Of all of the miserable cargo that ever left the shores of England for the Antipodes, there are three things that I celebrate as amongst the fi nest imports: that sublime game of cricket, Earl Grey’s tea and the common law of England.
It may well now be politically heretical for me to say so, but I was afflicted with a young lawyer’s infatuation with the amazing grace of the common law well before the decision in Mabo and Others v. The State of Queensland. Needless to say, the judgment of the High Court of Australia of 3 June 1992 reinforced my enthusiasm for the capacity of the common law – its capacity for logic and justice and balance and change.
Excited by what Professor Richard Bartlett described, accurately if somewhat inelegantly, as the ‘pragmatic compromise’ of Mabo – a compromise between the fact of the original right of the Indigenous peoples to their homelands, and the historical accumulation of rights by the colonists – I am of course acutely aware that not all of the development of the common law of native title in Australia will give our side joy.
But rather than surrendering, as Mr Justice French did in his decision on the Waanyi peoples’ application for determination of native title, to the notion that it will be up to parliament to correct the ‘moral shortcomings’ of the common law, I am a great believer in the imperative for those charged with developing the common law to redouble our eff orts when injustice looms. Th is imperative remains as long as, to paraphrase His Honour Justice Brennan (as he then was) in Mabo, the skeleton of the common law, which gives it its internal logic and consistency, is not fractured.
I am concerned about the future development of the common law of native title in Australia. Having long agonised over the jurisprudence, I have attempted to grapple with a fundamental question: what is the concept of native title? Despite the fact that native title is long established all over the common law world, and particularly in North America, my reading of the cases and articles on the subject, particularly the Canadian jurisprudence, leaves me convinced that the correct answer to this basic question still eludes us. Our inability to articulate clearly the concept of native title has implications for our understanding of its recognition, its extinguishment and its content.
Tonight, I am going to attempt to articulate some arguments about the concept of native title that have been swirling around in my head ever since I read rapturously that judgment of 3 June 1992. I will now set out a summary of my contentions about the concept of native title.
Summary of contentions
1. Native title is neither a common law nor an Aboriginal law title, but represents the recognition by the common law of title under Aboriginal law.
2. ‘Extinguishment’ must therefore be understood as extinguishment of recognition.
3. Extinguishment of recognition of native title occurs where the foundation of title in Aboriginal law and custom has been washed away as a matter of fact. There can be no revival of recognition in this event. This is extinguishment amounting to extinction.
4. Extinguishment of recognition of native title also occurs where there is an interest inconsistent with the continued enjoyment of Aboriginal title. Aboriginal title remains unrecognised by the common law so long as the inconsistent interest remains.
5. Given the recognition concept of native title and the notion of extinguishment of recognition, it follows that where there is partial inconsistency between an interest and the continued enjoyment of native title, then there is a partial extinguishment of recognition of native title. Where the inconsistency is removed, recognition is again possible.
6. The sui generisnature of native title is a consequence of the interaction between two systems of law – the common law recognising Aboriginal law with the consequence that Aboriginal title is recognised. Native title has two aspects. Firstly, native title concerns the relationship between the native title holders and the rest of the world. This relationship can be described by the common law, because it is inherent to the occupation of land by human societies and identical to the kind of dominion that people of all societies assert over land. As His Honour Justice Brennan said in that great and succinct phrase in Mabo: ‘land is susceptible of ownership.’ The common law describes this aspect of native title in terms of possession. In relation to the Meriam peoples, the High Court described it as a right to ‘possession, occupation, enjoyment and use’ of land as against the whole world. Secondly, native title deals with relations between the native title holders, which must be ascertained by reference to Aboriginal law and custom.
7. Understood in this way, the concept of possessory title or, as Professor McNeil and His Honour Justice Toohey described it, ‘common law Aboriginal title’, is an aspect of native title and not a separate concept.
8. These two aspects of native title determine its content. Where there are questions about the rights of the native title holders in relation to one another, then they must be settled by reference to Aboriginal law and custom. Where there are questions concerning the rights of native title holders in relation to those outside of the Aboriginal system of law and custom, then they must be determined by the common law.
9. We need to recognise the clear articulation by His Honour Justice Brennan in Mabo that the right of the individual is carved out of the communal right. The usufructuary right is carved out of the communal proprietary title.
10. Where native title is to be established, the task of the common law courts is to assume the existence of a full proprietary title and then to identify those valid acts of the Crown which have qualified that title by regulation or by partial extinguishment of recognition by the creation of an inconsistent interest. The notion that the content of the native title is solely to be determined by reference to the rights established under Aboriginal law and custom is misconceived.
A recognition concept
Fundamentally I proceed from the notion that native title is a ‘recognition concept’. The High Court told us in Mabo that native title is not a common law title but is instead a title recognised by the common law. What they failed to tell us, and what we have failed to appreciate, is that neither is native title an Aboriginal law title. Because patently, Aboriginal law will recognise title where the common law will not. Native title is therefore the space between the two systems of law, where there is recognition. Native title is, for want of a better word, the recognition space between the common law and the Aboriginal law, which is now afforded recognition in particular circumstances.
