Aboriginal Law Bulletin
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by Andrew Chalk *
On 27 August 1993, Premier Fahey announced the New South Wales Government's response to the High Court's Mabo decision in the form of draft legislation known as the Native Titles Bill 1993. Since its release as an exposure draft, the Bill has been sharply criticised as an attempt to drastically limit the potential scope of native title in NSW.
The Bill is drafted from a philosophical position which is fundamentally contrary to the Mabo judgment. It proceeds on the erroneous assumption that native title constitutes a mere encumbrance on the Crown's ownership of land. This is not the case. If native title exists, the Crown has the power to extinguish or impair it by inconsistent grant or use but the Crown is not the owner.
From this assumption, the Bill proceeds to attack Aboriginal rights in four ways:
1. It extinguishes native title in areas where the High Court said native title would survive.
2. It defines the content or meaning of native title in a way which is prejudicial to Aboriginal interests and contrary to the High Court's decision.
3. It sets in place requirements of proof and court procedures which make it extremely difficult, if not impossible, for Aboriginal people to establish their title in even the strongest cases. These provisions also set Aboriginal people in competition with one another.
4. It restricts and in many cases denies the rights of Aboriginal people to compensation for the extinguishment of their native title.
In each case, the Bill operates in a way which is contrary to Australia's international obligations under The Convention an the Elimination of All Forms of Racial Discrimination (CERD). Indeed the Bill unashamedly records its inconsistency with the Commonwealth's RDA 1975 in its preamble, which reads:
"The Commonwealth is to disapply the Racial Discrimination Act 1975 of the Commonwealth to enable the effective and non discriminatory operation of this Act"
It is not clear why the suspension of the Racial Discrimination Act is necessary to enable the"non-discriminatory operation" of the legislation, unless the drafters of the Bill believed native title discriminates against non-Aboriginal people.
Clause 8 of the Bill deems all grants of title to land, dealings in land, reservations and dedications of land, legislation by or under which title to land is granted and the carrying out of public works or activities on the land by the Crown or a statutory body to extinguish native title.
A majority of judges on the High Court indicated that the grant of a freehold title or a lease that gave rights of exclusive possession would extinguish native title. The Court also indicated that while inconsistent uses of land by the Crown for its own purposes, such as the construction of roads, buildings and other "permanent public works", would extinguish native title, the reservation of land in a way which was not inconsistent with the continuing enjoyment of native title, "(e.g., land set aside as a national park)", would not extinguish native title. Three judges said that native title could not be extinguished at all without the consent of the title holders.
The Bill extinguishes native title in ways which go far beyond the limits set by the majority of the High Court and which are blatantly contrary to the principles in CERD. It does this under the pretext of validating non-Aboriginal titles. Yet, even if legislative validation at the expense of native title holders were to be accepted as legitimate, it is not necessary to extinguish native title in order to validate non-Aboriginal titles. There may be situations where native title is capable of coexisting with Crown-derived titles.
Because Clause 8 provides that "legislation by or under which title to land is granted" extinguishes any native title, it is arguable that the Bill extinguishes all native title in NSW since the Crown Lands Act 1989 and the Western Lands Act 1901 (NSW) together have State-wide application. Such a result is contrary to the High Court's findings in relation to Queensland's Land Act 1962 (Qld). It would overrule the Court's decision and uphold Dawson J's dissenting judgment. It is therefore assumed to be a drafting error.
Furthermore, "Grants of title to land", as referred to in Clause 8, is defined extremely broadly. Even invalid or purported permission to use the land on a temporary basis would extinguish thousands of years of continuous Aboriginal title. A "title to land", for example, includes an "easement, right, charge, power, or privilege over or in relation to the land". None of these rights would, of themselves, extinguish native title at common law.
The reservation or dedication of land is also deemed to extinguish native title. This is contrary to the High Court's decision. As most Crown land, excluding leasehold land, is reserved or dedicated for particular purposes, much of the remaining native title in NSW will be destroyed. There is nothing in Mabo to suggest that the carrying out of activities on land by the Crown will extinguish native title unless those activities place some permanent restriction on the enjoyment of rights under the native title.
While there is little doubt that, under the High Court's criteria, most native title to land in NSW has been extinguished by the actions of past governments, it is likely that some native title has survived in all areas of the State, at least in relation to a few key resources and areas. These include inland streams and rivers, fish and marine resources, forests and coastal foreshores and beaches.
These rights, while comparatively limited, are nevertheless strategic and for many Aboriginal people may be the only rights remaining. They may give these people then only real chance to sit across the table from governments and negotiate settlements as equals. For that reason they are of fundamental significance.
The Bill, however, will extinguish or neutralise these rights and thereby effectively complete the dispossession of many Aboriginal people in NSW.
. Minerals
Clause 10 deems the Crown to be the owner of all minerals despite the land being held under native title. It does this while denying any right to compensation.
