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On 3 June 1992, the High Court of Australia held in Mabo v Queensland that the common law of Australia recognises native title to land. The Court rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement and said that native title can continue to exist:
Further, the Court found that the content of native title - the rights which it contains - is to be determined according to the traditional laws and customs of the Aboriginal and Torres Strait Islander people involved.
The challenge is how to recognise and manage a title to land deriving not from laws passed by Parliaments, but from the continuation by the common law of rights over land which pre-date European settlement.
More broadly, the Mabo decision underlies the dispossession of Aboriginal and Torres Strait Islander people from their land. Its logic is seen as requiring further consideration by governments of measures to respond to that historical injustice, including for people who now cannot benefit from the decision because their connection with the land has been severed.
The Mabo decision has led to calls for a more focussed discussion of a number of long terms issues concerning the relationship between indigenous and nonindigenous Australians. Properly handled it can be a landmark, strengthening the process of reconciliation.
The decision raises many legal questions and leaves a number of uncertainties. Amongst the most important is how native title relates to other interests in land.
The decision does not give native title primacy over valid interests in land granted by governments. A validly granted freehold title (and probably leasehold title) would extinguish native title. It is less clear whether valid grants of interests in land that are less than freehold or leasehold extinguish native title, but they can certainly impair it, i.e. reduce the native title rights to the extent of any inconsistency with the grant.
On one legal view, some such grants of interests in land since 31 October 1975 (and perhaps laws under which they were made) may, however, be invalid. This is because the Commonwealth Racial Discrimination Act 1975 (RDA), which came into force on that date, requires that native title be treated in a non-discriminatory fashion.
Where a grant of interest in land would extinguish or impair native title interests without compensation, and where such a grant would not extinguish or impair other interests without compensation, the effect may be discriminatory. Discrimination might also arise where actions affecting native title land are not subject to the same procedural requirements as those affecting other interests in land.
In the interests of native title holders themselves, of others with interests in land (including industry) and of governments who need to manage land efficiently, Australia needs to identify the holders and boundaries of native title. This must ultimately be the answer to the conundrum that land managers are required to deal fairly with native title but cannot yet be sure who has it, or where it is.
The immediate priorities are to know where native title is claimed to exist, to recognise native title quickly where this is relatively straightforward, and to determine the validity or otherwise of native title claims to areas which it is proposed be used for some purpose (whether mining, residential, pastoral or a public purpose).
A system of specialised tribunals for the registration and determination of claims - and for conciliation - could provide a quicker, more efficient, less adversarial and more systematic process than reliance on the courts. The uncertainties and possible polarisation of community views which could arise from large scale litigation are to be avoided.
While land administration is primarily a State/Territory matter, tribunals should operate within parameters acceptable to the Commonwealth to ensure a consistent national approach.
Such a tribunal system would require adequate resourcing. Also, because a right cannot be said fully to exist unless people have the capacity to pursue it, resources would need to be provided for claims to be researched and presented. In terms of establishing an orderly process for claims to be made, there is a strong case for Aboriginal and Torres Strait Islander organisations to have a major role. Financial assistance to non-Aboriginal people wishing to be heard in tribunals could be considered in certain circumstances.
Up to June 1992, grants of interest in land were made before native title was recognised in Australian law. Contravention of the RDA, if such occurred, was inadvertent. Grants have continued to be made since June 1992, in the period in which the country has been attempting to evaluate the implications of the Mabo decision and develop a policy response.
The Commonwealth Government has provided an assurance that it would, if necessary, act to ensure that rights of existing land holders are protected.
A number of options are available for putting beyond doubt the validity of grants of interests in land made since 1975. From a legal point of view, they range:
The preferred approach is to keep any extinguishment of native title to the minimum necessary to validate the grants. Legislation would provide that, wherever possible, native title would continue to exist, subject to the grants for the period of the grants. This concept could most readily be applied in relation to mining leases; other cases may be more difficult.
Compensation would be payable, by governments, for any extinguishment or impairment of native title.
Although the above actions would be necessary to clear up problems arising from past actions, the situation should not be allowed to persist whereby grants of doubtful validity can continue to be made with an assurance of retrospective validation. An early cut-off date should be established.
More fundamentally, there is an urgent need to move to a new land management regime which recognises native title.
