French, Justice Robert --- "Mabo - Native Title in Australia" (FCA) [2004] FedJSchol 23

MABO – NATIVE TITLE IN AUSTRALIA

LANDMARK CASES ROUNDTABLE CONFERENCE
CONSTITUTIONAL COURT OF SOUTH AFRICA
10-11 DECEMBER 2004
JOHANNESBURG

JUSTICE RS FRENCH

Introduction – The Problem Stated

1. The history of the colonisation of inhabited territories raises the perennial question whether the law of the colonisers can accommodate the traditional relationship of indigenous people to land and waters within the territory. In his work, Common Law Aboriginal Title, Kent McNeil posed the question thus:

‘What effect, then, did colonisation 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 colonisers 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.’[1]

These notes address the Australian response to that question. They are derived in large part from three papers previously published in the Oxford University Commonwealth Law Journal, the University of Western Australia Law Review and the Melbourne University Law Review.[2]

The Common Law before Mabo

2. A decision of the New South Wales Supreme Court in 1833 referred to the indigenous people of the Australian colonies as ‘wandering tribes ... milling without certain habitation and without laws [who] were never in the situation of a concrete people’.[3] The colonies were regarded at common law as settled rather than conquered and their land as property of the Crown from the time of their annexation.[4] In Cooper v Stuart in 1889, Lord Watson 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 Dominion. The Colony of New South Wales belongs to the latter class.’ [5]

3. This historical finding, which was later to be treated as stating the law for Australia, was coupled with a Darwinian jurisprudence which governed the recognition of customary land ownership in indigenous societies. In the Privy Council in Re Southern Rhodesia [6], Lord Sumner spoke of 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, on this approach, to impute to such people ‘some shadow of the rights known to our law and then ... transmuted into the substance of transferable rights over property as we know them.’[7] Lord Sumner however contemplated recognition of indigenous rights in land above a certain threshold of comparability with common law rights and used the word ‘transmute’ where today we might use the word ‘recognise’. In Amodu Tijani[8], decided three years later, the Privy Council cautioned against any tendency to fit traditional title to land in conceptual categories appropriate only to systems which had grown up under English law.[9]
4. The characterisation of the settlement of the Australian colonies, expounded by the Privy Council in Cooper v Stuart, defeated the first indigenous claim for recognition of customary title in 1971 in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (NTSC). This action, commenced in the Supreme Court of the Northern Territory, involved a claim for the invalidation of leases granted to Nabalco Pty Ltd on the basis that they had been granted over land which was subject to the title of the indigenous people of the Gove Peninsular. Blackburn J, in dismissing the application, concluded, on the basis Cooper v Stuart, that the doctrine of terra nullius applied and that there was no common law doctrine of native title in Australia. This involved his 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 settlors 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.’ [10]

5. 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 of common law. This, notwithstanding that the evidence in the case disclosed what he described as ‘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.[11]
6. There was no appeal from the decision of the Supreme Court of the Northern Territory in Milirrpum to the High Court of Australia. This perhaps was because of the assessment that such an appeal would be unlikely to succeed having regard to the composition of the High Court and the state of Australian jurisprudence at that time. Nevertheless, the failure of the Milirrpum litigation set the scene for the introduction of statutory land rights in the Northern Territory and in some other parts of Australia. That introduction precipitated a flood of litigation about the application of the Northern Territory statute which may well have sensitised crucial members of the High Court to the concept of recognition of customary indigenous title to land. That in turn set the scene for the Mabo judgment in 1992.

Statutory Land Rights – Setting the Scene for a New Common Law

7. Following the Milirrpum case, a Royal Commission was established which was conducted by Sir Edward Woodward, who later served as a Judge of the Federal Court of Australia. The Report of that Royal Commission proposed the establishment of a regime for the grant of statutory land rights in the Northern Territory underpinned by a process of inquiry and recommendation by an Aboriginal Lands Commissioner. The aims of the regime as formulated by Woodward were:
   1. The doing of simple justice to a people who have been deprived of their land without their consent and without compensation.
   2. The promotion of social harmony and stability within the wider Australian community by removing, so far as possible, the legitimate causes of complaint of an important minority group within that community.
   3. The provision of land holdings as a first essential for people who are economically depressed and who have at the present no real opportunity of achieving a normal Australian standard of living.
   4. The preservation, where possible, of the spiritual link with his own land which gives each Aboriginal his sense of identity and which lies at the heart of his spiritual beliefs.
   5. The maintenance and, perhaps, improvement, of Australia’s standing among the nations of the world by demonstrably fair treatment of an ethnic minority.
      
8. The recommendations of the Royal Commission led to the enactment of the Aboriginal Land Rights (Northern Territory) Acts 1976 (Cth). The Northern Territory being a territory of the Commonwealth rather than a State of Australia, is subject to the legislative power of the Commonwealth to make laws with respect to territories which is contained in s 122 of the Constitution. So the Commonwealth was able to enact a wide-ranging land rights Act without the constitutional constraints applicable in respect of legislation affecting the States of Australia.
9. The process of claim, inquiry and recommendation set out in the Act, involved an administrative recognition by an Aboriginal Lands Commissioner of traditional Aboriginal owners of the land under claim. Only unalienated Crown land could be claimed. Grants under the Act were made after a recommendation by the Commissioner. They were not made as of right, but in the exercise of the statutory discretion of a Minister of the Commonwealth. The same general concept of administrative recognition, followed by a grant, informed land rights statutes passed subsequently in New South Wales, Queensland and South Australia.
10. The first Aboriginal Lands Commissioner appointed under the Act was Justice John Toohey who was appointed as a Judge of the Federal Court of Australia at the same time. In 1987, he was appointed to the High Court of Australia and was one of the Judges who decided the Mabo case in 1992. As Aboriginal Lands Commissioner he had described the object of the Land Rights Act in the Northern Territory as follows:
    

