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French, Justice Robert --- "The common law of native title in Australia" (FCA) [2002] FedJSchol 10

THE COMMON LAW OF NATIVE TITLE IN AUSTRALIA


JUSTICE ROBERT FRENCH[*] AND PATRICIA LANE[**]


(To be published in the next edition of the
Oxford University Commonwealth Law Journal)


Introduction


The historical colonisation of inhabited territories raises a question which is pressing and difficult for many contemporary societies. Can the law of the colonisers accommodate the traditional relationship of indigenous people to land and waters within the territory? The issues were identified by Kent McNeil in his important work, Common Law Aboriginal Title:[1]


What effect, then, did colonization of these territories have on title to land? Did real property rights held by virtue of local custom continue under English rule? What of indigenous people whose relationship to land was conceptually non-proprietary when viewed from a European perspective? Did actual presence on and use of land by these people have juridical consequences under the system of law that the colonizers brought with them? And what rights, if any, did the Crown as sovereign acquire to lands already owned or occupied when a territory was annexed to its dominions?


Questions of this kind have arisen in every inhabited territory colonised by the English. But the issues have never been resolved in any systematic way. Australia has faced up to them relatively late in the day. It was not until 1992 that the High Court held that the common law of Australia could recognise and give effect to rights and interests in land and waters held by indigenous people under their traditional law and custom. That decision, in the now famous Mabo litigation,[2] established the basic principles for determining the existence of common law native title. But the nature of the 'recognition' of indigenous law and custom associated with that determination and the related concept of 'extinguishment' of common law native title were left for further development. One difficulty with the concept of 'recognition' in this context is that indigenous relationships to land are not adequately encompassed by words such as 'ownership' or 'rights and interests'. They involve cultural and spiritual dimensions and notions of responsibility. In contemporary Australia the history of colonisation has had its own dramatic impact, mostly adverse, upon indigenous societies. Colonisation affected the culture of indigenous societies, particularly the central relationships to land and waters. The complex nature of these relationships coupled with the effects of colonisation make it difficult, if not impossible, to construct a coherent theory explaining what it is that the common law does when it purports to recognise them. What follows describes, against this background, the evolution of the common law in Australia. It occurs, post-Mabo, through a series of important decisions of the High Court and within the statutory framework created by the Native Title Act 1993 (Cth). That Act provides mechanisms for the recognition and protection of common law native title as well as validating past laws and executive acts which were invalid because of their effect upon native title. The Act specifies what must be set out in a determination of native title and defines native title by reference, inter alia, to rights and interests possessed under traditional laws and customs which 'are recognised by the common law of Australia'.[3] It regulates the process leading to determinations of native title and in some cases affects common law recognition by declaring circumstances in which native title is extinguished[4] or partially extinguished.[5]


Prologue and Context


The indigenous people of the Australian colonies were long thought of as 'wandering tribes...living without certain habitation and without laws [who] were never in the situation of a conquered people'.[6] The colonies were seen as settled rather than conquered and their land as property of the Crown from the time of their annexation.[7] So in 1889 Lord Watson in the Privy Council said:


There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.[8]


As McNeil observes the Privy Council apparently reached its conclusion about the absence of any settled system of Aboriginal law without the benefit of any evidence about the nature of Aboriginal society. The jurisprudence of the time in relation to indigenous societies was Darwinian. It contemplated indigenous people whose place in the scale of social organisation was so low that their usages and conceptions of rights could not be reconciled with the institutions or ideas of civilised society. It was not open then to impute to such people '...some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them'.[9] On the other hand, it did recognise that traditional title to land might not fit into the accepted categories developed under the common law of England.[10]


The propositions advanced by the Privy Council in Cooper v Stuart about the peaceful settlement of Australia and the absence of cognisable indigenous law involved assumptions as to the colonisation of Australia and the nature of the relationship of its indigenous people to their country. The first of these assumptions was at least questionable having regard to the history of conflict between indigenous people and the early settlers. The second, underpinning the terra nullius doctrine, was simply wrong. Nevertheless they appeared to have achieved the status of rules of law binding on Australian judges.


In rejecting a claim for recognition of traditional title to land by the people of the Gove Peninsula in the Northern Territory, Blackburn J of the Supreme Court of the Northern Territory, held in the Milirrpum case that the doctrine of terra nullius as enunciated in Cooper v Stuart applied and that there was no common law doctrine of native title in Australia.[11] This involved an acceptance of the historical fiction that the Australian colonies were settled colonies:

[T]he question is one not of fact but of law. Whether or not the Australian aboriginals living in any part of New South Wales had in 1788 a system of law which was beyond the powers of the settlers at that time to perceive or comprehend, it is beyond the power of this Court to decide otherwise than that New South Wales came into the category of a settled or occupied colony.[12]


Blackburn J also held that the traditional law and custom of the plaintiffs would not give rise to any rights of the kind necessary to attract recognition at common law. The evidence in the case disclosed a 'subtle and elaborate system highly adapted to the country in which the people led their lives', a system which he was prepared to characterise as a government of laws and not of men.[13] Notwithstanding this, had it been necessary to do so Blackburn J would have concluded that absent the existence of rights under traditional law and custom which could be described as rights of property, there could be no common law native title.


The position so enunciated was based upon Blackburn J's perception of the common law as it applied to Australia. That perception was held against an extensive consideration of authority from other jurisdictions. Australian courts were apprised of the possibility of common law recognition of traditional relationships to land. In 1973 the High Court considered an appeal from Papua New Guinea, then still an Australian Territory. Its status as such and its previous designation as a British Protectorate did not affect the customary title of its inhabitants which was acknowledged in Australian ordinances. As Gibbs J observed :'[t]he law of the Territory of Papua and New Guinea affords clear recognition of native interests in land, whether those interests are communal and usufructuary or individual and proprietary.'[14]


Statutory recognition of traditional connection to land and waters was established by federal law applicable to the Northern Territory following the Milirrpum case. The Aboriginal Land Rights (Northern Territory) Act 1976 (NT) was enacted on the recommendation of the Woodward Royal Commission. It provided for an Aboriginal Lands Commissioner to inquire into claims of traditional ownership of unalienated Crown land and, where the claims were made out, to write recommendations to the relevant Federal Minister for the grant of fee simple title to the land in question to be held by a Land Trust on behalf of its traditional owners. The object of the Act was to give standing within the Anglo-Australian legal system to a system of traditional ownership that had to that point failed to gain recognition by the courts.[15] The right to claim was conferred on groups falling within the statutory definition of 'traditional Aboriginal owners'.


The core provision of the Act under which the Commissioner was empowered to ascertain the traditional Aboriginal owners of the land under claim, was not to be construed as though contained in 'a textbook on traditional land tenures in the feudal system'.[16] Its context was said to be the novel concepts and arrangements that entered into Australian law initially through the provision of statutory land rights.[17] Although statutory land rights provided a legal framework within which traditional owners could exercise the rights and/or responsibilities which defined their relationship to the land under indigenous law and custom it did not operate as a model of that relationship.


The High Court was required on a number of occasions to consider the operation of this heavily litigated land rights scheme in ways which conceptually foreshadowed debates about common law native title. The Act defined 'traditional Aboriginal owners' by reference to local descent groups of Aboriginals who had common spiritual affiliations to sites on the land. These affiliations placed the groups under primary spiritual responsibilities for the sites and for the land. There was an additional element that the groups be entitled by Aboriginal tradition to forage as of right over that land.[18] In R v Toohey; ex p Meneling Station Pty Ltd[19] Brennan J observed that owners of land under Anglo-Australian law are understood to be vested with a bundle of rights exercisable with respect to land.[20] The term 'traditional Aboriginal owners however had a very different connotation: 'Foraging rights apart, the connexion of the group with the land does not consist in the communal holding of rights with respect to the land, but in the group's spiritual affiliations to a site on the land and the group's spiritual responsibility for the site and for the land. Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights.'[21]


This was a passage later to be expressly approved by the High Court in the context of the common law of native title.[22]


There are more than a dozen reported decisions of the High Court on matters related to the administration of the Act. The concept of traditional land ownership defined by reference to spiritual responsibility was central to the statutory scheme. Many of the Justices of the High Court who participated in the first recognition by the common law of native title, had been involved in cases relating to the Act. Justices Mason, Brennan, Deane and Dawson all took part in decisions on the Act. Justice Toohey, before his appointment to the High Court, had been the first Aboriginal Land Commissioner. He had extensive first hand experience of taking evidence from people claiming as traditional owners, anthropologists and other experts relevant to the statutory claims process. It was also the case that after the passage of the Act land rights statutes were enacted in New South Wales, Queensland and South Australia[23] and latterly in Tasmania.[24]


The emergence of a new view about common law recognition of traditional title cannot realistically be considered without reference to its statutory prologue. Another federal statute of critical importance to the development of the common law was the Racial Discrimination Act 1975 (Cth). That Act gives effect to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) to which Australia is a party. The Act declares it to be unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of any human right or fundamental freedom.


