Shanahan, Christopher --- "Legislative Responses to Mabo: Rendering the Law Unconscious?" [1995] MurdochUeJlLaw 11; (1995) 2(1) Murdoch University Electronic Journal of Law

LEGISLATIVE RESPONSES TO MABO - RENDERING THE LAW UNCONSCIOUS?

Author:	Christopher Shanahan School of Law, Murdoch University
Issue:	Volume 2, Number 1 (April 1995)

The Australian High Court's decision in Mabo and Others-v-The State of Queensland (No2) [1] confirmed the Australian common law's recognition of native title to land.  The immediate post-Mabo political manoeuvring saw the enactment of Commonwealth and Western Australian legislation.  Both the Native Title Act 1993 (Cwlth) ["Federal Act"] and the Land (Titles and Traditional Usage) Act 1993 (WA) ["WA Act"] attempt to codify native title to land as recognised in Mabo. Both Governments maintain that their respective legislation reflects the High Court judgements.[2] The swiftness and the nature of these legislative responses, and the welter of High Court challenges which have followed their enactment, raise many questions central to the relationship between indigenous and non-indigenous Australians, including, amongst others, legal notions of sovereignty, constitutionality, property, justice and compensation. Academic writers have been quick to enter the fray seeking to clarify the meaning of Mabo , rationalise subsequent legislative enactments, and explain their practical effect.  In this context it is easy to dismiss yet another piece of Mabo scholarship.

The rationale for what follows is the belief that the essential pluralism of native title and the pluralism evident in the State and Federal notions of property and justice implicit in the legislative responses have yet to be teased out.  It is this multi-dimensional pluralism which evidences emergent confusion in the way in which Australian law mediates the relationship between individuals and the state.  The common law precedents cited in Mabo reveal the common law's long established capacity to recognise pluralism.  This is contrasted to the effect of the legislative responses to Mabo which seek to overcome the plurality implicit in legal recognition of indigenous interests in land thereby denying this tradition of plurality within Anglo-Australian legal culture, seeking to render it unconscious.

Increasingly the Australian legal system is asked to accommodate different conceptions of law both substantive and procedural.  This pressure moves from indigenous and migrant groups - should Aboriginal tribal law be used to effect criminal punishment, should infibulation be permitted?  Equally Anglo-Australian jurisprudence has been struggling with the nature of legal relationships, traditional liberal paradigms are confronted by the realism and utilitarianism inherent in attempts at constructed social solutions.  The struggle between traditional liberal prescriptions and more purposive modes of legal intervention has focussed primarily on whether relationships between citizens, and between citizens and the state, should be mediated by fundamental rights, common law processes or utilitarian legislation.

We can, therefore, speak of pluralism in at least two senses, as external - driven by legal notions developed outside Anglo-Australian legal culture, or as internal - arising from different conceptions of law and legality within Anglo-Australian legal culture.

Mabo and the legislative responses thereto demonstrate how internal and external pluralism can intersect and coalesce.  First the High Court, in its attempt to translate indigenous people's relationships with land into "rights and interests" known to the Australian common law, seeks to give legal recognition to relationships developed outside Anglo-Australian legal culture - external pluralism.  Second the differences between State and Commonwealth legislation describe an internal pluralism evidencing divergent notions of property and justice arising within Anglo-Australian legal culture and are derivative of competing conceptions of adjudication, law and legality.  The State legislative response evidencing an essential laissez-faire liberalism and the Federal Act preferring managed social outcomes.  Themes within the Federal Act manifesting brands of Benthamite utilitarianism, and realism.

The challenges evident in this emergent multi-dimensional pluralism are yet to be fully understood by the broader community, if not the legal profession.  What follows is an attempt to depict both types of pluralism, demonstrate their fundamental significance and illustrate how Mabo represents a confluence of pressures on the way in which Australians think about law.

This discussion commences with an account of external pluralism in Mabo.  It then turns to the internal pluralism inherent in the State and Commonwealth legislative responses.  The significance of such pluralism is then examined in the context of the acquisition of proprietary interests and notions of law and legality generally.

1.0 External Pluralism - The Mabo Decision

If we explore the deep seated disquiet which emerges whenever the primacy or integrity of a central social institution is questioned we begin to understand the initial hysteria surrounding the Mabo decision.  The High Court in Mabo consistently refused to characterise the "native title" recognised by the Australian common law as solely a right or an interest, rather the terms are used as two parts of a whole.  Native title may be either or both proprietary rights and/or interests depending on the nature of the native title itself.  Brennan J (with whom Mason CJ and McHugh J concurred) describes native title,

"...native title may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual ...".[3]

Here it seems Brennan J, Mason CJ and McHugh J are suggesting that native title may be something other than a proprietary right or interest.  This point is clarified by Brennan J's account of individual versus group links with the land as recognised by traditional and customary law, i.e.

"...The fact that individual members of the community, like the individual plaintiff Aboriginals in Milirrpum, enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title..."[4]

To Brennan J, Mabo deals with the protection of communal indigenous links to land by recognising them as a variety of proprietary right or interest regardless of the Anglo-Australian law's interpretation of individual links with land.

A declaration of native title, adopting Brennan J's approach, involves matching the individual or group's customary links to land with the appropriate right or interest known to the Australian common law.  These rights and interests because they concern relationships with land based on long user will invariably (as community entitlements) be proprietary in nature.  The nature and incidents of native title rest on a translation from indigenous to Anglo-Australian legal culture.

This translation whilst an example of external pluralism has the potential effect of homogenising the different links to land recognised by various indigenous groups - a simple example being the difference between Mer Islanders and Pitjantjatjara people.  An otherwise pluralistic range of relationships may be homogenised by the Australian law if the unique nature of each community's links with their land is not recognised. Indigenous peoples may well be wary of Mabo style translation of their traditional links as a potential form of assimilation.  Certainly the legislative responses to Mabo tend to deny such pluralism.  These links are reflective of indigenous tradition and custom and are therefore unique,

"...Native title though recognised by the common law, is not an institution of the common law and is not alienable by the common law.  Its alienability is dependent on the laws from which it is derived...".[5]

This encouraged Brennan J to repeat Viscount Haldane's warning in Amodu Tijani that:-

"... there is a tendency, operating at times unconsciously, to render [native] title conceptually in terms which are appropriate only to systems which have grown up under English law.  But this tendency has to be held in check closely.  As a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with..."