‘Essentially the object of the Act is to give standing, within the Anglo-Australian legal system, to a system of traditional ownership that has so far failed to gain recognition by the Courts.’ [12]

11. The history of claims under the Aboriginal Land Rights (Northern Territory) Act 1976 involved much litigation between Aboriginal applicants and the Northern Territory government on a variety of issues. There are some 14 reported decisions of the High Court touching matters connected with the administration of the Act. In a number of these cases the Court had to consider the operation of the statute in ways which conceptually foreshadowed later debates about common law native title. The Act defined ‘traditional Aboriginal owners’ by reference to local descent groups of Aboriginals with common spiritual affiliations to sites on the land. Under these affiliations the groups had primary spiritual responsibilities for the sites and for the land. There was an additional requirement that the groups be entitled by Aboriginal tradition to forage as of right over the land. Brennan J observed in R v Toohey; Ex parte Meneling Station Pty Ltd [13] that owners of land under Anglo-Australian law are understood to be vested with a bundle of rights exercisable with respect to land. The term ‘traditional Aboriginal owners’ had a different connotation:

‘Foraging rights apart, the connection 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.’ [14]

This passage was later expressly approved by the High Court in the context of the common law of native title. [15]

12. 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 of native title by the common law 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 was the first Aboriginal Land Commissioner. He had substantial first hand experience of taking evidence from people claiming as traditional owners and from anthropologists and other experts relevant to the statutory claims process.
13. The Aboriginal Land Rights (Northern Territory) Act provided for the making of agreements about the use of land granted under the Act. In 1987 the issue of common law native title was raised before the High Court in relation to an agreement made under s 44(2) of the Act. The issue arose in long running litigation between the Northern Land Council and the Commonwealth over an agreement made in 1978 about the mining of uranium in the Ranger Project Area. The Northern Land Council, representing indigenous interests, sought rescission of the agreement. It alleged unconscionable conduct and breach of fiduciary duty by the Commonwealth. The statement of claim was amended in October 1986 to include an allegation that the traditional owners had native title in the land preceding the vesting of the land in the Land Trust established under the Act. The existence of the antecedent common law native title was relied upon in support of a pleaded fiduciary relationship with the Crown. The Court rejected the existence of a fiduciary duty based upon the statute alone but went on to say:

‘Whether the nature of the relationship at common law between an identified group of Aboriginal people and the unalienated Crown lands which they have used and occupied historically and still use and occupy is such as to found a fiduciary relationship or a trust of some kind is a question of fundamental importance which has not been argued on the present stated case.’[16]

14. Statutory land rights for Aboriginal people attracted adverse reaction. The historian, CD Rowley pointed out in 1986 that for nearly two centuries systems of land ownership and government land management had been developed ‘free from any real understanding of, or influence by, their dispossessed Aboriginal owners’. His description of reaction to such statutory rights was also prophetic in relation to reaction to the recognition of common law native title in 1992:

‘Self-interest is a firm basis for beliefs and mores in us all, and one can at least understand the shocked disbelief turning to wrath as minors and pastoralists now hear what they claim as their legal rights questioned or see them restricted.’ [17]

As the late Ron Castan QC, who appeared for Eddie Mabo in the Mabo case, was to write in 1993:

‘The notion that the Aboriginal people have rights in this country is a difficult one for many in our community to grapple with. That Aboriginal people have the right to be consulted, to be up at the table when it comes to negotiating matters such as land is very difficult for those companies, or groups, or governments which have been accustomed to deciding that we need to use this land for a particular purpose, whether it be mining or farming or building new homes.’ [18]

15. The land rights litigation out of the Northern Territory undoubtedly played a role in exposing the Court to issues which would be of significance when it was called upon to determine whether the common law of Australia, contrary to the position adopted in 1971 in the Milirrpum case and contrary to the historical fiction set out in Cooper v Stuart, could recognise customary ownership of land by indigenous communities. Another very important statutory prologue to the Mabo decision arose out of the Racial Discrimination Act 1975 (Cth), the vehicle by which Australia implemented its obligations under the International Convention on the Elimination of all Forms of Racial Discrimination (CERD).
    

The Racial Discrimination Act 1975, Mabo (No 1) and the Race Power

16. The Racial Discrimination Act is a law passed by the Commonwealth pursuant to its constitutional power to make laws with respect to ‘external affairs’. [19] It is important to bear in mind that international treaties to which Australia becomes a party do not become part of the municipal law of Australia unless embodied in, or otherwise given effect, by a statute.
17. The Racial Discrimination Act 1975, in giving effect to CERD, prohibits discrimination 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 in the political, economic, social, cultural or any other field of public life. The human rights and fundamental freedoms referred to include those set out in Article 5 of CERD. The case which tested the validity of this legislation involved an Aboriginal person from Queensland, named John Koowarta.
18. In 1974 the Aboriginal Land Fund Commission, a Commonwealth authority, entered into an agreement to take a transfer of a Crown Lease of a pastoral property in Queensland. The Minister for Lands in Queensland refused consent to the transfer under the Land Act 1962 (Qld). He applied a government policy which opposed the acquisition of large areas of land by Aborigines. John Koowarta was a member of an Aboriginal group for whose use the Aboriginal Land Fund Commission had contracted to buy the Crown Lease. He commenced proceedings in the Supreme Court of Queensland against the then Premier and other members of the Queensland government. He claimed damages under s 25 of the Racial Discrimination Act. Queensland challenged the statement of claim on the grounds that the Act was outside the legislative power of the Commonwealth and was invalid.
19. Two provisions of the Commonwealth Constitution were in issue. The primary provision debated was that which confers power on the Commonwealth to make laws with respect to external affairs. The second was that which gives the Commonwealth power to make laws for the people of any race for whom it is deemed necessary to make special laws – s 51(xxvi). The latter provision had been amended by constitutional referendum in 1967 to remove an express exclusion of Aboriginal people from within the scope of that power. The Court split four/three upholding the validity of the statute. Four of the seven Justices held that the critical provisions were valid laws with respect to external affairs. This represented globalisation at work through the nation’s Constitution. The law that the High Court upheld in Koowarta was a law made by the Australian Parliament importing norms of conduct derived from international law and applied to the way in which Australians were to deal with each other. The dissenters saw the growth of the external affairs power as generating new subjects of legislative hegemony for the Commonwealth and eroding the federal balance of powers established by the Constitution.
20. The race power was held not to support the Act because the Act applied equally to all persons and therefore was not a special law for the people of any one race. By way of digression it may be observed that the race power is a difficult and dangerous constitutional power. It was conceived out of discriminatory attitudes towards non-white peoples when the draft Constitution was formulated at the end of the 19th century. It excluded from its purview Aboriginal people because the States wanted control over that subject matter for themselves. The 1967 Referendum which removed the exclusion of Aboriginal people from the scope of the power was entirely beneficial in its intention. It is clear however that it did not transform the power to a purely beneficial power. [20]
21. The Racial Discrimination Act 1975, having been found valid in respect of its critical provisions, ss 9 and 12, was to play an important role in the litigation that was to follow involving Eddie Mabo. The scene has now been set for a consideration of the history of that litigation and what it effected.

