Aboriginal Law Bulletin
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by James Fitzgerald
“Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence ... However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of tradtional customs, the foundation of native title has disappeared.”[1]
“It is evident that proof of native title recognised by the common law can require exhaustive, detailed and time-consuming inquiry of traditional laws and customs, their content and application to the subject land and the history of communal association with the land. And even where native title is established on these criteria the question of extinguishment can arise.”[2]
More than two years after the High Court's decision in Mabo (No.2) 175 CLR I and a year after the proclamation of the Native Title Act 1993 (Cth) ("the NTA"), no-one except the Meriam people have proved to the satisfaction of the courts that native title continues to exist in Australia. Only now are multiple actions for determination of native title commencing, so it may be half a decade before we have the benefit of definitive judicial guidance about the requirements of proof of the existence of native title on the Australian continent under the NTA. In the meantime, some direction may be gleaned from the scant legal authorities available and the NTA itself about how to successfully prove a native title claim.
Unfortunately, the present trend of judicial wisdom appears to favour imposing upon native title applicants not only the requirement to demonstrate the existence and elements of native title, but also the burden of proving that native title has not been extinguished by any act of the Crown. Soon after the High Court's decision in Mabo (No.2), the Chief Justice of the High Court held in Coe v The Commonwealth and Another[3] that those seeking to prove native title must establish, among other things, that native title had not been extinguished by inconsistent Crown grant.
In summing up the authorities on this question, the President of the National Native Title Tribunal ("the NNTT") has more recently ruled that it is "arguably the case" that in native title litigation, the onus will rest upon the applicants to show that native title has not been extinguished.[4] Despite Privy Council[5] and Canadian[6] decisions to the contrary, and notwithstanding the absence of any express provision in the NTA, the President said that the requirement under s62 of the NTA that a native title applicant swear an affidavit to the effect that the applicant believes native title has not been extinguished in relation to any part of the claim area is consistent with a requirement that in native title litigation the applicant must prove non-extinguishment.
Equity favours the Canadian view[7] echoed by Toohey J in Mabo (No.2) that:
"Previous interests in land may be said to survive unless it can be shown that the effect of annexation is to destroy them. That is, the onus rests with those claiming that traditional title does not exist."[8]
Native title once proven will by definition have pre-existed any act of extinguishment by the Crown. Therefore, as the native title is 'first in time', it should be deemed to continue to exist unless the contrary is proven. It is presently not settled law whether the native title applicant bears the onus of proving that there has not been any act of extinguishment by the Crown, or whether the respondent is required to prove the contrary.
From a practical point of view, the balance of convenience favours laying the burden of proof of extinguishment upon respondents, as the Crown in right of the states or territories, almost invariably a respondent in native title claims, keeps and has unlimited access to the documentary records (land tenure histories and so forth) which will demonstrate whether as a matter of law native title has been extinguished. Early experience has shown that attempting to obtain such records from relevant government departments can be a time-consuming, costly and frustrating business. The system of 'title by registration' which operates in respect of real property in Anglo-Australian law will ordinarily make it a simple task for non-Aboriginal landholders to prove their title at minimal cost. In attempting to overcome the already formidable hurdles to proving native title,[9] Aboriginal people should not be additionally fettered by bureaucratic obstacles associated with proving that native title has not been extinguished by an act of the Crown.[10]
Facts to be proved in a native title claim include:
The legal definition of native title is contained in s223 of the NTA which
provides:
"(1) The expression 'native title' or 'native title rights and interests' means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia; and
(2) Without limiting subsection (1), 'rights and interests' in that subsection includes hunting, gathering, or fishing, rights and interests ..."