Native title is, therefore, something unique in each of its manifestations recognised by the common law but not of it - it can be of the nature of a proprietary right or interest, or a combination thereof.  Its nature depends, as a matter of fact, on the custom which creates it.  Recognition of such rights and interests in land is by reference to all the traditional ties of indigenous people with their land,

"The recognition of rights and interests of a sub-group or individual dependent on communal native title is not precluded by the absence of a communal law to determine a point in a contest between rival claimants. By custom such a point may ... be settled by community consensus".[6]

The High Court in Mabo was dominated by Brennan J's judgement because of the concurrence of Mason CJ and McHugh J (hereafter, "the principal judgement").  It is interesting to compare the principal judgement to those of Deane and Gaudron JJ, and Toohey J; and a dissenting opinion by Dawson J Deane and Gaudron JJ describe the external pluralism involved in declarations of common law native title:-   "... where the pre-existing native interest was 'of a kind unknown to English law', its recognition and protection under the law of a newly settled British Colony would require an adjustment either to the interest itself or of the common law: either a transformation of the interest into a kind known to the common law or a modification of the common law to accommodate the new kind of interest..."[7]

Their Honours identified three limitations on common law native title. First native title is inalienable except within the indigenous system of land management which creates it, or by surrender to the crown.  Secondly, they offered an account of native title as a purely personal right which does not "constitute a legal or beneficial estate or interest in the actual land".[8] Thirdly, because native title is merely,

"...a personal right unsupported by any prior actual or presumed Crown grant of any estate or interest in the land, ...[it] .... was susceptible of being extinguished by a an unqualified grant by the Crown of an estate in fee or some lesser estate which was inconsistent with the rights under the common law native title...".[9]

The characterisation of common law native title as "a personal right" presented some problems to Deane and Gaudron JJ because it did not gel with their rejection of the proposition that such "personal rights" could be described as a "mere permissive occupancy".[10] Their Honours suggest that this seeming contradiction is met by the observation that, "...The personal rights were not illusory: they could for example, be asserted by way of defence in both criminal and civil proceedings...".[11] This explanation, whilst appealing as a realistic account of the situation in colonial Britain during the eighteenth century, does not impress as an explanation of indigenous links with land which are communal rather than personal.

Whilst individuals may express their links with land as a personal relationship, there seems little doubt that as a group many indigenous peoples' links to their land may be characterised as a claim to control and possess the land.  Deane and Gaudron JJ cite, with approval, their Lordships in Amodu Tijani,

"... [communal native title is] ... prima facie based, not on such individual ownership as English law has made familiar, but on a communal usufructuary occupation, which may be so complete as to reduce any radical right in the Sovereign to one which only extends to comparatively limited rights of administrative interference..."[12]

The essence of external pluralism is that the common law cannot predict, with any certainty, the nature of the interest recognised as common law native title because it is derived from the indigenous relationships which create it.

We can observe, however, that the translation of indigenous Australian links with land has concentrated on the communal nature of these links. Further that these links have, at the communal level, represented a claim which might be characterised in similar terms to those considered in Amodu Tijani.  Toohey J, in his judgement, echoes the view expressed in the principal judgement when he recognises the difference between the existence of native title and its nature.  Again, he emphasises that once the existence of communal native title is established the common law protects it whatever its content,

"...The requirements of proof of traditional title are a function of the protection the title provides.  It is the fact of the presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights. Presence 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."[13]

The weight of opinion reflected in these judgements is balanced by Dawson J who dismissed the possibility of native title subsisting at common law because of the Crown's claim to occupy the whole of the colony as unoccupied land.  Any Aboriginal occupancy is "permissive only".  The ambiguity of the Mabo decision flowing from the different approaches taken by members of the High Court is reflected in Federal and State attempts to translate native title into a statutory interest known to Anglo-Australian law.

By their very nature links between indigenous people and land must vary from group to group, the range of possible relationships with land recognised by Mabo acknowledges an almost infinite pluralism.  Both State and Federal legislation attempt to remove or moderate the uncertainty created by this intrinsic pluralistism.  These attempts to negative uncertainty deny the essential pluralism of native title and ignore the flexibility of Anglo-Australian common law.  Any recognition of native title, because of its intrinsic pluralism, albeit based on common law or statute, must, by its nature, be imperfect.  It is the uniqueness and uncertainty of native title arising from its origin in another social setting which makes Viscount Haldane's warning in Amodu Tijani apposite.

The Federal Act seeks to avoid the problem created by the pluralism evident in native title by defining native title by reference to existing proprietary rights and interests - i.e. native title either takes precedence to an existing Anglo-Australian proprietary interest or it does not.  These comparative statements broadly define the nature of the statutory "native title" created by the Federal Act.  By structuring the Act in this way the Federal Government has limited, at its margins, the potential legal consequences of the High Court's recognition of the external pluralism inherent in communal native title.

Any statutory attempt to recognise native title must, if we heed Viscount Haldane, proceed by way of recognition of particular interests, thereby acknowledging indigenous links with land and their diversity whilst identifying them within broad generic terms.  The process of translating such relationships into rights and/or interests known to Anglo-Australian legal culture should mirror the nature of these indigenous relationships.

The very nature of native title, as defined by Mabo, requires the expression of indigenous people's relationship with land as common law rights and/or interests.  Such a process if allowed to operate in a legislative vacuum would entrench the uniqueness of indigenous culture within our Anglo-Australian common law - even though a painstaking and slow process.  This process would, over time, effect a metamorphosis of the common law making it increasingly Australian.  This process is denied by the existence of competing State and Federal Governments' legislative codes.  The denial of such common law processes, whatever the economic or practical rationale, denies an Australian jurisprudence self-consciously contingent and pluralistic.

