Compromised Jurisprudence: Native Title Cases Since Mabo - Softcover

Strelein, Lisa

Softcover

ISBN 10: 0855756632 ISBN 13: 9780855756635

Publisher: Aboriginal Studies Press, 2009

Synopsis

The effects of the evolution of native title on Australian jurisprudence are carefully examined in this updated chronicle that covers everything from the original decision Mabo v Queensland [No.2] to the significant High Court cases in 2002 and the recent Bennell decision in 2008. This remarkably accessible exploration provides critical analysis of 10 significant cases, a time line that maps the trajectory of key doctrines, and identification of the underlying themes and contradictions in the law. Containing an updated, annotated case list and a revised introduction and conclusion that comment on recent developments, this new edition of a unique critique will be infinitely useful to scholars, students, legal practitioners, the judiciary, and policy makers, among others.

About this title

About the Author

Lisa Strelein is the director of research and manager of the Native Title Research Unit at AIATSIS, Australia’s leading native title research center.

Excerpt. © Reprinted by permission. All rights reserved.

Compromised Jurisrudence

Native Title Cases Since Mabo

By Lisa Strelein

Aboriginal Studies Press

Copyright © 2009 Lisa Strelein
All rights reserved.

ISBN: 978-0-85575-663-5

Contents

Preface, 
Acknowledgments, 
Introduction, 
1. Recognising native title in Australian law: Mabo v Queensland [No. 2], 
2. Coexistence and necessary inconsistency: Wik Peoples v Queensland, 
3. The vulnerability of native title: Fejo v Northern Territory, 
4. Property and Crown ownership: Yanner v Eaton, 
5. Native title offshore: Commonwealth v Yarmirr, 
6. Redefining extinguishment: Western Australia v Ward, 
7. Proof of a native title society: Yorta Yorta v Victoria, 
8. Rules of interpretation: Griffiths v Minister for Lands, Planning and Environment, 
9. Implementing the High Court's jurisprudence: De Rose v South Australia No. 2], 
10. Continuity and change: Bodney v Bennell, 
11. The development of native title jurisprudence, 
12. The jurisprudence of native title: 'Recognition' and 'protection', 
Notes, 
Annotated case list, 
Bibliography, 
Index, 

CHAPTER 1

Recognising native title in Australian law

Mabo v Queensland [No. 2]

HIGH COURT OF AUSTRALIA, 1992

In May 1982, five Murray Islanders initiated an action against the government of Queensland seeking declarations of rights to the use and enjoyment of traditional land that had been continuously occupied by the Meriam people before and since the annexation by the defendant government. To the surprise of many, the High Court decided in favour of the plaintiffs. The order contained a declaration to the effect that, apart from any inconsistent grants, the Meriam people are entitled 'as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands', subject to the power of the state government to extinguish the title by valid exercise of legislative or executive powers. Without denying its importance to the Meriam people, the greatest impact lay not in the order itself but, rather, in the context of the judgment. Each judgment considered the action in wider terms than would normally be sufficient to determine the case at hand. The principles enunciated in the judgments provided the basis for development of the law applicable to native title.

The High Court reviewed the cases decided in this and other jurisdictions, prior to and since the decision by Justice Blackburn in Milirrpum v Nabalco Pty Ltd, on the effect of colonisation. In view of these decisions, and in spite of many of them, the Court was prepared to reject longstanding assumptions of colonial legal theory. The standards adopted at the time of acquiring sovereignty were seen to be no longer appropriate for a rule of common law. In the lead judgment, Justice Brennan said that there was a 'choice of legal principle to be made', noting that:

it is imperative in today's world that the common law should neither be or be seen to be frozen in an age of racial discrimination ... The fiction by which the rights and interests of indigenous inhabitants in land were treated as nonexistent was justified by a policy which has no place in the contemporary law of this country.

Before Justice Brennan was prepared to enter into a review of previous authority, he was concerned not to 'fracture the skeleton of legal principle which gives the body of our law its shape and internal consistency'. Justice Brennan concluded that no such fracturing of legal principle occurred in bringing the law of Australia into line with notions of justice and human rights. Although the theoretical basis of the law was not destroyed, the practical implications were yet to be understood. There was an inherent inconsistency between the new doctrine and the principles upon which Australia's land law had been based, which, no doubt, would give rise to complicated and intricate reconsideration of Australian property regimes.

