Amankwah, H A --- "Introduction: Whither Native Title?" [2002] JCULawRw 1; (2002/2003) 9 James Cook University Law Review 4

---

INTRODUCTION: WHITHER, NATIVE TITLE?

Dr H A Amankwah

It is trite learning that the Mabo decision was greeted with either euphoria or hysteria depending upon which view (indigenous or settler) of the effect of British assumption of sovereignty over Australia one entertained or held. The legislative response of the Keating Labor Government in the nature of the Native Title Act 1993 (Cth) was widely perceived as a responsible, equitable and stabilising move.

The Wik case of 1996 however was considered by the succession Howard Coalition Government as a swing of the pendulum of justice too far in favour of Indigenous Australians necessitating further corrective legislative measures, this time in the form of the Native Title Amendment Bill 1996 based on the so-called Ten Point Plan which was nothing short of a whittling down of native title interests and entitlements.

Since then, the promise of reconciliation between Indigenous and non- Indigenous Australians which the Mabo decision heralded seems to have been blown away by a glacial avalanche — a succession of cases based on native title claims. First, native title had been reduced from substantive interests in land to ‘a bundle of rights’ according to the interpretation the courts put on the definition of native title — Native Title Act section 223. The courts have attributed to the Act a codifying significance rather than Parliament’s intention to provide a regulatory scheme for the recognition of native title and claims appurtenant to native title. Second, a regime of partial extinguishment of native title has been inaugurated as a consequence of the courts’ interpretation of section 24MD(2)(c). Finally, the courts tell us that traditional laws and customs of Indigenous people which native title claimants assert and rely on must be stamped with the imprimatur or insignia of jural postulates, ‘a normative system’. Quaere: quo vadis jurisprudentia indigena?

In this collection of essays the learned authors attempt an analysis and examination of the current status of native title, a decade after the historic High Court decision in the Mabo case.

In these commemorative essays we retrace the Mabo journey from where it all began to where we are today in order to take a glimpse of what prospects the future holds for all concerned.

Justice K. Cullinane traces the historical background of the Mabo case and the vision that impelled the person whose name is eponymous with the case.

Ms Margaret Stephenson argues on the basis of the Canadian approach to Native Title and the new jurisprudence of the High Court on Native Title that perhaps there ought to be two regimes of Native Title – Statutory and common law.

Dr Ulla Secher and Associate Professor Alex Amankwah delve into the genesis of the Crown’s acquisition of beneficial interest in land in view of its over-arching radical title which is a concomitant of its acquisition of sovereignty on the eve of the colonisation of the Australian continent.

Both Mr Peter Poynton and Ms Diana Henriss-Anderssen take issue with the jurisprudence of the High Court in the Yorta-Yorta case. Is the decision based on the proper interpretation of the content of native title as formulated by the Court in Mabo? They question, can the Native Title Act 1993 (as amended) be legally regarded as a codification of the law on native title?

Ms Andrea Olsen demonstrates that if Native Title amounts to no more than a bundle of rights then local government planning schemes have serious extinguishment consequences for native title holders.

Professor Geoff Clark provides an overview of the negotiation process of the National Native Title Tribunal (NNTT) within the Native Title regime.

Finally, if there is anything at all left of Native Title, Adjunct Professor Greg McIntyre reviews the claims process.

Dr H A Amankwah Editor

---