Contrary to recent decisions of the High Court, the common law of native title recognises that indigenous people in occupation of land are entitled to possession where the Crown has declined to expropriate their title by the act of State constituting the acquisition of sovereignty. McNeil’s rigorous analysis in Common Law Aboriginal Title was referred to by members of the Court in Mabo v Queensland (No 2). This paper will reiterate McNeil’s analysis with two amendments: first, that possessory title is not a claim to land separate from that of native or customary law title; and secondly, that indigenes have allodial possession rather than a fee simple on the presumption of a lost grant.
In its recent decisions in Commonwealth v Yarmirr, Western Australia v Ward and Members of the Yorta Yorta Aboriginal Community v Victoria, the High Court has misinterpreted the definition of native title under the Native Title Act 1993-1998 (Cth) and fundamentally misapplied the common law. Before turning to these two allegations, I will first set out the historic meaning of the High Court’s decision in Mabo v Queensland (No 2).
The Three Principles of Native Title
On 3 June 1992 the High Court finally illuminated the true legal history of the British colonisation of Australia. Properly understood, the law of the colonisers recognised a native entitlement to land from the time that sovereignty was first acquired. The High Court confirmed that the common law of England, carried upon the shoulders of the colonists and falling upon Australian soil, included the doctrine of recognition of native title.
At the moment of sovereignty, as subjects of the British Crown in occupation of their traditional homelands and entitled to the protection of the new land law brought on the shoulders of the settlers from England, the indigenous peoples became in British law no less than the comprehensive owners of the entire continent. Native title existed wherever Aboriginal people held traditional connections with their homelands. The High Court told us that their dispossession of those titles occurred over the next 204 years through a process of “parcel by parcel” extinguishment.
This legal truth about the foundations of the country was obscured for two centuries and that obfuscation of the legal truth resulted in the dispossession and removal and suffering and death of numerous Aboriginal peoples.
The then High Court had to contend with two compelling realities. First was the fact of original occupation and possession of Australia by its indigenous peoples and the recognition of this by the imported common law. The second was that the recognition and protection of these original rights to the land did not occur until 204 years after sovereign acquisition, and the colonists and their descendants had acquired many titles and privileges over the course of the preceding two centuries. How was the fact that native title formed part of the common law of Australia, inherited from Britain, to be reconciled with the fact of colonial history and the accumulation of rights and titles on the part of the colonists and their descendants over 204 years?
In my view the Mason and then Brennan Courts articulated three basic principles which set out a reconciliation of these two realities, and which should have formed the architecture for the final settlement of the longstanding and unresolved question of indigenous land justice.
The first principle was that non-indigenous Australians who had accumulated rights and titles over two centuries could not be now disturbed in the enjoyment of their privileges, notwithstanding the circumstances by which they came to possess them. So the first principle of native title law in this country should be known to all Australians – though it is not – as the ‘white land rights’ principle; that the lands of the non-indigenes, including the lands alienated by the Crown for its own use, are indefeasible, and cannot now be disturbed by any claim to native title.
The second principle was that, seeing as the whole country was once subject to native title, whatever lands were left unalienated after 204 years, was the entitlement of its traditional owners; and in all fairness title should be declared for their benefit forthwith. In other words, the indigenous people were entitled to whatever lands were left over. The remnant lands after two centuries were not substantial, the largest areas being in the desert and remote parts of the country.
The third principle, which was articulated in Wik Peoples v Queensland in 1996, was that there were some larger tenures, such as pastoral leases and national parks, where the Crown title could coexist with native title, and in that coexistence the Crown-derived title prevailed over native title in the event of inconsistency.
These three principles, if properly understood, and if faithfully followed, potentially laid the foundations for a just settlement of the historic grievance about land justice which lay unresolved between the old and new Australians.
Alas, it has not turned out this way. The High Court’s judgment in Yorta Yorta in December 2002 put the lie to my interpretation of the meaning of native title. The three principles of native title law are not that non-indigenous parties get to keep all that they have accumulated, that indigenous people get what is left over and they share some larger categories of land titles with the granted titles prevailing over the native title. Rather the three principles of native title are that non-indigenous parties do not only get to keep all that they have accumulated, but indigenous people only get a fraction of what is left over and get only a subservient title coexisting with Crown titles (which always prevail over any native title) where they are able to surmount the most unreasonable and unyielding barriers of proof – and indeed only where they prove that they meet white Australia’s cultural and legal prejudices about what constitutes “real Aborigines”. To the Australian courts charged with the responsibility of administering the historic compromise set out in Mabo, the Yorta Yorta Peoples were not sufficiently Aboriginal to get one square metre of what was left over after the whites had taken all that they wanted.
What is not understood about native title claims after Mabo (No 2), and certainly after the Native Title Act, is that it is simply not possible for non-indigenous parties to lose any legal rights or title as a consequence of a native title finding. These land claims are not true litigations in the sense that either party may suffer loss as an outcome. Non-indigenous parties to land claims can never lose any of their rights or titles, because these were either indefeasible under the common law – and if they were ever invalid, the Native Title Act has now cured any invalidities.
The only party that can truly lose in a native title claim is the indigenous claimant. The non-indigenous parties to claims – including the Crown – have nothing to lose on their own part, only an argument to the effect that the indigenous people have no entitlement.