THE CONSEQUENCES OF SETTLEMENT

The central question to be determined in Mabo v Queensland [No. 2] (Mabo) was whether, on acquiring sovereignty, the Crown became owner of all of the land or whether the Crown's title was burdened by any prior title. The Court was not prepared to question the status of Australia as a 'settled' country, but it was prepared to examine the consequences of settlement and the way in which the common law was received into the territory. The Court in Mabo accepted that the settlers brought the common law with them in accordance with the settlement doctrine, but 'only so much of it ... as was "reasonably applicable to the circumstances of the Colony"'. The Court, in determining the content of the body of law received in the colony, reconsidered some of the conclusions that had earlier been drawn from the settlement thesis, in particular, the idea that the acquisition of sovereignty over territory automatically gave absolute beneficial ownership of land to the Crown. On the principle that 'ownership could not be acquired by occupying land that was already occupied by another', the way was clear of 'fictional impediments' to the recognition of Indigenous rights and interests in colonial land. Thus, the Court rejected the assertion that sovereignty invariably carries with it the beneficial title to all the lands of the territory, and determined that the pre-existing rights of the Indigenous peoples survived the acquisition of sovereignty.

ESTABLISHING TITLE

In a joint judgment, Justices Deane and Gaudron described common law native title as a title derived from and conforming to traditional custom but recognised and protected by the common law. As such, Justice Brennan explained, legislative or executive recognition by the sovereign is not required, and thereby, '[n]ative title, though recognised by the common law is not an institution of the common law'. According to Justice Brennan (and much like his colleagues):

Native title has its origins in and is given its content by the traditional customs observed by the Indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.

The Court in Mabo was concerned that native title be a heterogeneous concept that reflects the diversity of Indigenous peoples' law and custom. Justices Deane and Gaudron, commenting on the accommodation of the idea of native title within Australian law, suggested that:

Obviously, where the pre-existing native title 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 of the interests into a kind known to the common law or a modification of the common law to accommodate the new kind of interest.

They concluded that the common law was capable of this accommodation.

In order to assert title, Justice Brennan explained that a group of Indigenous inhabitants must show a connection with the relevant land that is maintained through continued acknowledgment of the laws and the customs of the group. Justices Deane and Gaudron referred to:

an established entitlement of an identified community, group or (rarely) an individual to the occupation or use of particular land and that that entitlement be of sufficient significance to establish a locally recognised special relationship between the particular community, group or individual and that land.

On this construction, the majority argued that it was not necessary to superimpose a regime of property rights that were approximate to those known to English common law and that to do so defeated the purpose of protection and recognition. The connection with the land in accordance with traditional law and custom is the source of the title. Any difficulty that arose from this characterisation could not justify non-recognition. For this reason, native title was described as sui generis, or unique in law, because it reflects the rights of Indigenous people under their own legal system.

The laws and customs are therefore considered to be a matter of fact, and their idiosyncratic details were considered irrelevant to the proof of native title. Justice Toohey argued that it should be proof of a presence amounting to occupancy, which is not random or coincidental, that forms 'the foundation of the title and which attracts protection, and it is that which must be proved to establish title'. The nature of occupancy should be determined by 'the demands of the land and society in question'. Like Justices Deane and Gaudron, Justice Toohey held that there is therefore no separate requirement to prove the kind of society, only to prove that its presence is part of a functioning system. Importantly, Justice Brennan (with whom Chief Justice Mason and Justice McHugh agreed) did not require that the connection include some kind of physical presence, recognising that the spiritual connection of Indigenous peoples to the land may also constitute proof of continued connection.

For Justices Deane and Gaudron, proof of occupancy was likely to provide adequate proof of the continued connection to land and the continued operation of law and custom. The two judges did not expressly separate physical presence (as proof of title) and law and custom (as the content of title). Nor did they overstate or over-prescribe the kind of evidence required. This formulation allows for circumstances in which proof of occupancy may not be the appropriate standard of proof, particularly where physical connection has been affected by the grant of other interests or the actions of others. In the result, a continuous chain of occupation is not required where there is acknowledgment of connection through law and custom.

The requirements of proof set forth in the substantive judgments of the majority can be summarised thus:

• existence of an identifiable community or group;

• traditional connection with or occupation of the land under the laws and customs of the group; and

• the substantial maintenance of the connection.

Justice Toohey most clearly expressed the qualification that, while the connection with the land must be shown to be significant, it would not be necessary to prove an exclusive relationship. The judges contemplated a range, or continuum, of native title from a kind of title that approaches full ownership to a lesser interest that recognises limited rights to hunt or traverse the land.

In many parts of Australia, the failure of governments to satisfactorily recognise Indigenous rights to land has led to reliance by Indigenous peoples on the spiritual relationship with the land in order to assert any control over the use of that land, primarily through heritage legislation. There is no comparable experience elsewhere, with North American jurisprudence having emphasised traditional occupancy of the land, often recognised in treaties or through doctrines dating back to early contact. Under the formulation put forward by the High Court in Mabo, physical presence is not the sole consideration or a condition precedent to establishing title. An arguable case can be put forward by Indigenous people who have been dispossessed or excluded from their land but maintain a connection in some other way.

