12 that "any metal or mineral declared by any Act to be the property of the Crown", would not pass with the grant of an interest in land made under the Land Act. Future land grants were also to be limited to a certain depth -- frustrating in any event anything other than surface prospecting. [316] This position was confirmed by s. 3 of the Mines Act 1891.

Similar to NSW, the definition of mineral steadily broadened throughout this century, [317] culminating in the enactment of the Mines (Amendment) Act 1983. [318] This Act operates to counteract the "savings provisions" of the Land Act. It declares that all minerals on or below the surface of Crown lands alienated before 1 March 1892 (the date that prospective reservations began) "are and shall be and remain the property of the Crown." [319] The Act also reasserts that gold, silver, uranium and thorium and oil shale, and all minerals on or below the surface of lands alienated from the Crown after 1 March 1892 "are and shall be and remain the property of the Crown." [320]

If the assertion of property in minerals in the Crown vests full beneficial and radical title in minerals in the Crown, and this is extended retrospectively, the 1983 Act would appear to extinguish any native title mineral rights. Landholders had a twelve month period to apply for an exemption under s. 293 of the Act. [321] This exemption could be granted or refused by the Minister in exercise of his or her discretion after considering various listed matters. These matters include prior knowledge that the minerals exist, steps taken to develop and exploit the minerals, and "any other considerations relating to the public interest; and any other matters which the Minister considers relevant."

Where mineral rights are established as an incident of native title there will be knowledge of the existence of minerals and an established and continued use of those minerals. This arises from the fact that the content of native title is determined by the traditional laws and customs of the people, the thread of which must not be broken. The use of minerals in accordance with the native title right may not have accorded with the common understanding of commercial development, however, the content of native title rights are self defining, while being protected by the common law. Potentially, native title mineral rights could come within the rights protected by the exemption provision in the Mines Act and as such it is arguable that the Victorian Parliament did not evince a clear and plain intention to extinguish native title.

More importantly, the Mines Amendment Act 1983 (Vic) which purported to appropriate private interests in minerals held in land alienated in fee simple before 1 March 1892 was enacted after the Racial Discrimination Act. It is therefore a category D past act under the Native Title Act 1993 [322] and is validated by s. 19(1) of the NTA. Category D past acts are subject to the non-extinguishment principle, so that if native title in the minerals does exist and was appropriated, it will come out of suspension if the legislation is repealed. [323] Needless to say this is extremely unlikely. However, the fact that the legislation is a category D past act means that the Victorian government is liable to pay compensation for the loss of the ability to exercise any native title rights in minerals. [324]

South Australia

The South Australian position is unique. The Mining Act 1971 states that:

Section 16 (1) Notwithstanding the provisions of any other Act or law, or of any land grant or other instrument, the property in all minerals is vested in the crown.

(2) This section applies in respect of all mineral land and in respect of all other land (including reserved land) in the State.

There are two exceptions to the effect of this Act. Both apply to a person who is "divested of his property in any minerals under" the Act, [325] while conducting mining operations for the recovery of minerals. Mining in the context of this Act does not include fossicking, "mining" carried out as a recreation, or without any intention to sell the minerals or to utilise them for a commercial or industrial purpose." [326] If the appropriate mining operations have been carried out, the property holder may apply to have the land converted into a private mine, [327] or to receive royalties in relation to the land. It is possible that the native title which inheres in the land does include commercial rights. It is also arguable that there may have been mining with the "intention to ... utilise [the minerals] for a commercial purpose." An example of this would be the use of the minerals in art which is then sold. After the Racial Discrimination Act, it is unlawful to discriminate between the property interests when appropriating on the basis of Eurocentric notions of what mining is and what valuable minerals uses are. However, the SA Mining Act was passed in 1971, before the enactment of the RDA, and the time limit on applications expired three years later. Native title claimants are therefore unlikely to gain any relief from the Mining Act itself.

It is, however, arguable that the very existence of the provisions suggests that the Parliament did not intend to expropriate private interests in minerals without giving the property holder an opportunity to either maintain the right in a regulated form, or to receive compensation. Following this line, it is then arguable that as the legislature did not provide for redress in the case of native title and did not exclude the holders of native title from redress, as they did to those who fossicked for recreational purposes, that the intention to extinguish native title was not sufficiently clear and plain.

Despite this argument, the South Australian legislation is perhaps one of the most emphatic declarations of state ownership in minerals at a time when the State as a whole was becoming increasingly aware of Aboriginal land rights as an issue.

Northern Territory and Australian Capital Territory

The Minerals (Acquisition) Act 1953 (NT) acquires all minerals which were not "the property of the Crown or of the Commonwealth" before the commencement of the Act, and vests them "absolutely in the Crown in right of the Commonwealth." [328] When the Northern Territory became self-governing in 1978, the Commonwealth vested all of its interests in land, and in minerals (subject to the Atomic Energy Act 1953) in the Territory.

The Minerals (Acquisition) Act 1953 (NT) occupies an interesting position with respect to native title. The minerals are vested in the Crown "absolutely". In conjunction with the fairly comprehensive regimes relating to Aboriginal land in the Northern Territory, it is arguable that the government did actually intend to take full radical and beneficial title to the minerals and that this intention was sufficiently manifested. [329] Any person "who had a right, title or interest in any minerals acquired by s. 3" is entitled to claim compensation. [330]

Thus the scheme is not limited, for example, to title obtained by Crown grant and will instead cover any type of title, including native title, further supporting the argument that the Act is intended to extinguish native title. For compensation to be received the claim must have been lodged on or before 31 December 1954.

Australian Capital Territory (ACT)

Land granted before 1 January 1911 is subject to the provisions in force in New South Wales at the time the grant was made. [331] Since 1911, only leasehold estates have been granted, without specific reference to minerals. [332] This would seem to suggest that the legislature of the ACT has not enacted legislation which is sufficiently clear and plain in its intention to extinguish native title in minerals.

The Mining Act 1930 and Mining Regs 1931 (ACT) were repealed by the Land (Planning and Environment) (Amendment) (No 2) Act 1995 No 21 from 1 January 1996. Mining is now a controlled activity for the purposes of Schedule 4 of the Land (Planning and Environment) Act 1991 (ACT).

Petroleum

In contrast to mining legislation, petroleum legislation is remarkably uniform across Australia. In every state it is deemed that petroleum is, and always has been, the property of the Crown. [333] As well as legislating retrospectively the states have been careful to include every "instrument of title" within the imagination of the parliamentary drafter. The legislation of NSW and Tasmania even specifies that no compensation is payable for the resumed petroleum. [334] Moreover, petroleum is deemed, in the various states, to be reserved from every future Crown grant or lease (except as granted under the petroleum legislation). [335]

Is this enough to extinguish native title? The parliaments of the various states have chosen not to include savings provisions in their Acts. Thus, if the assertion of property is taken to be an assertion of full radical and beneficial ownership, then native title would appear to have been extinguished in petroleum. Native title may have survived if the property right being asserted is mere radical title as argued above in relation to the mining legislation of the various states. There is some support for this view in the structure of the Acts. That is to say, that the Acts are, in one sense, purely regulatory, they enable the government of the particular state to decide who may exploit petroleum and under what conditions this may occur. In theory, the government does not need to be possessed of full radical and beneficial title in order to issue licences and leases and specify attendant conditions. As is the case with Crown land, this may be done where the Crown solely holds the radical title to the petroleum.