And yet not only is there political and social resistance to indigenous people’s claims for leftover land, but there is now significant judicial and legal impediment to the working out of this belated and meagre land justice. The travesty of the current native title system in Australia, and the reason why the process is not delivering on the justice which the principles of Mabo (No 2) set out, lies in the fact that non-indigenous parties are allowed to oppose claims for native title even though they have no rights or interests that are vulnerable as a result of a native title finding. These third parties are in an extraordinary position: all of their rights and interests are guaranteed by the common law and by validating legislation, and the Attorney-General pays for their legal costs – so they have nothing to lose by refusing to consent to native title determinations under the framework of legislation which was founded on the assumption that most claims could be settled by mediation and negotiation. If you can never ultimately lose, and the Attorney-General is paying your legal costs, you can resist native title until the cows come home. And, parliaments and the judicial system assume that you are a vulnerable party in the native title claims process, without actually understanding the clear truth: that non-indigenous Australians are completely secure in their entitlements and can never lose a vested right, or even an expectation of a right as result of the broadening of the definition of ‘past acts’ in legislation.
The country forgets that in April 1993 when indigenous leaders met with Prime Minister Paul Keating to discuss impending legislation responding to Mabo (No 2), it was the indigenous leadership that proposed support for legislation validating non-indigenous titles that were uncertain as a consequence of the operation of the Racial Discrimination Act 1975 (Cth). To the extent that non-indigenous rights were uncertain after Mabo (No 2) it was indigenous people that proposed the validation of these uncertain titles. This was a gracious concession on our part in 1993. This act of graciousness on the part of Aboriginal people turned out to be a fatal mistake. Rather than industry and State governments being gracious about the Aboriginal support for validation, their position has essentially been this: not only do we want our own rights and titles to be secure, we will resist any claims for remnant native titles as well.
The present High Court does not know what it is doing with the responsibility which their predecessors assumed with Mabo. They have rendered a great disservice to indigenous Australians and to our past and future as a nation. For in their flawed and discriminatory conceptualisation of native title and in their egregious misinterpretation of fundamental provisions of the Native Title Act, they are destroying the opportunity for native title to finally settle the outstanding question of indigenous land justice in Australia.
Let me now turn to the two allegations I alluded to in the beginning. The first concerns the misinterpretation of s 223(1) of the Native Title Act, namely, the very definition of native title.
The Misinterpretation of the Native Title Acts 223(1)
Section 223(1) reads:
The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
In my respectful view, the Court’s decisions in Yarmirr, Ward and now Yorta Yorta, have yielded a complete misinterpretation of a fundamental provision of the Native Title Act. I am in respectful agreement with the judgment of his Honour, Justice McHugh, in Yorta Yorta in relation to s 223(1). This definition was intended to make clear that native title was whatever the common law of Australia decided it was. Paragraphs (a) and (b) of s 223(1) were intended to faithfully reflect the key requirements of the common law as set out in the judgment of Justice Brennan, as he then was, in Mabo (No 2). They were not intended to supplant or in any way amend or supersede the definition of native title at common law.
And yet the court has basically taken the view that the Native Title Act has somehow ‘transmogrified’the common law meaning of native title; that the starting point – and ending point – for the definition of native title is legislation that was intended to protect, not define, the title. As a result, in Ward and Yorta Yorta, the entire discussion of native title is treated as an exercise in statutory interpretation rather than an articulation of the common law. Important questions concerning the concept and nature of native title, its content, extinguishment and proof are dealt with, without any reference to the large body of common law of which Australian native title forms a part.
Even a circumspect party to the Australian native title story since Mabo (No 2), Justice French, the first President of National Native Title Tribunal, makes clear that the High Court’s interpretation of s 223(1) defied reasonable understandings and expectations:
Most recently, in Members of the Yorta Yorta Aboriginal Community v Victoria…the High Court again emphasised the statutory definition of native title as defining the criteria that had to be satisfied before a determination could be made. To that extent the Court appears to have moved away from the original concept of the Act as a vehicle for the development of the common law of native title.
His Honour went on to say:
The way in [the High Court in Yorta Yorta] applies the words of ss 223(a) and (b) of the Act to the determination of native title rights and interests may have transformed the Act from a vessel for the development of the common law into a cage for its confinement.
The judgments in Ward and Yorta Yorta run to hundreds of pages. And all of these pages of discussion concern statutory interpretation – rather than any discussion of cases. A search of the cases cited in these judgments reveals that hardly any cases are canvassed in support of the Court’s conclusions on the state of Australian law. Astoundingly there is absolutely no reference in either of these Australian cases to what is the seminal Canadian decision on native title, and in my view the most important decision on the subject since the High Court’s decision in Mabo (No 2), namely the decision of the Supreme Court of Canada in Delgamuukw v British Columbia – which was substantially informed by the Australian High Court’s decision. Given that Delgamuukw dealt with the very issues that were at issue in Ward and Yorta Yorta, it is startling that no reference is made to it in Australian law.
Indeed Mabo (No 2) itself is only referred to for its place in the chronology of native title in Australian law, rather than for the purposes of discussing its articulation of the common law. In their joint judgment in, op cit, Yorta Yorta at paragraph 70, Gleeson CJ and Gummow and Hayne JJ almost dismiss the relevance of Mabo (No 2) to the meaning of native title:
The legal principles which the primary judge considered were to be applied to the facts found were principles which he correctly identified as being found in the Native Title Act's definition of native title. It is true to say that his Honour said that this definition of native title was ‘consistent with’ language in the reasons in Mabo (No 2) and that it was, in his Honour's view, necessary to understand the context in which the statutory definition was developed by reference to what was said in that case. It may be that undue emphasis was given in the reasons to what was said in Mabo (No 2), at the expense of recognising the principal, indeed determinative, place that should be given to the Native Title Act (emphasis added).