The Act was held by the High Court in 1982 to be valid in a case involving the refusal by the Minister of Lands in Queensland to consent to the transfer of a pastoral lease to the Aboriginal Land Fund Commission for the benefit of Aboriginal people. This was done pursuant to a government policy which opposed the acquisition by Aborigines of large areas of land in the State. John Koowarta, a member of the group for whose use the Commission had contracted to acquire the lease, commenced proceedings in the Supreme Court of Queensland against the State Government. He claimed damages under s 25 of the Racial Discrimination Act. Queensland challenged the validity of the Act in the High Court. Four of the seven justices held that the relevant provisions of the Act were valid laws with respect to external affairs, as they implemented Australia's obligations as a party to CERD. The content of the power of the Commonwealth to make laws with respect to external affairs[25] had expanded significantly over time, particularly post war, having regard to the number of matters which could be said to be of legitimate international concern. As Sir Ninian Stephen, a member of the majority in that case observed, growth in content reflected 'the new global concern for human rights and the international acknowledgement of the need for universally recognized norms of conduct, particularly in relation to the suppression of racial discrimination'.[26] As subsequently appeared from the Mabo decision these norms of conduct underpinned the constitutional support for the Racial Discrimination Act and informed the development of the common law itself. Further, as will be seen, the Act provided a protective framework within which the common law of native title could develop without pre-emptive extinguishment by State legislatures.


Another significant power under the Constitution is that of the Commonwealth to make laws for the people of any race for whom it is deemed necessary to make special laws.[27] Its full scope is not yet determined. It was considered in the Tasmanian Dam case which concerned the validity of Commonwealth legislation seeking to restrain Tasmania and its Hydro Electric Commission from constructing a dam on the Gordon River. One of the challenged Acts provided protection for specified Aboriginal sites. It was expressed to be made in reliance upon the race power. Four of the justices of the High Court held that the provisions were within that power. Again, foreshadowing some of the conceptual issues of the common law of native title, Mason J said :'the cultural heritage of a people is so much of a characteristic or property of the people to whom it belongs that it is inseparably connected with them, so that a legislative power with respect to the people of a race, which confers power to make laws to protect them, necessarily extends to the making of laws protecting their cultural heritage.'[28]


The Mabo Litigation


The Mabo litigation commenced in 1982 with a writ and statement of claim filed in the High Court. The plaintiffs claimed a variety of declarations of the rights of the Meriam people to the Murray Islands in the Torres Strait based upon local custom and traditional native title. The matter was remitted by the High Court to the Supreme Court of Queensland for the trial of factual issues. The Murray Islands, as with the other islands of the Torres Strait, formed part of the State of Queensland. In 1985 Queensland enacted the Queensland Coast Islands Declaratory Act 1985 (Qld). It declared that upon the Islands of the Torres Strait becoming part of Queensland they were vested in the Crown in right of that State 'freed from all other rights, interests and claims of any kind whatsoever'. The State then pleaded the Act against the plaintiffs' claim asserting that its effect was to extinguish the rights which the plaintiffs claimed in the Murray Islands and to deny any right of compensation in respect of that extinction. The validity of the Act was taken before the High Court and in December 1988 a majority of the justices held the Act to be inconsistent with s 10 of the Federal Racial Discrimination Act 1975. That section provides that if a Commonwealth State or Territory law discriminates between persons of different race, colour, national or ethnic origin so that a person from one group enjoys a right to a lesser extent than a person from another then, by force of the Commonwealth law, they shall enjoy the right to the same extent. The operation of the provision was encapsulated in the following passage from the joint judgment in what became known as Mabo (No 1):


In practical terms, this means that if traditional native title was not extinguished before the Racial Discrimination Act came into force, a State law which seeks to extinguish it now will fail. It will fail because s 10(1) of the Racial Discrimination Act clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community. A State law which, by purporting to extinguish native title, would limit that immunity in the case of the native group cannot prevail over s 10(1) of the Racial Discrimination Act which restores the immunity to the extent enjoyed by the general community. The attempt by the 1985 Act to extinguish the traditional legal rights of the Miriam people therefore fails.[29]


In a sense this decision was hypothetical for it had not yet been determined that the common law of Australia would recognise traditional native title. Nevertheless the possibility was raised by this decision that other State or Territory laws or executive acts done after the Racial Discrimination Act came into effect might be invalid because of their discriminatory operation in relation to native title. That invalidity would flow from the operation of s 109 of the Constitution giving paramountcy to the Commonwealth law in the event of inconsistency with a State law. For the Commonwealth itself the further possibility existed that its laws or executive acts might have operated to effect acquisitions of native title rights without just compensation and therefore contrary to the requirements of the Constitution.[30] The question whether native title could be recognised at common law remained to be answered in Mabo (No 2). And when it was so recognised the general issue of the validity of past acts was enlivened along with the need to ensure that future acts affecting native title did not offend the requirements of the Racial Discrimination Act or the Constitution. The effect of the Racial Discrimination Act and the need to comply with it had implications for State and Territory governments in connection with land use management and for the pastoral and mining industries and other users of land in areas in which native title claims might arise.


The decision of the High Court in Mabo (No 2) came in 1992 some ten years after the litigation was commenced. Orders of the Court took the form of an act of legal recognition expressed in a declaration made on 3 June 1992 that 'the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.'[31] This recognition was qualified by reference to a parcel of land leased to the Trustees of the Australian Board of Missions and other parcels appropriated for use for administrative purposes which use was inconsistent with the continued enjoyment of the rights and privileges of the Meriam people under native title. It was also qualified by the further declaration subjecting the title of the Meriam people to the power of the Queensland legislature and executive to extinguish that title by a valid exercise of their respective powers provided any exercise of those powers was not inconsistent with the laws of the Commonwealth.[32] The orders embodied the two metaphors of recognition and extinguishment which were key elements in the High Court's jurisprudence of common law native title from the outset.

D. The Common Law of Native Title


The common law rules underpinning the recognition of native title and the rules governing that recognition, as set out in the Mabo decision, may be summarised thus:


  1. The colonisation of Australia by England did not extinguish rights and interests in land held by Aboriginal and Torres Strait Islander people according to their own law and custom.[33]
  2. The native title of Aboriginal and Torres Strait Islander people under their law and custom will be recognised by the common law of Australia and can be protected under that law.[34]
  3. When the Crown acquired each of the Australian colonies it acquired sovereignty over the land within them. In the exercise of that sovereignty native title could be extinguished by laws or executive grants that indicated a plain and clear intention to do so – eg, grants of freehold title.[35]
  4. To secure the recognition of native title today it is necessary to show that the Aboriginal or Torres Strait Islander group said to hold the native title:

(a) has a continuing connection with the land in question and has rights and interests in the land under Aboriginal or Torres Strait Islander traditional law and custom, as the case may be;[36]

(b) the group continues to observe laws and customs which define its ownership of rights and interests in the land.[37]


  1. Under common law, native title has the following characteristics:

(a) it is communal in character although it may give rise to individual rights;[38]

(b) it cannot be bought or sold but can be surrendered to the Crown;[39]

(c) it may be transmitted from one group to another according to traditional law and custom;[40]

(d) the traditional law and custom under which native title arises can change over time and in response to historical circumstances.[41]


  1. Native title is subject to existing valid laws and rights created under such laws.[42]

The decision reflected a step in the ongoing globalisation of Australian law in which international norms were expressly linked to contemporary social and community values. Brennan J, with whom Mason CJ and McHugh J agreed, aligned the 'expectations of the international community and the 'contemporary values of the Australian people' and said: '[i]t is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.'[43]


Although the other members of the majority (Deane, Gaudron and Toohey JJ) did not invoke international norms of conduct, Deane and Gaudron JJ invoked principles of 'natural law' embodied in the works of early international law jurists such as Wolff, Vattel, de Victoria and Grotius.[44] They referred to authority applicable to a wide spectrum of British colonies including New Zealand and Canada and accepted as correct the Privy Council's statement that: '[t]he Courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected.'[45]


Their Honours did not however avoid the normative dimension of the question whether the common law as enunciated by the Privy Council and by Blackburn J should be changed. They characterised the terra nullius doctrine and the proposition that ownership of land in the Australian colonies vested in the Crown at annexation as 'the legal basis for the dispossession of the Aboriginal peoples of most of their traditional lands'. In an oft-cited passage they said: '[t]he acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices.'[46]


The majority judges in Mabo (No 2) adopted a new view of past historical events upon which they declared the content of the common law. Mabo (No 2) rested upon the proposition that the long standing refusal in Australia to accommodate concepts of native title within the common law depended upon assumptions of historical fact shown to be false.[47] It is perhaps not surprising given the powerful normative influences affecting the judgments of the majority, that a detailed theoretical framework was not provided.


