Indigenous Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Indigenous Law Bulletin |
|
Western Australia v Ward
High Court of Australia
(2002) 191 ALR 1
Chief Justice Gleeson and Justices Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan
8 August 2002
by Lisa Wright
The High Court’s decision in Western Australia v Ward was primarily concerned with two matters; the nature of native title as defined under the Native Title Act 1993 (Cth) (the ‘NTA’), and the extent to which native title rights and interests can be extinguished. Part one of this analysis focuses on how the majority (Chief Justice Gleeson and Justices Gaudron, Gummow, Hayne and Kirby) dealt with the first point. Unless the contrary is indicated, all references are to the joint judgment of the majority and the separate judgment of Justice Kirby. Part two of this analysis that will be published in a forthcoming issue of the Indigenous Law Bulletin, will deal with the majority’s decision in relation to extinguishment.
In their Honours’ view, the questions about extinguishment that were raised in the four appeals[1] had been put in an ‘abstract’ way:
The supposition appeared to be that the answer to them is to be found by an examination of the general law as revealed in previous decisions of this Court. The supposition cannot be supported.[2]
Their Honours acknowledged that what was said in Mabo (No 2)[3] may be relevant when considering the meaning and effect of the NTA, particularly provisions that are ‘plainly based’ on what was said in that case, such as s 223(1)(a) and (b). However, they emphasised that it was of the ‘very first importance’ to recognise two critical points:
Under the NTA, native title is constituted by rights and interests that find their source in traditional law and custom, not in the common law. The role of the common law is to provide for recognition of those rights and interests.[5] Recognition represents the ‘intersection’ of traditional laws and customs with the common law:
Identifying the nature and location of the intersection of traditional laws and customs with the common law requires careful attention to the content of traditional law and custom and to the way in which rights and interests existing under that regime find reflection in the statutory and common law.[6]
Describing rights and interests in the language of the common law imports concepts that owe their origin to the common law. The majority were of the view that using them as the starting point to describe claimed native title rights and interests is ‘apt to mislead the inquiry’ under s 223(1):
This is particularly so where this expression, which should be read as a whole, is severed into its constituent parts and each part is then treated as it would be in the description of some common law title to land.[7]
In their view:
Without a right of possession, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. In these situations, it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.[8]
It may be that rights and interests possessed under traditional laws and customs can be translated into a language more familiar to the common law. For example, the judges expressly stated that:
It is the rights under traditional law and custom to be asked permission and to ‘speak for country’ that are expressed in the common law as a right to possess, occupy, use and enjoy land to the exclusion of all others.[9]
This was because, in their Honours’ opinion, these rights have as their content, under traditional law and custom, rights to control access to, and exploitation of, particular areas. This, it was said, describes a ‘particular measure of control over access’ that intersects with the common law concept of a right to ‘possess, occupy, use and enjoy land to the exclusion of all others.’[10]
Other terms familiar to the common law may be used to describe native title rights and interests but only if the court is satisfied that the rights possessed under traditional law and custom are sufficiently congruent with the common law concept. For example, it was said that:
To speak of ‘possession’ of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.[11]
It was acknowledged that it might be very difficult to express the relationship between an Indigenous people and their country in terms of specified rights and interests but it was said that this is what is required by the NTA:
The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them.[12]
This statement clearly illustrates that what is eventually recognised as native title under the NTA may be a poor fit with the religious, social and political reality of many Indigenous people, particularly if the context in which rights and interests arise is lost in the translation.