Let me repeat this astounding last sentence: “It may be that that undue emphasis was given in the reasons to what was said in Mabo [No 2], at the expense of recognising the principal, indeed determinative, place that should be given to the Native Title Act.
The majority explain their approach to section 223(1) as follows:
To speak of the "common law requirements" of native title is to invite fundamental error. Native title is not a creature of the common law, whether the Imperial common law as that existed at the time of sovereignty and first settlement, or the Australian common law as it exists today. Native title, for present purposes, is what is defined and described in s. 223(1) of the Native Title Act. Mabo [No 2] decided that certain rights and interests relating to land, and rooted in traditional law and custom, survived the Crown's acquisition of sovereignty and radical title in Australia. It was this native title that was then "recognised, and protected" in accordance with the Native Title Act and which, thereafter, was not able to be extinguished contrary to that Act.
The Native Title Act, when read as a whole, does not seek to create some new species of right or interest in relation to land or waters which it then calls native title. Rather, the Act has as one of its main objects" to provide for the recognition and protection of native title" (emphasis added), which is to say those rights and interests in relation to land or waters with which the Act deals, but which are rights and interests finding their origin in traditional law and custom, not the Act. It follows that the reference in par (c) of s. 223(1) to the rights or interests being recognised by the common law of Australia cannot be understood as a form of drafting by incorporation, by which some pre-existing body of the common law of Australia defining the rights or interests known as native title is brought into the Act. To understand par (c) as a drafting device of that kind would be to treat native title as owing its origins to the common law when it does not. And to speak of there being common law elements for the establishment of native title is to commit the same error. It is, therefore, wrong to read par (c) of the definition of native title as requiring reference to any such body of common law, for there is none to which reference could be made.
In Yarmirr (2001) 208 CLR 1, 39, Gleeson CJ, Gaudron, Gummow and Hayne JJ had said that whilst the Native Title Act should be the starting point of any inquiry, it should be understood as ‘supplementing the rights and interest of native title holders under the common law of Australia’. Later in Ward (2002) 191 ALR 1, 16, Gleeson CJ, Gaudron, Gummow and Hayne JJ moved the emphasis decisively towards the legislation:
No doubt account may be taken of what was decided and what was said in [Mabo (No 2)] when considering the meaning and effect of the NTA. This especially is so when it is recognised that paras (a) and (b) of s 223(1) plainly are based on what was said by Brennan J in Mabo (No 2). It is, however, of the very first importance to recognise two critical points: that s 11(1) of the NTA provides that native title is not able to be extinguished contrary to the NTA and that the claims that gave rise to the present appeals are claims made under the NTA for rights that are defined in that statute (emphasis added).
Yet again it must be emphasised that it is to the terms of the NTA that primary regard must be had, and not the decision in Mabo (No 2) or Wik. The only present relevance of those decisions is for whatever light they cast on the NTA (emphasis added).
In my respectful view the High Court has decided is that it will draw a line between the Australian law on native title after the enactment of the Native Title Act and the body of North American and British colonial caselaw which has dealt with native title over the past two centuries, and which informed and underpinned the decision in Mabo (No 2).
This caselaw, upon which Brennan J and other members of the court drew in their judgments in Mabo (No 2) concerning colonies in the subcontinent and West Africa, the United States and Canada – as well as cases concerning Wales and Ireland – has been conveniently disposed of. Rather than developing the fledgling Australian law by grappling with this considerable body of law, with which – as Mabo (No 2) showed – there are more areas of common principle than there are differences, the High Court has taken the easy road of interpreting and developing native title under the rubric of statutory interpretation.
Court has drawn a transparent and convenient line between the common law of native title up to the time of the passage of the Native Title Act – the body of North American and British colonial caselaw which has dealt with native title over the past two centuries, and which informed and underpinned the decision in Mabo (No 2) – and its subsequent articulation in Australian law, where the meaning of native title is treated as a question of statutory interpretation. This caselaw, upon which Brennan J and other members of the court drew in their judgments in Mabo (No 2) concerning colonies in the subcontinent and West Africa, the United States and Canada – as well as cases concerning Wales and Ireland – has been conveniently disposed of. Rather than developing the fledgling Australian law by grappling with this considerable body of law, with which – as Mabo (No 2) showed – there are more areas of common principle than there are differences, the High Court has taken the easy road of interpreting and developing native title under the rubric of statutory interpretation.
This leaves Australian pronouncements on important questions and principles of native title open to bare assertion, as the body of the common law dealing with native title is rendered irrelevant because the legislation is treated as having superseded the common law. That this is what has happened is readily evidenced by a perusal of the cases cited in Ward and Yorta Yorta.
