Koen-Cohen, Bryan --- "Native Title: Ten years after Mabo" [2002] AltLawJl 48; (2002) 27(3) Alternative Law Journal 136

• NATIVE TITLE
• Ten years after Mabo
• The law
• Negotiations
• A new industry
• Some outcomes
• Some observations

NATIVE TITLE
Ten years after Mabo

BRYAN KEON-COHEN QC^[*] appraises where we are at ten years after judgment in Mabo (No 2).^[1]

The law

Ten years after the delivery of judgment in Mabo No 2, where are we at? Predictably, the law relating to native title has become both more complex, but better understood. Several significant claims have now been completed. Some have succeeded, some have failed, but all have informed us about what native title is, how it is overriden by or co-exists with the rights of other title-holders, and how the system operates under the Native Title Act and complementary state laws. Thus the courts have now ruled that native title can extend to the seas (save that when it gets there, it is subject to the rights of others, especially commercial fishing licencees, the public’s right to fish, and rights of innocent passage under international law (ships));^[2] that a traditional owner can hunt with a rifle and still be engaged in (adapted) customs and practices that found native title rights;^[3] that ‘clear and plain intent’ must be shown by the executive or the parliament in order to extinguish native title rights, for example, by the grant of a pastoral lease;^[4] and that where native title rights conflict with the rights of a crown grantee, the grantee’s rights will always prevail to that extent.^[5]

Significant questions, now before the High Court, remain unresolved, for example, the precise nature of native title as a right to the land itself, or merely a subsidiary right to utilise it;^[6] and the weight to be given to oral as against written evidence when seeking to prove native title in court, especially in relation to historical customs and practices manifested by the claimants’ ancestors.^[7]

Negotiations

Pursuant to the Native Title Act 1993 as amended in 1998 (NTA), and under complementary state and territory laws, especially those passed following the Wik amendments of 1998, administrative schemes have been established around Australia, concerning, amongst other things, the negotiation of Indigenous Land Use Agreements (ILUAs) to enable commercial activity to proceed over land under claim. To March 2002, 53 ILUAs have been negotiated around Australia, and many more are being pursued. The amended legislative scheme also encourages mediated settlement of claims utilising the National Native Title Tribunal (NNTT). Several such settlements have now been achieved successfully, especially in the Torres Straits.^[8]

A new industry

A multi-faceted industry has been created, and is now operating, under the Act. Key players are the Federal Court, which hears trials and controls the progress of claims; the NNTT which assists parties, notifies claims to the public, seeks to mediate claims to agreed outcomes; and keeps registers of claims and ILUAs. About 15 Representative Bodies, being in essence ‘land councils’ with statutory responsibilities under the Act to assist native title claimants, pursue negotiations and deal with governments and industry, are established and operating throughout the country, albeit with inadequate funding. Commonwealth, state and territory governments which are necessary and important respondent parties to all claims, and which pursue (often different) policies and administrative procedures to deal with them, engage in land title research; facilitate resource development over claimed land under the NTA ‘future act’ regime; have published ‘connection report’ protocols to guide the mediation of claims; and have established Native Title Units (variously labelled) to co-ordinate an ‘all of government’ approach to the administration of the NTA and relevant state laws concerning mineral development, land and environment, local government, water, cultural heritage protection, and so on.

In addition, a deluge of conferences,^[9] government reports, academic courses, and writing and research has occurred, and shows no signs of abating. This area of politics, law, government administration, and economic development excites much discussion.

Some outcomes^[10]

As at May 2002, 29 claims were completed — that is, the Federal Court has made a total of 29 ‘determinations’ concerning the existence, or not, of native title around Australia — 7 after a full hearing, and 22 by negotiated agreement of all the parties. Many of these claims concern islands (but no seas areas) in the Torres Straits; and some concern significant areas of country, for example, in remote parts of Western Australia. As at 22 April 2002, 591 claims for a determination of native title, 23 compensation claims, and 39 ‘non-claimant’ applications were proceeding along what can be a long processing pipeline. As to the 591 claims, 189 were in Queensland, 156 in the Northern Territory, 127 in Western Australia, 70 in NSW, 29 in South Australia, 20 in Victoria, and 1 in Tasmania.