The Mabo Litigation

22. The plaintiffs in the Mabo litigation were members of the Meriam people of the Murray Islands in the Torres Strait, which lies between Australia and Papua New Guinea. The Islands of the Torres Strait are part of the State of Queensland. The plaintiffs claimed a variety of declarations about the rights of Meriam people to the Murray Islands based upon local custom and traditional native title. They commenced their action in the High Court in 1982, but the matter was remitted to the Supreme Court of Queensland for the trial of issues of fact.
23. In 1985, Queensland attempted to short-circuit the action by enacting the Queensland Coast Islands Declaratory Act 1985 (Qld). The Act declared that upon the Islands of the Torres Strait becoming part of Queensland they had been vested in the Crown in right of that State ‘freed from all other rights, interests and claims of any kind whatsoever’. The State, having passed this statute, then pleaded it against the plaintiffs’ claim asserting that its effect was to extinguish their rights and to deny any right of compensation in respect of that extinction.
24. The validity of the Queensland statute was challenged in the High Court and in December 1988 a majority of the Justices held the Act to be inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth). 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 summarised in a passage from the joint judgment in what became known as Mabo (No 1). [21]

‘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 title 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 Meriam people therefore fails.’

25. The decision was hypothetical for the Court had not then determined that the common law of Australia would recognise traditional native title. The important possibility that it raised was that other State or Territory laws or indeed executive acts, which had been done after the Racial Discrimination Act came into effect and which might be seen as having a discriminatory operation in relation to native title, could be invalid for that reason. That invalidity would arise by operation of s 109 of the Commonwealth Constitution which gives paramountcy to the Commonwealth law, in this case the Racial Discrimination Act, in the event of inconsistency with a State law. The possibility also existed, for the Commonwealth itself, that its laws or executive acts might have operated to effect acquisitions of native title rights without just compensation and contrary to the requirements of the Constitution.[22] The question whether native title could be recognised at common law was yet to be answered in Mabo (No 2). When it was so recognised, the general issue of the validity of past acts was enlivened along with a need to ensure that future acts affecting native title would not offend the requirements of the Racial Discrimination Act or the just terms provision of the Constitution. The effect of the Racial Discrimination Act and the requirement to comply with it had implications for both 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.
26. In 1992, the High Court decided, some ten years after the Mabo litigation was commenced, that the common law of Australia could recognise native title. The 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.’[23]

The Common Law of Native Title as Declared in the Mabo Case

27. Common law rules underpinning the recognition of native title and the rules governing its recognition as set out in the Mabo decision can be summarised as follows:
    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.[24]
    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.[25]
    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 which indicated a plain and clear intention to do so – eg, grants of freehold title.[26]
    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;[27]

(b) the group continues to observe laws and customs which define its ownership of rights and interests in the land.[28]

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

(a) it is communal in character although it may give rise to individual rights;[29]

(b) it cannot be bought or sold but can be surrendered to the Crown;[30]

(c) it may be transmitted from one group to another according to traditional law and custom;[31]

(d) the traditional law and custom under which native title arises can change over time and in response to historical circumstances.[32]

6. Native title is subject to existing valid laws and rights created under such laws.[33]

28. In the judgment 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 organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.’
29. Other members of the majority, Deane, Gaudron and Toohey JJ, did not invoke international norms of conduct. However Deane and Gaudron JJ relied upon principles of ‘natural law’ set out in the works of early international law jurists such as Wolff, Vattel, de Vittoria and Grotius. They cited authorities applicable in a wide range 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.’[34] In the joint judgment of Deane and Gaudron JJ their Honours 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 a frequently 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 passed injustices.’

30. 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.[35]
31. 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'.[36] 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.[37] 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.[38]
32. 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 rejected unequivocally by Deane and Gaudron JJ.[39] They preferred the approach adopted by the Privy Council in Amodu Tijani v Secretary, Southern Nigeria[40] and Adeyinike Oyekan v Musendiku Adele[41] to the narrower approach reflected in Re Southern Rhodesia.[42] Native title should not be forced to conform to traditional common law concepts. It should be accepted as 'sui generis or unique'.[43]
33. In 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”.’[44]

His Honour referred to the Report of the Australian Law Reform Commission on the Recognition of Aboriginal Customary Laws.[45] He also said: “...in truth what the courts are asked to recognise are simply rights exercised by indigenous peoples in regard to land, sufficiently comprehensive and continuous so as to survive annexation.’[46]

Recognition and Extinguishment of Native Title

34. 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.
35. 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 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. Consistently 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.
36. 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.
37. 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.
38. 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.’[47]

39. 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 Peoples v State of Queensland, native title rights affected by inconsistent grants are ‘unenforceable at law and, in that sense, extinguished.’[48] (emphasis added).
40. 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[49] 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’.’[50]

41. There is no exposition of any principle that requires that the bar to recognition, which is described by the term ‘extinguishment’ should be permanent.[51] 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.