The High Court has not given ‘reasons’ for completely ignoring the common law on native title (called ‘Aboriginal Title’ in Canada), as much as expressed bald assumptions. Probably the worst example of judicial dereliction on the part of Kirby J is his decision in Fejo v Northern Territory where he legitimised the High Court’s abandonment of the body of common law of native title, when the relevance of caselaw in North America and in other former colonies of the Crown was the subject of a specious and over-generalised dismissal:
…care must be exercised in the use of judicial authorities of other former colonies and territories of the Crown because of the peculiarities which exist in each of them arising out of historical and constitutional developments, the organisation of the indigenous peoples concerned and applicable geographical or social considerations…
This statement of approach underlies the approach taken by all of the members of the High Court to overseas precedents. This was just patently a reflection of the reluctance of the Australian court to contend with principles in the native title law of these other jurisdictions which challenged the simplistic way in which they preferred to dispose of native title in our country. Rather than grappling with this caselaw from overseas and setting out rigorous arguments for distinguishing Australian law from these precedents – it was easier to dismiss their relevance through sweeping generalisations.
Earlier I quoted a passage from the judgment of Gleeson CJ and Gummow and Hayne JJ where they dismissed the view that there were “common law requirements” or “common law elements” to the establishment and proof of native title, concluding that “[i]t is, therefore, wrong to read par. (c) of the definition of native title as requiring reference to any such body of common law, for there is none to which reference could be made.”
This is a completely unfortunate argument, it would be scholastic if it were not so patently disingenuous. Yes native title is not an institution of the common law, it is a title recognised by the common law . Yes, native title is not a common law title in the sense that say a fee simple is.
But there is a body of common law which discusses the recognition, proof, content and extinguishment of native title – and this body of law is very considerable and it has been developed in numerous decisions of the Privy Council, the United States Supreme Court, the Supreme Court of Canada and in courts throughout the common law world. It is to this body of law which paragraph (c) of section 223(1) of the Native Title Act – if it had been properly interpreted – is directed. It is this body of law of which Mabo (No 2) forms the cornerstone of the Australian law on native title. So it is a nonsense for the High Court to disavow the existence of this body of law which deals with the recognition, proof, enforcement and extinguishment of native title.
This approach is in stark contrast to the judgments in Mabo (No 2) which drew heavily from other common law jurisdictions (and indeed Justice Brennan had specifically rejected as discriminatory the notion that what Justice Kirby refers to as ‘the organisation of the indigenous peoples concerned’ should ever be a factor in determining whether their rights to land would be respected by the common law). During the course of argument in Ward Justice Gummow said that the applicability of the Canadian law in the Australian context was ‘an important question’. It was a question that remained unanswered in all of the judgments in that case, and indeed in the subsequent Yorta Yorta case. If the court has not been derelict in its duty to the indigenous peoples of Australia in failing to give sound reasons for refusing to grapple with overseas precedents that are at odds with its preferred views, it has certainly made its task easier by relying upon the legislation rather than engaging with two centuries of precedent developed throughout the English common law world.
If the Court’s interpretation of s 223(1) of the Native Title Act be accepted as correct then the Parliaments that passed the 1993 legislation and the amendments of 1998 were under grave misapprehension as to what they had done. The enactment of native title legislation in the wake of the High Court’s 1992 decision in Mabo (No 2) was the subject of an intense national political and legislative debate during 1993, in which Aboriginal advocates participated vigorously.
What were we defending in that process and what did we think that we had achieved with the Commonwealth government under Prime Minister Paul Keating? We thought, and I am sure all members of Parliament and all Australians who followed the proceedings thought, that the whole exercise was about preserving the rights declared under the common law of Australia. In other words we thought that the Mabo decision, and the rights and interests that flowed from that decision, were being recognised and protected in Commonwealth legislation. So we – and I expect most people in the audience tonight with even the most scant knowledge of native title – thought that the Native Title Act preserved the Mabo decision. And we thought that all claims for native title that would be made under the framework of the new legislation would be adjudicated according to principles of the High Court’s decision in Mabo and the body of common law of which it forms a part. Indeed indigenous leaders and Prime Minister Paul Keating had assumed that the legislation simply protected native title from hostile extinguishment – that what was being protected by the legislation was the common law right.
It is not enough to say that it is a misnomer to talk of native title as a ‘common law right’. Native title is not a common law title, but it is a title recognised by the common law. The point about the common law and native title was well made by Justice McHugh in Yorta Yorta when he reviewed the statements made in Parliament in respect of s 223:
Given the decisions in Yarmirr and Ward, the [position of Gleeson CJ, Gummow and Hayne JJ in their Yorta Yorta judgment] concerning the construction of the Act must be accepted as correct.
However, I remain unconvinced that the construction that this Court has placed on s. 223 accords with what the Parliament intended. In Yarmirr, I cited statements from the Ministers in charge of the Act when it was enacted in 1993 and when it was amended in 1997. They showed that the Parliament believed that, under the Native Title Act, the content of native title would depend on the developing common law. Thus, Senator Evans told the Senate in 1993:
"We are not attempting to define with precision the extent and incidence of native title. That will be a matter still for case by case determination through tribunal processes and so on. The crucial element of the common law is the fact that native title as such, as a proprietary right capable of being recognised and enjoyed, and excluding other competing forms of proprietary claim, is recognised as part of the common law of the country.” (emphasis added)
Similarly, Senator Minchin told the Senate in 1997:
"I repeat that our [A]ct preserves the fact of common law; who holds native title, what it consists of, is entirely a matter for the courts of Australia. It is a common law right." (emphasis added)
Section 12 of the Native Title Act 1993 also made it clear that the content of native title under that Act was to be determined in accordance with the developing common law. Section 12 provided:
"Subject to this Act, the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth."
