Brennan, Gerard --- "Foreword" [2002] JCULawRw 2; (2002/2003) 9 James Cook University Law Review 6

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FOREWORD

Sir Gerard Brennan

The dispossession of indigenous Australians from their land can be traced back to the instructions given to Captain Arthur Phillip when he was appointed Governor in Chief over the Territory of New South Wales on 25 April 1787. King George III declared his –

“Will and Pleasure that you do immediately upon your landing after taking Measures for securing Yourself and the people who accompany you, as much as possible from any attacks or interruptions of the Natives of that Country, as well as for the preservation and safety of the Public Stores, proceed to the Cultivation of the land, distributing the Convicts for that purpose in such manner, and under such Inspectors or Overseers and under such Regulations as may appear to You to be necessary and best calculated for procuring Supplies of Grain and Ground Provisions”

His Majesty added, however, that –

“You are to endeavour by every possible means to open an Intercourse with the Natives and to conciliate their affections, enjoining all Our Subjects to live in amity and kindness with them…You will endeavour to procure an account of the Numbers inhabiting the Neighbourhood of the intended settlement and report your opinion to one of our Secretaries of State in what manner Our Intercourse with these people may be turned to the advantage of this country.”

So the interests of the original inhabitants were to be subordinated to the interests of the colonisers and the colonial power. It is not surprising that, from this beginning, there developed a belief that Aborigines possessed no legal rights which might be recognized and enforced by the imported legal system, even though it was clear that the establishing of the colony was to be achieved by dispossession of ‘the Natives’ and by the use of force, if need be, to repel them.

In time, the injustice of the dispossession was realised, brought home by writers such as the late Professor W.E.H. Stanner:

“No English words are good enough to give a sense of the links between an Aboriginal group and its homeland…. I have seen an Aboriginal embrace the earth he walked on… A different tradition leaves us tongueless and earless towards this other world of meaning and significance. When we took what we call ‘land’ we took what to them meant hearth, home, the source and locus of life, and everlastingness of spirit.” (Boyer Lectures “After the Dreaming” delivered in 1968 and reproduced in the book of his essay, White Man Got No Dreaming (1979) p 230.)

The relationship of indigenous Australians with their traditional country was one of the foundations of Sir Edward Woodward’s recommendations in his significant Report on Aboriginal Land Rights in 1975. That Report led to the enactment of the Aboriginal Land Rights (Northern Territory) Act 1976. The Act grafted native title onto the fee simple tenure of the common law. That device gave the security of the fee simple to successive generations of traditional Aborigines, but the fee simple and dependent native title waited on the making of a grant by the sovereign power. In Mabo (No 2) the High Court was required for the first time to determine the question whether native title is itself recognized by the common law. Earlier cases and judicial dicta had suggested a negative answer but the Courts’ examination of the legal bases for this view showed that the view rested on propositions that could no longer command support.

This change in legal thinking was but a first step in the jurisprudential exercise of accommodating native title within the framework of the common law. That task was to be worked out in the traditional common law way; that is to say, in a case by case resolution of issues thrown up by actual problems. And the methodology for developing the law would call for the “strict logic and high technique” which, as properly understood, was espoused by Sir Owen Dixon. That methodology requires an understanding of the values which underlie the principles of the law which, in turn, inform its particular rules. Legal scholarship and critical analysis of judgments was required.

This issue of the Journal of the Law School of James Cook University essays that important task. It is not merely a thematic issue, but a critical review of the steps taken in development of the law and an identification of the issues awaiting authoritative resolution. Scholarship is evident in the critical examination of the relevant judgments. That criticism has avoided, for the most part, the academically false approach of comparing the orders of the court with the result expected or hoped for by the critic. Rather the criticism has sought to discover whether a coherent body of principle is emerging. Justice Cullinane has placed the development of native title doctrine in its historical context, both pre – and post – Mabo. Diana Henriss-Anderssen and Peter Poynton have analysed the important Yorta Yorta case and M.A. Stephenson has compared the rights and interests of Australian holders of native title with the rights and interests of those who hold an indigenous title under the laws of Canada. Andrea Olsen raises the issue of the effect of planning legislation and planning orders on native title.

Then Associate Professor Amankwah and Dr Ulla Secher contribute a magnum opus. The effects of both common law and statute on the rights of the holders of native title – community title and individual title – are identified. The rights are various: mineral rights, food gathering rights, water rights. The capacity of various statutes and various kinds of executive action to extinguish native title is examined, and the cases which have construed the statutes relied on to effect extinguishment are analysed. The authors discuss the concepts relevant to the proprietary rights to land beneath offshore territorial waters and to land beneath inland waters. They examine the consequences for native title of statutes which authorise the resumption of land, including compulsory acquisitions by the Commonwealth. In the latter context, they question the meaning of the judgments delivered in the 1924 case The Commonwealth v New South Wales [1923] HCA 34; [1923-1924] 33 CLR 1, when considered in the light of the doctrine of native title accepted in Mabo. Finally, the authors review the complex provisions of the Native Title Amendment Act 1998 relating to the validation of non-native titles and the regime for future extinguishment of native title. Academics and practitioners who revisit these questions will find that the authors have been there already and offer shafts of illumination on many of the problems that are not already covered by settled law.

The journal would not be complete without some practical advice. Professor Geoff Clark takes the reader through the process of mediation of claims, alert to the legal structure, the cultural exigencies, the methodology of mediation, the operation of the Native Title Tribunal and the role of the Federal Court. All of this reminds us of the purpose in pursuing the theories and the intellectual challenges of native title. The pursuit is in order that, so far as practicable at this time, justice may be done to individuals – both natural and corporate – whose well-being depends on the interests they hold in the finite natural resources of our nation.

Hon Sir Gerard Brennan, A.C., K.B.E Chambers, Sydney December 2003

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