Despite this, the legislation is drafted in very broad terms so that any interpretation which gives effect to the intent of parliament may well decide that the property interest it asserted was full radical and beneficial title, and that the expression of this intent was quite clear and plain, and sufficient to extinguish native title.

Confirmation of Existing Ownership of Natural Resources

The Native Title Act 1993 (Cth) gives state parliaments the opportunity to confirm "any existing ownership of natural resources by the Crown in right of the Commonwealth, the State or the Territory as the case may be." [336] Several states have enacted legislation which mirrors the terms of this provision. [337] However, the confirmation may only be made subject to the Native Title Act 1993 which provides in subsection (3) that "[a]ny confirmation under this section does not extinguish or impair any native title rights and interests ... ." The effect of these Acts is, therefore circumscribed by the extent of Crown ownership existing at their enactment. If the Crown merely holds radical title, then that is all that the legislation confirms. The validation acts do not therefore change the position in relation to native title.

V. Conclusion

It is open to the courts to recognise native title rights in minerals without fracturing the skeleton of the common law. The foundation of native title is the acknowledgment and observance of traditional laws and customs. This imports a degree of cultural relativity into the process of determining native title. Assuming that a continuing connection to the land can be established, the content of any native title is a question of fact to be ascertained by reference to the traditional laws and customs of the claimant group. Similarly, it is clear after the Wik case, that State legislation granting or reserving rights will be subject to extensive scrutiny to determine which rights and interests were actually granted or reserved.

The anthropological and archaeological evidence demonstrates a strong spiritual connection both to the subsurface generally and to specific minerals. The nature of the spiritual interest gives recognised people the right to control access to and use of the minerals. The nature of this interest also gives support to the arguments advanced by Bartlett and Pearson that in following the High Court's stated intention to "fully respect" the rights of native title holders, the onus should be on the Crown to demonstrate that particular incidents of native title have been extinguished. This approach has significant repercussions in that it enables native title holders to exercise the autonomy to which they are entitled.

If the courts do not accept this argument it is necessary (employing the "bundle of rights" approach) to specifically identify and prove the existence of appropriate traditions and practices relating to mineral rights. The common law recognises that laws and customs can mature and change without constituting an abandonment of native title rights. This is supported by the North American jurisprudence which establishes that what the native title holder holds is a particular right; the method of exercising this right is irrelevant. We therefore conclude that the common law can recognise native title rights in minerals, which may be exercised by using modern technology.

The common law is capable of recognising changing methods of exercising native title rights. The authors submit that, provided the general connection with the land remains, the common law can recognise a situation in which what changes with time is the mineral resource which the traditional laws and customs apply to regulate. Therefore rights in mineral resources can extend to the wider range of resources which can now be accessed.

Native title rights in minerals may amount to or include a commercial interest in minerals. The anthropological and archaeological evidence demonstrates that Indigenous Australians engaged in regulated trade over vast distances. The interest in some cases was clearly more than incidental to social interaction, but was instead a primary activity. Whether such an interest exists is a question of fact to be ascertained in each case, but it is clear that the common law is capable of recognising such a right.

The State governments of Australia hold acquired radical title to all lands and minerals in Australia. This title can be expanded to full beneficial title where the legislature expresses a clear and plain intention to extinguish native title. Under the cujus est solumn doctrine, a landholder who has received a grant of land in fee simple is entitled to exert full control over all minerals, other than royal minerals on or under that land. This position is directly analogous to the position of native title holders who have established native title amounting to exclusive possession, and a native title interest in minerals conveying beneficial ownership.

The Crown must assert a clear and manifest intention to appropriate the property of a holder of fee simple. Likewise, native title can only be extinguished by governments if they assert a clear and plain intention to assert title. The onus of proving extinguishment lies with state governments. The Crown in right of Queensland appropriated private rights in all minerals in the State. In doing so the "property" which it acquired was the full beneficial ownership of minerals in unalienated, fee simple land, including native title land.

However, in the States of Western Australia, New South Wales and Tasmania, the position is different. The legislatures of these states specifically preserved private interests in minerals under fee simple land alienated before certain specified dates. The rights to minerals held under these grants and native title rights to minerals under land in the exclusive possession of the native title holder are virtually identical. To conclude that such legislation appropriated full beneficial interest to the Crown in lands subject to native title without doing so in other lands with pre-existing interests in minerals, would be to conclude that the legislatures of these states specifically preserved one set of private rights while implicitly extinguishing an identical set, without compensation. In the authors' view these legislative enactments assert no more than an intention to acquire prospectively the beneficial rights in the relevant minerals/lands. This legislative intent is short of the clear and plain intention necessary to extinguish any native title in those minerals/lands. As such, the effect of the legislation is to preserve all private interests (including native title interests), in minerals held at the relevant date.

* See also The State of Western Australia v Ben Ward and others for and on behalf of the Miriuwung Gajerrong peoples in this issue of the AILR.

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Endnotes

© Commonwealth of Australia, National Native Title Tribunal. This work is copyright. It may be reproduced in whole or in part for study or training purposes subject to inclusion of an acknowledgment of the source and no commercial usage or sale. Reproduction for purposes other than those above, requires written permission from the National Native Title Tribunal, GPO Box 9973, Perth WA 6001.

* BA (cum laude), University of Southern California (1970); JD, Lewis & Clark Law School (1982); LLM, University of Pennsylvania School of Law (1991); Associate Professor of Law, Murdoch University, Perth, Western Australia.

* Combined Law/Arts (Political Science), University of Western Australia (degree expected 1997); Legal Researcher, Legal Research Unit, National Native Title Tribunal.

* BA (Jt Hons -- Anthrop and Geography), University of Newcastle-upon-Tyne, UK (1969), MA, (Anthrop), University of British Colombia (1973), DipEd University of Western Australia (1976); part-time, consulting Research Officer, Social and Landuse Research Unit, National Native Title Tribunal.

The views expressed in this essay are the authors' and should not necessarily be taken to represent the official views or policies of the National Native Title Tribunal. The authors gratefully acknowledge the contributions of Dr Stephen Sparkes, Patricia Lane and Hon Paul Seaman QC of the National Native Title Tribunal, Professor Richard H Bartlett, Law School, University of Western Australia, Professor Douglas Williamson, Director, Centre for Energy and Resources Law, University of Melbourne, and Murray McCutcheon, Partner, Phillips Fox, Melbourne, in commenting upon drafts of this essay. Any remaining errors of omission or commission are the authors'.

[1] The Wik Peoples v Queensland (1996) 141 ALR 129.

[2] The Wik Peoples v Queensland (1996) 134 ALR 637 per Drummond J at 688.

[3] Arguably, native title in minerals may exist as a usufructuary right independent of any exclusive ownership interest in land vested in the claimant group. This would also need to be established by an examination of the laws and customs of the claimant group and a similar examination of the impact of legislation upon the putative title would need to be undertaken.

[4] L Brown (ed), 1993, The New Shorter Oxford English Dictionary: On Historical Principles, Clarendon Press.