In Western Australia v The Commonwealth (Native Title Act Case), however, this Court held that s 12 was invalid. In the Native Title Act Case, six justices of the Court said:
"If s. 12 be construed as an attempt to make the common law a law of the Commonwealth, it is invalid either because it purports to confer legislative power on the courts or because the enactment of the common law relating to native title finds no constitutional support in s. 51(xxvi) or (xxiv)."
Section 12 has now been removed from the statute book. But its enactment in the 1993 Act shows that the Parliament intended native title to be determined by the common law principles laid down in Mabo v Queensland [No 2], particularly those formulated by Brennan J in his judgment in that case. When s. 223(1)(c) of the 1993 Act referred to the rights and interests "recognised by the common law of Australia", it was, in my view, referring to the principles expounded by Brennan J in Mabo [No2].
But this Court has now given the concept of "recognition" a narrower scope than I think the Parliament intended, and this Court's interpretation of s. 223 must now be accepted as settling the law. As a result, the majority judges in the Full Court erred when they approached the case in the manner that they did. (my underlined emphasis)
McHugh J’s understanding of what section 223(1) meant is my understanding of what was meant. It was Prime Minister Paul Keating’s and Senator Gareth Evans’ understanding of what was meant in 1993. It was Prime Minister John Howard’s and Senator Nick Minchin’s understanding of what was meant in 1998. The High Court’s interpretation is patently at odds with the intention of Parliament, both during the time of the Keating government in 1993 and at the time the Native Title Amendment Act was passed by the Howard government in 1998. Both Parliaments understood that their respective laws were preserving the common law rights articulated in the Mabo decision.
Amazingly, despite McHugh J’s clear statement that his colleagues had settled upon what was a “narrower” interpretation of section 223 – contrary to Parliament’s intention – he capitulated to this narrower interpretation and was prepared to accept it as settled law. This in itself is instructive of the abandonment of indigenous Australians expecting the abiding diligence of the courts. McHugh J was dealing here with a profound question of fundamental property rights of Australian citizens entitled to rigorous application of the rules of law when they bring their claims before the courts for adjudication. It is hard to imagine any other area of law where a judge would so lightly abandon his or her conviction about an interpretation of a statutory provision which is pivotal not just to the instant case, but to all future cases to come before the courts.
Since McHugh J was prepared to accept this incorrect interpretation of the Native Title Act to the detriment of indigenous interests, the Yorta Yorta Aboriginal Community’s claim for the recognition of their remnant native title to their homelands was not dealt with according to law. Their claim was considered and rejected according to the definition of native title set out in section 223(1) of the Native Title Act. It was not considered in accordance with the common law of Australia.
The Yorta Yorta went to the courts to claim their rights under common law. They went to claim rights emanating from the same source as that of the Meriam People of the Murray Islands who had successfully established their title in Mabo (No 2).
Instead their claim was considered under the terms of a statutory definition – interpreted in a way that Parliament never intended. In my view, the claim of the Yorta Yorta under the common law of Australia and under the terms of the Mabo decision, remains to be properly considered and adjudicated upon.
Upon reflection, it should be readily appreciated that the one agenda of the indigenous parties to the 1993 arguments about native title legislation, was the concern that the common law rights articulated in Mabo (No 2) be protected. We were vigilant against any attempt to replace or transform the common law rights to any form of statutory creature. Our understanding of s 223(1) was consistent with that of the Commonwealth, namely that it was intended to be a faithful reflection of the common law – no more and no less.
Now that the High Court has contradicted this position, it would seem to me that the most urgent reform to the Australian law on native title is to amend the definition of native title to make clear that native title means whatever the common law of Australia says that it means. Given the gross misinterpretation of section 223(1) by the High Court, this provision in the Native Title Act must be amended before any further cases are determined. Section 223 must be amended to reflect the original intentions of the Parliament in 1993 and 1998: that the definition of native title was supposed to mean that all native titles would be proved in accordance with the High Court’s decision in Mabo (No 2) and the body of common law which surrounds that decision.
Section 223(1) should instead read that:
“‘native title’ and ‘native title rights are interests’ are those rights and interests which are recognised by the common law of Australia”.
Without such an amendment then the whole basis upon which the Native Title Act was enacted – to recognise and protect native title – is destroyed forever.
Native title should be illuminated, not by bare assertion in respect of statutory provisions enacted to protect native title from extinguishment, but by what Justice MacLachlin, as she then was, described in that elegant phrase in R v Van der Peet, quoted by Justice Gummow in Wik, ‘the time-honoured methodology of the common law’.
The Misapplication of the Common Law
Let me now turn to the second allegation concerning the misapplication of the common law in relation to the concept of native title.
Prior to Mabo (No 2) it was unclear what effect the act of State constituting the acquisition of sovereignty by the Crown would have on the position of indigenous occupants of land made subject to the change in sovereignty.
It is clear that it was open to the Crown to acquire not only the radical title to the territory occupied by indigenous inhabitants, but it could also expropriate the beneficial title to the land and thereby dispossess the indigenous inhabitants of their title. Under the act of State doctrine this expropriation needed to occur at the time of the acquisition of sovereignty.
Following annexation however, if the Crown had not expropriated the private title of the indigenous inhabitants, it could not do so subsequently except under authority of legislation. This is because the indigenous peoples would have become British citizens and entitled to the protection of the imported common law which had now become the law of the land. Any seizure of land against the indigenes at some time following annexation would have amounted to the commission of an unlawful act of State on the part of the Crown against its own citizens. This was prohibited by the law and the Crown had no such authority to expropriate land except with legislative authority.
