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Castan, Melissa; Kee, Sue --- "The jurisprudence of denial" [2003] AltLawJl 17; (2003) 28(2) Alternative Law Journal 83

The jurisprudence of

Melissa Castan and Sue Kee[*]

The political devolution of the concept of native title.

Remember the Mabo case? Indeed, how could we forget it? In recent months the High Court has handed down a number of decisions in threshold native title cases; the confounding Yorta Yorta finding being the latest.[1] For those who hoped white Australia's reconciliation with its past would finally result in fulsome recognition of the rights of Indigenous Australians to their traditional lands, the case is a low point. But more than that, it seems the Gleeson High Court has worked to deny the transformative impact of the Mabo case, particularly the attempt in Mabo to find an appropriate legal remedy for the dispossession of Aboriginal peoples from their lands.

The decision of the High Court in the Yorta Yorta case is a statement by white Australia's highest judicial institution that the aspirations of the Indigenous people are again to be disappointed. The case is more than a rejection of a claim for native title. The decision in Yorta Yorta epitomises the jurisprudence of denial. This article considers the political devolution of the concept of native title, and then turns to the Yorta Yorta case to examine how the judicial treatment of native title has digressed from the principles expressed in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

A response to Mabo: death by 1000 cuts

The Mabo decision recognised the existence of native title, a title not granted by the Crown, but which is sui generis in nature, and:

conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the Indigenous inhabitants. [Mabo at 57, 59 (Brennan J)]

The doctrine of tenure was transformed to conform to Australian history. The recognition of native title has since been extended to encompass non-exclusive rights over Australian territorial seas.[2]

Importantly, the Crown may appropriate land to itself, or alienate land to others, and thereby (wholly or partially) extinguish native title.[3]

The precarious nature of native title was aptly characterised as the 'weakness of native title' by Brennan J, later, in Wik People v Queensland (1996) 187 CLR 1, at 84. In that case, his Honour said:

[I]t is not an estate held by the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it. [at 84]

The Mabo decision was met with howls of derision from many quarters. The litany of woes ranged across the spectrum ('The Court gives an inch but takes a mile', 'A Judicial Revolution', 'Who made the Mabo Mess?') culminating in almost hysterical headline claims in country, state and national newspapers threatening the dire collapse of the Australian economy and polity.[4]

Paul Keating's Labor government undertook to legislate in response to Mabo. The Native Title Act 1993 (Cth) (NTA) was passed following extensive negotiations between the Commonwealth Government, Indigenous community representatives and representatives of non-Indigenous interest groups. Its arduous passage through the Senate concluded in the early hours of 22 December 1993, and it came into operation on I January 1994.[5] Many of those who initially declaimed the 'activism' of the Court were able to come to terms with the prospect of working with Indigenous Australians, towards a stronger, fairer system of land law, which accommodated a plurality of interests.

The Western Australian state Liberal government promptly challenged the constitutional validity of the legislation. In a joint judgment, the High Court found that the NTA was stamped with the constitutional character of a law within the scope of the s.51 (xxvi) (the 'race power') of the Australian Constitution as it conferred 'uniquely on the Aboriginal and Torres Strait Islander holders of native title a benefit protective of their native title'.[6]

Fears that the long assumed property rights of ordinary Australians would be impugned were fuelled by conservative commentators following the decision in Wik v Queensland. The new coalition government of John Howard suggested that ordinary private freehold title was under threat by native title claims. The NTA was said to be 'unbalanced'. Analogies were made about 'pendulums', 'equilibrium' and 'buckets'. High levels of anxiety were generated within rural communities. Some state governments· ceased processing mining and development leases, or ignored the procedures laid down in the NTA. The headlines and radio waves echoed woes of uncertainty, obstruction and claims of a system that was unworkable.

Politicians, pastoralists and other interest groups rolled up their sleeves in readiness to reshape the NTA. The Indigenous people whose newly recognised rights were being tossed in the invective, did not get a look into the negotiations.[7] As promised, the Native Title Amendment Act 1998 (Cth) contained bucketloads of extinguishment.