Unlike the 'land claim' regime created pursuant to the Aboriginal Land Act 1991 (Qld) where the procedural consequence for claimants of making out the requisite elements of a claim (some of which elements may bear little relation to Aboriginal traditional laws and customs)[12] is the grant to the claimants of a form of freehold interest in land, there is no guarantee that a determination of native title made by a court or tribunal under the NTA will include a finding that the applicants are entitled to exclusive possession of traditional lands. This is because the court or tribunal will measure the applicants' native title rights recognisable at common law against the evidence of traditional law and custom still observed, or, in the words of Brennan J:
"the nature and incidents of native title must be ascertained as a matter of fact by reference to [the particular traditional] laws and customs ..."[13]
There is compelling anthropological and legal opinion that, taking into account the hierarchy of traditional rights and interests which may attach to particular lands or waters (by virtue of, for example, matrilineal versus patrilineal inheritance) it is preferable to bring applications for determination of native title which encompass to the greatest extent possible the whole traditional interest in an area, that is to say, to include the widest group of applicants with interests in the claim area.[14] Applying the legal principle enunciated by Brennan J above, a court will make more comprehensive findings about the nature and content of the native title rights and interests over an area where the full range of such rights and interests are put into evidence before it. A determination of native title made by a court is a determination of the rights and interests that are able to be demonstrated to the court, and no more.
The native title application process was intended to be fair, just, economical, informal and prompt.[15] However, at this early stage in the NNTT's history, the process has already become encrusted with technicalities.
Since May 1994 the NNTT has issued Procedural Guidelines for native title applications, along with two sets of amendments, particularising in considerable detail the formal requirements of an application for determination of native title. The Native Title Registrar, who scrutinises applications at the pre-acceptance phase, has demonstrated a tendency to exercise her power to refer to the President applications which in her opinion are frivolous or vexatious, or which prima facie cannot be made out.[16] For example, although the issue whether the grant of a pastoral lease extinguishes native title has not been settled at law, the Registrar's current policy is not to admit applications for determination of native title over land which has at any time been subject to a pastoral lease which did not include a reservation in favour of Aboriginal people.
The main anthropological contributions to the initial application for determination of native title are:
The NNTT's application forms and Procedural Guidelines are quite specific about the formal requirements of applications. Although the requirements are called 'guidelines', failure to follow them may give rise to the Registrar's exercise of discretion to refer the application to the President pursuant to s63(1) of the NTA. Great care should therefore be taken to comply with the letter of the 'guidelines'.
Although there is no requirement to present a claim book or other major anthropological or historical work at the time of lodgement of an application for determination of native title, detailed research about the applicant group should be in existence at the time of lodgement, for two important reasons.
Firstly, given the fragility of native title at common law, a full legal and anthropological assessment should be made of the prospects of success of an application before it is commenced. Notwithstanding the opportunities for mediation offered by the NNTT's functions, those advising native title applicants should always prepare applications on the assumption that they will face the rigours of a court hearing of the application.
Secondly, if the application lodged is referred by the Registrar to the President in exercise of the Registrar's discretion under s63(1), the applicants will be required to demonstrate to the President the existence of a prima facie case that native title continues to exist over the area claimed as early as two or three months from the time of lodgement of an application.[17]
Given that the aspiration of many Aboriginal people is to exercise rights of exclusive possession over their traditional lands, perhaps the highest priority for anthropologists and historians is to ensure that every detail about traditional laws and customs observed by the applicants and acknowledged by their neighbours relating to previous and continuing presence upon and occupation of traditional lands is fully documented for presentation to the court.
The point of this strategy is to present the court with sufficient evidence of continuing observance of traditional law and custom to persuade the court that the full fabric of the law and custom amounts to a right to possessory title. If native title rights analogous to exclusive possession are not established, then the determination of native title will be restricted to those specified rights of access and use found by a court to continue to exist. As mentioned above, the most efficient way to ensure that the court is presented with the full range of traditional laws and customs which continue to be practised and observed is to ensure that all Aboriginal people with traditional rights and interests in the claimed area are included as applicants.
Occupation is the cornerstone of the native title right to exclusive possession of traditional lands or waters.[18] The NTA definition of native title omits the explicit requirement of demonstrating physical connection with land[19] however in Coe v The Comnmnwealth,[20] Mason CJ held that native title claimants were required to prove that they had not:
"[ceased] to have a requisite physical connection with the land".