A Statutory Response: The Native Title Act 1993

42. The requirements in Mabo (No 2) for the proof of traditional title and the complexity of the interaction of common law native title with Commonwealth, State and Territory laws and grants made under such laws, meant that the litigation of claims for common law native title would be time consuming and expensive. A process was needed to facilitate recognition by agreement where that was possible. In the meantime dealings with land were proceeding and there was a need to protect indigenous communities pending the recognition of their title at common law and, when recognised or otherwise, to provide for compensation where the common law native title was found to be extinguished or impaired. The general question of validity raised by Mabo (No 1) in respect of past acts of the States and Territories had to be addressed as did the possible invalidity of past Commonwealth acts for non-compliance with requirements of the Constitution that the acquisition of property be on just terms.
43. The Native Title Act 1993 had, as its stated objectives, the establishment of a process for the recognition of native title, the protection of native title in respect of future acts and the validation of past acts. It established the National Native Title Tribunal to receive applications for determinations of common law native title, to accept and register them, to notify and identify parties and to assist applicants and parties to reach negotiated outcomes. Provision was made for applications to be referred to the Federal Court for determination in the event that agreement was not achieved.
44. In respect of the protection of native title, governments proposing to pass laws or do executive acts affecting native title were required to observe a non-discrimination principle in relation to native title holders. Onshore dealings with land affecting native title holders were to be done in a way that would not discriminate between them and freeholders. Entitlements to compensation were created. Provision for compulsory negotiation and arbitration was made in respect of the grants of mining and mining exploration tenements and the acquisition by governments of native title rights and interests where the purpose of the acquisition was to confer rights or interests on a third party.
45. Legislative and executive past acts of the Commonwealth which were to any extent invalid because of their impact on native title were validated by the Act subject to compensation. The States and Territories were permitted to pass laws to validate their own past acts. Validation so effected or authorised 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. Freehold grants, and pastoral, residential and commercial leases so validated, extinguished native title completely albeit the effect of the leases at common law was not addressed by the Act.

The First Challenge – The Native Title Act Case

46. Immediately prior to the passage of the Native Title Act the Western Australian Parliament passed the Land (Titles and Traditional Usage) Act 1993 (WA). The Act purported to extinguish native title and to replace it with statutory rights of traditional usage under a regime prescribed by that Act. Western Australia also commenced proceedings against the Commonwealth seeking a declaration that there was no part of Western Australia in which, or in relation to which, there were ‘native title’ or ‘native title rights and interests’ within the meaning of the Native Title Act and that the Act, in so far as it had application in respect of such rights and interests, had no operation in, or in relation to, Western Australia. Alternatively, a declaration was sought that the Commonwealth Act was beyond the legislative powers of the Commonwealth and invalid. In the same year, indigenous groups (the Wororra people and the Martu people) sued the State of Western Australia in the High Court seeking declarations that the State Act was invalid for inconsistency with the provisions of the Racial Discrimination Act and/or the provisions of the Native Title Act. Ron Castan appeared for the Wororra peoples.
47. The Court held that the history of the establishment of the Colony of Western Australia did not reveal an intention on the part of the Crown to extinguish generally the native title existing over land within the proposed colonial boundaries. The presumption that the acquiring sovereign did not intend to extinguish native title was not rebutted. The holders of statutory rights under the State Act were found not to enjoy the same security in the enjoyment of those rights as would the holders of common law native title. The State Act was therefore inconsistent with s 10(1) of the Racial Discrimination Act, and was invalid to the extent of the inconsistency by operation of s 109 of the Constitution.
48. The Native Title Act was held to be a valid law of the Commonwealth, supported by the race power conferred by s 51(xxvi) of the Constitution. It was a ‘special’ law for the purposes of the race power as it conferred uniquely on Aboriginal holders of native title a benefit protective of their native title. Koowarta and the Tasmanian Dam[52] case were applied. The question whether such a law was ‘necessary’ in terms of s 51 (xxvi) was a matter for Parliament and there were no grounds on which the Court could review Parliament’s decision if it had the power to do so.
49. The Court rejected an argument that the Native Title Act purported to control the exercise of legislative power by Western Australia or directly to render its laws invalid. It did not impermissibly discriminate against Western Australia or impair its ability to function as a State. The requirement imposed by the Act that the State should pay compensation if it exercised a power of compulsory acquisition, imposed a burden on the exercise of State power but did so as an incident of the protection of native title. The race power was not impliedly limited so as to prevent the Commonwealth from protecting the holders of native title in that way. Section 12 of the Native Title Act, a curious provision which purported to give to the common law of native title the force of a Commonwealth statute, was held to be invalid.
50. Six of the justices, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ, delivered a joint judgment. Dawson J wrote separate reasons, but he substantially agreed with the majority and agreed with the outcomes proposed, which were by way of answers to questions which had been reserved to the Full Court by Mason CJ. The rule of recognition of traditional Aboriginal title and of extinguishment was encapsulated in the following passage in the joint judgment:

‘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 native title.’ [53]

It is to be noted that the rule thus expressed assumes the process of recognition to be one of ascertaining common law native title as a right already possessed by those who satisfy the conditions of recognition set out in Mabo (No 2).