[5] Waring v Ofden [1932] 1 Ch 276 at 302, cited in JRS Forbes, and AG Lang, 1987, Australian Mining and Petroleum Laws, Butterworths, p. 59.

[6] As noted by Dean J in Shire of Wannan v Riordan [1955] VicLawRp 68; [1955] VLR 413.

[7] Hext v Gill (1872) 7 Ch App 699 per Mellish J at 712.

[8] JB Saunders, and AE Garcia, (eds), 1988, Words and Phrases Legally Defined, vol 3, 3rd ed, Butterworths, pp. 148 & 151.

[9] The case studies in this essay focus on Aboriginal peoples. However, it is clear from the cases that the legal principles apply equally to all Indigenous Australians.

[10] See footnotes 131-136 and accompanying text for a discussion of "exclusive occupancy".

[11] R Howitt, J Connel and P Hirsh (eds), 1996, Resources, Nations and Indigenous Peoples: Case Studies from Australasia, Melanesia and Southeast Asia, Oxford University Press, p. 175.

[12] Ibid, p. 185.

[13] For example, see: RM Berndt and CH Berndt, 1964, The World of the First Australians: an Introduction to the Traditional Life of the Australian Aborigines (1st ed), Ure Smith and K Barber, H Rumley and C Stokes, 1991, Aboriginal Heritage Study of Normandy-Poseidon Exploration and Mining Lease Applications in the Vicinity of the Bow and Ord Rivers, East Kimberley Region, Western Australia. Report prepared for Dilduwan Madjang Daburru and Normandy-Poseidon.

[14] K Palmer & N M Williams, 1990, "Aboriginal Relationships to Land in the Southern Blatchford Escarpment Area of the East Kimberley" in RA Dixon and MC Dillon, Aborigines and Diamond Mining: the Politics of Resource Development in the East Kimberley Western Australia, UWA Press, p. 5, p. 14.

[15] Berndt, The World of the First Australians, supra, p.136ff.

[16] S Hawke & M Gallagher, 1989, Noonkanbah, Fremantle Arts Centre Press, pp. 120 - 121.

[17] Ibid, p. 121.

[18] Ibid.

[19] The Land and Heritage Unit of the Aboriginal Affairs Department of WA has recorded 713 quarry sites in the state, of which 39 are ochre sites. There are undoubtedly many more sites as yet unrecorded. Of this total of 713 quarries recorded, information on 200 of these is restricted in access because of reasons relating to ceremonial, mythological or burial

factors. Permission to examine files on these restricted access quarry sites has to be obtained from the informants who supplied the information. About half of the recorded ochre sites have an open access categorisation. Two of these are in the Moora area, namely Koorda (Site No. S00533) and Wilgie Hills (Site No. S0038).

[20] J Flood, 1995, Archaeology of the Dreamtime (rvsd ed), Angus and Robertson, p. 272.

[21] WH Kretchmar, 1936, "`Wilgie Mia' an Aboriginal red ochre mine", Walkabout vol 2, no. 12, pp. 40-41, p. 40.

[22] Ibid.

[23] Ibid.

[24] HP Woodward, 1914, Bulletin of the Geological Survey of Western Australia, vol 57, p. 81.

[25] Kretchmar, supra, p. 40.

[26] Woodward, supra, p. 85. Evidence for this was that Aboriginal people in the Wilgie Mia area chewed a preparation made from a plant which only grows on the western border of Queensland.

[27] Ibid, p. 86.

[28] Ibid.

[29] Ibid, p. 88.

[30] Flood, supra, p. 273.

[31] Kretchmar, supra, p. 41.

[32] Woodward, supra, p. 88.

[33] Ibid.

[34] Kretchmar, supra, p. 41.

[35] A Sagona (ed), 1994, Bruising the Red Earth: Ochre Mining and Ritual in Aboriginal Tasmania, Melbourne University Press, p.138.

[36] Flood, supra, p. 271.

[37] Sagona, supra, p. 138.

[38] Flood, supra, p. 271.

[39] Sagona, supra, p. 139.

[40] Ibid, pp. 139-140.

[41] Ibid.

[42] Ibid.

[43] Ibid, p. 138.

[44] Ibid, p. 137.

[45] P Hiscock and P Mitchell, 1993, Stone Artefact Quarries and Reduction Sites in Australia: Towards a Site Profile, Australian Heritage Commission Technical Publications, Series No. 4. AGPS, pp. 125-156.

[46] Ibid.

[47] Ibid.

[48] N Peterson and R Lampert, 1985, "A Central Australian Ochre Mine", Records of the Australian Museum,
vol 37, no. 1, p. 2.

[49] Ibid, pp. 2-6.

[50] Ibid, p.2 and Sagona, supra, p.141.

[51] Peterson & Lampert, supra, p. 4.

[52] Ibid.

[53] Ibid.

[54] Ibid.

[55] Ibid.

[56] Ibid.

[57] Ibid, p. 7.

[58] Ibid.

[59] Ibid.

[60] Sagona, supra, p. 142.

[61] Ibid, pp. 94-95.

[62] Ibid, p. 24.

[63] ibid, p. 20.

[64] Ibid, pp. 19-20.

[65] Flood, supra, p. 202.

[66] Ibid, p. 271.

[67] Sagona, supra, pp. 94-95.

[68] Flood, supra, p. 314.

[69] Ibid, p. 199.

[70] Hiscock and Mitchell, supra.

[71] Ibid, p. 57.

[72] Ibid, p. 53.

[73] Flood, supra, p. 203.

[74] Ibid, p. 270.

[75] Ibid.

[76] Ibid, pp. 270-71.

[77] Ibid, p. 271.

[78] Ibid.

[79] AW Howitt, 1996, The Native Tribes of South East Australia, (originally published 1904) facs ed,
Aboriginal Studies Press, p. 311-312.

[80] R Jones and N White, 1988, "Point Blank: stone tool manufacture at the Ngilipitji Quarry, Arnhem Land, 1981", in
B Meehan & R Jones (eds) Archaeology with Ethnography: an Australian Perspective, Australian National University.

[81] Ibid, p. 51.

[82] Ibid, p. 52.

[83] "Ngilipidji is famed throughout the whole of Eastern Arnhem Land as the quarry at which the fine flint spear heads and knives are manufactured - and from which they have been traded for many generations, over a vast area of country. I had seen these spear heads in use as far south as Roper River and northward to the Goyder and at Caledon Bay", see Jones and White, 1980, supra, p. 53.

[84] Ibid, p. 54.

[85] Ibid.

[86] Ibid, p. 55.

[87] JE Glover, 1984, "The Geological Sources of Stone for Artefacts in the Perth Basin and Nearby Areas", Australian Aboriginal Studies, No. 1, pp. 17-25, p.17.

[88] Ibid, p. 24.

[89] Ibid, p. 22.

[90] Ibid, p. 20.

[91] K Akerman, 1979, "Heat and Lithic Technology in the Kimberleys," WA Archaeology and Physical Anthropology in Oceania, vol 14, no. 2, pp. 144-151.

[92] Ibid, p. 144.

[93] Ibid, p. 146.

[94] Ibid, p. 147.

[95] Ibid.

[96] Ibid, p. 149.

[97] Ibid, p. 150.

[98] Ibid.

[99] Ibid, p. 151.

[100] Ibid, p. 155.