The complexity of the amended NTA[8] means that only specialists have a chance of making sense of native title. Claims must now be conducted on timelines and under strict procedures that are inimical to claimants. Decisions have to be taken, or evidence has to be presented, in a timeframe and manner that is culturally insensitive. Experienced senior legal and anthropological experts and advisers are needed. The expense is beyond the present financial resources of the entire Indigenous polity, notwithstanding generous pro bono contributions.

Towards codification of native title?

Yorta Yorta followed the unambiguous endorsement by the majority in The State of Western Australia v Ben Ward & Ors[9] that the NTA is the focus for examination of a claim for determination of native title. Claims are treated as creatures of the Act rather than the common law. As three of the majority judges in Yorta Yorta said:

By their application, the claimants sought a determination of native title under the NTA. The application which the claimants made, and the relief which they sought by that application were both creatures of that Act. [para 9 (Gleeson CJ, Gummow and Hayne JJ)]

Significantly, the Court has found that the correct approach to examination and consideration of a claim for native title involves the provisions of the NTA which are enacted at the time of the appeal. This is not altogether inconsistent with previous decisions of the Court.[10] It is of course within the legitimate power of the parliament, provided those powers are exercised in a manner consistent with constitutional limitations, to prescribe that a determination of native title be subject to the requirements of legislation, and to include a definition of native title in the NTA for that purpose. But there has been no constitutional challenge to the NTA so it is unclear whether the changes effected to the legislation, which have been the subject of criticism by the International Committee on the Elimination of all forms of Racial Discrimination for breach of obligations at international law, are in fact also in breach of domestic constitutional law.

Notwithstanding the Court has found that although the common law retains a role in this aspect of native title, the starting point of analysis is the NTA which prescribes a myriad of valid legislative acts of extinguishment. These include previous exclusive possession acts contained in Div 2A and Div 2B added to the NTA in 1998. The land area over which a native title claim may be made was substantially reduced by these additional statutory provisions, and this diminution represents one of the fronts in the increasing attrition of the beneficial operation of the NTA to accord recognition to the interests and aspirations of native title holders. While the Yorta Yorta appeal dealt with provisions that were largely unchanged by the 1998 amendments, an illustration of the effect of the Court's approach may be found in the judgments of Ward [11] and Anderson.[12]

What is left of native title?

In Mabo the High Court gave judicial expression to a 'national legacy of unutterable shame' of dispossession, degradation and devastation visited on Indigenous Australians; 'not in order to trespass into the area of assessment or attribution of moral guilt' but because the 'full facts of Indigenous dispossession were of critical importance to the decision'.[13] The recent decisions of Ward, Anderson, and Yorta Yorta only serve to reinforce the perfidious consequences of dispossession and the elusiveness or gaining effective common law recognition of native title.

Section 223 of the NTA is entitled 'Native title' and provides:

Common law rights and interests:
(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.

In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ, forming three of the majority, said that this definition requires native title rights and interests to have three characteristics.

First, they must find their source in traditional law and custom, not in the common law. Second, the rights and interests must be connected to the traditional laws acknowledged and the traditional customs observed by the relevant peoples, being those people who have a 'connection with' the land and waters sourced in traditional law and custom, not the common law. Third, the rights and interests in relation to land must be 'recognised' by the common law of Australia.

Their Honours considered that the requirements set out in the definition contained in s.223(1)(a), are directed not to whether native title rights and interests are currently exerc1sed, but whether they are currently possessed. This is to be contrasted to the conservative approach of another of the majority judges, Callinan J. In a separate judgment his Honour propounded the view that in addition to the requirements of s.223(1), the provision set out in the test for registration of a claim at s.l90B(7) requires that the rights and interests in land be demonstrated by physical occupation, presence or possession.

A different approach is found in the dissenting judgment of Gaudron and Kirby JJ. Their Honours thought that while the statutory definition imports a necessity for continuity with the past, laws and customs may properly be described as traditional (for the purposes of the definition) notwithstanding that they do not correspond exactly with the laws and customs acknowledged and observed prior to European settlement. For example, their Honours said:

As a matter of ordinary usage, the word 'traditional' does not necessarily signify rigid adherence to past practices ... What is necessary for laws and customs to be identified as traditional is that they should have their origins in the past and, to the extent that they differ from past practices, the differences should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledge and observe those laws and customs.[14]

Furthermore, in contrast with the physical connection standard contemplated by Callinan J, Gaudron and Kirby JJ adopt an approach that is much more consistent with the reality of Indigenous cultural expression.