This new regime should be founded on legislation, enacted on a national basis, to establish key principles for the treatment of native title. This framework-setting legislation should simultaneously provide the basis for previous grants to be validated, and for grants to be issued validly in the future.
The further requirement in establishing a new land management regime is the review and updating as necessary of specific land laws and procedures. The main State, Territory and Commonwealth Acts which potentially need to be amended include those relating to the grant of interests in or reservations over Crown land, Aboriginal and Torres Strait Islander land, mining, water rights, forestry, fishing, conservation and compulsory acquisition of land.
The establishment of a new regime will take time.
From now on, as a matter of land management practice, where governments are contemplating a grant of interest in land and where the land involved could credibly be subject to native title, the Aboriginal and Torres Strait Islander people involved should be treated at least comparably with other title holders.
An alternative to revising land law and procedure to take account of native title would be to convert native title to statutory title(s). This would possibly have attractions from some perspectives in terms of substituting a better defined package of rights for native title. But it would be wrong to compel such an exchange.
The concept may, on the other hand, have a place in future negotiations. But it does not represent a comprehensive or near term solution to the land management difficulties posed by Mabo.
The RDA and the principle of non-discrimination establish an important benchmark for the treatment of native title.
There is, however, an important question whether further statutory protection of native title should be provided by according the native title holder rights of consent and/or negotiation on proposed actions affecting the land. It is argued that native title is, in its own right, an interest in land of high importance deserving such protection. This argument reflects the special attachment of Aboriginal and Torres Strait Islander people to the land.
The High Court decision does not confer any absolute right of consent. But a qualified right could be provided in legislation:
A range of factors needs to be weighed in deciding whether to provide for a right of consent.
Regardless of whether there is a right of consent, negotiation can sometimes be a relatively quick and flexible means of reconciling native title rights and a proposed use of the land. As a matter of policy, governments should be ready to facilitate negotiation. It is a technique they will need in dealing with the land management challenges posed by Mabo.
Beyond that, the special attachment of Aboriginal and Torres Strait Islander people to the land could be reflected in legislation which established a framework for negotiation/ arbitration over proposed actions affecting the land.
It is not, however, considered appropriate or practicable retrospectively to require negotiation or consent as conditions for the validation of grants of interest in land since 1975.
Three other land management issues deserve consideration.
First, because, according to the High Court, the content of native title depends upon the laws and customs of the people involved, no universal definition of native title rights is possible. This is not, however, an insuperable difficulty for efficient land management. When it comes to compensation, for example, the requirement will be to assess the amount payable for loss of rights rather than necessarily - determining the full set of rights.
Second, the determination of compensation could be left to the courts or to the proposed tribunal, or could be the subject of negotiation. There is, however, merit in establishing a legislative framework.
Third, while it is desirable to handle the land management challenges posed by the Mabo decision in ways which avoid large scale litigation, there may be instances in which facilitation of court cases, to clarify important principles left uncertain by the decision, is the most appropriate way to proceed.
These land management issues need to be put in the wider context of efforts to achieve justice and economic development for Aboriginal and Torres Strait Islander people. A credible response by governments to the Mabo decision should be a package extending to justice, economic development and reconciliation.
The scale and scope of any package will be conditioned by budget realities, but should be in keeping with the Government's forthright position on Aboriginal and Torres Strait Islander affairs.
There is merit in initiatives which bear upon dispossession, land and a better relationship between Aboriginal and Torres Strait Islander interests and economic development. These could include:
Such measures could be taken individually, or in combination, e.g. the revenue equivalents could provide part of the financing of the compensation fund.
Mabo does not obviate the need for progress on statutory land rights, nor for effective Aboriginal and Torres Strait Islander heritage legislation across Australia.
The Mabo decision sweeps aside the doctrine of terra nullius, the foundation of dispossession of Aboriginal and Torres Strait Islander people. It recognises customary law and traditions as a source of Australian law. It establishes a new entitlement to land, grounded in the place of Aboriginal and Torres Strait Islander peoples as the original owners of the continent.
As such, the Mabo decision is seen as a major contribution to the social, cultural and economic empowerment of Aboriginal and Torres Strait Islander people.
The Council for Aboriginal Reconciliation believes the decision leads logically to reconsideration of a number of long term issues concerning the relationship between indigenous and non-indigenous Australians. Aboriginal and Torres Strait Islander representatives have proposed to the Government a Settlement Process with similar aims.