Common law native title, as appears from the judgments in Mabo (No 2) is a right or set of rights whether expressed severally or holistically that are ascertained in the common law universe when a determination is made. They are sui generis creatures of the common law. To the extent that the word 'title' suggests a land law analogue it is 'artificial and capable of misleading'.[48] The sui generis nature of common law native title is a consequence of the range of traditional indigenous relationships to country that may be the subject of recognition. Brennan J was prepared to characterise as 'proprietary' what he called 'the interest possessed by a community that is in exclusive possession of land'. That land is not alienable under traditional law and custom does not defeat that characterisation. Nor does the fact that individual members of the relevant indigenous community might enjoy usufructuary rights which are themselves not of a proprietary character.[49] There are however no common law analogues which can accommodate the full range of spiritual relationships with land including the relationship maintained at a distance seen as capable of recognition by the Full Court of the Federal Court in Western Australia v Ward.[50]


The proposition that indigenous relationships to land recognisable by the common law are confined to 'interests which were analogous to common law concepts of estates in land or proprietary rights was also unequivocally rejected by Deane and Gaudron JJ.[51] They preferred the approach adopted by the Privy Council in Amodu Tijani and Adeyinike Oyekan to the narrower approach reflected in Re Southern Rhodesia. Native title should not be forced to conform to traditional common law concepts. It should be accepted as 'sui generis or unique'.[52]


In a similar vein, Toohey J said 'In the case of the Meriam people (and the Aboriginal people of Australia generally), what is involved is "a special collective right vested in an Aboriginal group by virtue of its long residence and communal use of land or its resources"'.[53]


His Honour here referred to the Report of the Australian Law Reform Commission on the Recognition of Aboriginal Customary Laws (1986). He also said: 'in truth what the courts are asked to recognize are simply rights exercised by indigenous peoples in regard to land, sufficiently comprehensive and continuous so as to survive annexation.'[54]


The Mabo judgment decided not only that 'the native title of Aboriginal and Torres Strait Islander peoples under their law and culture' could be recognised and protected by the common law of Australia. It also determined that native title could be extinguished by valid laws or executive acts of the Crown which indicated a plain and clear intention to do so.


The Concept of Recognition


In the use of the metaphors of recognition and extinguishment it is important to avoid conceptual confusion. The term 'recognition' operates in a virtual reality, the universe of legal discourse. It may be seen as a process of mapping an indigenous group's relationships to land or waters from the set of relevant traditional laws and customs onto a set of common law rights and interests. The latter set may include the holistically expressed 'possession, occupation, use and enjoyment', as against the whole world, embodied in the Mabo declaration. Alternatively 'recognition can be treated as a metaphor for the outcome of the application of rules under which rights arising at common law are ascertained which vest in an indigenous community by reason of its relationship to land or waters. This is not to say that the connotations of the metaphor lack utility. While the rules for determining common law native title are thought of as rules of recognition the proper distinction can be drawn between the content of indigenous law and custom and that of the common law. There is confusion if the determination or ascertainment of common law native title is thought of as having any effect upon the content of indigenous law and custom.


Common law recognition does not operate upon traditional laws and customs nor upon the relationships with land to which they give rise. It is important to keep that proposition clear when considering also the nature of extinguishment. That can be regarded as a qualification or limitation upon the rules which govern recognition. It has, therefore, nothing to say neither about traditional law or custom nor about the relationship of indigenous people to their land. There is a question about the time at which recognition can be said to occur. Common law native title did not exist immediately before colonisation. The 'rights' of the inhabitants prior to annexation were wholly regulated by their traditional laws and customs. On one view common law native title sprang into existence at the time of annexation of the relevant colonial territories by the Crown and what followed, by way of incremental extinguishment, was an historical process of subtraction from those primal titles. While that may be a legitimate way of viewing the history of common law native title it is awkward to describe it by reference to the term 'recognition'. For that term more logically relates to the contemporary process of determination of native title. Consistent with the notion of mapping' traditional relationships to land onto the common law universe, recognition may be seen as a present declaration of a mapping that, from the point of view of today's common law, came into existence at the time of annexation.


The existence of people in exclusive occupation of the land at the time of annexation provides the foundation for contemporary claims to recognition of rights against the Crown in respect of land which remains in the Crown's hands. The identification of indigenous groups today, the rules by which they are defined, the content of their traditions and customs and their relationship to the land and waters which comprise their 'country' may be described and interpreted by evidence in court proceedings given by the members of such groups, anthropologists and other experts. The things of which they speak constitute the subjects of the common law of native title. The common law establishes the judge-made rules for determining whether native title rights and interests exist. These are the rules of recognition.


Certain benefits attach to the recognition of common law native title and, more accurately, to the determination of common law native title which is the expression of that recognition. They include common law protections for that which is determined. Beyond the common law protections there are those conferred by statute such as the prohibition against discriminatory impairment conferred by the Racial Discrimination Act and statutory rights to negotiate and entitlements to compensation for extinguishment or impairment conferred by the Native Title Act. The rules of recognition are qualified and limited by the effects of history (native title may be lost by loss of connection) and by the acts of the Crown (the grant of interests in land pursuant to statutory or executive authority may preclude the recognition of any continuing indigenous rights). The common law native title which is the subject of determination does not reflect the full cultural, historical and human reality from which it is derived.


A recent publication by Christos Mantziaris and David Martin offers a sophisticated discussion of native title as a 'recognition technique'.[55] A number of recognition techniques are identified being acknowledgment, accommodation, exclusion, codification, reference and translation. Acknowledgment identifies the protection of indigenous law and custom as a value that the legal system seeks to promote. Accommodation brings to bear on the administration of justice aspects of indigenous law and custom eg, as in criminal sentencing. Exclusion involves excluding certain matters from the general law and allowing them to be regulated directly by indigenous law and custom. Codification imports aspects of indigenous law and custom into the municipal law. Reference requires laws to refer to indigenous law and custom albeit without specifying its content. The example given is the Aboriginal Land Rights (Northern Territory) Act 1976 which allows traditional law and custom to define the way land granted is occupied and used by Aboriginal people. In the process described as translation the national legal system may seek to enforce the 'entitlements', 'rights' or 'relations' defined by indigenous law and custom through a right or interest recognised by the national legal system. It can use established legal categories for this purpose or may create new purpose-specific categories. The law attempts to translate the categories of indigenous law and custom into those of the national legal system. This, it is said, allows native title to be understood as the product of a 'recognition space' that emerges between two systems of law.[56] The metaphor which is visualised as the intersection of two circles, one representing the Australian legal system and the other the system of relations ordered by traditional law and custom, is not without difficulty. A more straightforward visualisation of translation is of a mapping from one set comprising traditional laws and customs onto the other comprising the Australian legal system. Whichever metaphor is used, the fundamental point is that the traditional laws and customs and the relationships to country that they identify are not affected by the process of recognition or by its qualification or limitation by so-called extinguishment.

The Concept of Extinguishment


There was evidence, from an early stage, of conceptual confusion about the use of the term 'extinguish. It was used by Brennan J in Mabo (No 2) as a label for the consequences of the acts of the Crown wholly or partially inconsistent with the continuing right to enjoy native title. He used it in a different sense when he said: '[n]ative title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an indigenous people is extinguished if the clan or group, by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connection with the land or on the death of the last of the members of the group or clan.'[57]


Extinguishment here is being used in two different ways. One describes a limit on common law recognition which does not and cannot affect the relationship between the indigenous group and its country. The other concerns the loss of that relationship which means there is no subject matter for recognition by the common law. The term 'extinguish' is less useful as a metaphor than the word 'recognition'. Indeed, it is potentially misleading. Common law extinguishment is too readily thought of as something that annihilates the indigenous relationship to country. As Toohey J said in Wik, native title rights affected by inconsistent grants are 'unenforceable at law and, in that sense, extinguished.'[58] (emphasis added).


