Aboriginal Law Bulletin
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by Justin Malbon
An historian in the future may discover to her surprise that the landmark decision of Eddie Mabo and Ors v The State of Queensland [1992] HCA 23; (1992) 66 ALJR 408 (Mabo No. 2) did not engender much adverse reaction from the non-Aboriginal community at the time it was handed down. The reason may be that commentators skimmed through the lengthy judgment and seized upon Justice Brennan s judgment as reflecting the majority view. After noting his comment that native title can be extinguished without compensation they may have concluded that the decision was not to be as far-reaching as they had expected. Perhaps there is nothing new in the non-Aboriginal reaction of largely ignoring the rights won by, and the wrongs done to, Aboriginal and Torres Strait Islander people, unless of course it is likely to adversely affect their self interest.
A person concluding that the Mabo (No.2) case is only of minor significance misunderstands the implications of the decision. To begin with, Brennan J was careful to link the decision in Mabo v Queensland and the Commonwealth (1988) 166 CLR 186 (Mabo No.1) with the decision in Mabo (No. 2) so that compensation is payable if there is an arbitrary deprivation of the existing proprietary (and possibly other native) rights of Aboriginal and Torres Strait Islander people in breach of the Commonwealth Racial Discrimination Act 1975.
It will take time before many implications of the decision can be fully appreciated. In this article I will provide a few first impressions of the issues arising in the decision and their implications. The issues discussed include:
The High Court ruled out terra nullius as part of the Australian common law. The doctrine of terra nullius was a particularly offensive device for depriving Aboriginal and Torres Strait Islander people of their title to land. This device applied even where a traditional attachment was maintained to the land. The doctrine was discriminatory as it deprived Aboriginal and Torres Strait Islander people of a possessory right to land. Contrast that with non-Aboriginal possessory title which derives from a person's possession of land and is not dependant on a Crown grant. It is a title that can be asserted against the whole world except a person who can show a better title, usually one with a Crown grant of title.
In affirming native title based on traditional Aboriginal possession of land, the Court was faced with two lines of conflicting authority. One line maintained that when Britain claimed territory, the Crown acquired both the 'radical title' (i.e. ultimate or final title) and possessory title to the territory. The other line of authority maintained that the acquisition of territory conferred the radical title to the Crown, but not possessory title. The majority favoured the second line of authority.
The British acquisition of Australian territory therefore conferred the radical title to the Crown. But the acquisition did not give the Crown automatic possessory title. Aboriginal or Torres Strait Islander inhabitants therefore maintained a legal right to their land ('native title') based on their actual possession of the land. Native title continues until it is extinguished by the Crown through the grant of an interest in land, or the setting aside of land for a public purpose, that is inconsistent with the native right.
Before discussing extinguishment, there is one further complication that needs to be considered. Section 5 of the Land Act 1962 (Qld) defines land that has not been granted, reserved, leased or licensed by the Crown as 'Crown land'. Section 91 of the Crown Lands Alienation Act 1876 (Qld) (and there are similar provisions in other States) made it an offence to be in occupation of Crown land 'unless lawfully claiming under a subsisting lease or licence'. Therefore, if the land in dispute in Mabo (No. 2) was Crown land, the original occupants of the Murray Islands would have been trespassers unless they could show they had some form of title or right to the land granted by the Crown.
The majority of the High Court found that it would be unjust and make a nonsense of the law to find that Murray Island was Crown land. Brennan J. found that a provision such as s.91 "should be construed as being directed to those who were or are in occupation under colour of a Crown grant or without any colour of right; they are not directed to indigenous inhabitants who were or are in occupation of land by right of their unextinguished native title" (at p.433). In any event, the Court declared that the land in the Murray Islands is not Crown land within the meaning of that term in s.5 of the Land Act 1962 (Qld).
The Court was split 33-1 on the issues of extinguishment and compensation. To this extent the decision has an uncanny resemblance to the ground-breaking Canadian
decision of Calder v Attorney-General of British Columbia (1973) SCR 313 which also suffered a 3-3-1 split on the major issues in contention.
Three members of the Court (Deane, Toohey and Gaudron JJ.) were in the minority on the issues of compensation and extinguishment. The other four members of the Court managed to agree on a declaration regarding extinguishment and were in general agreement regarding compensation. It is therefore convenient to turn to Brennan J's judgment (with which Mason CJ. and McHugh J. were in agreement) to gain some comprehension of the determination of the Court on these issues.
The Brennan test of extinguishment of the native title is more subtle and more flexible than the tests used overseas. U.S. and Canadian courts generally require that if the government is to extinguish native title, it must clearly and plainly express that intention in a relevant law or instrument. Brennan J. accepted that requirement. He then added that the government's intention does not depend on the intention of the Governor in Council, but on the effect that the grant has on the right to enjoy native title (at p 433); and this will depend on whether the Crown grant is inconsistent with the continued right to enjoy a native title in respect to the same land (at p. 433).
Therefore, legislation that merely regulates the enjoyment of the native title or creates a regime of control that is not inconsistent with the native title (e.g., nature conservation legislation) does not extinguish the native title (at p. 432). Further, if a grant or legislation creates an inconsistency with the enjoyment of some of the rights attaching to the native title, it only extinguishes the title to the extent of the inconsistency (at p.434).
This raises the possibility that some aspects of the native title survive a grant of title to a non-Aboriginal. For example, say there is a grazing lease on land over which there is a dreaming track. It is possible that the use by an Aboriginal group of the dreaming track is not inconsistent, as a matter of fact, with the use by a grazier of the grazing lease. The dreaming track may be somewhat analogous to an easement over land - but the usual rules relating to the creation of easements will not apply because of the unique (or sui generis)
nature of the native title. The Aboriginal group exercising its right to the dreaming track could seek an injunction if it feared that its interests would be wrongly interfered with.