[101] Ibid.

[102] Ibid, p. 157.

[103] Ibid.

[104] D Byrne, 1980, "Dynamics of Dispersion: The Place of Silcrete in Archaeological Assemblages from the Lower Murchison, Western Australia," Archaeology and Physical Anthropology in Oceania, vol 15.

[105] Ibid, p. 113.

[106] Flood, supra, p. 268.

[107] Ibid, p. 270.

[108] Berndt, footnote 13, p. 430.

[109] Ibid.

[110] Howitt et al, supra, pp. 357-358.

[111] Mabo v The State of Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1 [Mabo No. 2], per Brennan J at 59-60.

[112] Ibid, per Brennan J at 51, Dean and Gaudron JJ at 86, and Toohey J at 184-188.

[113] Note, Brennan J's comment in Mabo [No. 2], Ibid, at 59 which was much debated in the proceedings before the High Court in the case brought by the Wik Peoples (The Wik Peoples v The State of Queensland, No. B8 of 1996,
11/6/96 - 13/6/96, see for example, pp. 48-50), that: "native title, though recognised by the common law, is not an institution of the common law ... ."

[114] Mabo [No. 2] supra, per Brennan J at 51. As noted by Deane and Gaudron JJ, the Privy Council came to this conclusion in Amodu Tijani v Secretary Southern Nigeria [1921] 2 AC 399 at 403 where "... their Lordships disparagingly referred to a `tendency, operating at times unconsciously, to render [native title to land] conceptually in terms which are appropriate only to systems which have grown up under English law'. That tendency must, they said, `be held in check closely' since `[a]s a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with.'"

Toohey J also makes this point at 187: "The content of the interests protected is that which already exists traditionally; the substance of the interests is irrelevant to the threshold question. Moreover, it would defeat the purpose of recognition and protection if only those existing rights and duties which were the same as, or which approximated to, those under English law could comprise traditional title; such a criterion is irrelevant to the purpose of protection."

[115] Ibid per Toohey J at 188. See also the majority in Van der Peet v R [Van der Peet] [1996] 4 CNLR 177 at 202, approving R v Sparrow 70 DLR (4th) 385 (1990) 397, which noted that the definition of an Aboriginal right must, if it is truly to "reconcile the prior occupation of Canadian territory by Aboriginal peoples with the assertion of Crown Sovereignty over that territory, take into account the Aboriginal perspective, yet do so in terms which are cognizable to the non-Aboriginal legal system."

[116] Mabo [No. 2] supra, per Brennan J at 57.

[117] Ibid, per Brennan J at 58, and see also Deane and Gaudron JJ at 109-110.

[118] Ibid, per Brennan J at 51.

[119] Ibid, per Brennan J at 51 and 70, per Deane and Gaudron JJ at 84, and per Toohey J at 187-188.

[120] GD Meyers, 1994, "Aboriginal Rights to the `Profits of the Land': The Inclusion of Traditional Hunting and Fishing Rights in the Content of Native Title", in R Bartlett and GD Meyers (eds), Native Title Legislation in Australia,
Centre for Commercial and Resources Law, p. 223.

[121] Mabo [No. 2], supra, per Brennan J at 51.

[122] Ibid.

[123] Ibid.

[124] Ibid, per Brennan J at 52.

[125] Ibid.

[126] Ibid, per Toohey J at 189-190.

[127] See Meyers, supra, at p. 223.

[128] North Ganalanja Aboriginal Corp v Qld (1995) 61 FCR 1 at 23.

[129] Mabo [No. 2], supra, per Brennan J at 51 and 70, per Deane and Gaudron JJ at 84-88, and per Toohey J at 187-188. See also, Meyers, supra, 222-223.

[130] Mabo [No. 2], supra, per Toohey J at 187.

[131] Ibid, per Brennan J at 51.

[132] Ibid, per Deane and Gaudron JJ at 91.

[133] Ibid, at 88

[134] Ibid, at 188-189.

[135] Ibid, per Brennan J at 58, and Deane and Gaudron JJ at 109-110.

[136] Ibid, per Brennan J at 51.

[137] This could also be called a "profit" claim. See Meyers, supra, p. 223.

[138] Mabo [No. 2], per Brennan J at 58, Deane and Gaudron JJ at 109-110. Note that the validity of this assertion is challenged by R Bartlett, 1993, "How Native Title at Common Law Upsets the Dominance of Resource Titles: Resources Security and Mabo", in A Gardiner (ed), The Challenge of Resource Security: Law and Policy, Federation Press, p. 118; and M Gregory, 1995, `Absent Owners: Should Native Title Require Continuing Physical Occupation of the Land?', Aboriginal Law Bulletin, vol 3, no. 72, pp. 20-22.

[139] On issues of extent see pp. 222-225 of this commentary.

[140] M Hunt, 1992, "The Legal Implications of the Mabo Case for Resource Development", Australian Journal of Mining, (footnotes omitted); and M Hunt, Introductory Statement, "Panel Discussion: The Legal Implications of Mabo for Resource Development," 4 (Conference on Resource Development and Aboriginal Land Rights, Centre for Commercial and Resources Law, Perth, WA, August 1992.)

[141] M Hunt, 1993, "Mineral Development and Indigenous People - The Implications of the Mabo Case" Journal of Energy and Natural Resources Law, vol 11, no. 3, pp. 155-178, p. 166. Hunt also `suggests the content of native title in the mainland Australian context is basically a right to use land for traditional forms of sustenance (hunting, fishing, gathering, "bush tucker", etc). Thus, the author does not believe that the content of native title extends so as to confer upon the Aboriginal inhabitants any rights of ownership of minerals or petroleum', p. 166.

[142] See above, supra and accompanying text.

[143] Geological Survey of Western Australia, 1989, "Overview of Minerals and Energy in Western Australia" Geological Survey of Western Australia 1989, p. 1.

144. Attorney-General of Ontario v Bear Island Foundation [1985] 1 CNLR 1; Delgamuukw v The Queen (1991) 3 WWR 97 cited in Hunt, "Mineral Development and Indigenous Peoples ... " , supra, p. 162.

[145] Mabo [No. 2] supra, per Deane and Gaudron JJ at 100.

[146] Ibid, per Brennan J at 70.

[147] The issue was noted briefly in relation to New Zealand by Barry Barton in "Private Mineral Title: Necessary Reservations about Vesting Minerals in Surface Owners" [1987] NZLJ 100. In this article Barton recognises that Aboriginal title may exist in minerals and that "Maori claimants would be sure to argue that their rights are not to be confined to the Maori use of minerals at the time of the signing of the treaty or any other point in history", p. 104. See also R Bartlett, 1992, "Aboriginal Land Rights", AMPLA Yearbook, pp. 485-513.

[148] Hunt, "Mineral Development and Indigenous Peoples ... ", supra, p. 162.

[149] R v Sparrow above n. 115 at 397, and United States v Michigan (1979) 471 F Supp 192 at 260; and see footnotes
158-162 and accompanying text.

[150] Mabo [No. 2], supra, per Brennan J at 70.

[151] For example, R v Sparrow footnote 115, and United States v Michigan 471 F Supp, supra.

[152] (1986) 24 DLR (4th) 390 (emphasis added).