2.0 Internal Pluralism - Rendering The Law Unconscious?

The legislative interests conferred by the Commonwealth and the State are different.  Unlike communal native title they are not the creature of the common law they are statutory interests.  Both Commonwealth and State Governments felt the need to legislate to "protect" native title and ensure "certainty".  This assumes that Mabo makes Anglo-Australian law uncertain.  In many ways, however, the charge of uncertainty is merely a realisation of the pluralism inherent in the traditional concept of communal native title.  There is nothing new about such uncertainty, cases dealing with the concept are as old as British colonisation.  In many ways communal native title is certain in that it legally recognises the diversity of human lives and the reality of communal links with land, whether economic, religious or cultural.

It seems that the uncertainty leading to the Commonwealth and State Governments' interest is motivated by concern as to how recognition of communal native title will meld, if at all, with existing schemes of land management.  This concern has arisen because of the failure of Australian colonial systems of land management to consciously acknowledge indigenous links with land.

The concern regarding existing systems of land management is overwhelmingly evident in the preamble to the Land (Titles and Traditional Usage) Bill 1993 (WA), the WA Act.

The preamble concentrates on the merits of a single scheme for the administration of land in Western Australia.[14] This object of the legislation differentiates its approach from the principal judgement of the Mabo High Court.  The High Court asserted and approved the intrinsic pluralism of communal native title - what I have described as an external pluralism.  The WA approach denies the common law antecedents of communal native title.

It is the external pluralism evident in the High Court's judgements which appears to have upset the administrative arrangements of government for land management.  The "unknowableness" of communal native title in the absence of specific investigation has raised the spectre of "hidden" or "sleeping" land claims.  It has also meant the recognition of inchoate rights/interests in land.  Inchoate in that the content of communal native title can only be discovered by inquiry.  The need for inquiry as to the content of such title and the imagined impact of these potential claims on existing title to land offers some explanation of the hysteria surrounding Mabo.  This is the antithesis of modern legal systems, the absence of universal rules - the need for contingent and particular consideration - disconcerting and expensive to both State and citizen.

The State and Federal statutory interests can only make the situation more predictable by denying the pluralism and contingency recognised in Mabo. It is argued that the motivation of both the State and Federal Governments' legislative response is to render the law unconscious by denying or limiting the pluralism described above.  Both schemes seek to limit the pluralism contemplated by the High Court quarantining its impact on existing schemes of land management.  They do so to greater and lesser extents by standardising the rights and/or interests flowing from "communal native title" either by replacing it altogether or by broadly defining it in terms of existing interests.  There are, of course, compelling economic arguments offered for this process.

3.0 The Broader Picture

Mabo evidences a broader concern within multicultural Australia regarding the value system to be implemented through our public institutions.  How do we resolve competing claims for land use and other resources, can we identify an overriding "public interest" which expresses the needs of our community?  Demographic changes to the Australian community post-settlement and a painstakingly slow recognition of indigent Australians has begged the question as to how Australian public life can accommodate different, and often competing, value systems - external pluralism?  Are there rights or interests which are so fundamental to our public life that they will resist the influence of new cultural mores, are there those will give way to new value systems?

These questions echo in the long running debate as to the nature of public life.  How can the interests of the community be ascertained, how do we discover or measure the greater "public good", "public interest"...etc? If we can identify and measure this value when should it prevail over individual interests?  It is this link between our sense of community (who is included) and how we ascertain the "public interest" (expressed in the process of mediating the relationship between individuals and the state) that makes Mabo a "lightening rod" in the contemporary debate regarding inclusion and the consequences of this debate for our existing Constitution...

4.0 Property - Perspectives

Before comparing the legislative responses to Mabo it is worth pausing and considering why pluralism of any sort is important.  Legal systems are always in a state of flux with different interests seeking a greater share of that held in common.  Surely internal and external pluralism, as have been described , are merely the "natural" parameters of legal change.

The importance of the types of pluralism discussed here is not only that they exist - but that pressure for change evident within them is growing and so overwhelming previously dominant legal values.  It is suggested that this movement is evident in both the State and Federal legislative responses.  First, it is evident in the State government's legislation as it seeks to restate traditional Anglo-Australian legal values and second, in the Federal legislation as it seeks to manage a more pluralistic outcome by the recognition of a contingent statutory interest in land.

One of the primary ways in which Anglo-Australian jurisprudence has mediated the relationship between individuals and the state is the institution of property.  We have seen in Milirrpum-v-Nabalco [15] that the concept of property applied narrowly can exclude indigent Australian's links with land albeit economic, religious or cultural.  Such an exclusion denies the Anglo-Australian law's capacity to recognise values underlying the "otherness" of divergent cultural influences.  Mabo recognises such a capacity and in doing so rediscovers the common law flexibility which is evident in the concept of native title itself and begs the question how far and how much?

The way in which the Federal and State Governments have interpreted the rights conferred by Mabo is vastly different.  The translation of prospective native title into rights and interests known to Anglo-Australian law results in substantially different outcomes.  Closer examination reveals the different value systems underlying State and Federal legislation.  What follows attempts to describe these different value systems and how they measure divergent concepts of property and justice - internal pluralism.

5.0 Internal Pluralism

The significance of internal pluralism is often shrouded by political partisanship.  A comparison between the State and Federal statutes demonstrates underlying differences in approaches to law making and interpretations of the relationship between individual and state.  These differences are complex and measure the comparative development of imported value systems in State and Federal public life.

5.1 The Land (Titles and Traditional Usage) Bill 1993 (WA)

The WA Act, unlike the Federal Act, rejects the notion that native title is analogous to a freehold interest.  Bill Hassell, President of the WA Liberal Party, has suggested that the purpose of the Act is,

"... to provide statutory recognition of Aboriginal traditional rights. It brings those rights within the legislative framework that applies to all rights and interests in land.  In future, traditional rights will flow from, and enjoy the protection of the legislation.... ".[16]

The discriminatory nature of the Land (Titles and Traditional Usage) Act 1993 (WA) flows from a notion of property which is inconsistent with that described in Mabo.  The High Court determined that common law native title is the recognition of particular indigenous interests in land which were then carefully given an analogous common law profile whether as rights, interests or usufructs.  Depending on the type of indigenous interest the common law representation of it could be analogous to a freehold, lease, licence or trust.