Such issues as constitutional change and 'self government' are complex, sensitive and often misunderstood. They are not yet fully defined. But they should continue to be the subject of discussion in the reconciliation process, which also has a role to play in public understanding of the Mabo decision and the creation of a climate conducive to co-operation rather than conflict over land use.
As a basis for ongoing consultations, the Commonwealth Government's Ministerial Committee on Mabo has suggested key principles (contained in the Annex) to guide the challenging policy task of responding to the implications and uncertainties arising from the High Court's decision on native title.
As a basis for ongoing consultations, the following suggested key principles have been put forward by the Commonwealth's Ministerial Committee on Mabo to guide the challenging policy task of responding to the implications and uncertainties arising from the High Court's decision on native title.
In the Mabo decision of 3 June 1992, the High Court rejected the doctrine that Australia was terra nullius ("land belonging to no one") at the time of European settlement and held that the common law of Australia recognises a form of native title. This exists:
While providing general principles, the decision of the High Court does not resolve a number of key issues. In particular, it is necessary for governments to consider how future land management should be conducted in a way which recognises that native title exists in common law, and at the same time permits land management to be undertaken in an efficient, fair and non-discriminatory fashion. In addition, policy relating to native title should recognise the special association and traditional attachment to the land of Aboriginal and Torres Strait Islander people.
In a statement made on 27 October 1992, the Prime Minister said that the High Court's historic decision was a threshold and positive one for the nation. Australia now has the opportunity to address the fundamental issue of the place of Aboriginal and Torres Strait Islander traditional land ownership and indeed the place of Aboriginal and Torres Strait Islander peoples in contemporary Australia.
To advance this process, the Commonwealth proposes that discussion of the next steps to be taken in relation to the Mabo decision should focus on the following principles:
1. It is desirable to establish a better means than the courts for determining who has native title and where. The system should be accessible, informal, nonadversarial and expeditious. A tribunal system has attractions. This does not rule out referral of important questions of law to the courts, or that it may be desirable to facilitate court cases where this is likely to clarify important principles.
2. The Commonwealth offers to cooperate with the States and Territories in establishing such tribunals. Due to the national importance of Mabo and the constitutional powers of the Commonwealth in relation to Aboriginal and Torres Strait Islander people, they should be within parameters acceptable to the Commonwealth to ensure a consistent national approach.
3. There is a need for Aboriginal and Torres Strait Islander organisations to be given the statutory function of organising and presenting native title claims (either existing bodies, for example land Councils, or new bodies where no suitable organisation exists). This is not to rule out that claims may be made by individual claimants.
4. Governments should provide adequate resources for the tribunal process, to organisations representing claimants and to other authorised parties. The distribution of resources should be administered in accordance with a formula based on principles of equity and urgency.
5. Priorities should be
- establishment of a system for registration and notification of claims
- where straight forward, recognising native title land quickly
- determining claims to areas which it is proposed be used for some purposes (e.g. major development projects).
6. Commonwealth, State and Territory land management and other laws should be urgently reviewed, and where necessary updated to take account of native title, within a specified time frame.
7. The integrity of the Racial Discrimination Act is to be maintained.
8. Native title should be treated no less favourably than other comparable titles, notably in respect of
- procedural fairness
- compensation when a grant of interest is made over the land.
9. Reference to "comparable" titles does not mean equating native title with other existing titles. Rather, the elements of native title may include important rights which other titles also have, and which those managing land need to recognise in ensuring non-discriminatory treatment, at least, of the native title interest.
10. Native title should be preserved to the maximum extent possible. The common law should be amended to provide that grants should not of themselves extinguish native title. Native title rights should be subject to or restricted by the grant for the period of the grant. Where possible native title and the grant should be made to co-exist. Where possible native title should revive at the expiry of a finite grant
- recognising that these are general principles which may more readily be applied to some cases (e.g. future mining leases) than to other cases (e.g. pastoral, tourism leases).
11. In the exception, in the future, if all or part of a native title needs to be extinguished, this should only be done by negotiation or compulsory acquisition, i.e., at a minimum, in an equivalent way and in the same circumstances as another title holder's rights could be extinguished.
12. A native title holder should not have a right of veto over grants of interest in land existing as at June 1993, and the rights conferred by those grants should not be required to be re-negotiated.