[153] R v Sparrow, supra, at 397. This purposive approach applies to the interpretation of both Aboriginal and treaty rights.

[154] Ibid, at 411.

[155] United States v Michigan, supra at 260, (emphasis added).

[156] See footnotes 27, 50-53, 69, 91, 97-99 and accompanying text.

[157] Mabo [No. 2], supra, at 70.

[158] The American cases also offer support for the liberal interpretation of native title rights. See for example, R v Sparrow, supra. For a discussion of both the liberal and remedial principles behind the interpretation of native title rights see GD Meyers, 1990, "Different Sides of the Same Coin: A Comparative View of Indian Hunting and Fishing Rights in the United States and Canada" UCLA J Env L & Policy, vol 10, pp. 67-121: pp. 85-88.

[159] Michael Jackson, 1984, "The Articulation of Native Rights in Canadian Law", UBC Rev, vol. 18, p. 225, p. 262.

[160] The need to fully respect the rights of the inhabitants was expressed by Lord Denning speaking for the Privy council in Adeyinka Oyekan v Musendikit Adele [1957] 1 WLR 876 at 880 and endorsed in Mabo No. 2, supra, by Brennan J
at 56. Deane and Gaudron JJ also endorsed this statement.

[161] "Different Sides of the Same Coin", supra, p. 88; and Lac Courte Oreilles Band of Lake Superior Chippewa Indians v Voigt, [1983] USCA7 167; 700 F2d 341, 351 (7th Cir, 1983). Caren Wickliffe has noted that in New Zealand, "... [t]he Waitangi Tribunal has applied the contra proferentum rule [in construing the Treaty of Waitangi] which requires that in the event of ambiguity, a provision should be construed against the party which drafted or proposed the provisions." She cites Lord McNair's, Law of Treaties (1961), p. 464; as applied by the Waitiangi Tribunal in the Orakei Report, p. 128; Muriwhenua Fishing Report, p. 188; Nai Tabu Report, p. 223. Caren Wickliffe, 1996, "The Co-Management of Living Resources and Maori Customary Fishing Rights" in GD Meyers (ed), The Way Forward: Collaboration and Cooperation "In Country" NNTT/AGPS, pp. 67-89, p. 68.

[162] Supra. See also M Asch and C Bell, "Definition and Interpretation of Fact in Canadian Aboriginal Title Litigation: An Analysis of Delgamuukw", Queens Law Journal, vol 19 503-550; and R v Sparrow, supra, at 411 in which the Court notes that, "[i]t is possible and , indeed crucial, to be sensitive to the aboriginal perspective of the meaning of the rights at stake".

[163] This is the social argument as it was dubbed by the majority in Van der Peet, as referenced to the use of the fishing to sustain a moderate living finding in the United States v Washington cases.

[164] Mabo [No. 2], supra, per Deane and Gaudron JJ at 100.

[165] Ibid, per Deane and Gaudron JJ at 83 adopting Adeyinka Oyekan v Musendiku Adele, supra.

[166] See generally the argument on the full occupancy approach in footnotes 220-40.

[167] See footnotes 28, 37-41, 54-56, 68, 75-78, 84-86, 102, 106 and accompanying text.

[168] United States v State of Washington 384 F Supp. 312, 450 (WD WA, 1974) (hereafter, United States v Washington (I)).

[169] Ibid, at 451.

[170] United States v State of Washington 506 F Supp. 187, 192 (WD WA, 1980) (hereafter United States v Washington (II)).

[171] Ibid, at 203.

[172] Ibid, at 197.

[173] United States v State of Washington (I), supra, at 351.

[174] Ibid.

175 Ibid, at 358.

[176] United States v State of Washington (II), supra, at 198: "The only express limitation on the tribes' right of taking fish is the requirement to share the harvest `in common with' non-Indians. The only implicit limitations on that right are the tribes' moderate living needs, the State's power to impose conservation measures necessary to preserve the resource, and the physical availability of fish ... No court has implied any additional limitations based on the species or origin of the fish, or the purpose, manner or timing of the taking."

And at 206: "First, the treaty secured right to take fish at usual and accustomed places may not be qualified or conditioned by the State. ... Second, the State may not subordinate the fishing right to any other objectives or purposes it may prefer. ... Third, the State may affirmatively regulate treaty fishing solely for the purpose of conserving the resource."

See also R v Sparrow, supra.

177. Mabo [No. 2], supra, at 58 "native title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. ... it is necessary to obtain by evidence the nature and incidents of native title."

[178] Van der Peet v R, supra, at 208 per Lamer CJC (La Forrest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ concurring) (L'Heureux-Dubé and McLachlin JJ dissenting), emphasis in original.

[179] Van der Peet v R, supra.

[180] Gladstone v R [1996] 4 CNLR 65.

[181] NTC Smokehouse v R [1996] 4 CNLR 130.

[182] R v Sparrow, supra.

[183] The licences were granted under the British Columbia Fishery (General) Regulations, SOR/84-284 s. 27(1), (5) [enacted SOR/85-290, s. 5] - since repealed and replaced by Pacific Fishery Regulations, 1993, SOR/93-54.

[184] R v Sparrow, supra.

[185] Van der Peet v R, supra, at 191-92.

[186] Ibid, at 193. Note that another reason for this was the fiduciary relationship between the Aboriginal peoples and the Canadian Crown and the need to protect the Crown's honour. Ibid., at 194.

[187] Van der Peet v R, supra, at 201.

[188] Ibid., at 202.

[189] Mabo [No. 2], supra, at 29.

[190] Van der Peet v R, supra, at 203.

[191] Ibid, at 203-205.

[192] Ibid, at 206

[193] Mabo [No. 2], supra, at 60.

[194] Van der Peet, supra, at 208.

[195] Ibid, at 208-209 (emphasis in original).

[196] Ibid, at 210.

[197] Ibid, at 210, (emphasis in original).

[198] Ibid, at 210-216.

[199] Ibid, at 36.

[200] The majority reached a similar conclusion in NTC Smokehouse v R holding that the exchange of fish incidental to social and ceremonial occasions was not, itself, a sufficiently central, significant or defining feature of the societies providing the fish to NTC Smokehouse to be recognised as an Aboriginal right under s. 35. See NTC Smokehouse v R, supra.

[201] Gladstone v R, supra, at 78.

[202] Ibid. It is worth noting that the majority distinguish between a right to exchange fish for goods or money and the right to sell fish for commercial purposes which is a subset of the former proposition.

[203] Van der Peet, supra, at 231.

204. Ibid.

[205] Ibid; and cf, GD Meyers, 1994, "Aboriginal Rights to the `Profits of the Land: The Inclusion of Traditional Hunting and Fishing Rights in the Content of Native Title," in RH Bartlett and GD Meyers, Native Title Legislation in Australia, Centre for Commercial and Resources Law, p. 213, pp. 221-23.

[206] Van der Peet, supra, at 231.

207. Ibid.

[208] Ibid, at 232.

[209] Ibid.

[210] Ibid.

[211] Ibid.

[212] Ibid, at 233.