The NTA deals only with rights and interests that fall within the scope of the definition of ‘native title’ and ‘native title rights and interests’ found in s 223(1). Under that definition, the rights and interests must be:
It has been held that the traditional laws and customs referred to in s 223(1) must make up a system of rules that govern or constitute a society.[14] That system must have had ‘continuous existence and vitality since sovereignty’ was asserted.[15] Acknowledgment and observance of the traditional laws and customs by the claimants must have continued substantially uninterrupted from the date of the assertion of sovereignty to the date of the determination.[16]
The same evidence as is used for paragraph (a) may be relevant to s 223(1)(b) because the connection with the land or waters that is required must be established ‘by those [same] laws and customs’. However, it was emphasised in Ward that there are two inquiries required:
Paragraph 223(1)(a) was said to present a question of fact, the answer to which requires the identification of:
In order to be ‘traditional’, the body of laws and customs currently acknowledged and observed must originate from, and be given its content by, the laws and customs observed by the predecessors of the claimants at the date on which sovereignty was asserted over the claim area.[19]
Note that some change or adaptation to law and custom over time, or some interruption to the enjoyment or exercise of rights and interests will not necessarily be fatal to a native title claim, provided that:
However, the judges acknowledged that assessing whether this is so or not may give rise to ‘difficult questions of fact and degree.’[20]
This aspect of the definition of native title requires consideration of whether, by the traditional laws and customs currently observed by the peoples concerned, they have a ‘connection’ with the land or waters claimed. This, it was said, requires:
Paragraph 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Rather, the claimants must show that, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a ‘connection’ with the land and waters claimed.[22] The judges acknowledged that:
[T]here may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection.[23]
It was accepted that rights in relation to cultural knowledge may be possessed under traditional law and custom and, therefore, meet the requirements of s 223(1)(a). The ‘critical’ question was whether, ‘by those laws and customs’, there is ‘a connection with’ the land or waters in question, ie the requirement under s 223(1)(b).[24] It was acknowledged that:
To some degree ... [eg access to rock art or ceremonial sites], the traditional laws and customs which are manifested at these sites answer the requirement of connection with the land found in [s 223(1)(b)].[25]
However, as was noted earlier, what was required was the characterisation of the effect of those laws and customs as constituting a connection of the people to the claim area. The judges characterised what was asserted in this case as ‘an incorporeal right akin to a new species of intellectual property.’ Exercise of this right would involve, for example, restraining the use of existing photographs or video recordings of artwork or ceremonies. Their finding that this would extend beyond denying or controlling access to native title land presented a ‘fatal difficulty’:
The essential point here is the requirement of ‘connection’ in s 223(1)(b). The scope of the right for which recognition by the common law is sought here goes beyond the content of the definition in s 223(1).[26]
Therefore, while it may be possible to protect cultural knowledge under other laws (eg the law respecting confidential information, copyright, fiduciary duties and moral rights)[27], the judges were of the view that this was not a right or interest that arose from the traditional laws and customs ‘by which’ the claimants had ‘a connection’ with the claimed land and waters. Therefore, they were of the view that it is not the kind of right that the NTA recognises and protects.[28] This conclusion was reached despite their earlier statement that ‘the connection which Aboriginal peoples have with ‘country’ is essentially spiritual.’[29]
Rights and interests that meet the requirements of subsections 223(1)(a) and (b) must also be recognised by the common law before they ‘answer the description of native title as defined in the NTA.’[30] Rights and interests may be denied recognition by the common law under paragraph (c) because:
It was said that the case law does not yet provide examples of rights and interests falling into the first category and has not been developed in relation to the second.[33]
The claimants had originally filed documents in which the claim area was divided into specific parcels, with about 20 separate rights claimed over each parcel.[34] One of these was the right to possession, occupation, use and enjoyment. Other rights, including rights to hunt and gather food, or to derive sustenance from the area, were also asserted over each parcel. However, the case had been dealt with in ‘absolute’ or ‘abstract’ terms:[35]
The debate at trial...appears to have focussed largely on the widest of the claims – the claim to the right to possession, occupation, use and enjoyment of the land – and on claims to control access to or use of the land.[36]
The argument in this court focussed upon questions of extinguishment rather than the anterior question of the existence of native title and the particular content of the native title rights and interests.[37]