The idea that extinguishment does not operate directly upon traditional law and custom or indigenous relationship to country is implicit in the observation of the High Court in Fejo v Northern Territory of Australia[59] that while the existence of traditional laws and customs is a necessary prerequisite for the determination of common law native title it is not a sufficient condition. That case is authority for the proposition that common law native title is extinguished by a grant in fee simple and is not revived if the land subsequently reverts to the Crown. It is not clear however why this should be so. The High Court in Fejo said:


The rights created by the exercise of sovereign power being inconsistent with native title, the rights and interests that together make up that native title were necessarily at an end. There can be no question, then, of those rights springing forth again when the land came to be held again by the Crown. Their recognition has been overtaken by the exercise of 'the power to create and to extinguish private rights and interests in land within the Sovereign's territory'.[60]


There is no exposition of any principle that requires that the bar to recognition, which is described by the term 'extinguishment', should be permanent.[61] The metaphor may convey that implication but does not explain why it should be there. The question arises whether the metaphor informs the doctrine rather than being its descriptor.


The first statement of the common law of native title in Mabo (No 2) established rules of recognition which determined common law native title as sui generis rights and interests able to be enjoyed by indigenous groups whose relationship to land falls within those rules. The rules of recognition are subject to qualifying or limiting rules whose outcomes are designated by the terms 'extinguishment' or 'impairment' in the case in which recognition is partial or temporarily suppressed.


The Statutory Vessel for the Common Law¾The Native Title Act 1993 (Cth)


Following the decision of the High Court in Mabo (No 2) and intense negotiations between indigenous, governmental and industry interests the Commonwealth Parliament passed the Native Title Act 1993. The Act established a process designed to facilitate the recognition of native title by agreement rather than litigation where possible. It involved the creation of a claims registration and mediating body entitled The National Native Title Tribunal. The Act also provided for the protection of common law native title against discriminatory extinguishment or impairment. It created entitlements to compensation. A compulsory negotiation and arbitration regime, using the National Native Title Tribunal in an arbitral role, was also established.


Because of the uncertainties surrounding the validity of past acts raised by Mabo (No 1) and by Constitution s 51(xxxi), past legislative and executive acts of the Commonwealth, which were invalid to any extent[62] by reason of their impact on native title were validated by the Act subject to rights of compensation. The States and Territories were authorised to make laws to validate their own past acts. That validation was linked to statutory extinguishment, partial extinguishment or temporary suppression of native title and to compensation rights according to the class of past act validated. So freehold grants and pastoral, residential and commercial leases validated by the Commonwealth or State Acts extinguished native title completely, but the effect of leases at common law was not addressed by the statute.


The Act operated largely as a framework within which claims for determination of common law native title could proceed through mediation and litigation. It altered the common law to the extent that it provided for statutory extinguishment in cases in which certain classes of past acts were validated. In s 223 it defined the terms 'native title' and 'native title rights and interests' by reference to 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.


The term 'rights and interests' expressly includes hunting, gathering or fishing, rights and interests. It also picked up statutory rights and interests purported to replace native title rights and interests.[63] Significantly the definition was critically dependent upon the rights and interests in question being recognised by the common law of Australia. It did not involve any assumption that common law native title may be expressed only as a list of discrete Hohfeldian rights. Section 225 prior to its amendment in 1998 set down the requirements for a determination of native title which required that it include 'those native title rights and interests that the maker of the determination considers to be of importance' and whether or not they are exclusive. It did not prevent a determination being made in the holistic language of the Mabo determination. In such a case the determination may specify particular rights and interests embedded in the global 'ownership' and expressed by reference to specific activities in the enjoyment of that ownership.


This view is somewhat at odds with that expressed by the majority of the Full Federal Court in Ward. Their Honours described the rights and interests of indigenous people constituting native title as a bundle of rights. On this basis it was possible that only some of the rights in the bundle could be extinguished by the creation of inconsistent rights by laws or executive acts. When this happened 'partial extinguishment' occurred. The concept of native title as a bundle of rights does not sit easily with its characterisation by Brennan J in R v Toohey; ex p Meneling Station Pty Ltd as 'primarily a spiritual affair rather than a bundle of rights'[64]. Nor does it sit easily with the approval of that characterisation by the joint judgment of the High Court in Yanner v Eaton.[65] There is a question whether the notion of native title as a bundle of rights is necessary to support a doctrine of partial extinguishment. It is possible to advance the proposition that recognition of an holistic relationship with country, expressed by a determination in global terms, may be qualified or limited in respect of the activities which may lawfully be carried on by the traditional owners. This is conceptually compatible with a doctrine of partial extinguishment. It is however more compatible with the notion that the enjoyment of global native title rights may be qualified or regulated without importing a requirement for permanent extinguishment. That qualification or regulation is not required to be permanent any more than a zoning law preventing the use of freehold land for a particular purpose would do so permanently, notwithstanding its later repeal.[66]


Extinguishment: The Principles Developed in the Native Title Act Case, Wik and Fejo


Mabo (No 2) set out the broad propositions comprising the rules for the determination of common law native title. It was contemplated that their exegesis would be by way of 'incremental development of the law according to the particular facts of each case as those cases are brought to the courts for decision'.[67] The exegesis has however been less incremental than step-wise and effected through a few significant decisions of the High Court. Indeed there has been some recent indication from that court that henceforth the Full Court of the Federal Court will be regarded by it as the final court in native title matters because of the burden on the High Court's resources of taking on large native title cases.[68]


In 1993 immediately prior to the passage of the Federal Native Title Act the Western Australian legislature enacted the Land (Titles and Traditional Usages) Act 1993 (WA). The State law purported to extinguish native title throughout Western Australia and to replace it with statutory rights of traditional usage. The State commenced proceedings in the High Court to have the Commonwealth Act declared invalid. The validity of the State Act was also challenged by Aboriginal plaintiffs. The Commonwealth Act survived the attack. The State Act was found to be inconsistent with s 10(1) of the Racial Discrimination Act and therefore invalid to the extent of the inconsistency.[69] In a joint judgment six of the seven justices restated the rule of recognition for native title thus:


Under the common law, as stated in Mabo (No. 2), Aboriginal people and Torres Strait Islanders who are living in a traditional society possess, subject to the conditions stated in that case, native title to land that has not been alienated or appropriated by the Crown. The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown's (or a statutory authority's) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title.[70]


So extinguishment operates with respect to the common law native title which would otherwise exist. It does not operate upon the indigenous connection with country. There are three mechanisms of extinguishment. The first is a law expressed to obtain that result. The second is a law or an executive act which is inconsistent with the enjoyment of common law native title. It arguably encompasses the creation of beneficial title in the Crown, identified by Brennan J in Wik as a third mechanism. In each case what is to be discerned is a plain and clear intention to extinguish native title. This does not require identification of an actual intention to extinguish. The intention is imputed.


In Wik, the interaction between Queensland pastoral leases and common law native title involved, from one perspective, a straightforward application of the plain and clear intention test. The Court held by a narrow majority of four to three that the laws of Queensland did not confer exclusive possession of the areas over which pastoral leases were granted so that they did not necessarily extinguish all incidents of native title. This conclusion did not result from any search for an express legislative intention to extinguish native title but rather consideration of inconsistencies between the leasehold rights validly granted under State law and the incidents of native title.


In a postscript to his judgment Toohey J, with the concurrence of the other majority judges said: '[i]f inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.'[71]


Neither Toohey J nor the other majority judges decided whether, in the event of inconsistency, native title would be extinguished in part or suspended for the term of the grant.


The judgments considered the nature of native title and of extinguishment generally. Brennan CJ (with whom Dawson and McHugh JJ agreed) was in the minority in holding that native title was extinguished by the grant of the lease in question. In consideration of the relevant general principles unaffected by his dissent on the particular case, he said of native title: '[n]ative title is not a tenure; it is not an interest held of the Crown, mediately or immediately. It is derived solely from the traditional laws and customs of the indigenous peoples.'[72]


Native title was not to be recognised on or over land that had, by alienation, become subject to inconsistent rights or which had by Crown use become unavailable for continued enjoyment of native title.[73] There could, in his Honour's view, be no temporary suspension of native title. Such an hypothesis would fail to attribute to the doctrines of tenure and estates their function of maintaining the skeleton of the law of real property unless native title were treated as the equivalent of an estate in remainder falling into possession on the determination of a prior estate. But native title, not being an estate, could not be so treated. In his Honour's opinion, the common law could not recognise native title once the Crown alienated a freehold or leasehold estate.[74] This was the closest approach at that time to a theory explaining the proposition that extinguishment is permanent.