[213] See generally, W Pentney, 1988, "The Rights of Aboriginal peoples of Canada and the Constitution Act, 1982, Part I: The Interpretive Prism of Section 25," UBC L Rev, p. 21, pp. 22-23; and see also the opinion of Justices Dickson and Forrest in Sparrow, in which they note in relation to the command to protect existing native title rights in s. 35 of the Constitution that, this section compels courts to apply a canon of construction to the interpretation of treaty and Aboriginal rights which seeks to affirm those rights in line with the purpose that lies behind the constitutional provision. Sparrow, supra, at 407.

[214] Van der Peet, supra, at 258.

[215] Ibid.

[216] See footnotes 199-202 and accompanying text.

[217] Mabo [No. 2], supra, per Brennan J at 51.

[218] United States v Washington, [1979] USSC 151; 443 US 658 at 666-667.

[219] For discussion of Aboriginal trading see footnotes 28, 37-41, 54-56, 68,75-78, 84-86, 102, 106 and accom-
panying text.

[220] On the Aboriginal conception of and relationship to land, generally and in specific cases see footnotes 13-18, 29, 57, 106 and accompanying text.

[221] N Pearson, 1996, "The Concept of Native Title", in Land Rights: Past, Present and Future International Conference Canberra, Northern and Central Land Councils, 16 and 17 August, p. 118.

[222] Ibid, p. 120.

[223] Ibid. Pearson also argues that when native title is constructed as a recognition concept in many cases what is extinguished is merely common law recognition of Aboriginal law. Therefore, if the reason for the common law's inability to recognise title is removed and the Aboriginal law remains in existence, native title can again come into play.

[224] Ibid, p. 123.

[225] H Wootten, 1996, "The Rights and Recognition of Indigenous People - Consequential Land Management Impacts on the Environment, and on the Recognition of Native Title", in GD Meyers (ed) Implementing the Native Title Act: First Steps; Small Steps, Commonwealth of Australia, National Native Title Tribunal, pp. 60-73, p. 71, footnotes omitted.

[226] Ibid.

[227] Bartlett, supra, p. 119.

[228] Mabo [No. 2] supra, per Brennan J at 57. ( NB the rest of the quote is in respect of their rights and interests in land and recognises in the Indigenous inhabitants of a settled colony the rights and interests recognised by the Privy Council in In re Southern Rhodesia [1919] AC 211 "as surviving to the benefit of the residents of a conquered colony".)

[229] [1926] AC at 525.

[230] Cited by Brennan J in Mabo [No 2] supra, at 56.

[231] Ibid, Deane and Gaudron JJ at 82. They also state at 85 that the approach is supported by other authority "and by compelling considerations of justice. It should be accepted as correct".

[232] Bartlett, 1993, supra, p. 119, emphasis added. Similarly in RH Bartlett, 1993, "The Source Content and Proof of native title at Common Law" in RH Bartlett (ed) Resource Development and Aboriginal Land Rights, Centre for Commercial and Resources Law, Bartlett observes at pp. 8-9, that "The Aboriginal people made the fullest use of the land consistent with their mode of living. Merely because other uses might be made of the land in a more settled industrial and technological society should not limit their ambit of rights."

[233] Mabo [No. 2] (1988) 166 CLR 186, per Brennan, and per Toohey and Gaudron JJ at 219.

[234] The Wik Peoples v Queensland (HC) supra. Toohey, Gaudron, Gummow, and Kirby JJ, majority; Brennan CJ, Dawson, and McHugh dissenting.

[235] Ibid, per Toohey J at 174, 176, 181.

[236] Ibid, per Toohey J at 170. (Note that the intention to extinguish must be expressed in terms which are clear and plain.)

[237] Ibid, at 188-189.

[238] JD Leshey, "Indigenous Peoples, Land Claims, and Control of Mineral Development: Australian and US Legal Systems Compared", (1985) UNSW Law Review, vol. 8, pp. 271-31, p. 273.

[239] Ibid. See also Merrion v Jicarilla Apache Tribe [1982] USSC 27; (1982) 455 US 130; and Kerr-Mcgee v Navajo Tribe (1985) 85 L Ed 2nd 200.

[240] J Woodward, (1995) Native Law (Looseleaf Service), Carswell, Thomson Professional Publishing.

[241] See generally, G McIntyre, 1994, "Proving Native Title", in RH Bartlett and GD Meyers, Native Title Legislation in Australia, Centre for Commercial and Resources Law, pp. 121-57; and RH Bartlett, "The Source Content and Proof of Native Title", supra.

[242] In the Matter of the Waanyi Peoples Native Title Determination Application (Application No: QN 9419) (14 February 1995).

[243] Coe v Commonwealth and Another, [1993] HCA 42; [1993] 118 ALR 193.

[244] Waanyi Determination, supra, at 22.

245. Ibid, at 22-30.

[246] Ibid, at 30. Justice French admits that the question is an open one at common law.

[247] [1993] 118 ALR at 207.

[248] Ibid, at 207-207.

[249] Ibid, at 206.

[250] See for example, Calder v Attorney General of British Columbia, [1973] 34 DLR 3d 145, at 189-90; Simon v R, footnote 152, at 405-406; and Sparrow, supra, at 401. For a review of some of the North American cases, see RH Bartlett, 1995, "Onus of Proof for Native Title", Aboriginal Law Bulletin, vol. 3, no. 74, pp. 8-9.

[251] P Butt, 1995, "Native Title Takes Off", Australian Law Journal vol 69. 8, p. 11; and Amodu Tijani v Secretary Southern Nigeria, footnote 114. .

[252] Mabo [No. 2], supra at 183.

[253] The State of Western Australia v The Commonwealth [Native Title Act Case] [1995] HCA 47; (1995) 183 CLR 373 at 423.

[254] Onus of Proof, footnote 250 at p. 9; and J Fitzgerald, 1995, "Proving Native Title: A Critical Guide", Aboriginal Law Bulletin, vol 3, no. 75, p. 4.

[255] Ibid, Onus of Proof, p. 9, and Fitzgerald, p. 4.

[256] Ibid.

[257] See footnotes 13-18, 29, 57, 106.

[258] For anthropological and historical support for Aboriginal access to and ownership of minerals see footnotes 15, 32, 42, 58, 79, 100-101.

[259] Extinguishment may also occur by:

the voluntary surrender of the title to the Crown by the Aboriginal people who have the relevant connection with the land;

* where the "clan or group, by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connection with the land ..." (per Brennan J);

* `the death of the last of the members of the group or clan' (per Brennan J); or

* divesture, ie. legislative or executive action. see, Hunt, footnote 141, pp. 167-172. For a detailed discussion of extinguishment see P Van Hattem, 1993, "The Extinguishment of Native Title" in R Bartlett, Resource Development and Aboriginal Land Rights in Australia, Centre for Commercial and Resources Law of the University of Western Australia and Murdoch University.

[260] See Mabo [No. 2], supra, per Brennan J at 197 who notes that [t]he Crown can not derogate from a grant once made as "native title is not granted by the Crown, there is no comparable presumption affecting the conferring of any executive power on the Crown the exercise of which is apt to extinguish native title". See also K McNeil, 1996, "Racial Discrimination and Unilateral Extinguishment of Native Title", Australian Indigenous Law Reporter, vol. 1, p. 181.

[261] McNeil, Ibid, p. 204.

[262] Mabo [No. 2] supra, per Brennan J at 53.