This statement of the law concerning acts of State in this context is uncontroversial.
The question that was controversial before Mabo (No 2) was whether the survival of Aboriginal land rights following a change in sovereignty required a positive act of recognition by the Crown of the original indigenous title, or whether there was a presumption of continuity of indigenous title. The authorities preceding Mabo fell into two categories, which Professor Kent McNeil, labelled in his landmark work Common Law Aboriginal Title, as those falling under the “doctrine of recognition” and those falling under the “doctrine of continuity”.
In the absence of any positive act of recognition of indigenous title on the part of the Crown in the settlement of its Australian colonies – if the High Court had followed those cases that fell under the “doctrine of recognition”, then the result in Mabo (No 2) would have been that there is no native title in Australia. Instead the High Court ruled, consistently with rulings across the common law world, that those cases falling under the “doctrine of continuity” represent the correct position in Australian law.
Again, the correctness of the application of the “doctrine of continuity” is now also uncontroversial. It is settled law in Australia and Canada and all of the leading cases in both of these jurisdictions are founded upon the acceptance of continuity.
Mabo (No 2) and the Native Title Act Case confirmed that the acts of State establishing the colonies of Australia did not extinguish the rights of the indigenous inhabitants. But now that we know that the rights of indigenous inhabitants of land at the time of the acquisition of sovereignty, in the absence of any express abrogation, are presumed to continue under the new sovereign and the new legal order, there is a further unresolved question – which the courts have not asked. The question is this: what is it that continues after the change of sovereignty?
In his seminal treatise, Common Law Aboriginal Title, the Canadian Professor, Kent McNeil, applied the English law on possession to the position of indigenous inhabitants at the time the British Crown acquired sovereignty. He concluded that the fact of indigenous occupation of land gave rise to the right to possession.
Professor McNeil’s treatise is the most rigorous examination of the English common law on possession as applied to the situation of indigenous peoples. He concluded, and the one judge that discussed this thesis in Mabo (No 2), Toohey J, accepted, that indigenous people would be entitled to a so-called possessory title to land. Both Professor McNeil and Toohey J assumed that possessory title and native title – what Professor McNeil called ‘customary title’ and his Honour called ‘traditional title’ – were separate concepts, and separate bases of claim to land by indigenous people.
In my respectful view, this assumption was in error. Rather than possessory title being separate from native or customary title to land, my view is that the common law on possession applies to native title. The principles concerning occupation and possession apply to native title. Indeed if we return to the foundational cases on native title in the common law world – namely the decisions of the United States Supreme Court under Chief Justice Marshall in the early decades of the 19th century: Johnson v McIntosh, Worcester v Georgia and Mitchell v United States – we find that Indian title was founded on the fact of occupation of land, not in a primary sense on their traditional laws and customs. Sure the Native American Indians lived on their land in accordance with their traditional laws and customs which determined entitlement between them and governed their internal affairs – but the protection afforded by the common law arose from the fact of occupation of their homelands. After a very careful analysis of the early American cases, Kent McNeil concluded as follows:
The Crown (and hence the States or the United States, as the case might be) …acquired the ‘naked fee’, which it could grant, subject always to the Indian right of occupancy…That right, it seems, is generally the same throughout the United States: it depends not on the particular customs or laws of individual tribes (the general existence of which has none the less been acknowledged) …but on their actual occupation of lands from what has occasionally been said to be ‘time immemorial’…
The core misconception centres on our understanding of what happened at the time of sovereignty when the rights of the indigenous inhabitants to their homelands continued under the doctrine of continuity. What continues after annexation? The rights and interests established under traditional laws and customs, or the right to occupy and possess the land under authority of, and in accordance with, the traditional laws and customs of the indigenous people?
It has been assumed throughout the Australian discussion of native title and through some of the Canadian discussion up to Delgamuukw – including that of Professor McNeil – that it is the rights and interests established under traditional laws and customs that continue. In my respectful view the correct answer is that it is the right to occupy and possess the land under the authority of, and in accordance with, the traditional laws and customs of the indigenous people, that survives annexation. The distinction is subtle, but crucial.
This distinction underlines that the foundation of native title is possession arising from occupation – not the details of traditional laws and customs. These laws and customs determine who is entitled to the possession, and it governs the internal allocation of rights, interests and responsibilities amongst members of the native community – but they do not determine the content of the community’s title, which is possession. Possession being what Justice Toohey described as a ‘conclusion of law’ arising from the fact of occupation.
Instead our Australian law has misconceived native title by focusing on the traditional laws and customs of the indigenous people. The end result – evident from the High Court’s decision in Yorta Yorta – is that in order to establish native title today, indigenous claimants are forced to prove the details of their traditional laws and customs at the time of sovereignty, when the English common law of possession would only require that claimants prove occupancy which precluded the Crown from obtaining beneficial title. An horrendous burden of proof has been placed upon native claimants, purely through the misconception of title arising from the misapplication of the common law.
This explication, that communal native title is a right to possession arising from the occupation of land by the predecessor native community at the time of sovereignty, also explains the content of the title which arises from occupation. The content of communal native title is the title which occupation affords, namely possession. Properly understood, communal native titles across the continent are not determined by what his Honour Justice Gummow described in Yanner v Eaton as the ‘idiosyncratic’ laws and customs of the particular native community. These idiosyncratic laws and customs do determine those native title rights and interests that are variously described as ‘pendant upon’, ‘parasitic upon, ‘privileges of’ or ‘carved out of’ the communal title.