. Forest Products
Clause 11 deems the Crown to be the owner of all timber and forest products within State forests and in timber reserves despite the existence of native title.
.Water
Clause 12 of the Bill deems all water to be under the control of the Crown, subject to the Water Administration Act 1986 (NSW) and any other law (other than a law relating to native title). Where private nonAboriginal rights exist in relation to water, the Bill is careful not to disturb them. It is only Aboriginal rights which are targeted for destruction.
. Public Access
Clause 13 of the Bill provides that the public has a right of access to all native title lands which comprise beaches, foreshores, parkland, waterways and similar areas. The Crown can control what people do on native title land but the native title holders cannot. Similarly, it does not prevent any other person from holding private interests or rights in parkland, waterways or foreshores, etc. It is only Aboriginal people who are to be denied such rights. The clause also provides that no compensation is payable for the impairment of any native title by the operation of the clause.
. Rights to take foods and other resources Clause 9 prevents native title holders from taking traditional foods and other resources on their land where there is a law generally applying in the community preventing or restricting such taking. In the case of fish, the Bill denies Aboriginal title holders their rights to take while others holding a licence are free to take in enormous and often unrestricted quantities. As with minerals, this is not a conservation measure but simply the legitimation of further appropriation of resources from Aboriginal people by non-Aboriginals.
In its Mabo decision, the High Court declared that, "the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment" of the Murray Islands.
While the Bill purports to define "native title" as a right recognised by common law, the substantive provisions of the Bill restrict it to something substantially less than ownership. Brennan J saw no difficulty in recognising ownership at the communal level. It was only at a personal level that rights may have been more limited.
The Bill, by contrast, deems native title to be at most a collection of one or more 'attributes' or incidents, each of which has to be proved separately. The Bill sets out a list of these attributes at clause 47. They include: "the right to collect materials for weapons, tools or ceremonial, spiritual, cultural or domestic purposes, whether generally or at particular times".
This approach of identifying particular 'attributes' displays an extreme and unworkable ignorance of Aboriginal culture and its diversity. Aboriginal notions of ownership of the land are not fragmented into isolated attributes but incorporate a range of interrelated associations with the land.
Asking Aboriginal people to define their rights to land by reference to what they have done on the land, rather than what their laws and customs allow or require them to do, is no different to telling the farmer that his ownership of land is limited to ploughing and harvesting once a year because that is how he physically uses his land.
Not only is native title limited to being merely a bundle of attributes, but the list of attributes itself is limited. Clause 43(2) of the Bill states that "no attributes of native title other than those referred to in section 47 are to be taken into account in determining a claim to native title". The High Court held that the content of native title is to be determined by the laws and customs of the title holders.
Clause 52 of the Bill appears to give the Crown a right to deal with native title land however it wishes, subject only to a requirement to pay compensation. This denies Aboriginal people rights which are afforded every other land holder in the State, and is fundamentally discriminatory. The Land Acquisition (Just Terms Compensation) Act 1991 (NSW) together with the Public Works Act 1912 entitles the government to compulsorily acquire private land only for public purposes. Clause 52 suggests the government need have no regard to the purposes for which it proposes to make a grant of land subject to native title.
Native title is a culturally based title. Destroying the title has the effect of destroying the culture. For this reason it is entitled to greater, not lesser, protection than is afforded the holders of other types of titles. The fact that so much native title has already been destroyed in NSW reinforces the necessity to protect properly the little that remains.
The High Court declared the rights to the Murray Islands to be in the Meriam people. The case was originally brought because the Queensland Government wished to vest the title in a special Torres Strait Islander council. Eddie Mabo successfully argued that the land was not the Government's to deal with even if it was to be held in trust for Murray Islanders.
The NSW Bill begins by requiring the very result which the Mabo case was instigated to avoid. It will vest all native title in corporations rather than the people. Clause 31 requires that native title be vested in a corporation. This clause totally misconceives the High Court's decision. Native title, where it exists, is already vested in the people. The requirement for corporate investment has been introduced to facilitate bureaucratic efficiency despite its abhorrence to notions of justice. It represents a basic denial of the rights recognised by the High Court and will create conflict between and among Aboriginal people as they struggle to make their own laws and customs conform to non-Aboriginal corporate structures.
The High Court said that the content of native title is determined by reference to the laws and customs of the title holders. It also held that these laws and customs can change over time. The Bill proposes at clause 49(2) that the attributes of native title be recorded on the land title register under the Real Property Act 1900 (NSW).
Registration will artificially codify native title at the time of registration, ensuring that future generations will refer to the register rather than their own laws and customs to determine their rights, and thus further disempowering Aboriginal people in relation to their culture. Aboriginal society is no less dynamic than non-Aboriginal society but this Bill requires that Aboriginal relationships to the land be rendered static in the interests of non-Aboriginal notions of 'certainty'.