The pluralism inherent in different types of indigenous interests in land is not reflected in the WA Act which seeks to homogenise and overcome such interests by rendering them subject to all other private interests and government power.

The drive of the WA Act is to recognise an interest in relation to land which is subservient.  "Native title" is defined in section 3 as:-

"rights or entitlements of a kind recognised by the common law, being rights or entitlements.. (a) to the occupation or use of land;...(b) otherwise relating to land, exercisable by Aboriginal persons in accordance with Aboriginal tradition" [my underlining].

These rights or entitlements are converted into "rights of traditional usage".  Rights of traditional usage are based on use rather than possession or occupation.  Thereby stripping rights of traditional usage of the occupation associated with native title and contemplated by sub-s. 3(1).

Section 9 suggests that "rights of traditional usage" are to be determined by reference to Aboriginal traditions that continue to be observed by Aboriginal persons in relation to land, and such Aboriginal people as maintain their connection with the land according to custom.  These rights of traditional usage are inalienable but may be surrendered to the crown. Section 9 on its face appears consistent with Mabo.  This conclusion is vitiated by the way in which rights are linked to use.

Lockean liberalism teaches that proprietary right is based on the alienation of common property through the labour of the individual.  Where a person labours through use and occupation to utilise that which is held in common he or she inherits proprietary rights and absolute dominium to the derogation of the state.

The WA Act employs the notion of use whilst avoiding the logical conclusion of land ownership.  It does so by concentrating on those elements of native title which, when considered from an individual perspective, are analogous to personal rights within Anglo-Australian legal culture.  By characterising native title as a personal right, the Act characterises it as subservient to proprietary rights, the rights of "title holders".  This misunderstands the essentially communal claim of native title holders in the Australian context.  It enables the Act to divide the issue of ownership from that of prescriptive, or long, user.

In this sense the WA Act draws on another central element of liberal thought which elevates the contract as the primary instrument of community, the illusory compact between citizens which legitimates the state.  Section 9 appears to offer a similar description of the "licence-like" right of traditional usage.  Even the notion that rights in relation to land are derived from long term personal use sits more readily, within the common law tradition, with proprietary rather than personal right.  The idea of rights of traditional usage as a licence, a contractual rather than a proprietary interest, suggests that they are rights which unlike other covenants pertaining to land do not touch and concern, or run with, the land.  The removal of some permissive approval by the state will extinguish such interests.  It is in this way that the liberal paradigm of property as "institution guarding the troubled boundary between the individual citizen and the state" is utilised to protect existing property interests rather than recognise and declare those of indigenous peoples.[17]

The promise of derogation implicit in section 9 is realised in section 8 which subordinates such rights to those of "the holders of title", para.8(2)(b).  Rights of traditional usage cannot be exercised, contrary to, or in a manner inconsistent with - sub-s.8(2):-

        "(a) the provisions of the Act;....          (b) the rights of holders of title;...          (c) a notice issued to the Aboriginal group by the Minister under              sub-s.26(1), or          (d) a declaration of the Supreme Court under ss. 10,11 or 12(2)." This characterisation of traditional rights of usage as something sub-ordinate to "title" and analogous to a statutory contingent licence effectively destroys the capacity of the WA Act to reflect the principal judgement in Mabo.  The Act excludes an analogy between "rights of traditional usage" and freehold title because it excludes the common law's conferral of title by virtue of prescriptive occupation and possession. This is accomplished in the WA Act by a recognition of "indigent occupation" in the definition of "native title and then its exclusion from "rights of traditional usage".     The judgements of the High Court in Mabo demonstrate the reliance of Mason CJ, Brennan J, McHugh J, Deane and Gaudron JJ, and Toohey J on notions of title based on possession and occupation.  Mabo examined the basis for common law native title and found it to be broader than mere use.  To characterise the WA Act as giving effect to Mabo would require an interpretation of Mabo as not conferring proprietary rights or interests.  This is simply not the case.  Of the judges finding in favour of the existence of communal native title it is only in Deane and Gaudron JJ's judgement that the proprietary nature of communal native title is questioned.  Brennan, states,

"... native title, being recognised by the common law ... may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary, personal or usufructuary in nature ..."[18]

Deane and Gaudron JJ suggest that the right of indigenous people to common law native title is a personal rather than proprietary right.  Even though the interest of individuals within the group may be characterised as personal it seems that the claim of the group is to a use, occupation and enjoyment of land against the rest of the world and is, therefore, an interest analogous to a freehold title.  Such a group interest could not be protected as a personal right.  To this extent the principal judgement should be preferred.  This conclusion is supported by the judgement of Toohey J which describes a traditional title based on presence amounting to occupancy and that such occupancy may be based on a nomadic lifestyle.

The overwhelming majority of the High Court characterised native title as, at least, potentially, a proprietary interest.  This possibility is excluded from the WA Act.

The need to loosely identify the type of Anglo-Australian rights and interest which may be analogous to native title moves from the potential variety and complexity of indigenous links with land.  Mabo identified a range of links with land some of these may be analogous to personal rather than proprietary rights hence the characterisation of such interests as potentially analogous to a licence, for example, may not be without some foundation.  The difficulty with such a proposition is the communal claim which underwrites native title and which gives such apparently personal rights and interests a proprietary flavour.

The WA Act's exclusion of the possibility that Mabo contemplates some elements of native title as proprietary rights or interests is based on a misconception of Mabo; a pragmatic attempt to reclaim State power over land administration and the characterisation of indigenous interests as "use-values" rather than "exchange-values".  Communal native title is seen as contingent and use based rather than proprietary or exchange based, as something non-commercial.  The WA Act suggests a concept of property - in respect of indigenous links with land - more at home in the eighteenth century.  Even within such a paradigm the Act lacks coherence.

