Indigenous Law Bulletin
By Noel Pearson
The Cape York Land council hosted a seminar from 21-23 July, 2000 in Cairns to discuss ‘The Legal Concept of Native Title’. The Council invited some two dozen lawyers, anthropologists, commentators and others to discuss developments in Australian law in relation to the concept of native title, with particular reference to such cases as Wik, Miriuwung Gajerrong, Yorta Yorta, Hayes and Croker Island. (The High Court is to consider appeals in the Miriuwung Gajerrong and Croker Island cases early in 2001.)
The purpose for holding the seminar was explained in the invitation as follows:
Recent judicial trends in native title law demonstrate an inability of the judiciary to provide a cohesive concept of native title which explicates clearly the source of native title, its content and the requirements for proof. There remain a number of inconsistencies and misconceptions in the court’s approach that will only be compounded over time if action is not taken soon to redress them.
Much of this incoherence in the developing case law is of course a reflection of the ordinary quality of academic discussion of native title, and in the approaches adopted by practitioners in framing and prosecuting the cases. No substantial attempts have been made in Australia to grapple with the conceptual issues of the common law of native title – most of the discussion being centred on procedural issues and the changing legislative framework of native title law...The state of intellectual engagement with the outstanding conceptual issues is, in the view of the Cape York Land Council, very poor in comparison to the state of thinking in Canada for example. The relationship between the law and anthropology of native title remains unclear.
The seminar was opened by CYLC Chairperson Richie Ahmat. Sessions were led and facilitated by Michael Barker QC, Noel Pearson, Peace Decle, Dr Peter Sutton and David Yarrow. A fuller account of the discussions will be published elsewhere (possibly in the Australian Indigenous Law Reporter). What follows is a brief summary of the principles presented by Noel Pearson at the seminar and as refined with the help of the participants in the final session.
1. The establishment of native title claims in the common law courts requires that there was an organised society in occupation of the claimed land (as a matter of fact) at the time of annexation. (This is the ‘ancestral’ community of native titleholders).
2. At the time of annexation, the occupants have to be in occupation in accordance with their membership of the organised society under Aboriginal law and custom (ie they are holders of core and contingent rights and interests in the land).
3. The original occupants are the ancestral community of native titleholders. The contemporary claimants must establish the descent of native title from this ‘ancestral’ community, ie they must prove their connection with the land under Aboriginal law and custom which establishes their right to native title.
4. The community of native titleholders hold communal native title (as distinct from ‘native title rights and interests’ which may be carved out of the communal native title, or which are pendant upon, or parasitic upon, the communal title).
5. The communal native title is an exclusive title, held by the community of native titleholders ‘as against the world’.
6. The content of this communal native title ‘as against the world’ is a sui generis proprietary title arising from the fact of occupation. It is sui generis for the following reasons:
1. It is inalienable.
2. It is a communal title which has an internal dimension regulated by Aboriginal law and custom.
3. It is subject to extinguishment by the valid exercise of Legislative and Executive power in circumstances where other titles to land are not.
7. The communal native title also has an ‘internal dimension’ – which differentially allocates rights and interests according to Aboriginal law and custom. This internal dimension is also cognisable to and enforceable under the common law as rights and interests which are carved out of the communal title. (It is the content of this internal dimension to which Brennan J is actually referring in his oft-quoted passage from Mabo No.2.)
8. Given the above conclusions, evidence of Aboriginal law and custom is primarily relevant in native title law in the following ways:
 The requirement of an ‘organised society’ is set out in Mahoney J’s four elements in Hamlet of Baker Lake v Minister for of Indian Affairs and Northern Development (1979) 107 DLR(3d) 513 at 542 (‘Baker Lake’), and is referred to by Toohey J in Mabo v Queensland (No 2)  HCA 23; (1992) 175 CLR 1 at 186-187 (‘Mabo (No 2)’). Toohey J had the following to say about the requirements involved in establishing the existence of an organised society (at 187):
an inquiry into the kind of society from which rights and duties emanate is irrelevant to the existence of title, because it is inconceivable that indigenous inhabitants in occupation of land did not have a system by which land was utilized in a way determined by that society. There must, of course, be a society sufficiently organized to create and sustain rights and duties, but there is no separate requirement to prove the kind of society, beyond proof that presence on land was part of a functioning system.(Emphasis added)
 Toohey J stated in Mabo (No 2) in relation to occupation that (at 188):
It is the fact of presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights...It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title. Thus traditional title is rooted in physical presence. That the use of the land was meaningful must be proved but it is to be understood from the point of view of the members of the society.(Emphasis added.)
The need to take into account the viewpoint of the indigenous people in determining whether they were in occupation of the relevant land has also been emphasised by Lamer CJC in the Canadian case Delgamuukw v British Columbia (1997)153 DLR(4th) 192 (‘Delgamuukw (SCC)’), in which the Chief Justice stated:
At para 128, that: ‘Occupancy is determined by reference to the activities that have taken place on the land and the uses to which the land has been put by the particular group’; and
At para 147, that: ‘...the source of aboriginal title appears to be grounded both in the common law and in the aboriginal perspective on land; the latter includes, but is not limited to, their systems of law. It follows that both should be taken into account in establishing the proof of occupancy’ (emphasis added); and
At para 148: ‘I also held [in Van der Peet] that the aboriginal perspective on the occupation of their lands can be gleaned, in part, but not exclusively, from their traditional laws, because those laws were elements of the practices, customs and traditions of aboriginal peoples...As a result if, at the time of sovereignty, an aboriginal society had laws in relation to land, those laws would be relevant to establishing the occupation of lands which are the subject of a claim to aboriginal title. Relevant laws might include, but are not limited to, a land tenure system or laws governing land use’.