263. Ibid, per Brennan J at 50.

[264] For further discussion of radical title, see Mabo [No 2] supra, per Brennan J at 48. Also see generally N Rogers, 1995, "The Emerging Concept of "Radical Title" in Australia: Implications for Environmental Management" EPLJ, vol. 12,
no. 3, pp. 183-199.

[265] The Commonwealth v Hazeldell Ltd [1918] HCA 75; (1918) 25 CLR 552 (HC) per Griffith CJ and Rich J at 563.

[266] Mabo [No. 2], supra, per Deane and Gaudron JJ at 111. (NB the Court adopted the clear and plain intention test but rejected a common law right to compensation for extinguishment of native title.)

[267] Ibid, per Brennan J at 64. The clear and plain intention test was also applied in The Native Title Act Case, supra.

[268] Mabo [No. 2], supra, per Brennan J at 64. Brennan J also notes the North American decisions on point including Calder v AG (British Columbia) [1973] 34 DLR 3d 145, and the New Zealand case of Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680. (NB also that intention is "... not a reference to state of mind of the Crown or the Crown's officers who, for instance, made a grant of land. What is to be ascertained is the operation of the statute and the `intention' to be discerned from it..." (per Toohey J in Wik footnote 1, relying on The Native Title Act Case, supra, at 421-3).)

[269] The Native Title Act Case, supra.

[270] Ibid, per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (The Joint Judgment) at 431; Mabo [No. 2] supra, per Brennan J at 58- Exclusion by recurrent exercise of paramount power in granting land, 68- Rights and interests chipped away by the exercise of a sovereign authority over land exercised recurrently by governments, 69- `parcel by parcel'.

[271] Native Title Act case, supra, per the joint judgment at 422.

[272] Ibid, at 423.

[273] Mabo [No. 1], supra, and Mabo [No. 2], supra. Qld and NSW legislation, The Native Title Act Case, supra, WA legislation.

[274] Mabo [No. 2], supra, per Brennan at 68.

[275] For a discussion of ownership of royal minerals see footnotes 279-283 and accompanying text.

[276] Land Regulations 1887 No. 12.

Clause 16 ALL Crown grants issued under these Regulations shall contain a reservation of all gold, silver, and other precious metals in or under the land comprised therein.

Clause 17 In addition to any powers of resumption and to any rights of entry, and of cutting and taking timber, and of searching and digging for building and other materials, and to any reservation of mines of gold, silver, and other precious metals ordinarily contained in Crown grants, the Governor in council may, from time to time, by order under his hand, direct whether any of the precious metals existing in the form of alluvial deposits, or any inferior metals, or any gems or jewels, shall be in like manner reserved to the Crown: in which case the forms of deeds of grant shall be modified accordingly.

[277] Land Act 1898, s. 15.

[278] Cujus est solum ejus est usque ad coelum et ad inferos.

[279] The Case of Mines (1568) 1 Plowd 310; 75 ER 472.

[280] [1877] 2 AC 163. Interestingly this rule, although firmly established throughout Australia, was never actually applied in the State of Queensland. For a discussion of this see Drummond J in The Wik Peoples v Queensland supra, at 679.

[281] [1877] 2 AC 163 .

[282] The Case of Mines (1568) 1 Plowd at 336; 75 ER at 511 This was confirmed in the Western Australian case of Worsley Timber v Western Australia [1974] WAR 115 where it was acknowledged that base minerals are only reserved to the Crown if there is an express reservation to this effect.

[283] The Commonwealth v NSW [1923] HCA 34; (1923) 33 CLR 1.

[284] See eg, Governor Phillip's Commission extracted in The Wik Peoples v Queensland (Fed Ct), supra, at 645. The Commission of the Governor of Western Australia can be found in N. Ogle, The Colony of Western Australia: A Manual for Emigrants 1839, (1st Ed): James Frazer, 1839, (2nd Ed): John Ferguson, St Ives NSW, 1977, Appendix I.

[285] The Wik Peoples v Queensland (Fed Ct), supra, per Drummond J at 684.

[286] `Section 6(1)(ii) Silver on or below the surface of all land in Queensland, whether alienated in fee-simple or not so alienated from the Crown, and if so alienated whenever so alienated, other than land alienated in pursuance of section twenty-two of `The Crown Lands Alienation Act of 1860', or section thirty-two of `The Crown Lands Alienation Act of 1868', or section twenty-one of `The Mineral Lands Act of 1872' is the property of the Crown'.

[287] The Wik Peoples v Queensland (Fed Ct) supra, at 679.

[288] Section 6(1)(v) and s. 6(2).

[289] The Wik Peoples v Queensland (Fed Ct), supra, at 781.

[290] See generally the powers of the various states and territories to legislate for the peace, order and good government of their states.

[291] The Wik Peoples v Queensland (Fed Ct, supra, at 681-682. The legislative history in relation to privately owned coal is complex, suffice to say that private ownership of coal obtained through a grand in fee simple before 1 March 1910 still exists. This is subject to the exclusive right of the Crown to authorise mining in any land in the State. For a discussion of private coal ownership see Drummond J ibid. at pp. 683-684 and the judgment of Hoare J in Meadcham & Leyland Pty Ltd v New Hope Collieries Pty Ltd (SC(Qld), (Full Court, 2 April 1976, unreported).

[292] The Wik Peoples v Queensland (Fed Ct), supra, at 685.

[293] See the Land Act 1994 (Qld).

[294] Section 1.9.

[295] With respect to coal, only some private rights to the mineral were preserved. As not all private interests in the mineral were preserved the argument that the Crown also intended to preserve native title is rather tenuous.

[296] Note also Noel Pearson's argument that native title exists as a recognition concept. In this case, following Pearson's argument, it can be said that if the Aboriginal law right to the minerals has continued unaffected, then the 1925 legislation was a suspension of the common law's ability to recognise Aboriginal title, with the consequence that native title temporarily disappeared. When the Parliament chose to `regrant' mineral rights, the cause for the inability of the common law to recognise Aboriginal law was removed reinstating the previously existing native title right in minerals. See generally Pearson's speech on "The Concept of Native Title" presented at the Land Rights: Past, Present and Future conference, jointly convened by the Northern and Central Land Councils, held at Old Parliament House, Canberra,16 and 17 August 1996.

[297] As acknowledged by Drummond J in The Wik Peoples v Queensland (Fed Ct), supra, at 688.

[298] Land Regulations 1887 cl 16 & 17.

[299] Land Act 1898, s15.

[300] Mining Act 1904, No 15, 3 Edw. VII.

[301] `Minerals' were defined as: `All minerals other than gold, and all precious stones.'

[302] Mining Act 1978 (WA) is the same in substance although the definition of minerals has been substantially broadened.

[303] Western Australia v Ben Ward et al on behalf of the Miriuwung Gajerrong Peoples & Carnegie Minerals NL & Pecan Holdings Pty Ltd (unreported, No. WAG 6003 of 1996, 18 November 1996).

[304] Re the expedited procedure (which avoids the right to negotiate process) see s. 32 Native Title Act 1993 (Cth).

[305] Ward, supra.

[306] See Wik Peoples v Queensland, Thayore Peoples v Queensland (HC) above n, "... `intention' in this context is not a reference to the state of mind of the Crown or of the Crown's officers who, for instance, made a grant of land. What is to be ascertained is the operation of the statute and the `intention' to be discerned from it", per Toohey J at 68, see also The Native Title Act Case, supra, at 421-423.