Brennan CJ identified three mechanisms of extinguishment:


(i) laws or acts which simply extinguish native title;

(ii) laws or acts which create rights in third parties in respect of a piece of land, subject to native title, which are inconsistent with the continued right to enjoy native title;

(iii) laws or acts by which the Crown acquires full beneficial ownership of land presently subject to native title.


As noted earlier, (ii) and (iii) can be characterised as the one mechanism.


Toohey J accepted that recognition of native title rights by the common law 'carries with it the power to extinguish those rights'.[75] But it would require 'a very clear act' to do so.[76]


Gummow J integrated extinguishment into established doctrines of statutory interpretation relating to the implied extinguishment of existing rights. Such an implication requires the clear and distinct authorisation by the relevant statute of the doing of things 'physically inconsistent' with the continuance of an existing right. The concept of physical inconsistency involves a comparison between the legal natures of the competing rights.[77] He also allowed that the relevant abrogation of native title might flow from physical activities on the land authorised by statute as, for example, the construction of an airstrip and dams and compliance with other conditions of the grant relating to improvements.[78] This was in effect a further mechanism of extinguishment. It is not clear whether it has an extinguishing effect because of a direct physical operation upon the traditional connection with the land in question or otherwise. A practical difficulty is that it opens the possibility that the exercise of a right conferred by the statutory grant, as an act extinguishing or impairing native title, may be subject to the provisions of the Native Title Act relating to 'future acts'. This view differs from that of Kirby J who said that: '[t]he answer is to be found in the character of the legal rights, not in the manner of their exercise.'[79]


The Thayorre People, who were parties in the case, submitted that their native title (a reference to their relationship to the land under traditional law and custom) had its own sources and integrity outside the common law and could not be destroyed by a legal theory outside its own regime. Kirby J rejected this argument as 'suggested neither by legal theory applicable to this country nor by legal principle or policy'.[80] It is not clear why. What the Thayorre People were contending seemed, with respect, to be correct. They were making the point that granting or barring recognition by extinguishment could not affect the subject matter of that recognition which was their relationship to country defined by their traditional laws and customs. That is fundamental to the relationship between the common law of native title and the traditional laws and customs which are its subject matter.


Extinguishment was further considered by the High Court in the Fejo case.[81] The Court held unanimously[82] that native title is extinguished by a grant of fee simple and is not revived if the land reverts to the Crown. Extinguishment results from such a grant because it does not permit the pursuit by anyone else of any rights or interests in respect of the land.[83] The argument that fee simple does not extinguish but suspends native title was said to seek to convert the fact of continual connection with the land into a right to maintain that connection.[84]


Native title was described in the joint judgment of six of the justices as not an institution of the common law but something '...recognised by the common law'. They referred to '...an intersection of traditional law and custom with the common law' that seeks to convert the fact of connection with the land into a right to maintain that connection. Native title was seen as something 'recognised by the common law'.


The operation of a grant in fee simple as extinguishing rather than suspending native title was explained as a consequence of the way in which the sovereign power of the Crown to create rights and interests in the land is exercised:


The rights created by the exercise of sovereign power being inconsistent with native title, the rights and interests that together make up that native title were necessarily at an end. There can be no question, then, of those rights springing forth again when the land came to be held again by the Crown. Their recognition has been overtaken by the exercise of 'the power to create and to extinguish private rights and interests in land within the Sovereign's territory'.[85]

The authority of that statement is plain. Nevertheless while asserting that non-revival of native title is a consequence of the exercise of the sovereign's power in granting a fee simple title, the Court does not explain why this is so. It is respectfully suggested that the question is really one about the content of the rule of recognition. It may be debateable whether there is any reason in principle why a rule could not be adopted which allows for recognition afresh of native title rights after the land subject to a fee simple grant reverts to the Crown. This is not to suggest that a doctrine of suspension of rights might be available in such a case.


In the event by the time the post-Wik amendments were passed in 1998 there was no comprehensive theory of extinguishment in High Court jurisprudence concerning native title.


The 1998 Amendments to the Native Title Act 1993


Amendments to the Native Title Act had been foreshadowed by the decision of the High Court in Brandy v Human Rights and Equal Opportunity Commission[86] which struck down, as unconstitutional for violation of separation of powers, a regime in which determinations of the Human Rights and Equal Opportunity Commission could be registered as judgments of the Federal Court. A similar statutory scheme had been set up under the Native Title Act 1993 (Cth) in respect of consent determinations made by the Tribunal following the mediation process. A bill to give effect to amendments in the Act to respect the constitutional principles enunciated in Brandy was introduced into the Federal Parliament in 1995 but lapsed when it was prorogued for the federal election. The amendments were then caught up in far more extensive changes enacted in 1998 following the decision of the High Court in Wik. In an atmosphere of acute political controversy, the 1998 amendments sought to address a number of issues said to have been raised by the Wik decision:


  1. The validity of legislative and executive past acts done by governments in the intermediate period between 1 January 1994 and Wik on the wrong assumption that pastoral leases extinguished native title. 1 January 1994 was the date of commencement of the Native Title Act 1993.
  2. The application of the compulsory right to negotiate regimes in relation to grants of mining interests over land which were or had been the subject of pastoral leases and in respect of which native title claims were registered under the Act.
  3. Continuing uncertainty about the extent to which valid grants of statutory interests in land had extinguished native title.

The amendments provided for the validation of intermediate period past acts directly in respect of Commonwealth past acts and otherwise by authorising State legislatures to pass validating statutes, subject to compensation entitlements. The process for recognition of native title was changed. All applications were initiated in the Federal Court with provision for mediation by the National Native Title Tribunal. The registration of native title claims, a precondition for the exercise of the compulsory right to negotiate in respect of the grant of mining tenements and certain other future acts, was made the subject of far more stringent criteria than its predecessor.[87]


The amendments also set out, in the interests of certainty, a list of acts which were to be taken as extinguishing native title. This was done by 'confirming' the extinguishing effect of certain valid acts and acts which had been validated by the original Native Title Act or by the amendments in respect of intermediate period acts done between 1 January 1994 and 23 December 1996.[88] The statute defined a 'previous exclusive possession act' to include an act which consisted of the grant of an estate of freehold, certain leasehold interests, and other leases which conferred a right of exclusive possession over particular land or waters.[89] A schedule to the Act was introduced setting out a list of statutory interests in each State in respect of which extinguishment could be confirmed by State law. Some interests granted to or vesting in the Crown in any capacity, or in a statutory authority, would not be previous exclusive possession acts (and therefore not extinguish native title) unless 'apart from this Act', at common law, the act would extinguish native title. Other interests that fell short of conferring a right of exclusive possession such as certain agricultural or pastoral leases were defined as 'previous non-exclusive possession acts' with the effect that native title would be extinguished if 'apart from this Act' native title rights would be extinguished by the common law.[90] The effect of this section was to introduce common law extinguishment into the process of identifying those areas of land or waters in which native title could not be claimed or determined.


The relationship between these provisions and the common law created some potential tensions in application. In Ward,[91] a mining lease granted under the Mining Act 1978 (WA) for a term of 21 years was found to be inconsistent with the use or occupation of the lands by any other person, and thus to effect an extinguishment of native title at common law, when both the original Act and amendments had declared the effect of statutory validation of such interests to result only in a suspension of native title rights while the interest was in force.[92] The provision for extinguishment where exclusive possession is granted appears to preclude arguments for recognition of native title in respect of any grants conferring a right of exclusive possession, even for 'short finite periods'[93] in which a legislative intent to abrogate native title would not necessarily be inferred. To the extent that the 'confirmation of extinguishment' provisions go beyond the common law, they will themselves effect an extinguishment of native title, giving rise to issues of compensation under s 51(xxxi) of the Australian Constitution.


The amendments also provided for instances where extinguishment, having occurred at common law, or through statutory validation, is to be disregarded. This occurs where one or more members of a native title claim group occupy land over which a freehold estate or leasehold interest is vested under legislation providing for the granting or vesting for the benefit of Aboriginal people or Torres Strait Islanders.[94] A similar exception exists in respect of vacant crown land actually occupied by members of the claimant group and not subject to a grant of freehold or reserved for public or other particular purpose.[95] These sections permit determinations of native title to be made despite the existence of acts which would otherwise preclude the recognition of native title. Although they have the effect of permitting determinations to be made, they do not, in terms, treat the native title rights as having been suspended but accept that extinguishment has occurred and require its effects to be disregarded.


