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by Richard Bartlett
This article was provoked by the need to point out the implications of the proposition that the source of native title is Aboriginal traditional connection to land at the time of the acquisition of sovereignty by the Crown. Established 'judicial wisdom' favours the view that the onus is upon the Crown to prove that native title no longer exists. Applicants for native title should not accept that the onus with respect to extinguishment by Crown grants is on them; and they should also insist that the onus to show abandonment of native title rights by them is on the Crown.[1]
Extinguishment by Crown grant It is suggested it is abundantly clear that the onus of establishing a clear and plain intention to extinguish native title is upon the party asserting extinguishment. The High Court in Western Australia v The Commonwealth, where the matter was vigorously argued, declared[2]:
'Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended ...
'To 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. So much is required of any statute which is said to extinguish native title which has survived acquisition of a territory by the Crown and there is no reason why some lesser standard should be applied in ascertaining the Crown's intention when exercising the prerogative power to acquire new territory. It may be that even stricter proof is required'.
The Court footnoted the supporting authorities from Mabo (No. 1)[3] and Mabo (No. 2)[4] which stress the fundamental rationale of the requirement of a 'clear and plain intention' to extinguish. The Court referred in particular to the judgement of Deane J in Mabo (No. 1). In that case, the State of Queensland argued the effect of the Coast Islands Declaratory Act 1985 (Qld) was 'to extinguish the rights which the plaintiffs claim in their traditional homeland and to deny any right to compensation in respect of that extinction'.[5] Justice Deane cited common law authority that '[t]he general provisions of the Act should not, as a matter of settled principles of construction, be construed as intended to bring about such a compulsory deprivation of proprietary rights and interests without compensation if they are susceptible of some other less burdensome construction'[6]. He referred to the 'strong presumption[7] against finding such intention, and cited Clissold v Perry[8] and CSR v Melbourne Harbour Trust[9].
The High Court in Mabo (No. 1) determined that the Act could not be said to have the effect of extinguishing native title, because it was rendered inoperative by the Racial Discrimination Act 1975 (Cth). Prior to the Racial Discrimination Act coming into effect, the extinguishment of native title was, and could be, effected by the confiscation of the land of Aboriginal people without notice and without compensation. However, the common law demanded that those who would seek to assert such a 'Draconian'[10] consequence must bear the onus of proof with respect to extinguishment. Those who assert a racially-based confiscation and discrimination, against the native title rights of Aboriginal people, must bear the onus.
The High Court in Western Australia v The Commonwealth also relied on dicta in the judgements in Mabo (No. 2)[11] which explained and adopted the requirement of a 'clear and plain intention' to extinguish. The rationale of the requirement and its dictation as to onus do not distinguish as to the manner of extinguishment. They do not vary according to whether the issue in dispute is general extinguishment, or ad hoc legislative or parcel by parcel executive extinguishment. In Mabo (No. 2) Brennan J referred to legislative and executive extinguishment, and explained that the requirement of a 'clear and plain intention' flowed 'from the seriousness of the consequences to indigenous inhabitants'.[12] He declared it to be 'patently the right rule', and affirmed the rationale of the Supreme Court of Canada in R v Sparrow,[13] where the Court stated that the onus lay upon the Crown.
Deane and Gaudron JJ declared that native title should be treated '[1]ike other legal rights' and 'ordinary rules of statutory interpretation require ... 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'[14]. The justices referred explicitly to executive extinguishment: 'The executive acts of theCrown under Crown or waste lands legislation will likewise be presumed not to have been intended to derogate from thenative title'.
Toohey J's judgement, like Brennan J's, drew support from North American authorities.[15] He declared that native title 'is presumed to continue unless and until lawfully terminated'[16].
Jurisprudence from elsewhere in the common law world, including North America, is overwhelmingly in favour of the onus lying upon the Crown. In Anrodu Tijani v Secretary, Southern Nigeria, Viscount Haldane said:
'The original native right was a communal right, and it must be presumed to have continued to exist unless the contrary is established by the context or circumstances'.[17]
The issue has been repeatedly reviewed and the principle affirmed by the Supreme Court of Canada. In Calder v AttorneyGeneral of British Colombia, Hall J stated:
‘Once Aboriginal title is established, it is presumed to continue until the contrary is proven ... It would, accordingly, appear to be beyond question that the onus of proving that the Sovereign intended to extin guish the Indian title lies on the respondent [the Crown] and the intention must be "clear and plain" ’[18].
