AustLII Home | Databases | WorldLII | Search | Feedback

Indigenous Law Bulletin

Indigenous Law Bulletin
You are here:  AustLII >> Databases >> Indigenous Law Bulletin >> 2007 >> [2007] IndigLawB 20

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Behrendt, Jason --- "Changes to Native Title Law Since Mabo" [2007] IndigLawB 20; (2007) 6(26) Indigenous Law Bulletin 13

Changes to Native Title Law Since Mabo

by Jason Behrendt

Introduction

In 1992, the High Court handed down the Mabo[1] decision in which the Court held that the Australian common law recognised the pre-existing property interests of Indigenous peoples in the form of native title. While the decision ought not to have been controversial, for state governments and industry groups in particular, it represented an unwanted intrusion on the manner in which Indigenous land could be disposed of. At one extreme it led to comments such as:

If the High Court is going to write legislation, then we have to be given the opportunity to vote for the High Court. Otherwise we’ll have to shoot them all or hang them.[2]

It was in light of this type of response that Hal Wootten wrote ‘A Cheer for the Mabo Nudgers’ in the June 1993 Aboriginal Law Bulletin.[3] As he pointed out, Mabo was merely a statement of the obvious. The removal of legal fictions, and discriminatory notions of property, which denied the recognition of Indigenous peoples’ interests in land, was a simple matter of justice. Mabo also represented an important opportunity for Governments to take steps to recognise those interests and embrace them rather than view them only in terms of threats. Then Prime Minister, Paul Keating’s, ‘Redfern Park Speech’, published in the April 1993 Aboriginal Law Bulletin,[4] clearly set out that opportunity in stating Mabo ‘establishes a fundamental truth and lays the basis for justice.’[5]

However, the recognition of native title also had another side. Mabo is premised on the legitimacy of the Australian legal system to judge Indigenous cultures and to place limitations on the recognition of native title as it seems fit. As Michael Mansell observed in ‘The Court Gives an Inch But Takes Another Mile’ in the August 1992 Aboriginal Law Bulletin,[6] ‘what the gods give, they can taketh away.’[7]

In the 15 years since the recognition of native title, both the positive and negative aspects of the decision have evolved. There have been a number of successful claims which have recognised the traditional rights of Aboriginal people, including in parts of the country where there was no other means of recognising those interests. Within some industry sectors there has also been a change in culture, of sorts, which has led to an increase in Indigenous participation in the benefits of those industries.

However, governments have still not fully embraced the opportunity for justice. The process for settling native title claims is unnecessarily slow and only a small percentage of claims have been resolved. Despite the rhetoric of state governments that they prefer mediation to litigation, most have been incapable of developing efficient mechanisms to resolve claims or to accommodate Indigenous peoples’ interests as alternatives to the claim process. Court determinations that have made it easier for Governments to interfere with native title rights and interests[8] without consequence have not created any incentive for governments to resolve claims in a timely manner.

The observations of Michael Mansell have also continued to have relevance. A significant part of the reasoning in Mabo was a rejection of the concept that Aboriginal people could be deprived of their property through western legal conceptualisations of property and racist value judgments on social organisation.[9] In the 15 years since the recognition of native title, it is difficult to avoid the conclusion that there has not been somewhat of a retreat from this approach. While the High Court has, in the context of claims under the Native Title Act 1993 (Cth) (‘NTA’) subsequently reiterated that Aboriginal interests in land are primarily ‘a spiritual affair’,[10] it has also stated that the recognition of native title rights and interests requires the spiritual to be ‘translated into the legal.’[11] Through this translation the native title rights and interests that will be recognised are now just a western legal construct and characterised in an arbitrary way. [12]

There has also been a slow retreat from recognising Aboriginal peoples’ rights as Aboriginal people understand them. The deprivation of Indigenous property rights no longer occurs as a result of western concepts of ‘property’, they are deprived by the application of eurocentric legal appraisals of what is ‘traditional.’

Hairs are now split between ‘rules having normative content’ and ‘observable patterns of behaviour’.[13] Aboriginal people can now maintain knowledge of sites and have some laws in relation to them, but such knowledge and laws are the subject of a qualitative assessment whereby the Courts determine the level of knowledge which is sufficient.[14] If they do not carry out ceremonies, or do not know enough dances or ceremonies, they are said to no longer have traditional laws and customs.[15] The legitimacy of the process by which traditional knowledge is transmitted is similarly assessed and judged.[16] In the Wongatha Case,[17] it was held that it was not sufficient to establish that a particular practice which is sought to be protected is ‘traditional’ rather than a ‘body of law and customs of which it formed part was still observed.’ The Court went on to note that:

No useful general answer can be given to the question, how many laws and customs must be proved to be acknowledged and observed before we can say that the body of them is acknowledged and observed.[18]

None of these matters seem to be assessed from an Indigenous perspective as to what is sufficient, or what is legitimate.