The underlying rationale for the State's legislative intervention appears to be the definition and protection of communal native title recognised by Mabo, laudable aims.  The need for the legislation moves from the common law's deficits, i.e. it will not provide such definition and protection, that legislation is a more reliable tool.  Certainly reliance on statutory interests has characterised the history of recognition of indigent land claims in Australia.[19]

The preamble to the WA Act states the reasons for the enactment under four heads:-

1.1 The people of Western Australia have always maintained that the Crown acquired both sole beneficial and legal possession upon "settlement" and that consequently all title is derived from the Crown;

1.2 In Mabo the High Court rejected the notion that the Crown was the absolute beneficial owner of all land upon the annexation of coastal islands to the Colony of Queensland;

1.3 The difference in these approaches created uncertainty as to the security and certainty of titles to land held of the Crown; and

1.4 If Aboriginal people in WA are entitled to rights in land not derived from the Crown "it is desirable" that those rights "be recognised by and derived from the written laws of Western Australia" to facilitate a "single system of land titles and management".[20]

The Act is an attempt by the WA Government to codify Mabo.  The codification to be effected whilst at the same time conferring "certainty" by uniting such "Mabo" rights and interests with existing proprietary rights and interests in one system of land management.  The success of the Government's attempts in this regard can be measured by comparing the rights and interests conferred by its legislation to those contemplated by Mabo and whether the legislative scheme is likely to provide a certain single system of land management.

The principle underlying the WA Act is that Aboriginal traditional rights to land were never analogous to freehold title and as contingent statutory rights, of a kind analogous to a licence, may be determined by proprietary interests or state power.  The other element of "rights to traditional usage" which problematises the legislation is the notion that use of such rights must be active and continuing, there is no notion of heritage or demographic change in such a concept of indigenous links with land.

Section 10 of the WA Act provides for the Supreme Court to decide to what extent Aboriginal people can still exercise "rights of traditional usage" over land.  Section 11 allows the Minister to specifically bring matters regarding capacity to exercise "rights of traditional usage" before the Supreme Court, either where a dispute has occurred or merely where he is of the opinion that "members of the Aboriginal group are not entitled to exercise ... [ rights of traditional usage] ... or are exercising those rights unlawfully...".  There is no provision which allows the Minister to intervene to protect "rights of traditional usage".[21]

Rights of traditional usage are subservient to the Minister's discretion to refer matters to the Supreme Court and existing title - including public access to beaches, foreshores, coastal waters, waterways, national parks, public reserves and similar areas - which takes precedence.[22] Section 17 has the effect of rendering the rest of the Act somewhat redundant.  It states that "rights to traditional usage" do not affect the application of general laws, being written laws or other laws as in force from time to time that apply generally to land or members of the public".

Section 17 appears to render "contentless" a "right of traditional usage" by conferring on the legislature the right to effectively extinguish it at any time by a general law without having regard to indigenous people, by way of consultation, or at all.

The effect of the WA Act is to characterise the "right to traditional usage" by reference to Mabo and then derogate from that "title" until it ceases to exist.  This derogation starts with the characterisation of the Mabo inspired statutory right as a right of usage and is complete with the subjection of such rights to any existing general law.  Where "rights to traditional usage" do subsist they are subject to any existing title and the arbitrary exercise of the power of the executive and the legislature.  If the Parliament wishes to vitiate any remaining "rights to traditional usage" it is within its power to do so without recourse to any court or tribunal.  Again, this characterisation of "native title" is at odds with the traditional role of property as the institution protecting the citizen from the state.[23]

The absence of protection for indigenous interests in this Act is at odds with Mr Hassell's suggestion that the Act will mean that "In future, traditional rights will flow from, and enjoy the protection of the legislation." Equally it suggests a continuing refusal to acknowledge the nature of indigenous links with land as equal to a title granted by the State.  Acknowledging such equality is integral to Brennan J's observation that, "refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies ...[is an]... unjust and discriminatory doctrine of ...[a]... kind can no longer be accepted."

The High Court challenges to the WA Act and its many amendments suggest that the object of certainty expressed in the Act's preamble is problematic.  The construction of "rights of traditional usage" in preference to a more robust adoption of the High Court decision indicates a cynical pragmatism or a lack of understanding of the Mabo decision. The only object of the Act which it accomplishes in any measure is the promise of a single system for land administration once its constitutionality and other aspects of its legality are satisfactorily established.

Section 5 of the WA Act removes any right to occupy, use or enjoy land by Aboriginal people to the extent that "rights to traditional usage" are inconsistent with existing titles granted by the Crown in right of WA after the commencement of the Racial Discrimination Act 1975 (Cwlth). The enactment of the Racial Discrimination Act ["RDA"] raises problems for the WA legislation.  It is the RDA which requires the WA Government to treat "impairment and extinguishment" between 1975 and commencement separately.  The provisions of the RDA dictate that extinguishment of native title can only be legally effected under the WA Act post-1975 where compensation on just terms is provided.  The WA Act must therefore in its process of conferring compensation offer a conception of justice, i.e. "just terms.  Extinguishment and compensation are entwined.

The only qualification to the apparent mass extinguishment of common law native title after 1975, effected by section 5, is the right to claim compensation under Part 4 of the WA Act by which compensation "may be claimed from the Crown:-

1.1 under s.28 for "the extinguishment or impairment of native title to land ... during the prescribed period".  The "prescribed period" is the period between 31 October 1975 and the commencement of Parts 2 and 3 of the WA Act, and

1.2 under section 29 for extinguishment of "rights of traditional usage".

Under sub-ss. 28(2), 28(3), 29(2) and 29(3) applications for compensation to the Minister may be made by the traditional owners or occupiers. However all claims for compensation must be made to the Minister under section 31 "within 12 months of the commencement of Parts 2 and 3". Section 31 states that such applications be in writing to the Minister. Section 32 provides the Minister to make regulations dealing with such applications.  These regulations may affect the applicants right to natural justice, s.27(1), regulations which affect such rights have primacy over other written laws - s.27(2).

The provisions of s.33 require that the Minister take an active role in applications for compensation under the WA Act seeking to isolate the issues between the parties and resolve them by agreement.  Effectively the executive role of the Minister assumes a judicial function in this regard. Whilst there is provision for the referral of issues to the Supreme Court under s.34 failing agreement under the s.33 process, the early involvement of the Minister allows substantial informal pressure to be put on claimants.

