17197On settlement, Australia adopted English laws and the views of the Indigenous population were not sought. Their pre-existing body of customary laws was ignored and the land was deemed terra nullius, being claimed by the Crown with all subsequent land grants being derived from an original grant from the monarch. The Australian Constitution on its instigation in 1901 failed to recognize Indigenous Australia and discriminated against them until a 1967 amendment which allowed Indigenous people the right to vote. However, in a representative government system where the Indigenous population is a fraction of the mainstream it still provided little protection and no real recognition. It resulted in the dispossession, discrimination and social disadvantage for Indigenous Australians. These results, in turn, caused extremely high incarceration rates of Indigenous people and an Australian justice system that has struggled to find a response that has not worsened the situation.

Further attempts have been made to address the devastating effects of colonization on Indigenous Australians. In 1976 a major step was taken to recognize and preserve the strong Aboriginal connection with the land in the passing of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). This legislation allowed blocks of land in the Northern Territory to be granted to land trusts if Aboriginal land ownership could be proven. It was a response to the 1971 ruling on Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 that, although there were traditional customs and laws regulating the relations of Indigenous people with the land, such laws were not recognized by Australian common law. However, the most major development in recent times in the common law approach to land rights was made in the High Court decision of Mabo v Queensland [No 2] (1992)175 CLR 1.

Begun in 1982, Mabo, as it has now become known, was a claim by Mr Eddie Mabo of the Torres Strait island of Mer and was joined by other islanders.  The claim travelled through the lower Queensland state courts to the High Court who observed in 1992 that in reality Australia was not terra nullius – or an empty land- when it was settled. Mason C.J. and McHugh J. declared:

Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights (68) See Communication 78/1980 in Selected Decisions of the Human Rights Committee under the Optional Protocol, vol.2, p 23 brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.

The key finding in Mabo that was to translate into the passing of the legislation of The Native Titles Act 1993 was that a group of Aborigines or Torres Strait Islanders able to show that they had exercised traditional rights over land since before British colonization would be recognized under the law as having native title under common law. However, if the Crown had exercised its rights to the land, either by using it itself or by selling or granting the land to someone else then the native title might be extinguished.

So what was the criteria that Mabo established for a claim for native title to be successful in common law? The defence of the Crown was that it acquired ‘sovereignty over the land, and that the new sovereign would extinguish the indigenous people’s interest in the land and create proprietary rights. However Mason C.J. and McHugh J. asserted :

…it would be curious if, in place of interests that were classified as non-proprietary, proprietary rights could be created. Where a proprietary title capable of recognition by the common law is found to have been possessed by a community in occupation of a territory, there is no reason why that title should not be recognized as a burden on the Crown’s radical title when the Crown acquires sovereignty over that territory.

However to have this access to common law proprietary title the High Court found that the claimant had to show that:

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.

So the first hurdle of a claimant was to prove that the land had been occupied since the time before settlement by the claimant/s and that the laws and customs of the claimant had still continued to have been enacted since that time. Therefore the High Court stated:

…once it is acknowledged that an inhabited territory which became a settled colony was no more a legal desert than it was “desert uninhabited” in fact, it is necessary to ascertain by evidence the nature and incidents of native title. Though these are matters of fact, some general propositions about native title can be stated without reference to evidence.

To set out the entitlement to a native claim the High Court ruled that:

Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise.

Then to define what the extinguishment of native meant the High Court also ruled that:

…when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, 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. Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown’s radical title expands to a full beneficial title, for then there is no other proprietor than the Crown.

Therefore, Mabo established that native title could be claimed, granted and recognized as full proprietary title under common law if the individual or group making the claim could provide evidential proof that they had continually lived on the land under claim before and since settlement, and also that they had carried on their association with that land through following the laws and customs handed down with it. However, any native title claim was extinguished if those that had lived on the land before settlement had died or moved elsewhere or if the land was no longer subject to traditional law and observance of traditional customs. Also, once the Crown had been able to alienate the land through appropriation for the Crown’s purposes or through grants of lesser interests, such as through freehold or lease, that too extinguished native title over the land.

The ruling in Mabo was enshrined by a progressive Australian government in the legislation The Native Titles Act 1993 (The Act) which defined those two crucial aspects of native title and its extinguishment became law. The Act’s main objective is ‘to provide for the recognition and protection of native title’. In section 7 the Act states that it is subject to the provisions of the Racial Discrimination Act 1975. Section 223 defines how native title is to be recognized:

Common law rights and interests

(1)  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.