Simon v R concerned argument that non-Aboriginal settlement of particular land had extinguished the Aboriginal right to hunt. Dickson CJC declared for a unanimous Supreme Court of Canada:
'Given the serious and far-reaching consequences of a finding that a treaty right has been extinguished, it seems appropriate to demand strict proof of the fact of extinguishment ... In order to succeed in this argument it is absolutely essential ... that the respondent [the Crown] lead evidence'[19].
R v Horseman concerned argument that legislation governing rights to hunt had extinguished the Aboriginal right to hunt, which was pleaded in defence of the charge of commission of an offence under the Wildlife Act RSA 1980. The Court, by a 4-3 majority, rejected the defence, but considered that the onus of showing extinguishment of the right lay upon the Crown. Cory J, for the majority, stated: ' ... the onus of proving either express or implicit extinguishment lies upon the Crown: see Simon v The Queen ... Calder v British Colombia (A-G)'[20].
In Sparrow v R, where the Crown asserted extinguishment of a right to fish under fisheries legislation, Dickson CJC, for a unanimous court, cited Hall J's assessment of the question of onus with approval, and declared that:
,.. the Crown has failed to discharge its burden of proving extinguishment'.[21]
In Delgamuukw v British Columbia the Court of Appeal, in considering both general and executive extinguishment, agreed that the onus to show a clear and plain intention to extinguish lay upon the Crown, and cited Canadian Supreme Court decisions[22].
Decisions in the United States of America are to similar effect. In the landmark decision United States v Sante Fe Pacific Railroad, Douglas J of the United States Supreme Court declared, after reviewing both legislative and executive extinguishment of native title:
'an extinguishment cannot be lightly implied ... [T]he rule of construction recognized without exception for over a century has been that "doubtful expressions, instead of being resolved in favour of the United States, are to be resolved in favour of a weak and defenceless people, who are wards of the nation, and dependent wholly upon its protection and good faith" '[23].
In Lipan Apache Tribe v United States, Davis J said:
'Once established in fact, [Aboriginal title] endures until extinguished or abandoned ... In the absence of a "clear and plain indication" in the public records that the sovereign "intended to extinguish all of the [claimant's] rights" in their property, Indian - [sic] title continues.[24]
The Court rejected the assertion of extinguishment because there was 'insufficient proof of extinguishment'.
The New Zealand courts have adopted the Canadian and United States requirements with respect to extinguishment by Crown act.[25]
Turning to the question of abandonment of native title, Brennan J declared in Mabo (No. 2) that an Aboriginal group must have 'substantially maintained'[26] its traditional connection with the territory. Brennan J did not suggest that the onus to so demonstrate was on the applicant. But in Coe v Commonwealth[27], Mason CJ, sitting as a single judge of the High Court on a motion to strike out a statement of claim, suggested that Brennan J contemplated that the Aboriginal claimants to native title 'must establish'[28] that they have not ceased to maintain the necessary connection to the land. Similarly, in Mason v Tritton, Priestley JA in the New South Wales Court of Appeal declared that Aboriginal claimants must show that the 'group have continued and are continuing to observe the system at the time the claim is asserted'[29].
It is suggested that the justices in Coe and Mason v Tritton are in error. There is a presumption that native title, once proven to exist at the time of sovereignty, continues. Toohey J in Mabo (No. 2)[30], Viscount Haldane in Amodu Tijani[31], and Hall J in Calder[32] have all declared the presumption that native title continues until the contrary is established.
Canadian authority is clear that the onus of showing abandonment is upon the party who seeks to assert the discontinuance of native title. In Delganmukw v British Columbia the Crown argued that 'many of the areas claimed by the plaintiffs have been abandoned by long-term non-Aboriginal use'.[33] The Chief justice concluded that 'no doubt Aboriginal activities have fallen very much into disuse in many areas', but concluded that because the onus of proof rested upon the Crown to show abandonment, 'it would be unsafe and contrary to principle to apply the principle of abandonment to such an uncertain body of evidence'. He observed that many 'do indeed still hunt and fish and pick berries in season', and the 'Court cannot permit the Crown to pounce too quickly when there are gradually changing circumstances by treating every absence as an abandonment'.