The process under s.34 when compared to the informality of the proposed Commonwealth National Native Title Tribunal suggests a more legalistic approach.  This is reflected in the principles to be applied in the determination of compensation by the Minister or Supreme Court under s.38. In their article, "The WA Land (Titles and Traditional Usage) Act 1993 Content, Conflicts and Challenges", Wilkie and Meyers offer an account of the partiality of the principles by which the Minister is required to decide applications for compensation.[24] Specifically the analogy between compensation for extinguishment and compensation under the Public Works Act 1902 (WA) denies the pluralism recognised by Mabo.  It does so by making no allowance for the traditions and customs of indigenous claimants.

The compensation process is based on executive management.  Where judicial review is available it is formal and constrained by the terms of the legislation which impose mandatory criteria.  The nature of the process is somewhat paradoxical in that it relies on the formality of the Supreme Court as a tribunal of last resort but promotes the relatively ad hoc role of the Minister as the primary resolution mechanism.  The confusion and tension in this model mirrors the commercial motivation for various elements of the compensation provisions and the WA Act's reliance on a procedural rather than substantive notion of justice.

By procedural notion of justice I refer to the assumption that any claimants dealt with according to the WA Act will have received "just" compensation as a result of equal application of the Act's provisions. There is no provision for questioning the adequacy or fairness of this process.  Any regulations made by the Minister may vary the application of the rules of natural justice - there is no escape from the limitations imposed by the nugatory and inappropriate analogy of compensation to indigenous claimants with resumption under the Public Works Act.

The principles set out in section 38 of the WA Act appear to be admonishing judicial approaches to compensation in that they seek to impose a commercial standard which the courts would otherwise ignore, e.g.

"...regard is to be had primarily to what constitutes fair compensation for actual loss of or interference with the entitlement..".[25]

This commercial approach to compensation is at odds with the reduction of indigent interests in land to use rather than exchange value.  Why is the word "actual" required in this provision it is redundant in a purely legal sense.  Is the draftsperson offering the courts another "actuality" or reality, i.e. a commercial value system?  In this sense there is a tension between the non-commercial "right of traditional usage" and the commercial approach to extinguishment.  It is stated in a compensation principle that no regard is to be had to the intended use of the land after extinguishment.  This frames the tension nicely, the "right of traditional usage" has traditional use value only and is quarantined from the potential commercial use of the land but the rationale for the Act is to promote commercial certainty and preserve Aboriginal interests.  This tension appears to distil the essential substantive inequities in the WA Act.

It is interesting to compare the notion implicit in the Public Works Act that compensation be linked to the value of the land whereas under the WA Act it is, "the actual loss of or interference with the entitlement" which is to be compensated.  This emphasises the compensibility of use- value of "rights of traditional usage" to indigent people, rather than the commercial value of their land, not as commercial replacement cost but suggests a quantification of cultural practices as compared to proprietary rights or interests described by the High Court.  The non-commercial or non-market nature of the "right of traditional usage" is further reflected in the concept that it can be bartered for by "payment in kind".

5.2 The Native Title Act 1993 (Cwlth)

Many of the assumptions underlying the State and Commonwealth Acts are demonstrably different and yet at same time the Acts present a shared conception of government's role as a purveyor of certainty through legislative solutions to social issues.  The differences demonstrate the reliance of the Commonwealth on a notion of property which imagines indigenous legal value as analogous to a freehold right.  This analogy demonstrates both a fundamental difference and similarity between the two schemes.  Both seek to homogenise native title but they choose different ends of the spectrum of analogous common law rights and interests - licences at one end and freehold at the other, contract to property - as the paradigm for native title as recognised by Mabo.

The provisions of the Native Title Act 1993 (Cwlth) ["Federal Act"] demonstrate this point.  Section 21 provides for native title owners to impose conditions by agreement on future acts (land use).  Section 235 defines "permissible future acts" in terms that only permit future acts which:-

apply to native title holders in the same way that they would have applied had the native title holders held "ordinary title to land", and

do not put the native title holders in a more disadvantageous position at law than they would have been had they held "ordinary titles".

This test also appears in relation to the right of native title holders to compensation for category C and D past acts - sub-s.17(2) discussed below. This distinguishes the Federal Act from the State legislation in that it envisages native title holders as holding an interest analogous to a freehold estate.  This analogy determines not only the substantive nature of a native title holder's entitlement but also frames applicable procedure.[26]

The recognition of an exchange value by the Commonwealth, implicit in an analogy with freehold title, may be compared to the State's recognition of a use-value implicit in a contingent statutory licence.  Equally compensation which is based on "entitlement" and "negotiation", the federal scheme, envisages a concern with actual social outcomes whereas the notion of compensation implicit in the State Act is concerned more with the equal application of a procedure, whatever that procedure's flaws.  Regulations made under the WA Act may provide for the manner in which the rules of natural justice are to be applied and thereby effect a claimant's access to natural justice.

The preamble to the Federal Act reflects the - external - pluralism evident in the High Court's decision by recognising that the Mabo decision speaks of the "entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs".  The Federal Act recognises native title and gives Mabo statutory force - section 12. The recognition of Mabo is subject to the terms of the Federal Act - native title as recognised by Mabo is given statutory force except where extinguished by that Act.[27] The Act then extinguishes native title in respect to some existing Anglo-Australian interests in land whilst preserving it against others.  These broad definitions limit the potential plurality of statutory interests under the Federal Act.

It is argued by the Federal Government that the differentiated primacy of native title rests on the nature of the different existing interests and the competing land uses they describe.  Put differently, native title is not extinguished by mining leases because they can subsist together whereas a pastoral lease ...etc are a competing land use, and as a category A past act, extinguish native title.  It is hard to accept this argument.  There seems to be no reason why leases of all types commercial, residential, agricultural and pastoral could not subsist with native title in the same way contemplated by the Act with regard to mining lease.  The reversion expectant, i.e. the reversion of the freehold estate to the native title holders at the end of the lease, preserves native title over the land.  This is the same rationale used where joint tenants in fee simple recover their joint tenancy at the end of a lease granted over the co-owned land.  The Federal Act, like the WA Act, makes a connection between validation, extinguishment and compensation.  Section 14 validates past acts by the Commonwealth.  A past act "affecting land and water" is defined in sub-s.228(2) as an act before 1 July 1993 consisting of the making, amendment or repeal of legislation or any other acts before 1 January 1994 which, apart from the Federal Act, were invalid because of the existence of native title.  The Act protects native title from conflicting legislation after 1 July 1993 and conflicting acts after 1 January 1994.