13. Applying the principle of non-discrimination, a future grant of interest should be subject to the consent of the title holder where a right of consent is enjoyed by other comparable title holders.
14. Further, in recognition of the special attachment of Aboriginal and Torres Strait Islander people to their land - including especially protection of sacred sites - there could be additional rights of consent for native title holders in relation to actions affecting their land.
15. Policy and procedure should recognise that negotiation can sometimes be a quick, flexible and less adversarial means of managing possible conflict between native title rights and a proposed use of the land. Governments should actively facilitate negotiation where this is feasible and promising. Any settlement should reflect an agreement between all parties with a valid interest and be the result of negotiation conducted in accordance with principles of equity and fairness.
16. On the principles of non-discrimination, negotiations should take place with native title holders before a grant of interest is made over native title land where negotiation would be required prior to such a grant being made over land held under a comparable title.
17. Moreover, in recognition of the special attachment of Aboriginal and Torres Strait Islander people to their land, legislation could provide for enhanced requirements for negotiation with native title holders, including a framework (for example, timetable, arbitration if necessary) for such negotiation.
18. Codification of Mabo or compulsory conversion of common law native title to statutory title(s) are not acceptable options.
19. However, voluntary conversion is acceptable i.e. if this is desired by the native title holder. It is recognised that it can be an ingredient in negotiation of claims.
20. Statutory land rights should be complementary to, rather than a substitute for, recognition of common law native title.
21. Those holding grants of interests in land should have certainty that they will not be invalidated and their rights should be protected. The Government is willing to legislate to facilitate the validation of post-1975 grants by the States and Territories subject to appropriate compensation being paid.
22. However, the situation should not be allowed to persist whereby grants of interests which may impact on native title and be inconsistent with the RDA continue to be made with assurance of retrospective validation.
23. Accordingly, urgent efforts should be made to establish standard setting national legislation putting in place a new framework for recognition, protection and management of native title land (embodying the principles above), including how future grants are to be validly made. This should be part of the same legislative package which simultaneously establishes the basis on which validation of existing grants (21 above), back from that date, could be made. The subsequent review of specific land management laws (6 above) should be in accordance with the national standards.
24. A cut-off date of 30 June 1993 is to be set whereby
25. Moreover, as a matter of land management practice from now on, where governments are contemplating a grant and where the land involved could credibly be subject to native title, the Aboriginal and Torres Strait Islander people involved should be treated at least comparably with other title holders. It follows that
- if a comparable land holder has a consent right, so would the native title holder (so that in practice the grant cannot be made until the existence or otherwise of native title has been established)
- if the title holder does not have a consent right then the grant could proceed with compensation to be paid later if and when the existence of native title is established.
26. Legislation should establish parameters for compensation when a grant is made over native title land, rather than leaving this for resolution by the courts. This could set out broad principles or a specific scheme for calculation of compensation.
27. The holders of existing grants should not be required to pay retrospective or prospective compensation as part of the validation process. This burden should be borne by the Commonwealth and by the States/Territories.
28. The response of governments to Mabo should go beyond immediate land management issues. In particular, a response is needed which addresses - past dispossession, as a consequence of which many Aboriginal and Torres Strait Islander people cannot now benefit from Mabo
- the desirability of reducing conflict between Aboriginal and Torres Strait Islander land holders and resource development.
29. The scale and scope of any package will be conditioned by budget realities, but should be in keeping with the Government's forthright position on Aboriginal and Torres Strait Islander affairs.
30. New measures should be related to the Mabo decision (land and economic development) rather than constitute another round of "social justice" initiatives.
31. The package of measures could include such options as:
- a National Fund primarily for land acquisition;
- a greater stake for Aboriginal and Torres Strait Islander people in resource development on native title land, perhaps through a revenue equivalents scheme;
- transfer of Aboriginal reserves and appropriate areas of unalienated Crown land to Aboriginal and Torres Strait Islander interests
individually or possibly in combination.
32. It is desirable to make further progress towards effective Aboriginal and Torres Strait Islander heritage legislation across Australia.
33. The Mabo decision is an opportunity. The commitment to reconciliation should be reaffirmed. The reconciliation process is especially important in the light of Mabo. There would be serious consequences for reconciliation if there was an inadequate response to Mabo. A program of public understanding of the decision is important as is discussion, in the reconciliation process, of broader aspirations seen by Aboriginal and Torres Strait Islander people as arising from it.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/18.html