51. The extinguishment principle was stated early in the joint judgment in the context of Western Australia’s submission that native title in that State had been extinguished upon annexation. Their Honours said:

‘After sovereignty is acquired, native title can be extinguished by a positive act which is expressed to achieve that purpose generally... provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act. Again, after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel – for example, a grant by the Crown of a parcel of land in fee simple – provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act.’ [54]

It is clear enough from this passage that extinguishment operates upon the common law native title rights which would otherwise exist. It identifies two modes of extinguishment. The first is a law or an act expressed to achieve that outcome. The second is by a law or act which is inconsistent with the enjoyment of common law native title.

52. Against this background, the Court characterised the Native Title Act as removing the common law defeasibility of native title and securing Aboriginal people and Torres Strait Islanders in the enjoyment of their native title subject to prescribed exceptions which provided for it to be extinguished or impaired. The Act provided only three exceptions. The first was the occurrence of a past act which had been validated, the second, an agreement on the part of the native title holders and the third, the doing of a permissible future act.[55] Thus, the Act effectively limited the application of the extinguishment qualification upon common law recognition of native title to the circumstances for which it provided or which it authorised. The Court’s characterisation of the Act was necessary to determine whether it was supported by the race power. It was seen as conferring its protection upon native title holders who, ex hypothesi are members of a particular race. An observation of Deane J in the Tasmanian Dam case that the relationship between Aboriginal people and the lands which they occupy lies at the heart of traditional Aboriginal cultural and traditional Aboriginal life, was cited as indicating the undoubted significance of security in the enjoyment of native title by its holders.
53. The judgment was important for its discussion of the race power which carries the unusual conditions that it must be ‘deemed necessary’ that ‘special laws’ be made for ‘the people of any race’. The special quality of a law made pursuant to the race power was to be ascertained by reference to its differential operation upon the people of a particular race. The possibility that the power might be exercised to the disadvantage of a particular race was implicit in the observation of the joint judgment that, ‘A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race.’[56]
54. The Native Title Act was held to be ‘special’ in that it conferred uniquely on the Aboriginal and Torres Strait Islander holders of native title a benefit protective of their native title. Whether it was ‘necessary’ to enact the law was a matter for Parliament to decide, and, having regard to Mabo (No 2), there were no grounds on which the Court could review the Parliament’s decision, even assuming it had power to do so.[57] So Western Australia’s submission that the Native Title Act generally did not answer the constitutional description of a law within s 51(xxvi) of the Constitution was rejected.
55. The Court also considered the relationship between the Racial Discrimination Act and the Native Title Act. It pointed out that the Racial Discrimination Act protects native title holders against discriminatory extinction or impairment of native title. The Native Title Act, on the other hand, protects them against any extinction or impairment of native title, subject to the specific and detailed exceptions which the Act prescribes or permits.

Wik – Extinguishment – Freehold Title and Pastoral Leases

56. A decision of the High Court which elicited a disproportionate political response was Wik Peoples v Queensland.[58] It was concerned primarily with the question of extinguishment in relation to pastoral leases. The decision was upon preliminary questions of law in a native title determination application pending in the Federal Court. The principal question concerned the prior grant of pastoral leases over areas of the land the subject of the application for a native title determination. By a majority of 4:3, the High Court held that the pastoral leases did not confer exclusive possession of the areas to which they applied and that the grants did not necessarily extinguish all incidents of native title. It should be noted that pastoral leases in Australia typically cover very large tracts of land, sometimes the size of a small country. In the remote and arid areas of Australia large land holdings were no doubt regarded as necessary to sustain a reasonable number of stock. The leases were and are entirely creations of statute and not to be assimilated to common law concepts of leasehold interests.
57. The Court’s conclusion turned upon a detailed consideration of the terms of the grants of the lease and the statutes under which they were made. The Court did not resolve the question whether the leases did extinguish native title in the areas to which they applied. That could only be decided after considering the particular native title rights and interests asserted and established. If there were inconsistency between the native title rights and interests and those conferred by the grants of the leases then the native title rights and interests would yield to that extent to the rights of the grantees. The test for extinguishment was considered. As previously noted, in the Native Title Act case two kinds of extinguishing law or executive acts were identified. The first was a law or act expressly extinguishing native title. The second was a law or act which extinguished by reason of inconsistency. Wik was concerned with the case of an act conferring what were said to be rights inconsistent with the recognition of common law native title.[59] Kirby J addressed the nature of the interaction between the indigenous relationship to the land and the non-indigenous law. He referred to a submission by the Thayorre people that native title was outside the common law, had its own sources and integrity and could not be destroyed by a legal theory outside its own regime. Although the Australian legal system would determine whether and when it would grant recognition and enforcement. But the title itself would continue to exist. This argument he rejected as ‘suggested neither by legal authority applicable to this country nor by legal principle or polity’:

‘What is in issue is title in respect of the land. As such it is not a question about the intentions or actions of Aboriginal parties, any more than of the Crown or governmental officials. The question is not whether indigenous people have in fact been expelled from traditional lands, but whether those making claims to such lands have the legal right to exclude them.’[60](emphasis added)

If what the Thayorre people were contending was that their relationship to their country as defined by traditional law and custom was independent of recognition by the common law, then it is difficult to see why Kirby J rejected their proposition. In any event, as will be seen, their proposition was consistent with what was later said in Fejo discussed below.