Generally the Federal Act allows claimants to seek compensation for past and future acts, compensible acts being acts which affect native title. The central thrust of the Act is the creation of a process to determine where native title subsists.  The importance of this procedure is that it provides a specific account of the native title in a particular case, thus providing an opportunity to preserve the contingency and plurality of different claimants links with their land.  No doubt the process of administering the Act and the need for "certainty" will operate against this opportunity as persons - non-claimants - affected by the legislation seek to determine probable outcomes.

The capacity of the law to reflect the pluralism inherent in different relationships with land rests on the effectiveness of the procedure used to determine native title.  The preamble to the Federal Act describes the need,

"...A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character...".

Section 13 provides for applications to be made to a Native Title Registrar.  The applications to be made under Part 3 of the Act include applications for a determination of native title, revision of an existing determination of native title and an application for compensation under sub-s.50(2).

Section 107 establishes a National Native Title Tribunal ("NNTT") and its constitution and procedures are set out in Part 6.  The establishment of a NNTT is intended to work in lieu of the creation of State and Territory arbitral bodies whose structure and procedure are consistent with the terms of the Federal Act.  The arbitral body to hear an application will be a "recognised State/Territory body" under sub-s.27(1) and if such a body does not exist it will be the NNTT.  Exceptions include where the matter concerns a Commonwealth place or is outside the jurisdictional limits of the State or Territory of the State or Territorial government which has created the "recognised arbitral body".  The process whereby compensation is paid rests on a determination of native title.

The Federal Act encourages the States and Territories to participate in the Commonwealth scheme by providing a scheme whereby the State of Territory can enact sympathetic legislation to the Commonwealth Act under s.19 and thereby validate State or Territorian Government's past acts.

The Federal Act defines past acts in four categories, categories A-D. Category A past acts concern grants of freehold estates and certain leases - commercial, agricultural, pastoral or residential - granted before 1 January 1994 where those grants are not by the Crown, to the Crown, or, for the benefit of indigenous peoples;[28] category B past acts concern leases not being category A past acts nor mining leases being a grant made before 1 January 1994;[29] category C past acts concern mining leases, and category D any past acts not covered by categories A-C.

The Federal Act is organised to differentiate between types of interests reflecting the pragmatism evident in its drafting.  These distinctions make the Federal Act a tortuous piece of legislation with its specificity as to the nature of the right or interest, the date it was granted or created, and the identity of the grantor and grantee.  This specificity moves from the commercial interests of particular lobby groups rather than the pluralism inherent in different indigenous claims to land.  It also reflects the perception that certain interests may be able to subsist simultaneously.  The capacity of such interests to subsist will only be established over time.

Section 15 indicates that if an act attributable to the Commonwealth is a category A past act then native title is extinguished.  A category B past act which is wholly or partly inconsistent with native title extinguishes native title to the extent of the inconsistency.  The non-extinguishment principle applies to categories C and D.  The non-extinguishment principle is set out at s.238 and basically preserves the native title affected by category C and D past acts but allows the category C or D act after the completion of which native title continues to have full force, no extinguishment occurs.

The impact of this regime is that a pastoral lease, being a category A past act, i.e. granted prior to 1 January 1994 extinguishes native title as would a similar residential, commercial or agricultural lease.  However a mining lease, being a category C past act, granted prior to 1 January 1994, subsists with the rights and or interests of the native title holders.

Whilst native title holders do not have a veto over land use they are given a right of negotiation under Part 2, Division 2, Sub-Division B. Section 26 sets out the acts which confer such a right, essentially any acts relating to the grant of a mining lease or compulsory acquisition of an area over which native title subsists.  This right to negotiation acts as a fetter on land use proposals.  If negotiation does not deliver agreement there is a secondary process whereby the arbitral body, albeit State of Federal - decides the issues in dispute having regard to statutory criteria.[30] These criteria include the wishes, way of life culture and traditions of claimants, significant sites, environment, the economic interest in the land use proposal and the public interest.  These processes operate within strict time limits.  The decision of the arbitral body is not necessarily final both State and Federal Ministers have the right to overrule it under s.42 in the State or national interest respectively.[31]

The Federal Act provides that native title holders are entitled to compensation upon extinguishment pursuant to category A and B acts. Sub-section 17(2) provides for compensation where the past act is a category C or D act and therefore subject to the non-extinguishment principle.  Again it is interesting to note that the provision of compensation in relation to on-shore category C or D past acts that the pivotal qualification is whether the past act could validly have been done had the native title holders been the holders of an "ordinary title".

Future acts are defined in sub-s.233(1) as acts which are not past acts, and which affect native title.  Some future acts are prohibited as "impermissible future acts.  Section 236 defines such acts in the negative, i.e. any act which is not a "permissible future act". Permissible future acts are extensively defined in s.235.  Again permissibility is linked to non-discrimination by the invocation of the test that future permissible acts be acts which apply equally to native and "ordinary" title.

6.0 Consciousness Of Pluralism - Creeping Constitutionality

The Federal Act seemingly demonstrates an awareness of pluralism.  This pluralism moves from the recognition of native title as analogous to "ordinary title".  The expression "ordinary" and the title of the Act itself, "Native" Title Act, evidence an underlying resistance to the pluralism recognised by the High Court.  Observers may well speculate that the use of freehold title as an analogy for native title moves more from the provisions of the Racial Discrimination Act 1975 (Cwlth) ["RDA"] that an emergent pluralism.  In response it may be noted that the RDA itself demonstrates an emergent liberalism which in some of its manifestations facilitates and acknowledges pluralism in Australian society.