Although the definition of native title in s 223 of the Act remained unchanged, s 225, relating to determinations, was amended to require a determination of native title to contain a statement of the nature and extent of the native title interests in relation to the determination area, the nature and extent of any other interests in the area, the relationship between those interests and whether the native title rights and interests confer possession occupation, use and enjoyment to the exclusion of all others. The definition appears to envisage a greater degree of specificity in the description of the extent of recognition than its predecessor. However, determinations made under the amended legislation[96] have followed the formula, established under the original Native Title Act, of a broad statement of entitlement to possession, use and occupation with a specific, non-exhaustive list of entitlements exercisable under traditional law.


Further Steps in Recognition and Extinguishment


A distinction was made between extinguishment of native title rights and their regulation by the High Court in Yanner's case.[97] Yanner, an Aboriginal man of North Queensland, was prosecuted for killing two juvenile estuarine crocodiles. He was said to have acted contrary to the Fauna Conservation Act 1974 (Qld). That Act purported to declare all fauna 'save fauna taken or kept otherwise than in contravention of the Act' to be the property of the Crown and under the control of the Fauna Authority. However s 211 of the Native Title Act 1993 (Cth) provides that where a State law would otherwise prohibit or restrict the exercise or enjoyment of native title rights and interests by way of hunting, fishing, gathering, a cultural or spiritual activity or any other prescribed activity, the law does not prohibit or restrict the native title holders from carrying on such activities where they do so (a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and (b) in exercise or enjoyment of their native title rights and interests. The Court held, by a majority, that the native title rights or interests relied on by Yanner had not been extinguished by the way in which the Fauna Conservation Act regulated the exercise of those rights. By operation of s 211 of the Native Title Act and s 109 of the Australian Constitution the Fauna Conservation Act did not prohibit or restrict Yanner as a native title holder from hunting or fishing for the crocodiles he took for the purpose of satisfying personal, domestic or non-commercial communal needs. The property vested in the Crown by the state Act was no more than an aggregate of the various rights of control by the executive which the legislation created. These rights limited what fauna might be taken and how it might be taken, defined rights to possession of fauna that had been reduced to possession and rights to receive royalties in respect of fauna that was taken. They were not inconsistent with the continued existence of native title rights and interests.


In the joint judgment of Gleeson CJ, Gaudron, Kirby and Hayne JJ the point was made that regulation of the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed it presupposes that the right exists.[98] There was further consideration of the nature of native title rights and interests as 'a perception of socially constituted fact' as well as 'comprising various assortments of artificially defined jural right'.[99] Their Honours said:


And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, 'You may not hunt or fish without a permit', does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing.[100]


Gummow J who formed part of the majority, wrote a separate judgment. In that he observed that native title is not treated by the common law as a unitary concept. The heterogeneous laws and customs of Australia's indigenous people provide its content. He described the relationship between a community of indigenous people and the land defined by reference to traditional law and custom as 'the bridgehead to the common law'.[101] So ingrained habits of thought and understanding must be adjusted to reflect the diverse rights and interests which arise under the rubric of native title.[102] And again it was repeated that while recognised by the common law, native title and its rights or incidents arise independently of the common law tenurial system. In considering extinguishment his Honour said that the question to be asked in each case was whether the statutory right said to extinguish native title necessarily curtails the exercise of the native title right such that the conclusion is compelled. It must also be considered whether to some extent the title survives or whether there is no inconsistency at all. A statute may regulate the exercise of a native title right without in any degree abrogating it.[103]


There was discussion in both the joint judgment and that of Gummow J of the concept of property in relation to its usage in s 7 of the Fauna Conservation Act. That discussion has a more general relevance to the taxonomy of native title. The joint judgment emphasised the width of the term as a description of a legal relationship with a thing. While usually treated as a bundle of rights even this may have its limits as an analytical tool or accurate description. It is a term that can be, and is applied, to different kinds of relationships with a subject matter. It is not 'a monolithic notion of standard content and invariable intensity'.[104] Gummow J also referred to the concept of property used in the law in various senses to describe a range of legal and equitable estates and interests, corporeal and incorporeal. He observed, inter alia, that property need not necessarily be susceptible of transfer. Reliance was placed upon Hohfeld who referred to the term 'property' as a striking example of the inherent ambiguity and looseness in legal terminology:


Sometimes it is employed to indicate the physical object to which various legal rights, privileges, etc, relate; then again¾with far greater discrimination and accuracy - the word is used to denote the legal interest (or aggregate of legal relations) appertaining to such physical object. Frequently there is a rapid and fallacious shift from the one meaning to the other. At times, also, the term is used in such a 'blended' sense as to convey no definite meaning whatever.[105]


The characterisation of native title rights and interests in this respect was addressed in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Yarmirr in which the Court held that native title could be recognised in the territorial sea. Native title rights and interests, it was pointed out, are rights and interests in relation to land or water. They may have some or all of the features which a common lawyer may recognise as a species of property. But neither the use of the word 'title nor the fact that the rights and interests include rights and interests in relation to land should be seen as necessarily requiring their identification as what the common law traditionally recognised as items of 'real property'.[106] The Court rejected any a priori assumption that the only rights and interests with which the Native Title Act is concerned are rights and interests of a kind which the common law would traditionally classify as rights of property or interest in property.[107]


The concept of continued recognition of native title rights was also considered in terms of the question whether and how the common law and relevant native title rights and interests could co-exist. If the two are inconsistent the common law will prevail. If, as was held in Mabo (No 2), there is no inconsistency the common law will 'recognise' those rights: '[t]hat is, it will, by the ordinary processes of law and equity, give remedies in support of the relevant rights and interests to those who hold them. It will "recognise" the rights by giving effect to those rights and interests owing their origin to traditional laws and customs which can continue to co-exist with the common law the settlers brought.'[108]


This kind of inconsistency does not arise as a result of the exercise of sovereign power as, for example, where a grant in fee simple extinguishes native title. Nevertheless the inconsistency in Yarmirr between the asserted native title rights and the assertion of sovereignty was of no different quality. At its root it lay not just in the competing claims to control who might enter the area of waters concerned but in the expression of that control by the sovereign authority in a way that was antithetical to the continued existence of the asserted exclusive rights. It was said: 'it is seen that there is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage. The two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights.'[109] So non-exclusive native title rights of fishing in territorial waters could be recognised but they did not include a right to exclusive possession.


One element of extinguishment doctrine which has not been addressed by the High Court is the effect of a statutory grant limited in time. On the principles enunciated in Mabo in relation to leases conferring exclusive possession, there would seem to be no room for the proposition that a short term lease is not one intended to extinguish. However, the term of the grant may be a matter going to the imputed statutory intent to extinguish native title rights and interests. Certainly mere inconsistency is not a sufficiently discriminating test if the relative transience of certain interests is to be taken into account in determining their impact on native title.


E. THE SKELETAL FRAMEWORK - PROPERTY LAW AND NATIVE TITLE


Because the recognition of native title involves the mapping of indigenous rights with respect to land, the question has arisen whether native title constitutes a ‘property’ right, and whether property analysis has any role to play in the definition of rights associated with native title.


The difficulty in attempting to translate indigenous concepts of ‘country’ into a colonial property structure was evident in Milirrpum v Nabalco, in which the gulf between indigenous and colonial perceptions of entitlement in relation to land could not be bridged by the simple application of common law indicia of proprietary rights. The Mabo judgments reflected differing views about the proper characterisation of the newly-recognised indigenous rights. Deane and Gaudron JJ considered that native title, being personal to the indigenous group occupying the land, did not constitute an interest in the land itself.[110] On the other hand, Brennan J was of the view that native title would have a proprietary or personal character, depending on the extent to which the evidence of traditional law and custom supported the remedies claimed.[111] Toohey J preferred not to attempt the taxonomic exercise. He concluded that


'the specific nature of such a title can be understood only by reference to the traditional system of rules. An inquiry as to whether it is "personal" or "proprietary" ultimately is fruitless and certainly is unnecessarily complex. ... a conclusion that traditional title is in its nature "personal" or "proprietary" will not determine the power of the Crown to extinguish the title unilaterally.'[112]


Toohey J's view found acceptance with the High Court in Yarmirr[113] where the majority emphasised the potential for misunderstanding which could arise in attempting to transpose the concepts of the property lawyer directly into the process of comparison between indigenous rights and entitlements arising under statutory or executive authority.