Adopting this concept allows us to see two systems of law running in relation to land. This is a matter of fact. No matter what the common law might say about the existence of native title in respect of land that is subject to an inconsistent grant, the fact is that Aboriginal law still allocates entitlement to those traditionally connected with the land. The extinguishment of native title should therefore be understood as extinguishment of recognition of Aboriginal title. The extinguishment of recognition does not result in the extinguishment of Aboriginal title in relation to the land. It survives as a social reality under Aboriginal law. It is fictive to assume that Aboriginal law is extinguished where the common law is unable to recognise it.
The common law as a matter of justice recognises Aboriginal law in certain circumstances. In Mabo, the High Court constructed inconsistency as the test by which to determine whether the common law can recognise Aboriginal title. Where there is an interest inconsistent with the continued enjoyment of native title by the native title holders, then the High Court’s schema in Mabo will not allow recognition. Where there is no inconsistency, the native title is recognised. The concept of inconsistency, which exclusive possession implies, is a keystone of the High Court’s construct of what is practical and just in terms of recognising accumulated historical interests while accommodating belated recognition of original title.
Native title and extinguishment
Appreciating native title as a recognition concept challenges the assumption that we have all laboured under since Mabo, but which is not a necessary consequence of Mabo: that extinguishment is somehow a fatal and irreversible event. According to this assumption, if an obscure past action by the Crown can be found to be inconsistent with the continued enjoyment of native title, then native title will be extinguished no matter the actual facts on the ground and the subsequent history of the land concerned. In my view, lawyers and judges have been too quick to assume that a so-called extinguishment event is fatal to the recognition of Aboriginal entitlement to land.
Because native title is a recognition concept, its extinguishment should be understood as being ‘extinguishment of recognition’. This raises the question of whether the common law will endorse the notion of revival of recognition.
His Honour Justice Brennan said in Mabo:
when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional custom, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition … Once traditional native title expires the Crown’s radical title expands to a full beneficial title …
In ruling out revival, this passage has led to the assumption that extinguishment is always a fatal and permanent event. But note that His Honour has correctly confined this conclusion to situations where Aboriginal law and custom have washed away. The passage does not refer to circumstances where recognition has been extinguished as a matter of law in response to an inconsistent interest, and does not rule out the revival of recognition should this inconsistent interest be removed.
Understood in this way, His Honour’s conclusion can only be correct: when the law and custom expires or the Aboriginal people themselves expire, then clearly there can be no revival. But what if the law and custom are still running in relation to the land, the traditional connection is being maintained, and the inconsistent interest is lifted?
For present purposes, there are at least two ways in which native title can be extinguished, as set out in Mabo: firstly by the legislature or executive expressing a clear intention to extinguish title, chiefly by making an inconsistent grant, and secondly by the abandonment or loss of the traditional connection with the land (which implies the loss of law and custom or the extinction of the people). Either of these will result in the extinguishment of recognition of native title.
Where the traditional connection with the land is lost (by the abandonment of traditional laws and customs or the extinction of the people) then the native title expires and cannot be revived for contemporary recognition. This is as His Honour expressed it. Where the traditional connection is maintained and the Crown or the legislature shows a clear and plain intention to revive recognition of a native title that has previously been subject to an inconsistent grant, then we have revival of native title.
How is the Crown’s intention to revive recognition of native title to be established? To quote His Honour:
the exercise of a power to [revive recognition of] native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or the Executive …
The [revival of recognition] of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants) but on the effect which it has on the right to enjoy native title …
The situation in Waanyi affords an excellent illustration of the logic of this approach to extinguishment. The common law recognised native title to the land in 1788. Subsequently the land was made subject to an inconsistent grant, namely a pastoral lease, and there was extinguishment of recognition (accepting for these purposes the Full Federal Court’s conclusion in the Waanyi case that a pastoral lease is an inconsistent grant). Then the inconsistent grant was lift ed and a camping and water reserve was put in place, which was consistent with the continued enjoyment of native title. Therefore there was revival of recognition, because the effect of the creation of the reserve was to permit again the enjoyment of native title by the Aborigines.
This approach to the recognition and extinguishment of native title has important implications for whether the common law of native title in Australia is going to be just and fair. There are many lands today (particularly in national parks, public-purpose reserves, Aboriginal reserves and vacant Crown lands) which were previously subject to tenures (leasehold and freehold) that may have been inconsistent with native title according to the High Court’s test in Mabo, but where the inconsistency has now been removed. A common law scheme which sees technical legal events as fatal extinguishing events, even where Aboriginal traditional connection with the land is being maintained, would be a perverse law, and inconsistent with the Mabo compromise.