According to the judges, approaching the matter in this way led to a failure to ‘examine the particular aspects of the relationship found below [by Justice Lee at trial] to have been sufficient [to satisfy s 223(1)(a) and (b) of the NTA]’.[38] Justice Lee’s finding that the claimants’ predecessors were in occupation of the claim area when sovereignty was asserted, which the Full Federal Court had adopted, was criticised in the joint judgement:
The fact of occupation does not, without more, identify the nature of the rights and interests which, under traditional law and custom, those predecessors held ... [and] says nothing of what traditional law or custom provided ... [It] is an insufficient basis for concluding that there was ... communal title in respect of the claim area ... or a right of occupation to it. If ... those expressions are intended to convey the assertion of rights of control over the land, rights of that kind would flow not from the fact of occupation, but from ... a right to speak for country.[39]
This led to the judges expressing a preference for rights and interests to be described ‘by reference to the activities that may be conducted, as of right, on or in relation to the land and waters [claimed]’, as the claimants had done prior to the trial.[40] This was the ‘appropriate’ way to express the nature and extent of the ‘relevant native title rights and interests’ in circumstances where what was recognised was less than a right of exclusive possession:
[W]here ... native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.[41]
Chief Justice Gleeson and Justices Gaudron, Gummow and Hayne also seemed to be concerned that rights and interests expressed in general terms may be more at risk of being inconsistent with other non-native title rights and interests:
The more general the terms in which the findings are made as to the subsistence of native title, the more difficult the giving of specificity to findings of extinguishment, particularly where ... there may be partial extinguishment. It may be observed that the specific finding at trial in Yanner v Eaton as to the existence of the [claimed] hunting and fishing rights and interests ... facilitated the finding in this Court of regulation rather than extinguishment.[42]
The decision of the majority, including the reluctant Justice Kirby, highlights that there may be a considerable gulf between the relationship Indigenous Australians have under their law and custom with their country, as viewed from their perspective, and what falls within the definition of ‘native title rights and interests’ in any determination under the NTA.[43] The decision with respect to the protection of cultural knowledge throws that contrast into stark relief.
Further, many of the legitimate expectations of the Indigenous people that were raised when the High Court decided in Mabo (No 2) that they had rights when sovereignty was asserted may not be met through a determination of native title under the NTA. But as the High Court has pointed out on several occasions, this does not mean that, as a matter of fact and social reality, it is not still their country. The decision in this, or any other native title case, is no bar to that relationship being recognised and protected in other ways.
Lisa Wright is a senior legal officer with the National Native Title Tribunal. The views expressed in this article are the personal views of the writer and do not represent those of the Tribunal.
[1] One each by the State of Western Australia, the Northern Territory Government, the Miriuwung and Gajerrong people from Western Australia and the Miriuwung groups in the Northern Territory.
[2] Western Australia v Ward (2002) 191 ALR 1 (‘Ward’) [1]. The majority also distinguished the High Court’s earlier native title decisions in Wik v Queensland, Fejo v Northern Territory and Yanner v Eaton, because they do not relate to a determination of native title under s 225 NTA. In Ward, the determination provisions of the NTA were directly engaged for the first time and so, ‘the NTA lay at the core of this litigation’. Ward (2002) 191 ALR 1, [2].
[3] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.
[4] Ward (2002) 191 ALR 1, [16]. See also Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 194 ALR 538 (‘Yorta Yorta’) [32],[70], [75] and Commonwealth v Yarmirr (2001) 208 CLR 1 (‘Yarmirr’) [7]. In Ward [570], [596], Kirby J agreed generally but went on to emphasise that the provisions of the NTA should be given a construction that is consistent with the principles of fundamental human rights and that the requirement for specificity in describing rights and interests should not result in an undue narrowing of what is recognised as native title.
[5] Ward (2002) 191 ALR 1, [20] and Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, [33].
[6] Ward (2002) 191 ALR 1, [85].
[7] Ibid [94]. On this point, see also McHugh J at [477] – [478].
[8] Ibid [52]. Kirby J disagreed, being of the view that recognition of a right of ‘qualified exclusivity’ was possible and that reducing native title rights and interests to ‘a list of activities permitted on, or in relation to’ the area claimed unduly narrowed the scope of what could be recognised under the NTA. However, he found that he must ‘submit to the majority’s reasoning’, going on to say that: ‘This is an area of law where there is a very high premium on certainty ... where an individual judge should ... surrender personal preferences on particular issues in favour of a clear statement of the applicable law’: [569] - [570], [591] - [594].
[9] Ibid [88].
[10] Ibid [89].
[11] Ibid.
[12] Ibid [14].
[13] Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, [75]. Other rights and interests possessed under traditional law and custom will not be recognised as native title rights and interests.
[14] Ibid [39].
[15] Ibid [47].