Some observations

So what does all this mean? First, in Mabo (No 2) the High Court delivered a national, common law, land rights scheme that recognised pre-existing traditional rights to country which survived colonisation, and which delivered legally enforceable property rights to traditional owners. The Australian community, through its federal and state governments, in 1993 and again in 1998, introduced complex legislative responses which now regulate this new property right. Those laws, and some court decisions interpreting them, have led to legal and administrative complexity, and tend to control and minimise the Mabo initiative, rather than develop a national opportunity. This difficult debate over the correct balance to be struck between the imperatives of economic development, and respect for and assertion of indigenous rights, will continue. Indeed, as experience shows throughout the world, it never stops.

Second, for many areas of Australia, legal extinguishment has been achieved by the enactment of laws or by activities on the land — or both — and the evidential hurdles to prove native title (clarified over the decade) are, currently, simply too high for some claimant groups. For those communities – for example, the Yorta Yorta in Victoria if their current High Court Appeal fails — native title, while remaining a living force in their communities, is unattainable at Australian law. Absent further legislative reform, such groups are left, as a matter of seeking redress for historical dispossession, to purchasing any available land within their traditional boundaries (or beyond) on the open market, utilizing the Indigenous Land Fund. This important fund was a direct response to Mabo introduced in 1994. It is intended precisely for those communities cut out of the native title process and it continues to operate.

Third, native title remains a valuable right for those who can access it, delivering worthwhile benefits to traditional owners: for example, a place to reside on or enjoy, in accordance with custom and tradition; and/or a foundation on which to seek some economic independence.

Fourth, since 1992, both governments and the general community have, one feels, finally got used to the general idea. They appreciate more accurately, particularly after the 1998 Wik amendments, that native title need not threaten anybody. Much of the anguish and opposition generated around the early claims has now abated. However, that said, the opponents of this phenomenon generally, and of particular claims, continue to operate as a formidable force — often better resourced than claimants.

Finally, successfully claiming (or defending) native title, by court processes or mediation, remains a long, expensive and difficult task which can take a great toll on the human and financial resources of all parties. These difficulties are, however, now better understood, and the process, with experience, is becoming more streamlined — especially at the negotiation and mediation stages. Over the next decade, and beyond, more claims will undoubtedly be pursued — one hopes with increased expedition and outcomes satisfactory to most, if not all, parties involved.

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^[*] Bryan Keon-Cohen was junior counsel in the Mabo litigation, and is in practice at the Victorian Bar. He has appeared in several native title cases in the Federal and High Courts, and has written and lectured extensively on indigenous rights. During 1999–2001 he was Principal Legal Officer with Mirimbiak, the native title Representative Body established under the NTA, for Victoria.

^[1] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

^[2] Commonwealth v Yarmirr (2001) 184 ALR 113; [2001] HCA 56.

^[3] Yanner v Eaton (2000) 201 CLR 351; [1999] HCA 53.

^[4] Wik People v Queensland (1996) 187 CLR 1.

^[5] Several cases, but especially Wik, above, ref 4.

^[6] Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159 (Fed Ct, F Ct); High Court appeal heard in February 2001, judgment pending.

^[7] Yorta Yorta v Victoria [1998] FCA 1606 (Olney J); [2001] FCA 45; (2001) 180 ALR 655 (Fed Ct, F Ct); High Court appeal heard May 2002, judgment pending.

^[8] These are listed in NNTT Annual Report 2000–2001, NNTT 2001, pp.55-7, as at October 2001.

^[9] eg, B.A. Keon-Cohen (ed.), Native Title in the New Millennium, AIATSIS, 2001 being edited papers from a national conference of the same name held in Melbourne in April 2000.

^[10] Statistics taken from (2001–02) 5 Native Title News 135, 138, Butterworths.