Although the view of Mason CJ has been criticised[21] and may be read down in subsequent court decisions, it serves as an indication of how the judiciary is likely to scrutinise claims for exclusive possession of land in native title applications.
The courts will regard occupancy of land by reference to the demands of the land and society in question. In Mabo (No.2), Toohey J said:
"Presence [of Aboriginal people] would be insufficient to establish title if it was coincidental only or truly random, having no connection with or meaning in relation to a society's economic, cultural or religious life. It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title. Thus traditional title is rooted in physical presence. That the use of the land was meaningful must be proved but it is to be understood from the point of view of the members of the society."[22]
Blackburn J held in Milirrpum v Nabalco Pty Ltd[23] that it was necessary for native title applicants to prove that they had occupied land from the time of English acquisition of sovereignty, namely since 1788. More recently, Priestley JA held in Mason v Tritton,[24] a case concerning native title rights to fish, that it was necessary for applicants asserting native title to establish that the right asserted existed at the time the common law was introduced, that is to say again, in 1788.
Especially in respect of more recently settled and outlying areas of northern Australia where native title is most likely to continue to exist today, significant hurdles will need to be overcome to satisfy the court that an Aboriginal clan or group has maintained the requisite connection to land or waters since the time of English acquisition of sovereignty.
Anthropologist Dr Peter Sutton has predicted that:
"A native title claim will require, by contrast with the Northern Territory, a more strongly historical approach to establish the continuity of associations between the land and those asserting title. In particular, continuity of occupation, genealogical connections to former land owners and so on, are vitally important. In native title claims there will inevitably be a stronger emphasis on documentary sources as well as on what people can still remember and say in their own words. Mission records and government records will be important but these are also very often large in quantity; they take a lot of sifting."[25]
Those preparing evidence of Aboriginal occupation of land for native title determination hearings should assume they are required to prove occupation of the land by a particular Aboriginal group or clan from 1788. The level of proof required is that, on the balance of probabilities, ancestors of the same group had a presence on the claim area at the time of English acquisition of sovereignty. Once genealogical evidence extracted from living memory, government and mission records and previous anthropological works is exhausted, evicence of early English and Dutch explorers about their encounters with local peoples, archaeological evidence of Aboriginal occupation and resource use patterns consistent with the Aboriginal group in question, and indeed the absence of archaeological or other historical evidence that any other distinct peoples occupied the area might be relied on to demonstrate that it is more probable than not that the same Aboriginal group has had a continuous presence over the area since before 1788.
In some cases close attention will need to be given to succession principles.
A recent decision by the President of the NNTT suggests that an exception to the rule that a clan or group must have maintained a continuous association with claimed land or waters is where one Aboriginal group inherits an area from another group in accordance with established traditional law.
In the hearing of the Waanyi peoples argument that their native title determination application be accepted by the NNTT, the applicants satisfied the Tribunal of the existence of evidence that the land under claim was occupied by another group, the Injilarija people, prior to European annexation in the 1880s. The Injilarija people disappeared as a result of slaughter by Europeans and other circumstances. The Waanyi people succeeded to and occupied the claimed land from the 1890s until the present, in accordance with traditional laws and customs pertaining to succession which were common to both groups.
On those facts, the President said:
"The [Waanyi peoples] case on native title would, no doubt, face considerable obstacles, not least the characterisation of their connection with the land as traditional, but that characterisation and their possible succession to the land after the Injilarija depends upon factual exploration of the social structure that encompasses both groups as part of a cultural block and the question whether, if some such structure exists, it can be said to embody traditional laws and customs regulating succession to the land that would be recognised by the common law."[26]
In this way it is accordingly open at law to demonstrate the requisite ele ments of native title even where the applicant group has not been in occupation of the claim area since the acquisition of British sovereignty.