[308] See The Native Title Act Case, supra.

[308] Note, the Native Title Act 1993 Cth [NTA] treats native title as "ordinary title" in determining compensation. This "similar compensible interest test" arises from need to comply with the Racial Discrimination Act 1975 (Cth). In The Native Title Act Case, supra, the Court held that while legislation enacted before 31 October 1975 cannot be found to be inconsistent with the Racial Discrimination Act, any act done pursuant to such legislation must comply with the Racial Discrimination Act. Similar compensible interests is defined in s. 240 of the NTA, the test is in ss. 23(4), and ss. 51(3).

[309] Mining Act 1978 (WA), s. 37 (Pt III Div III).

[310] Forbes and Lang, supra, state that "between 1788 and 1828, grants of land generally contained no reservation of minerals although it is reported that Governor Macquarie (1810-1821) did insert a reservation of all minerals in some grants" at para 205. They then set out the position as regards the confirmation of title in gold an silver. The legislative history of NSW discloses a number of Acts which affect the reservation of minerals in that state, and which minerals are reserved in that state, however, they are usually in specific circumstances. The legislation pre-1884 which comes closest to a general reservation of minerals is the Crown Lands Alienation Act 1861 which provided a two tier system of land ownership. Land could be bought at one price with all the minerals reserved, or at another price for mining purposes, in which case only gold was reserved. The Regulations of 13 October 1865 made under the Act allowed for conversion of an ordinary title to a mineral title. This conversion procedure was saved under s. 7 of the 1884 Act.

[311] Section 5.

[312] The Crown Lands Act 1976, s. 16(3).

[313] Mining Act 1929 No. 71, repealing the Mining Act 1917 No. 62, s. 165, which succeeded the 1911 provision.

[314] Forbes and Lang, supra, pp. 24-25.

[315] Now Land Act 1958.

[316] Land Act 1891, s. 11.

[317] See Forbes and Lang, supra, p. 22. The Common law definition applied until 1949. The Mines Act 1958 adopted a wide definition in s. 3(5) which from 1983 could be varied by regulation [s. 3(6)]. There were some movements in the opposite direction with stone and similar substances being returned to private ownership by the Extractive Industries Act 1966 and `Mineral waters' by the Mines Compensation Act 1970.

[318] Mines (Amendment) Act No. 9936 of 1983.

[319] Section 291(1) of the principal Act the Land Act 1958.

[320] Sections 291 (2) and (3).

[321] Section 294 (3) relates to the time limits.

[322] Section 232 NTA "A `category D past act' is any past act that is not a category A past act, a category B past act or a category C past act." As legislation passed before 1 July 1993 it is a past act as defined by s. 228 NTA. Categories A, B, and C past acts deal with the grant of freehold and certain leases, and the construction of public works.

[323] The non-extinguishment principle means that the past act, though validated, does not have the effect of extinguishing native title. The native title continues to exist, but the ability to exercise the native title rights is suspended. If the past act ceases, the native title rights can again be exercised.

[324] Section 17 NTA.

[325] Section 19.

[326] Section 6.

[327] The landholder was required to apply for this within three years of the Mining Act 1971 coming into force, s. 19(1)(c) and Emerald Quarry Industries Pty Ltd v Commissioner of Highways (1976) 14 SASR 486.

[328] Minerals (Acquisition) Act 1953.

SECTION 3 ACQUISITION OF CERTAIN MINERALS

All minerals existing in their natural condition, or in a deposit of waste material obtained from any underground surface working, on or below the surface of any land in the Territory, not being minerals, which, immediately before the commencement of this Act, were the property of the Crown or of the Commonwealth, are, by force of this Act, acquired by, and vested absolutely in, the Crown in right of the Commonwealth.

2 DEFINITION

In this Act, "minerals" includes all mineral substances, gold, silver, copper, tin and other metals, ores or other substances containing metals or minerals, and gems, precious stones, coal, shale, mineral oils and valuable earths and substances.

The validity of this Act was challenged in Keane v Commonwealth (1963) 5 FLR 432 and Milirrupum v Nabalco Pty Ltd (1971) 17 FLR 141. The argument in both cases was based on the Northern Territory Administration Act 1910, s. 7 of which preserved existing South Australian laws in force subject to amendment or repeal by Commonwealth laws. Section 9 declared that the Land Acquisition Act (Cth) 1906 applied to the Northern Territory. It was argued that in declaring that this Act applied to the NT, the Commonwealth Parliament was placing a limit on the power of the Governor General in Council to legislate with respect to acquisition of property.

In Kean v Cth Bridge J held that the Land Acquisition Act (Cth) did not exclusively cover the acquisition field. Rather, he held that the Act provided for acquisition by either voluntary agreement or compulsory powers. As the Minerals Acquisition Ordinance 1953 (NT) operated differently, providing for acquisition by direct legislative process, Bridge J held that the Acts were mutually independent and both valid.

Blackburn J in Milirrupum accepted this argument but did not consider it necessary. He instead held that s. 9 was not a limit on the power of the newly formed legislative council of the Northern Territory which was granted the power to make laws with respect to the `peace order and good government' of the Territory, subject to the Administration Act and subject to its inability to repeal the laws of the Commonwealth Parliament. Both judges, therefore, held the legislation valid.

[329] However, note the ability to veto mineral exploitation under the Aboriginal Land Rights Act 1976 (NT). The veto power implicitly recognises Indigenous interests in the minerals.

[330] Section 4. This compensation may be determined either by agreement or by action by the claimant in the Supreme Court.

[331] Seat of Government Acceptance Act 1909 No. 23 ( as amended) ss. 6 and 7; Seat of Government (administration) Act 1933 No. 4 (as amended) ss. 4-6, 8. See Forbes and Lang, supra, p. 25.

[332] Leases Ordinance 1918 (as amended), Leases (Special Purposes) Ordinance 1925 (as Amended) and City Area Leases Ordinance 1936 (as amended). See Forbes and Lang, supra, p. 25.

[333] Petroleum Act (WA) 1967, s. 9 (definition s. 5);

Petroleum (Onshore) Act (NSW) 1991, s. 6(1), definition s. 3;

Petroleum Act 1958 (Vic), s. 5(1), definition s. 3;

Petroleum Act 1923 (Qld), s. 9, definition s. 2;

Petroleum Act 1940 (SA), s. 4(1);

Mining Act 1929 (Tas) 1929, s. 2B;

Petroleum Act 1984 (NT) 1984, s. 6(1).

[334] Petroleum (Onshore) Act 1991 (NSW), s. 6(1) and Mining Act 1929 (Tas), s. 2B(3).

[335] Petroleum Act 1969 (WA), s. 10; Petroleum (Onshore) Act 1991 (NSW), s. 6(2); Petroleum Act 1958 (Vic) s. 5(2); Petroleum Act 1923 (Qld) s. 10; Petroleum Act 1940 (SA), s. 4(1); Mining Act 1929 (Tas), s. 2B(4).

[336] Section 212(1).

[337] Native Title (NSW) Act 1994.

Native Title (QLD) Act 1993.

Land Titles Validation Act 1994 (Vic).