58. A second contention, namely that an agreement between the State of Queensland and Comalco, and the grant of mining leases pursuant to that agreement, were in breach of requirements of procedural fairness and in breach of trust or a fiduciary duty owed to the applicants was rejected. The agreement had the force of law under the relevant Act and obliged the State to grant the mining leases in issue. The validity of the leases could not be impugned for want of procedural fairness or breach of fiduciary duty.
59. Gummow J emphasised that to extrapolate native title principles from the particular circumstances of the case to an ‘assumed generality of Australian conditions and history’ would be ‘treatment with the possibility of injustice to the many, varied and complex interests involved across Australia as a whole’. The better guide was the method of the common law ‘whereby principle is developed from the issues in one case to those which arise in the next.’[61] Consistently with this view, it was apparent from all the judgments that the question of extinguishment of native title by statutory grants and interests generally would be resolved on a case by case basis. It was of little consolation to those who were the grantees of pastoral leases that if native title rights and interests subsisted in the same land, they must yield to the rights and interests conferred by the statutory grant. Pastoralists were concerned about facing an inchoate regime of co-existing rights. Miners seeking to conduct operations on land which was or had been the subject of a pastoral lease were now subject to the right to negotiation processes of the Native Title Act. From their perspective, the ‘time honoured methodology of the common law’ referred to by Gummow J was not going to deliver certainty of outcome nor, on the High Court’s record to that point, the outcomes they wanted. These concerns, combined with the agendas of some State governments in relation to their land management powers, provide the background to the 1998 amendments to the Act.

The 1998 Amendments to the Native Title Act

60. The Wik decision may be viewed, from a legal perspective, as a not very dramatic application of the Mabo principles and as embodying the proposition that just because a statutory grant is called a lease, this does not confer upon it the incidents of a lease at common law. The practical impact of the decision for the pastoral and mining industries, however, generated the political momentum which led to the 1998 amendments to the Native Title Act.
61. Some procedural amendments had been foreshadowed affecting the respective roles of the National Native Title Tribunal and the Federal Court of Australia. These proposed that all native title determination applications should be instituted in the Federal Court and then referred to the National Native Title Tribunal for mediation rather than commenced by way of an administrative process in the National Native Title Tribunal. For reasons which emerged from the decision of the High Court in Brandy v Human Rights and Equal Opportunity Commission[62] the original arrangement which would lead to agreed determinations in the National Native Title Tribunal being registered as judgments of the Federal Court, offended against separation of powers requirements in Chapter III of the Commonwealth Constitution. A Bill to give effect to the necessary procedural changes had been introduced into the Parliament in 1995 but lapsed when Parliament was prorogued for the federal election. Those amendments were then subsumed in much more extensive changes introduced by the Coalition government. The specific issues which, as a result of the Wik decision, were pressed upon legislators included:
    1. The validity of intermediate period acts done by governments on the assumption that pastoral leases extinguished native title.
    2. The application of the right to negotiate in relation to grants of mining interests over lands which were or had been the subject of pastoral leases.
    3. The ability of pastoralists to undertake activities authorised by their leases without the requirement to comply with provisions of the Native Title Act and their ability to undertake other activities which they had customarily undertaken without such authority.
    4. The possibility of continuing uncertainty about the subsistence of native title in conjunction with a wide range of statutory interests in land.
62. The amendments provided for the validation of intermediate period past acts. The system for recognition of native title was changed so that all applications were initiated as proceedings in the Federal Court with provision for mediation by the National Native Title Tribunal. A much more extensive and demanding registration test was introduced which had to be satisfied before the right to negotiate could be accessed by applicants in relation to the grant of mining tenements and certain other future acts. Provision was made for statutory extinguishment of native title in respect of certain classes of past acts, known as ‘previous exclusive possession acts’. Another class, known as ‘previous non-exclusive possession acts’, extinguished native title rights and interests to the extent of inconsistency between them.
63. A wider range of future acts, being acts affecting native title, were able to be done validly without any obligations to negotiate with native title holders although some procedural obligations were to be observed and compensation paid. Provision was also made for registrable Indigenous Land Use Agreements which would confer validity upon acts done under them.
64. The amendments were controversial. They were seen as withdrawing benefits conferred by the original Act and, by extending the categories of statutory extinguishment, were seen as adverse to indigenous interests. There was debate about whether, in the circumstances, the amendments were supportable by the race power. That debate has not been pursued into the High Court. The proposition that the race power can only be used for beneficial purposes and the wider proposition that benefits once conferred pursuant to the race power cannot be withdrawn, is unlikely to succeed in the High Court.[63]

The Ongoing Development of the Law

65. The principles enunciated in Mabo (No 2) and the operation and construction of the Native Title Act have been the subject of a number of important High Court decisions over the past decade. The Native Title Act case and the Wik decision have already been discussed. A number of other important cases followed and are briefly summarised below.
66. The sanctity of freehold title was upheld in Fejo[64] which held that such grants extinguished native title[65] and that such extinguishment was irreversible.[66] The operation of s 211 of the Native Title Act (‘preservation of certain native title rights and interests’) was considered in Yanner v Eaton.[67] The High Court there held that a native title right to hunt crocodiles was not extinguished by the Fauna Conservation Act 1974 (Qld). Hunting activities were merely regulated by that Act, so that hunting in the exercise of native title rights was permitted by the overriding operation of s 211.
67. A decision of great importance to indigenous people and to the fishing and pearling industries was that of the High Court in Commonwealth v Yarmirr [68] which held that a non-exclusive native title could subsist in the seas and seabeds around Croker Island in the Northern Territory. The determination at first instance (which was upheld by the Full Federal Court)[69] recognised rights to fish, hunt and gather for the purpose of satisfying the personal, domestic or non-commercial communal needs of native title holders and for the purpose of observing traditional, cultural, ritual and spiritual laws and customs. It offered no threat to commercial fishing or pearling operations.[70]
68. Western Australia v Ward [71] reflected a conservative approach by the High Court to underlying principle, and an emphasis on black letter law which was foreshadowed in Yarmirr. That is evidenced by the emphasis placed upon the definition of ‘native title rights and interests’ in s 223 of the Native Title Act in determining what constitutes native title or native title rights and interests. That section provides:

‘The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.’

