Bartlett, Richard --- "Book Review - The Native Title Report, January - June 1994" [1995] AboriginalLawB 57; (1995) 3(77) Aboriginal Law Bulletin 17

• Book Review-The Native Title Report January-June 1994

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Book Review -

The Native Title Report
January - June 1994

by the Aboriginal and Torres Strait Islander Social Justice Commissioner

Australian Government Publishing Service (April 1995)

Reviewed by Richard Bartlett

The Aboriginal and Torres Strait Islander Social Justice Commissioner is required by section 209 of the Native Title Act 1993 (Cth) to prepare an annual report on the operation of the Act and its effect on the exercise and enjoyment of human rights by Aborigines and Torres Strait Islanders. Michael Dodson delivers a valuable critique of the operations of the Act and the limitations of the concept of native title, and asks 'Is it too much to ask that non-Indigenous Australians work co-operatively with Indigenous peoples to maximise what justice there is to be obtained from the NTA?' (page 7). The Report does not provide an optimistic assessment.

The Report begins with a critical review of the operation of the Native Title Act. Specifically,. it examines the provisions for recognition of native title, validation and extinguishment issues, 'future acts' procedures, preservation of native title rights and interests, complementary State legislation, and statutory title grants. Under the head of recognising native title, the Report proposes better funding for representative bodies. In the future acts section, it responds to proposals from the States and the mining industry for amendments to the future acts procedures by dealing with the practical concerns expressed, and by pointing out the common failure of these parties to recognise the principle of non-discrimination. In examining the complementary State legislation, it expresses scepticism as to the ability of Wardens' Courts to act as arbitral tribunals, or to determine native title or assess compensation. Wardens' Courts are instruments of mining legislation, directed to the promotion and paramountcy of mining over other land uses and other interests. They have been traditionally concerned with compliance with mining legislation prerequisites and disputes settlement between miners. Wardens' Courts would seem a most inappropriate body to arbitrate between native title holders and mining interests.

Chapter 2, 'Human Rights', puts the Report in context and provides the criterion by which to evaluate the Act: genuine equality before the law. The concept of genuine equality is elaborated: 'recognising and respecting the differences of people and allowing different cultures to flourish and to enjoy equally the human rights which belong to everyone' (page 63). Against that criterion, the provisions of the Act for validation of native title interests merely by the payment of compensation are pointed out as inadequate. Moreover, the chapter expresses concern as to the heavy burden of proof imposed with respect to proving native title, describing it potentially as 'ridiculous', 'absurd and discriminatory' (page 58). Certainly in native title claims lodged to date, parties opposing the claims are seeking to place a very high onus of proof upon applicants. And with respect to compensation, it is pointed out that it 'will be neither fair nor just if the spiritual and cultural attachment to land is not taken into account' (page 69). Brennan J's judgement in Mabo [No. 2] (Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1) suggested the possibility of the recognition of traditional laws and self-government. The Report points out the possibilities and the hostile responses of the High Court to date, and suggests the appropriateness of political negotiation (eg self-government could be accommodated within regional agreements, which are considered in chapter 5). The chapter concludes by emphasising that 'Native title is the legal expression of one of Indigenous people's most fundamental human rights. Protection of human rights must be at the forefront of interpretation of the Act' (page 74).

The Report provides, in the next chapter ('Extinguishment'), an excellent critical review of the common law doctrine of extinguishment. In particular, it points out:

1. the discriminatory nature of the doctrine;
2. the injustice of the common law's acceptance of extinguishment by inconsistent executive grant;
3. the need to determine inconsistency in fact, and by reference to use, rather than form or legal effect;
4. the particular injustice of the common law doctrine as applied to leases, including pastoral leases; 5. the dissenting Justices' view in Mabo [No. 2] that extinguishment by inconsistent executive grant is wrongful; and 6. the possible existence of a fiduciary obligation owed by the Crown to Indigenous people.

The chapter demands a 'strict interpretation of when native title is extinguished', and stresses the possibilities of a co-existence of native title with other interests. A failure in this respect as to the 'common law recognition of native title ... potentially impinges most greatly on the enjoyment of ... human rights' (page 103). The chapter is essential reading for anybody involved in a native title claim concerning land which has been subject to extinguishment. The discussion of inconsistent grants at pages 85-88 clearly explains and challenges the discriminatory nature of the extinguishment doctrine in relation to native title, and suggests the need for a narrowing of the majority position in Mabo [No. 2]. Is this a re-arguing of Mabo [No. 2]? Perhaps. Does it take into account the crass political reality of the original compromise between immigrant occupied lands and residual traditional lands declared in Johnson v McIntosh ((1823) [1823] USSC 22; 8 Wheat 543) and adopted in the result by the majority in Mabo [No. 21? No, but then nor did the judgement of Brennan J. A major failing of Mabo [No. 2], which this chapter points up, is that the High Court did not acknowledge the pragmatic and unjust nature of the compromise which the decision in Mabo [No. 2] put in place. Waanyi (No. 2) (Waanyi Peoples Native Title Determination Application QC94/5, 14 February 1995, NNTT, Perth) is pointed to as an example of the injustice of the doctrine, and if that decision is sustained, it certainly will be. But I would have preferred to see more questioning of the correctness of the Waanyi decision, which seems wrong on its facts.