In particular, considerable attention was directed to what was meant by para (c). Three of the majority, Gleeson CJ, Gummow and Hayne JJ, found that the consequence of the Crown’s assertion of sovereignty has been to significantly limit native title rights and interests to those which are capable of falling within what their Honours identified as the 'rule of recognition'. This rule requires there to be a relationship demonstrated between laws and customs now acknowledged and observed in connection with land or waters and the normative system of traditional laws acknowledged and customs observed on acquisition of sovereignty.[15]

However, the issues decided by the majority in Yorta Yorta were about interruption in observance of traditional law and custom. The majority upheld the trial judge's findings that the forebears of the claimants had ceased to occupy their lands in accordance with traditional laws and customs and that there was no evidence that they continued to acknowledge and observe those laws and customs. The consequence of this affirmation is that the Australian legal system has failed to give recognition to native title rights and thus common law protection to those customs now observed and practices and activities now performed by the Yorta Yorta people.

The debacle of continuity

Much of the argument in the appeal in Yorta Yorta was directed to the proper construction of the definition of native title contained in s.223(1) of the Native Title Act 1993 (Cth)). The definition came under consideration because the nature and incidents of native title are 'ascertained by reference to traditional laws and customs'.[16] When discerned, those rights are enforceable as common law rights: 'this is what is meant when it is said that native title is recognised by the common law'.[17]

Moreover, the findings in Yorta Yorta were not directed to identifying the content of, or changes in, law or custom that would satisfy 'the rule of recognition'. The threshold question of the standard to be applied in the recognition of present rights and interests which satisfy the twin requirements firstly, of continuity with pre-sovereign traditional laws and customs, and second, connection with particular lands and waters, is yet to be clarified satisfactorily.

One might well ask whether the Court addressed the right question when evaluating the evidence of the Yorta Yorta's capacity to satisfy the 'rule of recognition'. In their joint dissenting judgment, Justices Gaudron and Kirby opined that the question of whether a community has ceased to exist is not one that is to be answered solely by reference to external indicia or the observations of those who are not or were not members of that community, or by reference to physical presence in a particular place. Their Honours considered that the question is primarily one of whether throughout the period in issue there have been people who have identified themselves, and each other, as members of the community in question. On this line of reasoning, the dispersal and regrouping of communities (in consequence of the fact of dispossession) would not necessarily result in the cessation of 'an identifiable community'. Individuals may continue to acknowledge traditional laws and observe traditional customs in respect of land and waters, and on regrouping it may be (depending on the facts) that it can be said that the community continues to acknowledge traditional laws and observe traditional practices.

Gaudron and Kirby JJ thought that neither the trial judge, nor the Full Court, considered the question of whether, throughout the period, there were people of Aboriginal descent who identified themselves and others as Yorta Yorta people bound together by ancestry and by shared beliefs and practices. Had the majority adopted this approach, the case might have been remitted to the Full Court, and the Yorta Yorta may not have been denied enjoyment of the beneficial operation of the NTA.

The effect of the decision is to cast Indigenous title holders back to an era we had mistakenly assumed had long pa t; the quest to prove 'authenticity' of tradition, custom and culture, raising issues of ethnicity and identity long discredited in other disciplines, and nations. This impacts not only on the Yorta Yorta people themselves, but also on all claimants for native title. There are now much tighter confines for the proof of traditional connection, as it is underpinned by a standard of continuity which fails to attribute recognition of the rights of people who engage in practices and activities which although they are unambiguously part of Aboriginal culture, are not within the legal system's conception of 'native title'.

It is fairly arguable that the standard of the requirements affirmed in Yorta Yorta reinforces the socially engineered divide between Indigenous people in 'settled' and 'remote' regions. It affirms the assimilation policy objective of shaping the urban Indigenous Australian identity as that of an individual to meet Anglo-Australian community dictates and deconstructs the notion of distinctive social and cultural communities surviving in settled Australia.[18]

But whose historical record is it?