The idiosyncratic laws and customs of the community are only relevant in the following ways:
these laws and customs identify entitlement (that is, which indigenous people are entitled to the right to occupation of the land and the descent of this entitlement through the generations)
these laws and customs identify the territory to which the indigenous people are entitled, and
these laws and customs identify the internal allocation of rights, interests and responsibilities amongst members of the indigenous community – and they regulate how members of the community exercise the rights, interests and responsibilities within the communal possession
But the title of the community as a whole, as against the world, is a mundane possession. The communal native title of the indigenous community is founded upon their occupation of land. This is what Toohey J meant when he said in Mabo (No 2) that:
“It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title…Thus traditional title is rooted in physical presence.”
Following 1788, all communal native titles in the acquired colonies were the same. They all amounted to a uniform possession. If there is variation between communal native titles today it is because they have suffered some form of specific derogation by valid act of the legislature or Crown – not because they were originally diverse and determined by idiosyncratic laws and customs.
Pendant native title rights and interests should be understood as constituting any right or interest to which possession gives rise as regulated by traditional law and custom, and of course today, subject to any valid derogation or regulation by valid act of the legislature or Crown. Traditional laws and customs regulate the exercise of any and all of the rights and interests that flow from possession. This is where evidence of traditional law and custom is relevant.
However in the Australian law as it now stands, it is assumed that native titles are entirely constituted by reference to traditional laws and customs adduced as a matter of proof.
The High Court made an assumption about “what continues” following annexation without any consideration that the answer may not be as straightforward as assumed. They proceeded with their assumption without grappling with the host of Canadian authorities which emphasise occupation at the time of sovereignty as the foundation of native title – not the least the leading case of Delgamuukw, brought down by the Supreme Court of Canada in 1997. They proceeded with their assumption without grappling with what our own court has said in Mabo (No 2) about the role that occupation plays in the foundation of native title.
When you approach the question of what continues after annexation by answering the rights and interests established by traditional law and custom – rather than by answering that it is the right to occupy land by authority of, and in accordance with, one’s traditional laws and customs – this has profound implications for the way in which one conceptualises native title and ultimately, how one deals with its proof. This is why the High Court’s error in relation to this issue was so prejudicial to the way in which they understood and approached the Yorta Yorta appeal.
There are two further sources for the misconception that native titles are entirely constituted by reference to traditional laws and customs. Firstly, the term ‘native title’ is subject to a confusing conflation – it is used indiscriminately in the sense of the communal native title and also in the sense of the rights and interests that are carved out of the communal title. But there is critical difference between the communal title and the pendant rights and interests. Mr Yanner’s entitlement to hunt crocodiles is a right which is carved out of the communal title of his people. The right to hunt crocodiles is an incident of possession and the traditional laws and customs of the Gangalida people regulate Mr Yanner’s exercise of rights under the communal tenure.
The problem is that the judicial and academic discussion of native title switches (often unconsciously) between the discussion of native title in its communal sense, and its pendant rights and interests sense, thereby causing conceptual confusion. The principles which apply to both senses of native title are critical and different. This is why the oft-quoted statement of Justice Brennan in Mabo (No 2) is the source of so much of the confusion into which the Australian law has fallen, where he said:
Native title has its origin in and is given its content by the traditional laws acknowledged by and 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.
This statement is correct in relation to the native title rights and interests that are carved out of the communal title. But it is apt to mislead in relation to the description of communal native title. After all the title of the Meriam People in Mabo (No 2) amounted to ‘possession, occupation, use and enjoyment’, ‘as against the world’ – concepts known to the common law and not comprising the details of Meriam law and custom. It is elsewhere in his judgment that Justice Brennan articulated the approach to understanding the nature of communal native title when he said:
If it be necessary to categorise an interest in land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category. Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor…The ownership of land within a territory in the exclusive occupation of a people must be vested in that people: land is susceptible of ownership and there are no other owners.
His Honour went on to describe the relationship between the communal title and the pendant rights and interests when he referred to Milirrpum v Nabalco Pty Ltd:
The fact that individual members of the community, like the individual plaintiff Aborigines in Milirrpum, enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title. Indeed, it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title.
There is a second source of misconception, and this is the failure to recognise that the term ‘title’ has two senses that are related but distinct, one referring to the manner in which a right to real property is acquired and the other referring to the right itself. That is the first sense concerns ‘entitling conditions’ and the second concerns ‘rights’. The two senses correspond respectively with conditions and consequences; the one causal, the other resultant.
In the term ‘native title’ the common law and Aboriginal law play different roles. Aboriginal law determines who is entitled to the rights recognised by the common law arising from the occupation of land at the time of sovereignty (and indeed Aboriginal law recognises the descent of these rights to any contemporary claimant community). The form of the title is possession, which flows from occupation. The entitling condition is the occupation of land under authority of Aboriginal law and custom. The right afforded by the common law is possession.
Rather than appreciating that ‘native title’ incorporates the common law and Aboriginal law in its two different senses, the prevalent assumption is that native title is constituted by Aboriginal law alone.