The Brennan test of inconsistency would be equally relevant regarding other aspects of the native title, such as traditional hunting and fishing rights.
There are a range of statutory schemes in Australia that generally:
(a) allow Aboriginal and Torres Strait Islander people to claim statutory title to vacant Crown land, or Aboriginal or Torres Strait Islander reserves, based on traditional affiliation with the land; or
(b) make a specific grant of statutory title or allow for claims without the requirement for proving traditional affiliation.
The question is, what impact does Mabo (No. 2) have on these statutory regimes? This is partly answered by the further question: do the statutory schemes extinguish the native title? The answer to this will depend on the circumstances of the particular case.
The statutory schemes generally grant statutory title to the traditional occupiers of land. The grounds for establishing entitlement to land are broadly consistent with the common law requirements. If the Brennan test of inconsistency is used, it seems that Land Rights legislation does not extinguish native title and, if anything, confirms it. Most of the statutory schemes grant inalienable freehold title over specific parcels of land. This form of title, of course, does not reflect the traditional Aboriginal or Torres Strait Islander way of dealing with land. Despite that, the Brennan test shows that the grant of this title does not extinguish the native title because it is not inconsistent with the native title. If the statutory grant does not extinguish the native title, it follows that the common law protection of native title applies to the statutory title. That may mean that an amendment to Land Rights legislation that attempted to take away land granted under the Act, without compensation, would be invalid, because it would breach the Racial Discrimination Act 1975 (Cth) or the just terms provision of the Commonwealth Constitution.
In summary, the grant of title under Land Rights legislation does not extinguish the native title in many cases. This means that the common law principles and protection that apply to native title will often apply to statutory grants of title under Land Rights legislation.
There are at least a couple of advantages in retaining Land Rights legislation. First, there are times when the legislation provides benefits when the common law does not, and vice versa. For example, sometimes a statutory scheme allows title to be granted to the traditional occupiers of the land when the common law does not recognise that native title exists. This will be the case if the native title was extinguished by an inconsistent grant sometime in the past, but the land has since reverted to being vacant crown land.
Second, the statutory schemes in some cases provide a more convenient procedure than the common law procedure for proving traditional association with the land. Bryan Keon-Cohen, who was a lawyer acting for Eddie Mabo and the other plaintiffs, pointed out in the previous edition of the Aboriginal Law Bulletin that the Mabo case took 10 years during which 3 of the 5 plaintiffs (including Eddie Mabo) died. (AboriginalLB 56/22) The untried Queensland Aboriginal Land Act 1991 and Torres Strait Land Act 1991 aim to offer a relatively efficient process for determining entitlement to land. Admittedly, however, a number of claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) cannot be described as having progressed expeditiously.
The decision in Mabo (No.2) provides little direct assistance to Aboriginal or Tones Strait Islander people who cannot prove that they are presently using and occupying land according to their tradition. The major difficulty is that statute of limitations legislation may prevent claims relating to forced removals from land that occurred before a specified time period.
However, there is a possibility that the High Court may in the future follow Canadian and U.S. cases in recognising that the Crown owes a fiduciary or trust-like duty to Aboriginal and Torres Strait Islander people. Toohey J. referred to the existence of the fiduciary duty in his judgment. Basically, the duty requires the Crown to act in the best interests of Aboriginal or Torres Strait Islander people when dealing with their interests.
It is possible, if a trust duty exists, that the time bar will be overcome as it does not apply between a trustee and a beneficiary (see County of Oneida v Oneida Indian Nation (1985) 470 US 266). That means that Aboriginal or Torres Strait Islander claimants who can prove they are the descendants of people who had native title to land from which they were forcibly removed because of a failure by the Crown to act in their best interests may have a right of action against the Crown. This may be so even if the ancestors of the claimants were forced off the land over a century ago.
The Crown's failure to act for the benefit of the holders of native title will probably have to be proved. This may not be an insurmountable task because, as Professor Henry Reynolds points out[1], the colonial governors, at least, were made aware of the transgressions against the rights of the native people. For example, in February 1850, the Secretary of State, Earl Grey, informed Governor Fitzroy that it was illegal to force the Aborigines off cattle runs and that they had "every right to the protection of the law from such aggressions."[2]
It is important to remember, however, that taking this action will probably not lead to the land being returned because the Crown would have granted title to an 'innocent' third party without notice of the Aboriginal or Torres Strait Islander possessory title. In any event, the time bar protects non-Aboriginal holders of granted title as they
are not trustees. Because of this, the likely remedy against the Crown is monetary compensation.
It is reasonable to assume, even after a superficial examination of the implications of Mabo (No.2), that future developments of the law relating to Aboriginal and Torres Strait Islander rights to land are likely to be significant. If Australia follows the trend in other former British colonies such as the U.S., Canada and New Zealand, it is likely that the legal developments will spur the political process into providing a just settlement for the enormous wrongs that have been perpetrated upon Aboriginal and Torres Strait Islander people. The combined effect of the legal and political processes may eventually lead to a meaningful settlement of Aboriginal and Tones Strait Islander claims.
Justin Malbon is a Barrister working in Brisbane. The views expressed in this article are his own and do not necessarily reflect those of the Queensland Government.
[1] Reynolds, H., The Law of the Land, Penguin, 1987
[2] Ibid, p.139.
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