Generally, native title will contain communal rights for the use and enjoyment of the group but Justices Deane and Gaudron did not rule out the 'rare' possibility of an identified individual entitled to occupation and use of a particular land where the other requirements are satisfied. At base, those entitled to use and enjoyment under those rights are to be ascertained from the traditional laws and customs. Similarly, there was no allusion to biological determinants of ancestry in defining the membership of the group. This was consistent with the idea that the native title is founded in the laws and customs of the group, including laws and customs in relation to membership.

In the United States, the courts have attempted to identify groups by common social, cultural or political elements. Canadian authority has developed a similar criteria: a 'distinctive cultural entity', or an 'organised society'. In the Inuit claim in Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development, Justice Mahoney required that the claimants prove that 'they and their ancestors were members of an organised society'. It was acknowledged that the relevant groups were not necessarily a particular anthropological construction such as a clan or tribe; rather, they were geographic groups that showed a commonality in culture and language. Similarly, Indigenous peoples in Australia organise on different levels for different purposes, from clan estates through to large cultural and linguistic groupings. The group that may be appropriate to hold a communal title, it was presumed, may vary across the continent.

In order for native title to be recognised under the common law as a burden on the radical title of the Crown, the connection with the land must be a pre-existing relationship, persisting at the time that Crown sovereignty was established. Justice Toohey pointed out that the connection need not be established long prior. If occupation is an established fact at the time of annexation, then nothing more is required. Sovereignty over the New South Wales colony was said to have been successfully asserted by 1788. In Western Australia, by contrast, the time that radical title was vested in the Crown appears to be 1829. In relation to the Murray Islands, it was held that sovereignty was acquired in 1895. Thus, the time of vesting is a matter of fact to be determined with reference to the legislative or executive act that annexed the particular territory to the colony.

The Court held that the group must be able to show that the connection to the land has been substantially maintained. Failure to establish a continued connection loses the foundation of the title because, Justice Brennan explained, 'native title which has ceased with abandoning of laws and customs based on tradition cannot be revived for contemporary recognition'. But a particular plaintiff group need not show that it is the same group that occupied the land at the time sovereignty was established if traditional law and custom contemplates the acquisition or transfer of rights, or succession of title, from one Indigenous group to another; this may extend to circumstances where a group dies out or is subsumed into a larger group.

Outside the system of traditional law, native title is inalienable except to the Crown. Justice Brennan suggested that this is consistent with Indigenous conceptions of inalienability of land. He takes this further to suggest that rights and interests possessed as a native title can only be possessed by Indigenous people, more specifically by a member of the native title holding group who acknowledges and observes the traditional laws and customs. Justices Deane and Gaudron expressed the inalienability of native title in terms of a right of pre-emption that was enjoyed by the Crown on acquiring sovereignty, such that native title could not be transferred outside the Indigenous system of law and customs except by surrender to the Crown.

THE NATURE AND CONTENT OF NATIVE TITLE

The High Court retained the foundations of colonial property law by confirming that the underlying or radical title vested in the Crown was an assertion of sovereignty. But, through the recognition of native title, the common law conferred a beneficial interest on the Indigenous people that recognises and protects their pre-existing interests. The High Court recognised that the content of the native title interest could approximate to full ownership, which would reduce the Crown's radical title to one that 'extends to comparatively limited rights of administrative interference'. The extent, or content, of native title is those rights that arise from the traditional laws and customs of the people. All other rights to deal with the land attach to the Crown's radical title. Where native title ceases to exist (for example, through surrender to the Crown), the radical title expands to create a 'plenum dominium', that is, the full beneficial as well as radical title.

In Mabo, the High Court suggested that native title, while unique, is properly described as 'proprietary', if that idea is understood in a nondiscriminatory way. Justice Brennan said:

If it be necessary to categorize an interest in land as proprietary in order to survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls in to that category.

In contrast, Justices Deane and Gaudron conceived of native title as a personal or usufructuary right because of its inalienable nature. Yet, they immediately recognised limitations of this characterisation, where, in all other respects, the title approached full exclusive possession. They returned to the idea, as described in Amodu Tijani v Secretary, Southern Nigeria [1921] (Amodu Tijani) and Guerin v R (1984) (Guerin), that the title should be accepted as unique. While referring to native title as having a personal and usufructuary character (that is, not a right in the land itself), Justices Deane and Gaudron also imbued the title with significant strength:

If common law native title conferred no more than an entitlement to occupy or use until the Crown or those acting on its behalf told the native title holders to cease their occupation or use[,] the term 'title' would be misleading, the 'rights' under it would be essentially illusory.

Justice Brennan went so far as to suggest that 'it is not possible to admit a traditional usufructuary right without admitting a traditional proprietary title'. Usufructuary rights of individuals within the group are therefore 'derived from the community laws and customs and are dependent on community title'.

(Continues...)

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Edition details

• Publisher: Aboriginal Studies Press
• Publication date: 2009
• Language: English
• ISBN 10: 0855756632
• ISBN 13: 9780855756635
• Binding: Paperback
• Edition number: 2
• Number of pages: 232