Through interpretations of this kind, native title law is increasingly evolving in isolation from the subject matter to which it relates. It seems to be forgotten that the NTA is beneficial and remedial legislation and ought to be interpreted accordingly. Subject matter of the legislation is native title which is based on the laws and customs of Aboriginal people. As Kulchyski argued, ‘Aboriginal cultures are the waters through which Aboriginal rights swim.’[19] Key concepts such as ‘laws and customs’, ‘acknowledge and observe’, and ‘traditional’ ought to be understood from the stand-point of Aboriginal people.

There are presently four decisions that are either reserved or in the process of being heard by the Full Federal Court. The requirements for the recognition of native title will be further scrutinised in those decisions. Those decisions will determine the extent to which these current trends will continue. If they do then it may well be, as Michael Mansell posited in 1992, that history will judge the recognition of native title has been as a ‘small blessing’ but one which delivers very little in the ‘way of justice.’ It will also be lamentable that having ‘nudged’ the law, to use a term used by Hal Wootten, away from depriving Aboriginal people of their land by maintaining discriminatory concepts of ‘property,’ the law develops to achieve the same result through the imposition of eurocentric and arbitrary interpretations of other fundamental terms.

Jason Behrendt is an Aboriginal Solicitor at Chalk & Fitzgerald Lawyers and Consultants. He specialises in advising corporations and land councils in relation to native title and commonwealth and state environmental legislation.

The Article reproduced following this reflection was:

The Hon Prime Minister Paul Keating MP, ‘Redfern Park Speech’[1993] AboriginalLawB 9; , (1993) 3(61) Aboriginal Law Bulletin 4 (This article can be accessed via <http://www.austlii.edu.au/au/journals/AboriginalLB/1993/9.html> )


[1] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

[2] John Molony, Mayor of Burke Shire, as quoted in R Owen and F Kennedy, ‘Boom or Bust?’, The Australian (Sydney, 11 April 1996) 13.

[3] Hal Wootten, ‘A Cheer for the Mabo Nudgers’ [1993] AboriginalLawB 16; (1993) 3(62) Aboriginal Law Bulletin 2.

[4] Prime Minister Paul Keating, ‘Redfern Park Speech’ [1993] AboriginalLawB 9; (1993) 3(61) Aboriginal Law Bulletin 4.

[5] Ibid.

[6] Michael Mansell, ‘The Court Gives an Inch but takes Another Mile’ (1992) 2(57) Aboriginal Law Bulletin 4.

[7] Ibid.

[8] See The Lardil Peoples v Queensland [2001] FCA 414; 108 FCR 453.

[9] It was in the context of responding to Milirrpum v Nabalco 17 FLR 141, and in light of the observations of Ammoun J in the Advisory Opinion on Western Sahara [1975] ICJR at 85-86 that Brennan J rejected the theories which ‘depended on a discriminatory denigration of indigenous inhabitants and their social organisation’ in order to maintain ’that the indigenous inhabitants of a “settled” colony had no proprietary interest in the land.’

[10] Yanner v Eaton [1999] HCA 53; 201 CLR 351; Western Australia v Ward 213 CLR 1, Gleeson CJ, Gummow, Gaudron and Hayne JJ, 14. See also Brennan J in R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327.

[11] Western Australia v Ward 213 CLR 1, Gleeson CJ, Gummow, Gaudron and Hayne JJ, 14.

[12] For a general discussion on this issue see J Behrendt, ‘Indigenous Sea Cultures and the “Inconsistency” Test in Native Title Claims’, (2004) 6, Native Title News 158 –160.

[13] See for example Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31, Lindgren J, 996.

[14] See for example Risk v Northern Territory [2006] FCA 404, Mansfield J, 740.

[15] See for example Risk v Northern Territory [2006] FCA 404, Mansfield J, 674–678; Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31, Lindgren J, 970-971.

[16] See for example Risk v Northern Territory [2006] FCA 404, Mansfield J, 701- 726.

[17] Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31.

[18] Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31, Lindgren J, 963.

[19] P Kulchyski, Unjust Relations: Aboriginal Rights in Canadian Courts (1994) 13.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/2007/20.html