 The date of annexation of a territory by the British is the appropriate point of reference for the origin of native title because native title could not exist before the arrival of the common law in Australia. Lamer CJC in Delgamuukw (SCC) stated that (at 254): ‘[b]ecause it does not make sense to speak of a burden on the underlying title before that title existed, aboriginal title crystallized at the time sovereignty was asserted’ (emphasis added). Thus, it is occupation at the time of sovereignty that is the relevant ingredient in establishing native title.
 Note that ‘[p]resence would be insufficient to establish title if it was coincidental only or truly random, having no connection with or meaning in relation to a society’s economic, cultural or religious life’, according to Toohey J in Mabo (No 2) (at 188).
 This is Peter Sutton’s model of Aboriginal land tenure, which may or may not be a valid or universally applicable model, but is one that I support (Peter Sutton, Kinds of Rights in Country: The Incidents of Aboriginal Native Title (forthcoming)).
 This is of course the point of Peter Sutton’s publication Native Title and the Descent of Rights (1998), (distributed by the National Native Title Tribunal).
 Brennan J in Mabo (No 2) at 62.
 Beaumont and von Doussa JJ in Western Australia v Ward  FCA 191; (2000) 170 ALR 159 at para 96 and 106.
 Lamer CJC in Delgamuukw (SCC) at 241.
 Toohey J in Mabo (No 2) stated (at 189-90):
Thirdly, it was said in United States v Santa Fe Pacific Railroad Co:
If it were established as a fact that the land[s] in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted definable territory occupied exclusively by the Walapais (as distinguished from lands wandered over by many tribes), then the Walapais had ‘Indian title’. [Emphasis added by Toohey J.]
This principle of exclusive occupancy is justified in so far as it precludes indiscriminate ranging over land but it is difficult to see the basis of the rule if it precludes title merely on the ground that more than one group utilizes land. Either each smaller group could be said to have title, comprising the right to shared use of land in accordance with traditional use; or traditional title vests in the larger ‘society’ comprising all rightful occupiers. Moreover, since occupancy is a question of fact, the ‘society’ in occupation need not correspond to the most significant cultural group among the indigenous people. (Emphasis added).
This means that native title claims, at least on mainland Australia, will be made by the most significant cultural group related to a given area of land plus other holders of rights and interests in that land which are recognised by Aboriginal law and custom, or they will be made by a number of significant cultural ‘groups’ whose rights and interests in that land are recognised by Aboriginal law and custom. So the ‘community of native titleholders’ does not necessarily correspond to a named cultural group, and on mainland Australia probably will never completely correspond with one. Rather it is a common law definition, which encompasses that community of people who were in rightful occupation of the land at the time of annexation and that contemporary community of people who are now entitled to succeed to the native title of that ancestral community. The reader should note that there is debate in relation to this point, and that the interpretation set out here represents my views only.
 This is in accordance with the general common law rule that occupation gives rise to possession. It is my view that much of the law that underpins Kent McNeil’s ‘possessory title’ thesis actually applies to native title. Lamer CJC adopted this ‘rule’ into the Canadian law of native title in Delgamuukw (SCC):
At para 114: ‘...prior occupation, however, is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the physical fact of occupation, which derives from the common law principle that occupation is proof of possession in law: see Kent McNeil, Common Law Aboriginal Title’ (emphasis added); and
At para 145: ‘Under common law, the act of occupation or possession is sufficient to ground aboriginal title and it is not necessary to prove that the land was a distinctive or integral part of the aboriginal society before the arrival of Europeans’ (emphasis added); and
At para 149: ‘However the aboriginal perspective must be taken into account alongside the perspective of the common law. Professor McNeil has convincingly argued that at common law, the fact of physical occupation is proof of possession at law, which in turn will ground title to the land: Common Law Aboriginal Title’ (emphasis added).
 Depending upon its validity and whether it is a universally applicable model, Peter Sutton’s core and contingent model of Aboriginal land tenure explains the differential internal allocation of rights and interests under Aboriginal law and custom (see Peter Sutton, (forthcoming)Kinds of Rights in Country: The Incidents of Aboriginal Native Title).
 That is: ‘Native title has its origins in and is given its content by the traditional laws and customs acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’, (Brennan J in Mabo (No 2) at 58).
 There was disagreement in relation to this interpretation. The argument that the ‘community’ or ‘society’ of native titleholders is a legal conclusion is my interpretation of Toohey J’s judgment in Mabo (No 2), a view not shared by everyone at the seminar.
 ‘[T]raditional title vests in the larger ‘society’ comprising all of the rightful occupiers’, according to Toohey J in Mabo (No 2) at 190. ‘That the use of land was meaningful must be proved but it is to be understood from the point of view of the members of the society’, (Toohey J in Mabo (No 2) at 188). See also the passages from Lamer CJC’s judgment in Delgamuukw (SCC) extracted above n 2.
 This is equivalent to the reference in the Baker Lake test that the ‘organised society’ establish their native title to a ‘territory’ (see Mahoney J in Baker Lake at 557-8).