69. The Ward decision concerned a major native title determination in north-west Western Australia and the Northern Territory. Broadly speaking, it may be said that it:
    1. Foreshadowed limited development of the common law of native title.[72]
    2. Accorded the provisions of the Native Title Act primary importance in identifying the content of native title. [73]
    3. Did not explore the content of the metaphors of ‘recognition’ and ‘extinguishment’ which lie at the heart of the common law of native title, although the tests for extinguishment were extensively discussed.
    4. Favoured a statute-based characterisation of native title as a ‘bundle of rights’.[74]
    5. Held that native title, as a ‘bundle of rights’, may be extinguished in part or incrementally.[75]
    6. Specifically held that:

(i) native title may be partially extinguished but is not necessarily wholly extinguished by pastoral leases and mineral leases in Western Australia;[76]

(ii) the vesting of land under the Lands Act 1933 (WA) extinguishes native title;[77]

(iii) native title rights and interests do not extend to subsurface minerals.[78]

70. The High Court emphasised the legal effect of grants inconsistent with the continuance of native title. The importance accorded by the High Court to the requirement for particularity in the analysis of extinguishing events led it to reject a global approach to extinguishment taken by the Full Court of the Federal Court (which had held that the combined effect of the various elements of the Ord River Project, established over a substantial part of the claim area, extinguished native title).[79] The High Court’s conclusions about the effect of vesting of Crown reserves under the Lands Act 1933 (WA) had a substantially adverse affect on native title holders. It meant that the creation of national parks in Western Australia would be taken to have extinguished native title.
71. Following Ward, the High Court held in Wilson v Anderson[80] that Western Division leases in New South Wales extinguished native title. This affected a large area of New South Wales.
72. Most recently, in Members of the Yorta Yorta Aboriginal Community v Victoria [81] the High Court again emphasised the statutory definition of native title as defining the criteria that had to be satisfied before a determination could be made. To that extent the Court appears to have moved away from the original concept of the Act as a vehicle for the development of the common law of native title. Indeed so much seems to have been recognised by McHugh J who was unconvinced that the construction placed by the Court on s 223 accorded with what the Parliament had intended. His Honour referred to statements he had cited in Yarmirr from the Ministers responsible for the Act when it was enacted in 1993 and when it was amended in 1997. He said:

‘They showed that the parliament believed that, under the Native Title Act, the content of native title would depend on the developing common law.’[82]

He went on to say:

‘But this court has now given the concept of ‘recognition’ a narrower scope than I think the parliament intended, and this court’s interpretation of s 223 must now be accepted as settling the law.’ [83]

In Yorta Yorta the High Court upheld a finding by Olney J of the Federal Court that the Yorta Yorta People had failed to prove the maintenance of their connection with the land under claim from settlement to the present day in accordance with their traditional laws and customs from the time of annexation. Evidence of past occupation was insufficient to show the required acknowledgement and observance of traditional laws and customs. The trial judge had concluded that ‘the tide of history’ had washed away any real acknowledgement of traditional laws and any real observance of traditional customs. The High Court held that once the traditional normative system had ceased to exist, attempts to revive adherence to it would not resurrect the native title rights and interests that had originally arisen under it. This did not involve any rejection of the proposition that change to and adaptation of traditional law and custom is able to be recognised by the common law.

73. There is a wide spread perception among indigenous groups and their representatives that the effect of the Yorta Yorta decision is significantly to contract the areas within Australia in which determinations of native title will be obtained.[84] This may be so. In its emphasis on the identification of discrete elements of the ‘bundle of rights’ making up native title[85] the High Court decision has the potential to burden the determination process with a mass of costly technicality. And the way in which it applies the words of ss 223 (a) and (b) of the Act to the determination of native title rights and interests may have transformed the Act from a vessel for the development of the common law into a cage for its confinement. Whether these concerns are borne out remains to be seen. Whatever the future of native title jurisprudence, the history of agitation by Australia’s indigenous people in relation to their traditional lands and waters suggests that native title will continue to be of importance as one of the range of tools which they can employ in seeking their rightful recognition.

Conclusion

74. For Australia’s indigenous people, the native title process has provided opportunities and incentives to assert and to articulate with determination the vitality of their cultures, and the reality of their traditional laws and customs. It is of fundamental importance that they have been able to claim rights – and the right to be heard – in a range of ways that were not available before the decision in Mabo (No 2). The statutory response and recent jurisprudence has not made their path any easier. The politics of the Commonwealth, State and Territory governments have had their own, and at times confusing and frustrating, impacts on the evolution of the law and practice. All parties continue to be bedevilled by resource limitations in pursuing both mediation and litigation. However, despite these difficulties and challenges, a return to the pre-Mabo days would represent a major impoverishment of our society. The native title process has forced many Australians, including myself, to confront in a new way the challenge of our relationships with indigenous people and the past and future of our Australian Federation. In so doing, it enriches the whole nation.