Not only does the Bill "vest" native title in corporations contrary to the High Court's decision, it requires all claims to be made by corporations. It is difficult to think of any other common law jurisdiction which denies people standing to assert their existing legal or equitable rights on the basis that they are not a corporation. Apart from the issue of discrimination, there is a logical problem with requiring the Court to satisfy itself that the corporation is representative of Aboriginal persons before registering a claim. Until native title is determined, the Court is unable to establish whether or not the corporation is representative and if it is not representative no claim can be made. The Bill cannot purport to offer the opportunity to protect native title when a precondition is that the title be surrendered by the community to a corporation.
Clause 29 of the Bill prohibits a person being represented by another person, including a lawyer. It is impossible for a corporation to be represented by anyone other than another "person". Moreover, under the Corporations Law, companies can only be represented by lawyers.
It is extremely discriminatory that claimants, who not only bear the onus of proof but have to establish artificial attributes and deal with complex and contrived laws of extinguishment, are not entitled to be represented. No other person or corporation in Australia would be subjected to such a fundamental denial of rights.
While the same rules supposedly apply to the Crown, it does not bear any onus of proof and is better resourced to put non-practising lawyers on its staff or to have other experienced bureaucrats present its case to Court.
In the Wiradjuri Claim, the Solicitor-General for NSW conceded before the Chief Justice of the High Court that the burden of proving that native title had been extinguished lay with the person asserting extinguishment. Clause 41 of the Bill, however, reverses this onus and requires the claimant in every instance to prove that the native title has not been extinguished. The Bill's very broad criteria of what can extinguish native title places an impossible burden on claimants to prove that nothing has happened on or to the land in the last 200 years.
A claimant for compensation also bears the onus of proof. This will be the case even though in order to claim compensation native title has to be proved to be extinguished. This further reflects the philosophy underlying the Bill that native title land is really Crown land. Native title claimants must first prove the existence of native title, the taking away of native title and then an entitlement to compensation for the taking away.
Despite the fact that a claim seeks recognition of an existing title and not the establishment of some new right, Aboriginal claimants must prove key elements of their case such as non-extinguishment to the satisfaction of the Registrar, before they can proceed to hearing. No other person seeking the protection of the law for an existing right would be subject to similar impediments.
Clause 44 of the Bill introduces an entirely new concept that native title cannot exist unless there has been unbroken physical occupation or use of the land since before European occupation. No such requirement appears anywhere in the High Court judgment. This is an attempt to introduce a requirement so stringent that no Aboriginal group could possibly meet it. The purported qualification of the requirement in clause 44(3) that "irregular or periodic" occupation or use may be sufficient is so confused that it makes the Court's position impossible in deciding whether it should accept something less than unbroken physical occupation or use. The requirement for at least 205 years of unbroken physical occupation stands in stark contrast to the capacity of any person in the State to claim a freehold possessory title from the Crown after a mere 30 years of adverse occupation. Moreover, the Bill expressly declares that such a title will extinguish native title.
Clause 45(3) provides that once the Court has made a determination of a claim to native title in relation to land, no further claim may be made to that land. This provision again tries to address native title in peculiarly European legal terms. The proposition that one claim, in establishing the rights of individual claimants, must necessarily preclude any subsequent claim completely ignores the nature of Aboriginal relationships with land and has the potential to extinguish rights at the same time as it recognises other rights.
Even more discriminatory is the Bill's effect in precluding genuine native title holders from having their rights recognised where a prior claim is mistakenly or falsely made by another Aboriginal group.
Despite native title having existed and developed over a period which is now recognised to have been well in excess of 40 000 years, clauses 25 and 26 of the Bill propose that the recognition of those rights by the non-Aboriginal legal system must occur within 12 years, in the case of establishing native title, or 6 years, in the case of establishing a claim to compensation. All Aboriginal communities in NSW are now faced with the prospect of losing their rights to land if no action is taken in the prescribed period.
Since the Commonwealth announced that it does not propose to "disapply" the RDA 1975 there must be real doubts as to whether the State government will proceed with its legislation. Unless radically altered, the Bill if enacted would face immediate constitutional difficulties arising from inconsistency with the RDA and, quite probably, a Commonwealth Native Title Act as well.
Key features of the Bill, such as its tribunal system, its onus of proof requirements, the compensation provisions and its future grant measures, are in serious conflict with the Commonwealth's proposed approach. On the other hand, the Commonwealth's own proposals appear to have extracted some of the worst elements of the NSW Bill including such issues as the control of water, ownership of minerals, public access to beaches and recreation areas and the application of hunting, gathering and fishing laws. It is in these areas that Aboriginal peoples in NSW are likely to be most disadvantaged.
*The author wishes to thank Michael Wright for his comments on the draft of this article.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/49.html