Hunting, gathering and fishing covered

(2)  Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

While section 11, Division 1, Part 2 states that extinguishment of native title is only subject to the Act :

  • Native title is not able to be extinguished contrary to this Act

Effect of subsection (1)

(2) An act that consists of the making, amendment or repeal of

legislation on or after 1 July 1993 by the Commonwealth, a State

or a Territory is only able to extinguish native title:

(a) in accordance with Division 2B (which deals with

confirmation of past extinguishment of native title) or

Division 3 (which deals with future acts etc. and native title)

of Part 2; or 

(b) by validating past acts, or intermediate period acts, in relation to the native title.

Section 23A gives an overview of an act of extinguishment:

(1)  In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title.

(2)  If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title.

(3)  If the acts were previous non-exclusive possession acts (involving grants of non-exclusive agricultural leases or non-exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency.

(4)  This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under this Division for Commonwealth acts.

The High Court decision in Mabo recognized that beneficial native title could coexist with Crown title. However, native title still relies on difficult questions of fact. Firstly, has the title been extinguished through using the land inconsistently with native title? Secondly, can the native title claimants prove that they have maintained their connection with the land?

Section 225 of the Act requires the Federal Court, when making a native title determination, to specify a number of matters:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(c) the nature and extent of any other interests in relation to the determination area; and

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

 Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

 Further developments to the issue of native title took place in Wik Peoples v Queensland (1996) 187 CLR 1 where a majority of the High Court held that native title could coexist over land covered by pastoral leases. This ruling generated uncertainty and unease in some segments of the Australian community, realizing some of the reservations that were held over the Mabo ruling. In response the conservative Australian government of the time passed the Native Title Amendment Act 1998 (Cth) which changed entitlement to native title through restriction and modification. This strengthened the position of pastoralists and mining companies who wished to exploit land over which native title was held.

This appeared to show the complexity of native title claims and the danger of such large claims causing community division either through native, mining, or pastoral rights.The most recent example of this is the long-running litigation in Bennell v Western Australia (2006) 153 FCR 120; 230 ALR, where Wilcox J. upheld the Noongar Community’s claim of native title over a large portion of Western Australia including its capital city of Perth.  Wilcox J. emphasized the claim’s exclusion from areas where native title was extinguished such as freehold and leasehold land, stating that native title ‘cannot take away people’s backyards’. However, Wilcox J. also emphasized that native title would not be a ‘pot of gold’ for the claimants. ‘A native title determination recognizes the traditional association of the claimant community with particular land…[It] does not give to the claimant community a right that enables them to sell or lease the land or to use it for any non-traditional purpose’. This last statement appears to hold with the precedents of other rulings on native title but especially those cited by Deane and Gaudron JJ in Mabo.  They state at 22:

…the title, whether of individual, family, band or community, is “only a personal right”… it does not constitute a legal or beneficial estate or interest in the actual land.

This appears to benefit the native title claimants in that they can be assured of holding title over land that they are attached to through custom and law, but they cannot use the land other than for its customary purposes. It could be said that it is Pyrhrric victory, in that such a title to land is not relevant to the common law understanding of land that can be used to create wealth. However, it could be argued that native title claimants would benefit unfairly if they obtained title to land and all the necessary benefits that come with such title but use the Crown’s utilities, such as towns, roads, electricity and water, that would not have been in existence but for the settlement of Australia.

As the Bennell decision illustrates, native title is one of the most complex issues that the judicial system can deal with and such litigation costs much money- mostly taxpayers’ funds. In September 2013 the Western Australian Government made ‘a final offer to resolve native title claims across South West Western Australia’ to the Noongar community’s representatives, the South West Aboriginal Land and Sea Council. This comprehensive offer involves legislative recognition of the Noongar people as custodians; the transfer of parcels of Crown land to the Noongar people; scheduled financial payments; housing, employment and cultural programs; and the establishment of various institutions to manage the settlement. It is yet to be seen whether all parties will be happy with settlement.

The ability of successful native title settlements to achieve an equitable solution where parties can be realistic about outcomes does not inspire confidence. The resource drain of the native title process continues to be a problem while some Indigenous people are forced off their custodial lands due to the state’s financial inability to maintain infrastructure to remote communities. These remote communities need roads, transport, water, power, sewage systems, housing, food markets, policing, schools, health and community centers. To finance this it may bring better outcomes if settlement negotiations included these benefits in return for native title, while allowing the Crown to negotiate in good faith and with the consent of the titleholders for tourist, pastoral and mining interests which could involve Indigenous employment opportunities. It would be discouraging to think twenty five years after Mabo that ‘the benefits intended for Australia’s Indigenous peoples in relation to native title land and waters are being channeled into costs of administration and litigation that leave everyone dissatisfied and many disappointed’, as Kirby J noted in Wilson v Anderson (2002) 213 CLR 401, 454 [126]. It will be interesting to note what future law reform can bring to this issue.