The explanation for the onus lying upon the party seeking to assert non-maintenance has both a practical and a principled basis. Practically, the imposition of the onus upon Aboriginal people to prove maintenance to the present, in circumstances where Aboriginal people have no written records and 'traditions are largely oral in nature', may 'impose an impossible burden of proof which 'would, in effect, render nugatory any right'[34].
Moreover, in principle, native title must be presumed to continue. Possession is properly considered an analogous interest for this purpose. Once possession is established, it gives rise to a right of possession which is presumed to continue, irrespective of whether or not the original party remains in possession:
'Possession being once admitted to be a root of title, every possession must create a title which as against all subsequentintruders has all the incidents and advantages of a true title'.[35] The onus to show abandonment of possession is upon the party that would seek to establish abandonment. The authorities as to possession were reviewed and affirmed by Toohey J in Mabo (No. 2).[36]
In conclusion, it should be stressed that though many formulations of the necessary elements to be proved in a native title case have been constructed from the judgements in Mabo (No. 2), it is critical to understand the general nature of the issue which native title seeks to address. Otherwise, over-categorisation and regard for 'technicalities' can mislead by overlapping, omission and misplaced emphasis. The concern of native title is to identify the 'home country'[37] or 'traditional homelands'[38] of Aboriginal people. Fundamental principles, not technical rules, must guide that determination.
[1] Compare Fitzgerald, J., "Proving Native Title: A Critical Guide" in Vol 3, 74 Aboriginal Law Bulletin 4.
[2] (1995) ALJR 309 at 315 (emphases added, footnote omitted).
[3] Mabo v Queensland (No. 1) (1988) 166 CLR 186.
[4] Mabo v Queensland (No. 2) (1992)175 CLR 1.
[5] (1988)166 CLR 186 at 213.
[6] (1988)166 CLR 186 at 223.
[7] (1988)166 CLR 186 at 224 (emphasis added).
[8] (1904)1 CLR 363 at 373.
[9] [1927] UKPCHCA 1; (1927) 38 CLR 547 at 559.
[10] (1988) 166 CLR 186 at 213.
[11] (1992)175 CLR 1.
[12] (1992)175 CLR 1 at 64.
[13] [1990] 1 SCR 1075 at 1099.
[14] (1992)175 CLR 1 at 110-111.
[15] (1992)175 CLR 1 at 195-196.
[16] [1992] HCA 23; (1992) 175 CLR 1 at 184.
[17] [1921]2 AC 399 at 410.
[18] (1973) SCR 313 at 401, 404.
[19] [1985]2 SCR 387 at 405, 406.
[20] (1990) 55 CCC (3d) 353 at 375.
[21] [1990)1 SCR 1075 at 1099 (emphasis added).
[22] (1993)104 DLR (4th) 470, MacFarlane JA (Taggart JA concurring) at 521-522, Wallace JA at 595.
[23] . [1942] USSC 12; (1941) 314 US 339 at 354.
[24] (1967) 180 Ct Cl 487 at 492 (quoted with approval in Calder v Attorney-General of British Colombia (1973) 34 DLR (ad) 145 at 210).
[25] Te Wed,i v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 at 691.
[26] (1992)175 CLR 1 at 59-60.
[27] [1993] HCA 42; (1993) 118 ALR 193.
[28] [1993] HCA 42; (1993) 118 ALR 193 at 206.
[29] (1994) 34 NSW LR 572 at 598 (and see Kirby P at 584).
[30] . (1992)175 CLR I at 184.
[31] [1921] UKPC 80; [1921] 2 AC 399 at 410.
[32] [1973] SCR 313 at 401-402, 404.
[33] (1991) 79 DLR (4th) 185, 523-535 (upheld in these respects on appeal (1993) 104 DLR (4th) 470, 547, 589, 602).
[34] Simon v R [1985] 2 SCR 387 at 408.
[35] Pollock and Wright on Possession in the Common Law (p95) as cited by Lowe J in Kirk v Sutherland [1979] VLR 33, 37: "If an adverse possessor is evicted by a trespasser he may recover against the trespasser". See also Asher v Whitlock (1865) LR 1 QB; Perry v Clissold [1906] UKLawRpAC 53; (1907) AC 73.
[36] (1992) 175 CLR I at 210.
[37] (1992)175 CLR 1, Brennan J at 61.
[38] [1992] HCA 23; (1992) 175 CLR 1, Deane and Gaudron JJ at 105, 115. (Similarly, Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 515.)
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