Once it is proved that a clan or group of Aboriginal people has the requisite historical and traditional connection with an area, it becomes necessary to show that present decendants of that clan or group have a continuing connection with the area through acknowledgment and observance of traditional (though changing) laws and customs.
The NTA is silent about what constitutes membership of an Aboriginal clan or group, except to say that 'Aboriginal peoples' means peoples of the Aboriginal race of Australia.[27] In the absence of a comprehensive legislative definition of the clan or group, the courts will apply existing legal precedent.
In Pareroultja and Ors. v Tickners and Ors, Lockhart J said the decision of the High Court in Mabo (No.2) was authority for the proposition that:
"Membership of the indigenous people [to the applicant group] depends upon biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by elders or other persons enjoying traditional authority among those people."[28]
Kirby P enunciated a more confined test for membership to an applicant group in Mason v Tritton:
"There must be evidence that the claimant is an indigenous person and biological descendant of the indigenous clan or group who exercised traditional customary rights in respect of the land when the Crown first asserted its sovereignty."[29]
One wonders how the common law would treat a legitimately adopted applicant under traditional law who, although an Aboriginal person, was not a biological descendant of an applicant group, but nonetheless mutually recognised as a member of the group, if Kirby P's test were applied strictly. Note also that Kirby P affirms the view that the relevant 'starting date' for proving membership to a clan or group is 1788, the date of acquisition of sovereignty by the British Crown.
Much has been written about legal issues in evidence of Aboriginal traditional law and custom and observance of traditional law and custom prior to the NTA.[30] Previous Northern Territory and Queensland land claims experience will be relevant in presenting evidence of Aboriginal traditional law and custom under the NTA. Courts hearing applicantions under the NTA will not be bound by the rules of evidence.[31] Therefore, video evidence, group evidence and evidence of oral tradition not normally permissible by reason of the rule against hearsay, along with other unconventional forms of evidence characteristic of land claim hearings, may be entertained by the courts.
Critics of the native title hearing process argue, among other things, that as the legal rules of evidence have strong historical roots in principles of procedural fairness, those rules should not be lightly abandoned, and decisions made by courts which do not follow the rules of the evidence will not be regarded with the respect normally afforded orders of courts.[32] Such criticism fails to recognise that the NTA merely allows judges the discretion to depart from orthodox rules of evidence if circumstances warrant it, for example in order to minimise delay or expense. Evidence of native title which is untested will almost certainly be given less weight than evidence which would comply with the rules of evidence if those rules were applied; courts are unlikely to allow an applicant to make an allegation at a hearing without affording parties opposed to the application the opportunity to respond to it.
Although applicants are required to prove continuing and unbroken observance of traditional law and custom by the clan or group from the time of English acquisition of sovereignty, the High Court acknowledged in Mabo (No.2) that Aboriginal traditional law and custom was, like other cultures, capable of changing over time.[33] Provided that the changes to traditional law and custom are not so great as to sever the relationship between the applicant and the land, subsequent development of customs will be taken into account by the court.[34]
Dr Peter Sutton has pointed to land claim hearings under the Aboriginal Land Act 1991 (Qld) where Aboriginal claimants have produced into evidence family letters and photographs dating from the 1920s, and poses the question, when do these things become part of people's ongoing maintenance of connection with the land under traditional law?[35] The likely answer is that where an applicant group maintains a connection to the land through the observance of traditional through evolving laws and customs of the group, it is irrelevant that the observance of the law or custom involves the application of technologies which were not even envisaged in 1788.
There must, however, be a continuing observance of traditional law and custom giving rise to the connection between the relevant group and the land. If the clan or group has abandoned acknowledgment of traditional law and custom, native title at common law is deemed to have been extinguished by the abandonment. The courts have not yet conclusively determined at what stage and in what circumstances a group has sufficiently abandoned their traditional law and custom so that native title is said to be extinguished. In each case the question will require a detailed factual investigation about the nature of traditional law and custom and the history of observance of the law and custom. The court will assess the question of abandonment of native title at the clan or group level, as opposed to the individual level.[36] Native title also expires upon the death of the last of the members of the clan or group,[37] unless evidence of succession shows that the title then passed to another group.[38]
Perhaps the most striking feature of native title recognised by the common law is its susceptibility to extinguishment. As the process of having native title recognised by the common law is a complex and rigorous one, both in terms of expense and effect on applicants, great care should be taken at the pre-application stage to assess the strength of the many elements required to be proved, and to conduct a realistic evaluation about the prospects of making out all of those elements to the satisfaction of the court.