The anti-discrimination and equal opportunity legislation at both State and Federal levels suggest a changing approach to Australian federalism. These pieces of legislation dealing with specific equity issues are slowly realigning the relationship between individuals, and the individual and the state, within Australia's constitutional settlement.  The Mabo legislation can be seen as part of this process.  No longer can constitutional law be taught, if it ever could, without regard to the myriad of Commonwealth-State administrative arrangements and this genre of equity legislation.  This domestic realignment is exacerbated and emphasised by the domestic application of international treaty and convention obligations under the external affairs power of the Federal Government.  External pluralism is an expanding source of domestic regulation.

Implicit in the pragmatism of cooperative federalism and the recognition of "equity" rights is the difficulty of reconciling cultural plurality within a national framework.  More and more often we will see the issue of what is "Australia" and who are "Australians" problematised by the tension within existing legal culture and its need to accommodate new approaches to law and the relationship between individuals and the State.

The flexibility and informality of the Federal Act suggest an approach to rights and interests in land based on entitlement assessed against "public interest" criteria.  Also that such an assessment demands a level of particularity, i.e. inquiry.  The public interest criteria include the interests of the claimants, economics, the environment and broad community interests.  However, the construction of such "public interest" criteria appears to be largely pragmatic.

Such public interest criteria as a brake on public power could provide a threshold test of validity, or expressed at another level, "constitutionality".  In this sense they can operate as a mobile manifestation of Australia's constitutional settlement, they dictate social outcomes and they do so with the capacity to take account of the specificity of particular interests.  The legitimacy of such criteria, however, rests on the process by which they are constructed.

In this sense the value system employed in the Federal Act is far removed from a conception of property as absolute or indefeasible.  The nature of native title is not unique it has many counterparts in the area of communication, copyright, social security... etc.  Governments increasingly seek to impose legislative regimes for the distribution of entitlements to wealth against value systems established by independent tribunals (which include industry and interest groups members).  They invariably include escape clauses whereby the Minister may make over-riding determinations in the "public interest".  Such contingent value systems are applied in specific cases against criteria raised by Government.  These "mediations" seem a far cry from the overarching value system of the common law.

The State Act relies on the legalism implicit in the equal application of its tailor-made procedure for extinguishment and compensation.  It lacks the particularity - the capacity to inquire as a matter of course - of the Federal scheme.  It echoes the pragmatism of the Federal legislation but lacks theoretical coherence it its attempts to deny the substance of native title interests. This incoherence is evident even within traditional liberal notions of property and justice.  Explanations for such legislation ring hollow when they are measured against the apparent discriminatory impact of the WA Act's characterisation of native title, its apparent commercial pragmatism and the ensuing politics of exclusion. The application of "commercial reality" to the compensation process but the denial of exchange value and the significance of indigent occupation evidence some of the WA Act's difficulties.

The sophistication of legislative schemes which seek to distribute wealth through a process of particular and contingent inquiry into individual circumstances married with an open and developing concept of "public interest" provide a mechanism whereby pluralism may be accommodated and past exclusion remedied.  The efficacy of such legislative mechanisms rests on the process by which "public interest" values are identified. Unless such values move from the community, whether through broad based Tribunals or political action, schemes for the distribution of wealth, such as native title, will continue to be criticised as pragmatic exercises in political power.

In a polity born of Anglo-Australian liberalism the only surprising element in the process of constitutional change to which I have referred is that it has taken Australians two hundered years to self-consciously engage the fundamental difficulty of distilling a "public interest" (especially to give it legal form) in the face of cultural diversity.  The Mabo case and its aftermath have challenged Australians to redefine themselves or fragment.  No longer can they remain "comfortably unconscious."

NOTES                                

  Lecturer - Murdoch University, and practising barrister - WA Bar Chambers.

1. Mabo and Others-v-The State of Queensland (No2) [1992] HCA 23; (1992) 107 ALR 1, ["Mabo"].

2. Ms Crawford (Forde) Hansard House of Representatives, Thursday 25 November 1993,p.3748; Legislative Assembly, Wednesday 17 November 1993, p.7278 and an independent Dr Constable, (Floreat) Hansard WA Legislative Assembly, Wednesday 17 November 1993, p.7247.

3. Mabo, Brennan J.(with whom Mason C.J. and McHugh J. concurred) p.44, my italics.

4. Ibid, Brennan J., p.36.

5. Ibid, p.42.

6. Ibid, p.45.

7. Ibid, Deane and Gaudron JJ.. p 65.

8. Ibid, Deane and Gaudron JJ., p.66.

9. Ibid, p.67.

10. Ibid, p.69.

11. Ibid, p.71.

12. Ibid, p.69.

13. Ibid, Toohey J., p.147.

14. See paragraph 4, preamble to the WA Act.

15. Milirrpum-v-Nabalco (1971) 17 FLR 141.

16. Western Australian, "News Extra", November 11, 1993, p. 11.

17. Reich, C.A., "The New Property" (1964) 74 Yale Law Journal 733

18. Mabo, Brennan at p. 44.

19. Aboriginal Land Rights Act 1975 (Cwlth); Aboriginal Land (Lake Condah and Framlingham Forrest) Act 1987 (Cwlth); Pitjantjatjara Land Rights Act 1981 (SA); Aboriginal Land Rights Act 1983 (NSW); Maralinga Tjarutja Land Rights Act 1984 (SA); to some extent the Aboriginal Affairs Planning Act 1972 (WA), and the Aboriginal Lands Act 1970 (Vic).  Legislation is currently before the Queensland Parliament.

20. The unfortunate reference in point 1 to "the people of Western Australia" seems to exclude at least Aboriginal people.

21. Ibid, section 21

22. Ibid, section 21.

23. Reich, C.A., "The New Property" (1964) 74 Yale Law Journal 733

24. Wilkie, M., and G. Meyers, "The WA Land (Titles and Traditional Usage) Act 1993 Content, Conflicts and Challenges" [1994] UWALawRw 4; (1994) 24 UWALR 31.

25. my italics.

26. Native Title Act, subsection 23(6).

27. Ibid, section 11.

28. Some latter grants of freehold estates and leases are also Category A past acts where they come within subsection 228 (3) - options, - or (9) - extensions of earlier acts, of the Native Title Act.

29. Some latter grants of leases are also Category B past acts where they come within subsection 228 (3) or (9) of the Native Title Act.

30.    Native Title Act, section 39.

31.    ibid, section 42.