The trial judge, Olney J, held that the Anglo-Australian historical record left open the question whether the Indigenous people who were found to be in occupation of the claim area in the 1830s and 1840s, and about whom there were available records, were descended from those people who had occupied the area at the time of sovereignty. These findings were based on evidence adduced from historical writings of explorers and others who traversed the area the subject of claim between the period 1820 and 1830, and as recorded by the settler, Edward Curr, who occupied land near Echuca between 1841 and 1851, in a book published in the late 1800s.

Greater weight was accorded by the trial judge to Curr's work, as compared to oral testimony of the claimants. In the High Court appeal this approach was affirmed. Gleeson CJ, Gummow and Hayne JJ held that the greater weight attributed to written historical records, as compared to oral testimony of the claimants, was the correct approach in so far as the inquiry was directed to ascertainment of what were the traditional laws and customs of the peoples of the area at the time of European settlement. Callinan J formed the view that the trial judge did not fail to give appropriate weight to the orally transmitted accounts and thought there was no error in regarding intensive husbandry and agriculture along the Murray River as being incompatible with the traditional way of life of the early Aboriginal inhabitants, or any evolution of it.

From the time of Curr's observations in the 1840s the historical records disclosed disruption of traditional life which continued and increased during the succeeding decades. Daniel Matthews lived at Echuca in early 1864 and established the Maloga Mission in 1874. Matthews suppressed the use of Indigenous language and the observance of traditional practices. Mission occupants who did not comply were denied sustenance. Matthews' observations recorded that he had come into contact with tribes that, through disruptions, were characterised in his 1899 writings as 'fragments of tribes'. Olney J considered that this evidence was silent about 'the continued observance in Matthews' time of those aspect of traditional lifestyle' to which Curr had earlier referred. Moreover, Olney J found there was no evidence about whether there was observance, recognition and protection of territorial areas of various tribal groups. His Honour reasoned that Matthews' writings evidenced that the Indigenous peoples had been dislocated and decimated by disease.

In interpreting the historical record, most weight was placed by Olney Jon an 1881 petition to the NSW Governor, seeking a grant of proprietary interests in their own lands, signed by 42 people who identified themselves as members of the Moira and Ulupna tribes. The petitioners recited, inter alia, that 'we feel that our old mode of life is not in keeping with the instructions we have received and we are earnestly desirous of settling down to more orderly habits of industry'.[19] His Honour attached considerable significance to the petition and concluded, those through whom the claimants sought to establish native title:

... were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time.[20]

Gleeson CJ, Gummow and Hayne JJ considered that the findings of Olney J were about interruption in the observance of traditionallaw and custom, and not about the content of, or changes in, the law or custom. They were findings that the society, which had once observed traditional laws and customs, had ceased to do so and, by ceasing to do so, no longer constituted the society out of which the traditional laws and customs spring.

It is noteworthy that the 1881 petition was taken by Olney J (at para 119) as 'positive evidence emanating from the Aboriginals themselves' that the descendants of those who had originally occupied the land no longer continued to acknowledge their traditional laws, or observe their traditional customs. Olney J noted that there was no evidence suggesting that the petition did not accurately state the factual position.

Bias in the historical record?

The 1881 petition was crafted in high language, and as noted by Olney J the petitioners would have been assisted in its construction. There would have been profound and substantial limitations in the communications capacity of the petitioners, whose first language was not English, and who were subject to a restrictive educational system. If the petitioners could have communicated in their own language they may well have been able to articulate the details of the richness and depth of their affinity with and maintenance of culture and traditions. Unfortunately the law, then and now, required petitioners to communicate in English.

Was Matthews, whose policies were openly hostile to the exercise of Indigenous laws and customs, free from his own religious and cultural bias in formulating the words conveyed in the petition? Were the petitioners offered any alternative other than to express a desire to adopt what was described in the petition as the 'orderly habits of industry', when this was the only means of production that the new sovereign was capable of recognising as legitimate? Was there any other mechanism by which the petitioners could seek to enjoy their fundamental freedoms?


These questions were not addressed by any of the judiciary sitting on the various Yorta Yorta cases. The petitioners' assertion of their aspirations to leave the mission lifestyle has proved fatal to their descendants' attempts to obtain recognition and protection of their particular rights and interests under the rules of the new sovereign order. It is disturbing that such weight was placed on this particular document as evidence of the 'intentions' of the petitioners. They were required to communicate their aspirations in a language other than their own, and which they were only 'permitted' to learn at the behest of missionaries and government policies. It seems iniquitous that such weight was placed on this particular document as it will never be known whether that document adequately reflected the petitioners' aspirations; that would only be known if an equivalent document which had been recited in the language of the Yorta Yorta was in existence.