[1] Brennan J Mabo v The Slate of Queensland (No.2) (1992) 175 CLR I at 59-60.
[2] French J, "The National Native Title Tribunal - Early Directions", Australian Dispute Resolution Journal, August 1994, p166.
[4]In Ore Matter of the Waanyi Peoples Native Title Determination Application, French P, National Native Title Tribunal, 15 September 1994 at 28.
[5] Amodu Tijani v The Secretary, Southern Nigeria 11921] 2 AC 399.
[6] Calder v Attorney General of British Columbia (1973) 34 DLR (3d) 145 at 190.
[7] Ibid.
[8] Mabo (No.2), op cit at 183.
[9] French J, "The National Native Title Tribunal", op al, p166.
[10] See, for example, the Official Hansard Report of the Joint Committee on Native Title, Perth, 24 November 1994,pp697-698.
[11] H. Woollen AC, QC, "Maho - Issues and Challenges", The Judicial Review, Volume 1, March 1994,p342.
[12] See, for example, 54.03(1)(c) of the Aboriginal Land Act 1991 (Qld).
[13] Brennan J, Maho (No.2), op tit at 58.
[14] See, for example, Sutton, P., "Atomism versus Collectivism: The Problem of Group Definition in Native Title Cases", unpublished, February, 1995.
[15] Section 109(1), NTA.
[16]Section 63(1), NTA.
[17] Section 63(3), NTA.
[18] Toohey J, Mabo (No.2), ibid at 188.
[19] Section 223 requires a connection with the land by acknowledgment and observance of traditional law and customs, not necessarily physical occupation of the land.
[20] .(l993) 38 ALJR 110.
[21] See In the Matter of Clarkson, National Native Title Tribunal, Mr Sean Flood, Member, 4 October 1994; see also In the Matter of the Wannyi Peoples Native Title Determination Application, National Native Title Tribunal, French P, 14 February 1995.
[22] Toohey J, Mabo (No.2), Ibid at 188.
[24] Unreported, NSWCA, Gleason CJ, Kirby P, Priestly JA, 30 August 1994.
[25] Sutton, P., "The Relative Strengths of Oral and Written Evidence", Proof and Management of Native Title, AIATSIS, Canberra, 1994, p21.
[26] In the Matter of the Waanyi Peoples Native Title Determination Application, NNTT, French P, 14 February 1995 at 20-22.
[27] Section 253, NTA.
[28] Unreported, Full Federal Court, Lockhart, O'Laughlin and Whitlam JJ, Sydney, 20 September 1993 at 7.
[29] Ibid at 15.
[30] See, for example, Neale, G., "Finding Traditional Aboriginal Owners of Land", Federal Law Review, Volume 12,1981, p187.
[31] Section 82(3) of the NTA states "the Court, in conducting proceedings, is not bound by technicalities, legal forms or rules of evidence".
[32] See, for example, Hockley, J., "Maho LegislationThe Native Tide Act", APL], July 1994, p150.
[33] Mabo (No.2), ibid, Brennan J at 61; Deane and Gaudron JJ at 110.
[34] Mabo (No.2), ibid, Brennau J at 70; Deane and Gaudron JJ at 110.
[35] Sutton P., op cit, p24
[36] Mabo (No.2), ibid, Brennan J at 70.
[37] Mabo (No.2), ibid, Brennan J at 70; Deane and Gaudron JJ at 110.
[38] See the decision of In the Matter of the Waanyi Peoples Native Title Determination Application, supra p12.
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