There are some areas in relation to extinguishment where more critical attention could be bestowed. The real problems in native title claims involving extinguishment may well be lands that are now vacant, which were once subject to 'inconsistent' grants. The chapter might have emphasised the possibility of suspension, rather than extinguishment, of native title more strongly. Also, the onus of proof with respect to extinguishment needs much greater attention and the authority, Australian and overseas, is much weightier than that presented here (eg Western Australia v The Connwnwealth [1995] HCA 47; (1995) 128 ALR 1). Further, abandonment is not dealt with at all. Finally, the question of a fiduciary duty dealt with in closing relies heavily on R v Sparrow ([1990] 4 W WR 410). It is suggested a more appropriate focus is on obligations attaching to land, and in particular the cases of Guerin v R ((1985) 13 DLR (4th) 321) in Canada and United States v Mitchell (Mitchell II - [1983] USSC 154; 463 US 206 (1983)) in the USA.

The review of the National Native Title Tribunal in chapter 4 provides a detailed critique of its manner of operation, particularly the acceptance process. But I wonder if the criticism is rigorous or harsh enough. At one point the decision of the President of the NNTT in Waanyi (No. 1) (Re Waanyi People's Native Title Application (1994) 129 ALR 100) is described as 'balanced', yet on the only critical question in the case, the decision flies in the face of the language of the Act. The critical question was whether or not there was a prima facie case. The President held that in considering the question, it was necessary to reach a determination on the question of extinguishment, despite there manifestly being an arguable, that is prima facie, case.

The Report discounts the significance of mediation (page 126), but I suggest that in the long term, it affords the best hope for effective settlements. A problem which is not explored is the involvement of parties other than the Crown and Indigenous applicants. It is suggested other parties should not be at the principal mediation table. They are all grantees of the Crown, and should look to the Crown to protect their interests and expectations. The Report is sympathetic to the NNTT President's proposals to separate mediation and determinations, and favours a strike-out process rather than the present acceptance procedure. At least one Aboriginal organisation has expressed concern over such a process, which would encourage litigation so as to deny the benefits of the protection afforded accepted claims (Cape York Land Council: Response to justice French's Discussion Paper on Proposed Changes to the Native Title Act 1993 (Cth), 19 June 1995). The Cape York Land Council favours post-Brandy (Brandy v HREOC[1995] HCA 10; , (1995) 69 ALJR 191) 'fine-tuning of the Act, not wholesale rewriting'. It points out that 'the standing of the Tribunal as mediator in the eyes of indigenous peoples will be secured by its performance and its centrality to the Native Title Act, not by substantially surrendering its powers and standing' (page 3).

Chapter 5, 'Economic and Resource Management Issues', reviews State, mining, fishing and pastoral industry objections to and concerns with the NTA. It provides a valuable measured response to the objections which, II consider, invariably seek to overstate the problems presented, whilst at the same time suggest that native title is a lesser interest which should not be accorded serious recognition. The review of the significance of the Act to the fishing industry is particularly useful, providing coverage of an area somewhat neglected in the journals, but which may have as much practical significance as almost any other area of native title. Throughout the chapter the potential for regional agreements is suggested, but as is pointed out the 'potential ... has not been fully considered by those who dismiss the NTA as unworkable' (page 144). The objections of State governments and industry often seem to be grounded in a resolute refusal to give substance to native title. If a future Commonwealth government ever seeks to act upon any of those objections, the reasoned responses here provided afford strong rebuttal.

The final chapter, 'Community Awareness', recounts the attempts to provide community understanding of native title and the Act. It stresses the need for 'an education programme which covers the entire community' (page 182) and for the promotion of improved cross-cultural communication. It is clear that effective recognition of native title and implementation of the Act require better understanding of both (particularly in relation to non-discrimination, in my view), by the non-Indigenous community. Without such understanding, it will not be possible 'to deliver agreements about the use of traditional Aboriginal and Torres Strait Islander lands and waters, that are fair, just and prompt' (page 185).

In conclusion, the Report stresses that the statutory protection of native title is merely an aspect of the 'principle of non-discrimination and equality before the law', and points out that opposition to the NTA commonly is founded on a 'continuing inability to accept Indigenous ... human rights as worthy of full protection' (page 189). The Report concludes that human rights protection cannot be left to the States, and hence the need for Commonwealth legislation in such form as the Native Title Act. I would prefer human rights not be left' to either level of government. That most fundamental of human rights, equality before the law, should be entrenched in the Constitution. The entire substance of the Report suggests the fundamental importance of equality before the law, but also indicates how often the right is ignored or flouted. It should be an unassailable tenet of the Australian legal system.