[16] Ibid [87]. In Ward, their Honours commented that s 13(4) NTA provides that a determination of native title under s 225 NTA can be revoked or varied. This gave it an ‘indefinite character’ that was said to reflect the requirement for the continuing acknowledgment and observance of traditional laws and customs and continuing connection with land implicit in the definition of ‘native title’ in s 223(1) NTA: Ward (2002) 191 ALR 1, [32].
[17] Ward (2002) 191 ALR 1, [18].
[18] Ibid.
[19] Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, [86]. In Ward, Kirby J disagreed: [I]t would be a mistake to ignore the possibility of new aspects of traditional rights and interests developing as part of Aboriginal custom not envisaged, or even imagined, in the times preceding settlement’: Ward (2002) 191 ALR 1, [574]. However, the majority decision on this point in Yarmirr was binding on Kirby J: see [595].
[20] Yorta Yorta [2002] HCA 55; (2002) 194 ALR 1, [82] - [84].
[21] Ward (2002) 191 ALR 1, [64].
[22] Ibid [64]. See also Yorta Yorta [2002] HCA 55; (2002) 194 ALR 1, [84]: The statutory definition is directed at possession of rights and interests, not their exercise, and to the existence of a relevant connection between the claimants and the area claimed.
[23] Ibid [64] emphasis added. As a result of the way that this question was put to the High Court, it was not necessary for any view to be expressed on the nature of the connection that must be shown, including whether a spiritual connection alone would be sufficient.
[24] Ibid [19].
[25] Ibid [59].
[26] Ibid [60].
[27] Only Kirby J, in dissent on this point, noted that the law of intellectual property was ‘ill-equipped to provide full protection’ of these rights and that one of the aims of the NTA was to ‘supplement the rights available under the general law’: Ward (2002) 191 ALR 1, [582].
[28] Ibid [60] - [61]. Kirby J expressly disagreed with this finding, criticising it on the basis that the rights claimed are rights ‘in relation to land and waters’ and do fall within the scope of s 223(1): ‘If ...cultural knowledge, as exhibited in ceremony, performance, artistic creation and narrative, is inherently related to the land according to Aboriginal beliefs, it follows logically that the right to protect such knowledge is therefore related to the land for the purposes of the NTA’: see [576] - [587].
[29] Ibid [14].
[30] Ibid [20]. Yarmirr (2001) 208 CLR 1, [40] - [42], [128].
[31] In Yorta Yorta after referring to these comments in Ward, Gleeson CJ, Gummow and Hayes JJ said that native title rights and interests are, among other things, rights and interests that can now, ‘by resort to the processes of the new legal order’, be enforced and protected. ‘It is those rights and interests which are ‘recognised’ in the common law.’ They appear to be saying that rights or interests that cannot be enforced and protected cannot be recognised under s 223(1)(c): Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, [77]. See also Callinan J at [176].
[32] Ward (2002) 191 ALR 1, [21]. See also Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, [77], [110].
[33] On this point, in Ward, the judges distinguish between cases where the claimants do not satisfy the requirements of s 223(1)(b) and those where the requisite connection is proven but the rights and interests in question have been extinguished by an inconsistent grant or act: Ward (2002) 191 ALR 1, [26].
[34] This division of the claim area was, presumably, based upon the current status of that area and the history of dealing with each parcel.
[35] Ward (2002) 191 ALR 1, [62].
[36] Ibid [48].
[37] Ibid [29]. Note that this appears to conflict with their earlier statement at [21] of the judgement, where it is said that the inquiry into extinguishment is part of the inquiry into whether or not the rights and interests claimed can be recognised as native title rights and interests, rather than a posterior question.
[38] Ibid [64], [72]. It was held that the findings of fact were insufficient to allow the High Court to decide all the points of appeal and so some issues were remitted to the Full Court for further consideration.
[39] Ibid [93]. As noted above, the right to speak for country, coupled with the right to be asked permission to enter and use an area, was said to ‘amount to’ the common law concept of exclusive possession.
[40] Kirby J disagreed because this formulation may unduly narrow the scope of rights recognised under the NTA: [569] - [570].
[41] Ibid [51].
[42] Ibid [29] referring to Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351.
[43] Another commentator has independently reached a remarkably similar conclusion in relation to Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538: see Dr Lisa Strelein, ‘Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (12 December 2002) – Comment’ (Working Paper No 21, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2003).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/2003/9.html