What was said in Yarmirr reflected the warning by Gummow J in Wik against a mechanical application of traditional property concepts to the identification of interests in the land created pursuant to statute. Other commentators have since recognised that property law in Australia has, while adopting the feudal rhetoric of tenures and estates held of the Crown, developed its own peculiar characteristics, in particular, the extensive creation of novel interests with incidents unknown to the common law.[114]


The proposition that native title ought not to be understood as an analogue of rights recognised by the common law has implications in deciding whether native title is capable of recognition in a particular case. Defining the conditions for extinguishment by reference to 'inconsistent' grants invites an analysis of native title rights in common law property terms. In the Full Federal Court in Ward[115] Beaumont and von Doussa JJ denied any analogy between common law property rights and the incidents of native title. Nevertheless they identified incidents of native title by reference to the behaviour of the indigenous group in order to undertake the comparison necessary to ascertain inconsistency. These ‘incidents’ were part of the ‘bundle of rights’ which reflected the activities authorised under traditional law and custom. Their Honours derived support for this approach from the postscript to the judgment of Toohey J in Wik, that: '[i]f inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.'[116]The difficulty with the application of the approach in Ward is that it tended to conflate the distinct notions of recognition and enforcement. The proposition that native title must 'yield' to the statutory grant does not mandate a refusal to recognise the native title at all. It may involve merely the inability to enforce the native title in whole or in part for a period of time. It is arguably equally consistent with the Wik postscript to conclude, in the case of limited statutory grants, that those grants may be enforced against persons claiming native title, without requiring that the inconsistency preclude recognition by the common law. The extent of those rights, among other things, may point to an intention on the part of the Crown that native title should no longer be capable of recognition, or, in the words of Gummow J in Yanner, 'abrogated'.


Secondly, as Yarmirr makes clear, recognition of native title does not depend on the conclusion, as posited in Mabo (No 2), that the Crown has 'radical title' as an expression of its sovereignty. The majority of the Court, in deciding that the common law could recognise native title over waters, categorised ‘radical title’ as an 'explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights co-exist'[117] In relation to the assertion of native title over waters, therefore, the court approached the question of recognition by asking whether the sovereign rights and interests asserted over the territorial sea are necessarily inconsistent with the continued existence of native title rights and interests.[118] The approach of the majority accepts that recognition involves an inquiry concerning the extent of the rights obtained by the Crown in relation to land or waters, and the extent to which the subsequent acts of the Crown reveal an intent to abrogate the encumbrance by native title.


Thirdly, the characterisation of native title as a proprietary right is not required in order to attract the protection against unjust acquisition in s 51(xxxi) of the Australian Constitution. The protection against acquisition other than on just terms has been extended to many kinds of rights, not all of which fit an abstract conception of a 'proprietary right'. In the Bank Nationalisation case[119] the ambit of s 51(xxxi) was said 'not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognised, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property'.[120] Section 51(xxxi) has been held capable of application to such rights as an action in negligence;[121] equitable rights to prevent dissemination of information to which a duty of confidence attaches;[122] the right to payment of money;[123] or actions by the Commonwealth in depriving a person of 'the reality of proprietorship' of an interest through indirect means.[124] The label 'property' appears there to be used in the sense described in Yanner as a 'comprehensive term...used to describe all or any of the very many different kinds of relationship between a person and a subject matter'.[125]


The diversity of meaning attributed to the term 'property' and the variety of circumstances in which rights may be characterised as 'proprietary' in nature suggest that the use of the term to describe the product of recognition by the common law of traditional indigenous relationships with land is more likely to confuse or mislead than elucidate. The inability to find a unitary definition of the term 'property' itself highlights the difficulty,[126] especially when the relationship is characterised as existing between a person and a thing. However correct it may be to describe classical indigenous societies as having a relationship with the land itself, in contemporary law, the relevant relationship for the purpose of recognition of native title is between the indigenous groups and the Crown with respect to the land.


An argument advanced by Brennan CJ in Wik to support his conclusion that native title was permanently extinguished by pastoral leases was the potential for continuing recognition 'to throw the whole structure of land titles based on crown grants into confusion'[127] The notion of a 'skeletal principle' of tenures and estates underpinning the system of Australian property law has the attraction of simplicity, but such a view may overlook the extent to which these doctrines have been developed by the common law,[128] and modified by government policy.[129] The system of property law in Australia permits the recognition of rights despite the existence of some impediment to their enforcement, such as contracts rendered unenforceable for want of compliance with statutory requirements. As North J pointed out in Ward it is capable of considerable flexibility in adapting to contemporary social relations.[130]


F. Conclusion


The common law of native title is an ongoing story developing, step-wise rather than by small increments, through a relatively modest number of High Court decisions. It raises important and, as yet, not fully resolved questions concerning the nature of the recognition of native title rights and interests and their extinguishment, impairment or regulation. It is too early to say that any entirely satisfactory and coherent theory has been developed into which these metaphors comfortably fit. Moreover while the taxonomy of native title rights and interests by reference to classical concepts of property appears of dubious benefit, there are some practical implications in relation to the protection in the Commonwealth Constitution against acquisition of property on unjust terms. At the time this article goes to press, the High Court is still reserved in Ward. That case raises important issues about the nature of recognition of native title and, more particularly, extinguishment and suppression of native title rights and interests. After the decision in Ward a new chapter should be able to be written expanding upon these questions.