I will conclude by amending Professor McNeil’s compelling thesis on possessory title in two respects. Firstly, as I have already said, in my respectful view, Professor McNeil was incorrect to assume that possessory title is a separate basis of claim to that of customary law or native title. Rather the law on possession applies to the law on native title. In my view, this position is already confirmed by the Supreme Court of Canada in its decision in Delgamuukw. Then Chief Justice Lamer said:
…prior occupation, however, is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the physical fact of occupation, which derives from the common law principle that occupation is proof of possession in law: see Kent McNeil, ‘Common Law Aboriginal Title’
Under common law, the act of occupation or possession is sufficient to ground aboriginal title and it is not necessary to prove that the land was a distinctive or integral part of the aboriginal society before the arrival of Europeans
However the aboriginal perspective must be taken into account alongside the perspective of the common law. Professor McNeil has convincingly argued that at common law, the fact of physical occupation is proof of possession at law, which in turn will ground title to the land: Common Law Aboriginal Title.
So there we have it: the application of the English common law principles concerning possession to the law on native title.
The second respect in which I would amend Professor McNeil’s thesis, concerns the question of the form of title to which possessory title gives rise. Professor McNeil argued that the indigenous occupants of land, holding possession, would be entitled to a fee simple on the basis of a presumed lost grant.
That is, the common law would apply in much the same way as it would to any possessor who could not show an actual grant from the Crown (in the case of England the presumed lost grant applied to a great many titles in that country). At least one commentator has baulked at piling fiction upon fiction. In my respectful view, it is unnecessary to conclude that possessory title amounts to a fee simple on the fiction of a lost grant. Rather the title should be taken as it truly is: it is a sui generisform of possession. It is sui generis in that it is an allodial possession and does not have its origin in the tenurial system, and secondly, it is subject to derogation by valid exercise of sovereign power.
By way of conclusion, let me revisit Lord Sumner’s famous statement in Re Southern Rhodesia where his Lordship described a now outdated approach to the recognition of native title by reference to where claimant peoples stood in relation to some ‘Darwinian’ scale of social organisation. The passage is as follows:
The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilised society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.
Justice Brennan, as he then was, said in Mabo (No 2) that this kind of approach ‘depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs’, and he concluded that ‘it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination’.
The danger into which the Australian law on native title has fallen is that whilst the discriminatory approach inherent in Re Southern Rhodesia has been rejected in respect of whether indigenous rights in a settled colony survive annexation – no matter how peculiar the social organisation and customs of the people concerned might be – in relation to the question that follows, namely ‘what rights survive annexation?’, the prejudice of Re Southern Rhodesia is revived and indigenous social organisation and customs are used to accord to indigenous occupants of land a lesser form of possession than would be accorded to any other occupant by the common law.
Why should the indigenous conception of ownership of land be any less comprehensive than that of landholders in the English legal tradition? It can only be through miscomprehension and all of the difficulties of the fact-finding process of the courts, that courts can say that indigenous people owned the land in any sense less than possession. But it is this very miscomprehension and the difficulties of process that are resulting in native titles being determined to be less than ownership. And the courts are able to carry out this discrimination by saying that these minimal rights are what the traditional laws and customs of the people have disclosed as a matter of fact. But what people – of whatever social and cultural organisation – do conceive of their occupation and possession of land as being anything less than what the holder of a fee simple would conceive of? As against the world, the conception of possession of the Englishman, the Trobriand Islanders, the nomadic peoples cited by Justice Brennan in the Western Sahara Case, and indeed the Aboriginal peoples of Australia, is a universal conception. This is what Justice Brennan meant when he said in his classic statement in Mabo that “land is susceptible of ownership, and there are no other owners”.
It matters not what the nature of the indigenous social and cultural organisation may be, it matters not what arcane and idiosyncratic laws and customs the indigenous people may have governing their internal allocation of rights, interests and responsibilities amongst their members. It matters not whether it is an English Lord slaughtering innocent fowls on his estate, or whether it is an Australian Aborigine standing on one leg in the sunset on his father’s ancient homelands – the title is the same. The common law is only concerned to presume possession in those who are in occupation. And the content of this possession is not determined by the nature of the occupation, and certainly not by the laws and customs of the occupants. The form of the title is the title which occupation affords, which is possession.
But this is not how the Australian courts have approached native title. They have recast the prejudice in Re Southern Rhodesia so that prejudice against social and cultural organisation is used to justify indigenous Australians being accorded a lesserform of ownership than would be accorded by the common law to someone who was in wrongful occupation, such as that of an adverse possessor.
Indeed the content of the title of an adverse possessor is not limited to what she can prove by reference to laws, customs, and social organisation – rather she is accorded possession because she is in factual occupation. Yet, the title of the indigenous occupant is limited by proof of whatever traditional laws and customs may be adduced to a court, no matter how arcane they might be. Indigenous claimants can say to the High Court of Australia today: the common law only required that we prove occupation at the time of sovereignty, but Yorta Yorta now requires us to prove the details of the traditional laws and customs that existed more than two centuries ago.
This situation is not good. The situation is pregnant with the prospect that the opportunity which Mabo (No 2) represented for the settlement of land grievance in accordance with the three principles I outlined at the beginning of my submission, will ultimately be unfulfilled. In my view this situation can only be fixed if the definition of ‘native title’ in s 223(1) of the Native Title Act is restored to its original intention by Parliament, and that the explication of native title be undertaken by the Australian courts in accordance with ‘the time-honoured methodology of the common law’. This is the least that indigenous peoples having faith in the common law heritage of this country, could expect from the country’s Parliament and High Court.