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[1] (Clarendon Press, Oxford, 1989) at 2.
[2] Robert French, ‘The Role of the High Court in the Recognition of Native Title’ (2002) 30 UWA Law Review 129-166; Robert French and Patricia Lane, ‘The Common Law of Native Title in Australia’ (2002) 2 OUCLJ 15-45; Robert French, ‘A Moment of Change – Personal Reflections on the National Native Title Tribunal 1994-1998 (2003) 26 MULR 488-522
[3] McDonald v Levy (1833) 1 Legge 39 (NSWSC) 45.
[4] Attorney General v Brown (1847) 1 Legge 312 (NSWSC); Williams v Attorney General (NSW) [1913] HCA 33; (1913) 16 CLR 404 (HCA).
[5] Cooper v Stuart [1889] UKLawRpAC 7; [1889] 14 App Cas 286 (PC) at 291.
[6] [1919] AC 211.
[7] Ibid at 233-234.
[8] Amodu Tijani v The Secretary, Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399.
[9] Ibid at 403.
[10] Milirrpum at 244.
[11] Milirrpum at 267.
[12] Report on Yingawunarri (Old Top Springs) Mudbura Lands Plain Report No 5 (Canberra AGPS, 1980) par 70.
[13] [1982] HCA 69; (1982) 158 CLR 327 at 357.
[14] Ibid at 358.
[15] Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at 373.
[16] Northern Land Council v The Commonwealth (No 2) [1987] HCA 52; (1987) 75 ALR 210 at 215.
[17] CD Rowley, ‘Recovery: The Politics of Aboriginal Reform’, (Melbourne, Penguin, 1986) 84.
[18] R Castan QC, ‘Native Title in Australia: Reflections on Mabo’, address to the Annual Dinner of the Australian Jewish Democratic Society (Melbourne 1993).
[19] Commonwealth Constitution s 51(xxix).
[20] For a description of the history and interpretation of the race power see R French, The Race Power: A Constitutional Chimera in Lee and Winterton (ed) Australian Constitutional Landmarks, Cambridge University Press (2003) at 180-212.
[21] Mabo v Queensland (No 1) [1988] HCA 69; (1989) 166 CLR 186 (HCA) at 218-219.
[22] Australian Constitution s 51(xxxi).
[23] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (HCA).
[24] Mabo (No 2) at 57 and 69 (Brennan J, Mason CJ and McHugh J agreeing); 81 (Deane and Gaudron JJ); 184 and 205 (Toohey J).
[25] Mabo (No 2) at 60 and 61 (Brennan J); 81, 82, 86-87 (Deane and Gaudron JJ); 187 (Toohey J).
[26] Mabo (No 2)at 64 (Brennan J); 111, 114 and 119 (Deane and Gaudron JJ); 195-196 and 205 (Toohey J).
[27] Mabo (No 2) at 60 and 70 (Brennan J); 86 and 110 (Deane and Gaudron JJ); 188 (Toohey J).
[28] Mabo (No 2) at (Brennan J); 110 (Deane and Gaudron JJ).
[29] Mabo (No 2) at 52 and 62 (Brennan J); 85-86 and 88, 119-110 (Deane and Gaudron JJ).
[30] Mabo (No 2) at 60 and 70 (Brennan J); 88 and 110 (Deane and Gaudron JJ).
[31] Mabo (No 2) at 60 (Brennan J); 110 (Deane and Gaudron JJ).
[32] Mabo (No 2) at 61 (Brennan J); 110 (Deane and Gaudron JJ); 192 (Toohey J).
[33] Mabo (No 2)at 63, 69 and 73 (Brennan J); 111-112 (Deane and Gaudron JJ).
[34] Adeyinka Ayeakn v Musendiku Adele [1957] 1 WLR 876 (PC) 880.
[35] Wik Peoples v State of Queensland (1996) 187 CLR 1 (HCA) at 179-180 (Gummow J).
[36] Mabo (No 2) at 178.
[37] Mabo (No 2) at 51.
[38] [2000] FCAFC 191; 170 ALR 159, at 221 (Beaumont and von Doussa JJ).
[39] Mabo (No 2) at 85.
[40] [1921] UKPC 80; [1921] 2 AC 399 (PC).
[41] [1957] 1 WLR 876 (PC).
[42] [1919] AC 211 (PC).
[43] Mabo (No 2) at 89.
[44] Mabo (No 2) at 178-179.
[45] Report No 31, 1986, [63].
[46] Mabo (No 2) at 179.
[47] Mabo (No 2) at 69.
[48] Wik at 126 (emphasis added).
[49] [1998] HCA 58; (1998) 195 CLR 96 at 128.
[50] Fejo at 131.
[51] Although the Native Title Act does so (s.237A).
[52] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1.
[53] [1995] HCA 47; (1995) 183 CLR 373 at 452.
[54] Ibid at 422.
[55] Ibid at 459.
[56] Ibid at 461.
[57] Ibid at 462.
[58] (1996) 187 CLR 1
[59] 86 (Brennan CJ, Dawson and McHugh JJ agreeing), 124 (Toohey J); 186 (Gummow J); 238 (Kirby J)
[60] Ibid at 237.
[61] 187 CLR 1 at 184.
[62] [1995] HCA 10; (1995) 183 CLR 245.
[63] See, in another context, Kartinyeri v Commonwealth (1998) 195 CLR 337 and R French, ‘The Race Power: A Constitutional Chimera (op cit).
[64] [1998] HCA 58; (1998) 195 CLR 96.
[65] Ibid 120-31 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[66] Ibid at 127, 131.
[67] [1999] HCA 53; (1999) 166 ALR 258.
[68] [2001] HCA 56; (2001) 184 ALR 113.
[69] Commonwealth v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171.
[70] Yarmirr [2001] HCA 56; (2001) 208 CLR 1, 33 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[71] [2002] HCA 28; (2002) 191 ALR 1.
[72] Ibid at 17, 19 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[73] Ibid at 19.
[74] Ibid at 40.
[75] Ibid at 55 (with respect to pastoral leases), 97 (with respect to mining leases).
[76] Ibid
[77] Ibid at 132.
[78] There was no evidence of any traditional Aboriginal law, custom or use relating to petroleum or any of the substances dealt with under State mining legislation. Had there been, such rights would have been extinguished by s 117 of the Mining Act 1904 (WA) and s 9 of the Petroleum Act 1936 (WA): Ward [2002] HCA 28; (2002) 191 ALR 1, 113, 134 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[79] Western Australia v Ward [2000] FCAFC 191; (2000) 99 FCR 316.
[80] (2002) 190 ALR 313.
[81] [2002] HCA 58; (2002) 194 ALR 538.
[82] Ibid at 572.
[83] Ibid at [134].
[84] See Richard Bartlett, ‘An Obsession with Traditional Laws and Customs Creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta’ [2003] UWALawRw 3; (2003) 31 University of Western Australia Law Review 35, 45.
[85] See Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, 549 (Gleeson CJ, Gummow and Hayne JJ) for discussion of the rights and interests of the indigenous people.