The President of the British Royal Society offered to Captain Cook and the 1770 expeditioners the following advice:

To exercise the utmost patience and forbearance with respect to the Natives of the several Lands where the ships may touch ... They are the natural, and in the strictest sense of the word, the legal possessors of the several Regions they inhabit ... Conquest over such people can never give just title ...[21]

Despite the existence of such conscionable concern for the fate of a free people,[22] an odious and oppressive relationship was to unfold between Indigenous Australians and the non-Indigenous settlers: a relationship that remains the most sensitive and seemingly irretrievable blight on social and legal justice in Australian society. The Mabo judgment, and the cases that followed might have offered some hope of restoring balance in the relationship.

However, now, years of overt and covert 'Mabo bashing' coalesce with criticisms of undue 'activism'. The High Court appears to have beaten a hasty retreat. A combination of events, personalities, circumstances and politics has had the effect of dismantling the remaining sheds of value that the Mabo case might have offered.

[*] Melissa Castan teaches law at Monash University.

Sue Kee is a law graduate and currently researches in the Faculty of Law at Monash University.


The authors wish to thank Martin Flynn for his comments on an earli ;r draft of this article.

© 2003 Melissa Castan and Sue Kee (text)

[1] Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (Yorta Yorta) (12 December 2002).

[2] Commonwealth v Yarmirr (2000) 184 ALR 113.

[3] Mabo (No.2) (1992) 175 CLR I, 46-59 (Mabo No 2) (Brennan J), 101 (Deane and Gaudron JJ), 184 (Toohey J).

[4] 'Because of the naive adventurism of the High Court, the economic and political future of Australia has been put at risk and our territorial integrity is under threat', Hugh Morgan, as reported in the Sydney Morning Herald, I July 1993

[5] Tickner, Robert, Taking a Stand: Land Rights to Reconciliation, Allen & Unwin, NSW, 2001, pp.214-9.

[6] Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 at 462 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) (Dawson J concurring).

[7] See, International Committee on the Elimination of all forms of Racial Discrimination (CERD Committee), Findings on the Native Title Amendment Act 1998 (Cth), UN Doc CERDIC54/Misc.40/Rev.2, (18 March 1999) [9].

[8] All further references to NTA refer to the legislation as amended by the Native Title Amendment Act 1998 (Cth).

[9] The State of Western Australia v Ben Ward & Ors [2002] HCA 28 (Ward) (8 August 2002) para 25 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[10] eg under the Family Law Act 1975 (Cth), such as in CDJ v VAJ (No I) (1998) 197 CLR 172, also Ward, aboveref9,paras 65-71 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[11] Ward, above, ref 9.

[12] Wilson v Anderson [2002] HCA 29 (8 August 2002).

[13] Mabo No.2, above, ref 3 at 104, 120 (Deane and Gaudron JJ).

[14] Yorta Yorta , above, ref 1 at paras 112, 114 (Gaudron and Kirby JJ).

[15] Yorta Yorta, above, ref 1 at paras 54-56, 89 (Gleeson CJ, Gummow and Hayne JJ).

[16] Wik Peoples v State of Queensland (1996) 187 CLR 1, 84 (Wik) (Brennan J).

[17] Wik above, ref l6 at 84 (Brennan J) citing Mabo (No.2), above, ref 3 at 59, 69 (Brennan J) and Native Title Act Case, above, ref 6 at 422.

[18] See Langton, Marcia, Well, I Heard it on the Radio and 1 Saw it on the Television ... Australian Film Commission, 1993.

[19] The Members of the Yorta Yorta Aboriginal Communityv The State of Victoria [1998] FCA 1606 at 119.

[20] The Members of the Yorta Yorta Aboriginal Community v The State of Victoria, above, ref 19 at para 121.

[21] Reynolds, Henry, This Whispering in Our Hearts, Allen & Unwin, 1998, pp.xi-xii.

[22] Reynolds, Henry, Fate of a Free People, Penguin, 1996.

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