[*] Robert French is a Judge of the Federal Court of Australia.
[**] Patricia Lane is a Sydney Barrister and a Senior Lecturer in Law at Sydney University.
[1] (Clarendon Press Oxford 1989) 2.
[2] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (HCA).
[3] Native Title Act 1993 (Cth) s 223.
[4] Native Title Act (n 3 above) s 23B.
[5] Native Title Act (n 3 above) s 23G.
[6] MacDonald v Levy (1833) 1 Legge 39 (NSWSC) 45.
[7] A-G v Brown (1847) 1 Legge 312 (NSWSC); Williams v A-G (NSW) [1913] HCA 33; (1913) 16 CLR 404 (HCA).
[8] Cooper v Stuart [1889] UKLawRpAC 7; [1889] 14 App Cas 286, 291.
[9] Re Southern Rhodesia [1919] AC 211 (PC) 233-34.
[10] Amodu Tijani [1921] AC 399 (PC) 403.
[11] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (NTSC).
[12] Milirrpum (n 11above) 244.
[13] Milirrpum (n 11above) 267.
[14] Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 (HCA) 458-59. See also 397 (Barwick CJ).
[15] Report on Yngawunarri (Old Top Springs) Mudbur Land Claim Report No 5 (Australian Government Publication Service Canberra 1980) para 70 (Toohey J).
[16] R v Toohey; ex p AG (NT) [1980] HCA 2; (1980) 145 CLR 374 (HCA) 392 (Wilson J).
[17] R v Toohey (n 16 above) 392.
[18] Aboriginal Land Rights (Northern Territory) Act 1976 (NT) s 3.
[19] [1982] HCA 69; (1982) 158 CLR 327 (HCA) 357.
[20] Minister of State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261 (HCA) 285 (Rich J).
[21] Toohey (n 19 above) 358.
[22] See the joint judgment of Gleeson CJ, Gaudron, Kirby and Hayne JJ in Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 (HCA), 373 discussed below.
[23] Pitjantjatjara Land Rights Act 1981 (SA), Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld), Maralinga Tjarutja Land Rights Act 1984 (SA), Aboriginal Land Rights Act 1984 (NSW), Aboriginal Land Act 1991 (Qld), Torres Strait Islander Land Act 1991 (Qld). The Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 was passed by the Commonwealth Government on the request of the Victorian Government to grant freehold title to a corporation of elders who had proven their clan's traditional relationship to the land. There is otherwise no general provision for statutory grants of Aboriginal land rights in Victoria.
[24] Aboriginal Land Act 1995 (Tas).
[25] Australian Constitution s 51(xxix).
[26] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 (HCA) 218 (Stephen J); see also 227 (Mason J), 238-39 (Murphy J) and 258 (Brennan J).
[27] Australian Constitution s 51(xxvi).
[28] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (HCA) 159.
[29] Mabo v Queensland (No 1) (1989) 166 CLR 186 (HCA) 218-19.
[30] Australian Constitution s 51(xxxi).
[31] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (HCA) 217.
[32] Mabo (No 2) (n 31 above) 217.
[33] Mabo (No 2) (n 31 above) 57 and 69 (Brennan J, Mason CJ and McHugh J concurring), 81 (Deane and Gaudron JJ); 184 and 205 (Toohey J).
[34] Mabo (No 2) (n 31 above) 60 and 61 (Brennan J); 81, 82, 86-87 (Deane and Gaudron JJ); 187 (Toohey J).
[35] Mabo (No 2) (n 31 above) 64 (Brennan J); 111, 114 and 119 (Deane and Gaudron JJ); 195-96 and 205 (Toohey J).
[36] Mabo (No 2) (n 31 above) 59-60 and 70 (Brennan J); 86 and 110 (Deane and Gaudron JJ); 188 (Toohey J).
[37] Mabo (No 2) (n 31 above) 59 (Brennan J); 110 (Deane and Gaudron JJ).
[38] Mabo (No 2) (n 31 above) 52 and 62 (Brennan J); 85-86 and 88, 119-20 (Deane and Gaudron JJ).
[39] Mabo (No 2) (n 31 above) 60 and 70 (Brennan J); 88 and 110 (Deane and Gaudron JJ).
[40] Mabo (No 2) (n 31 above) 60 (Brennan J); 110 (Deane and Gaudron JJ).
[41] Mabo (No 2) (n 31 above) 61 (Brennan J); 110 (Deane and Gaudron JJ); 192 (Toohey J).
[42] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (HCA), 63, 69 and 73 (Brennan J); 111-12 (Deane and Gaudron JJ).
[43] Mabo (No 2) (n 42 above) 42.
[44] Mabo (No 2) (n 42 above) 43.
[45] Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876, 880.
[46] Mabo (No 2) (n 42 above) 109.
[47] Wik Peoples v State of Queensland (1996) 187 CLR 1 (HCA) 179-80 (Gummow J).
[48] Mabo (No 2) (n 42 above) 178.
[49] Mabo (No 2) (n 42 above) 51.
[50] [2000] FCAFC 191; (2000) 170 ALR 159 (FCA) 221 (Beaumont and von Doussa JJ).
[51] Mabo (No 2) (n 42 above) 85.
[52] Mabo (No 2) (n 42 above) 89.
[53] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (HCA) 178-79
[54] Mabo (No 2) (n 53 above) 179.
[55] C Mantziaris and D Martin Native Title Corporations (Federation Press Sydney 2000) chs 1 and 2.
[56] This adopts a concept proposed by Noel Pearson - see N Pearson The Concept of Native Title at Common Law in G Yunupingu (ed) Our Land is Our Life: Land Rights - Past Present, Future (Brisbane: Qld UP 1997)' see also P Patton The Translation of Indigenous Land into Property: The Mere Analogy of English Jurisprudence (2000) 6 Parallax 25.
[57] Mabo (No 2) (n 53 above) 69.
[58] Wik (n 47 above) 126.
[59] [1998] HCA 58; (1998) 195 CLR 96 (HCA) 128.
[60] Fejo (n 59 above) 131.
[61] Although the Native Title Act does so in s 237A).
[62] Chiefly, and perhaps exclusively by the operation of the Racial Discrimination Act: Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 (HCA) 454.
[63] Native Title Act 1993 (Cth) s 223.
[64] [1982] HCA 69; (1982) 158 CLR 327 (HCA) 358.
[65] [1999] HCA 53; (1999) 201 CLR 351 (HCA).
[66] See generally the discussion by K Howden 'The Common Law Doctrine of Extinguishment - More Than a Pragmatic Compromise' (2001) 8 Australian Property Law Journal 206.
[67] North Ganalanja Aboriginal Corporation v State of Queensland (1995) 132 ALR 565 (FCA) 592 (Lee J).
[68] See remarks of McHugh J in Yorta Yorta Aboriginal Community v State of Victoria Special Leave Application M19/2001 Transcript 14/12/01 at 12.
[69] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 (HCA).
[70] Western Australia v Commonwealth (n 69 above) 452-53.
[71] Wik Peoples v State of Queensland (1996) 187 CLR 1 (HCA) 133.
[72] Wik Peoples (n 71 above) 91.
[73] Wik Peoples (n 71 above) 92.
[74] Wik Peoples (n 71 above) 95.
[75] Wik Peoples (n 71 above) 129.
[76] Wik Peoples (n 71 above) 129.
[77] Wik Peoples (n 71 above) 185.
[78] Wik Peoples (n 71 above) 203.
[79] Wik Peoples (n 71 above) 238.
[80] Wik Peoples (n 71 above) 237.
[81] Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 (HCA).
[82] Six of the Justices wrote a joint judgment. Kirby J wrote a separate concurring judgment.
[83] Fejo (n 81 above) 126.
[84] Fejo (n 81 above) 128.
[85] Fejo (n 81 above) 131.
[86] [1995] HCA 10; (1995) 183 CLR 245 (HCA).
[87] See ss 190B and 190C which specify the conditions for registration relating to the merits of the claim and procedural and other matters respectively.
[88] See generally div 2B which confirms the past extinguishment of native title by certain valid or validated acts.
[89] Mining leases are excluded from the confirmation provisions but in Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159 (FCA) the Full Court majority held that such leases extinguished native title. The finding is subject to challenge in the High Court.
[90] s 23G.
[91] [2000] FCAFC 191; (2000) 170 ALR 159 (FCA), 301.
[92] See definition of 'category C past acts' and 'category C intermediate period acts' in ss 231 and 232D respectively, ss 15(1)(d) and 22B(d) setting out the effect of Category C acts, and s 238 (the 'non-extinguishment principle').
[93] See Ward (n 91 above) 184.
[94] s 47A.
[95] s 47B.
[96] See eg Poruma People v State of Queensland [2000] FCA 1066.
[97] Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 (HCA).
[98] Yanner (n 97 above) 372.
[99] K Gray and SF Gray 'The Idea of Property in Land' in Bright and Dewar (eds) Land Law: Themes and Perspectives (Oxford University Press Oxford 1998) 15, 27, cited in Yanner (n 97 above) 373.
[100] Yanner (n 97 above) 373.
[101] Yanner (n 97 above) 383.
[102] Yanner (n 97 above) 383.
[103] Yanner (n 97 above) 396.
[104] Yanner (n 97 above) 366.
[105] Hohfeld 'Some Fundamental Legal Conceptions as Applied in Judicial Reasoning' (1913) 23 Yale Law Journal 16), 21-22, cited in Yanner (n 97 above) 389.
[106] Commonwealth v Yarmirr (2001) 184 ALR 113 (HCA) 121.
[107] Yarmirr (n 106 above) 122.
[108] Yarmirr (n 106 above) 130.
[109] Yarmirr (n 106 above) 145.
[110] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (HCA) 110.
[111] Mabo (No 2) (n 110 above) 61.
[112] Mabo (No 2) (n 110 above) 195.
[113] (2001) 184 ALR 113 (HCA) 121.
[114] See L Godden 'Wik: Feudalism, Capitalism and the State. A Revision of Land Law in Australia?' (1997) 5 Australian Property Law Journal 162.
[115] [2000] FCAFC 191; (2000) 170 ALR 159 (FCA).
[116] (1997) 187 CLR 1 (HCA) 133.
[117] Commonwealth v Yarmirr (2001) 184 ALR 113 (HCA) 131 (emphasis in the original).
[118] Yarmirr (n 117 above) 132.
[119] Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1 (HCA).
[120] Bank of New South Wales (n 119 above) 349 (Dixon J).
[121] Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297 (HCA) 319-20 (Toohey J); Commonwealth v Mewett (1997) 191 CLR 471 (HCA) 552 (Gummow and Kirby JJ).
[122] Smith Kline and French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health [1989] FCA 384; (1990) 95 ALR 87 (FCA) 135-36 (Gummow J) (appeal dismissed (1991) 28 FCR 291)).
[123] Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226 (HCA) 236; Mutual Pools and Staff Pty Ltd v Commonwealth [1994] HCA 9; (1994) 179 CLR 155 (HCA) 172 (Mason CJ).
[124] Bank of New South Wales (n 119 above) 349; Newcrest Mining (WA) Limited v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 (HCA) 595, 633-634 (Gummow J); Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1 (HCA) 16 (Brennan CJ); 36 (Gaudron J), 54 (McHugh J) and 73 (Gummow J).
[125] Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 (HCA) 367.
[126] See J Harris Property and Justice (Clarendon Press Oxford 1996) ch 9; J Waldron The Right to Private Property (Clarendon Press Oxford 1988) ch 2.
[127] Wik Peoples v State of Queensland (1996) 187 CLR 1 (HCA) 93.
[128] See P Edgeworth 'Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared After Mabo v Queensland' (1994) 23 Anglo-American Law Review 397.
[129] See L Godden 'Wik: Feudalism, Capitalism and the State. A Revision of Land Law in Australia?' (1997) 5 Australian Property Law Journal 162.
[130] Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159 (HCA) 361-62.


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