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Critique and Comment
MAUREEN TEHAN[*]
[It is 10 years since the Native Title Act 1993 (Cth) was passed in response to the High Court’s Mabo decision. Those years have been marked by an interplay between the common law and statute. Following the High Court’s decision in Ward and Yorta Yorta, this interplay has been starkly enunciated and redefined. The Act is dominant and the common law has been almost relegated, at least for the moment, to a historical artefact. Noel Pearson described the process most dramatically: ‘Ten years in the sunshine of the Rule of Law was all that black Australians were fated to enjoy’. How is it that such a determinate view of the state of native title could be made a mere 10 years after the promise engendered by the Mabo decision? While there is little doubt that the nature of the rights emerging from both the common law and the Act have been significantly diminished by both the Native Title Amendment Act 1998 (Cth) and the recent decisions in Ward, Yorta Yorta and Wilson v Anderson, it is indisputable that the recognition and protection of native title as a result of Mabo provided the underpinning for a realignment of relationships between indigenous and non-indigenous Australians. Indigenous rights and interests in land can no longer be ignored or cast aside. This article argues that in spite of both legislation and the courts diminishing the concept of native title and the rights associated with it, the process of change unleashed by Mabo and the Native Title Act 1993 (Cth) cannot be reversed. The question now is where this process of change will lead.]
Land is at the centre of the discordant and legally-endorsed relationship of dispossession that marks the landscape of settler societies.[1] This idea of dispossession goes beyond the physical removal of people from land and encompasses ideas about land that are part of the imagination, psyche and memory. The spirits, beings and ideas about land that inhabited and animated the country prior to colonisation gave the land and people meanings that had nothing to do with the imaginings and meanings of the coloniser.[2] In the process of colonisation, the two complexes of power and meaning were in touch with each other and ultimately one was overridden by the other — never completely and never without resistance. The process of colonisation resulted in a complex of power of external origin in charge of a new geopolitical space. New meanings became engraved upon the landscape and in its peoples’ consciousness.[3]
This complex of relationships and meanings is at the heart of the decision in Mabo v Queensland [No 2][4] and the responses it provoked. The Native Title Act 1993 (Cth) (‘NTA’) was one such response. It is now almost 10 years since the Commonwealth Parliament passed the Act. On such anniversaries it is apposite to reflect upon the path travelled and where that path has led. This article is one story of that journey: reflecting upon and critically examining the substance and effect of the NTA, from where it came and where it has taken us.
The common law of native title and the Act are intimately entwined. Neither can be fully comprehended without reference to the other, and the interplay between them has given each its shape and form. The fact that the concept of native title has been shaped as much by the political environment as by the judicial decisions of the High Court means that any discussion of the NTA must reflect upon both the common law and the legislation itself. After all, both the Parliament and the courts have been responsible for the alternating delineation, expansion and curtailment of the rights of indigenous Australians.[5] This serves as a reminder that native title, from a settler point of view, is as much about politics as it is about law. From an indigenous perspective, it is about life itself.[6]
Following the High Court’s decisions in Western Australia v Ward,[7] Wilson v Anderson[8] and Yorta Yorta v Victoria,[9] the interplay between the common law and the NTA has been starkly enunciated and redefined. The Act is dominant and the common law has been almost relegated, at least for the moment, to a historical artefact. Noel Pearson described the process most dramatically: ‘Ten years in the sunshine of the Rule of Law was all that black Australians were fated to enjoy’.[10]
How is it that such a determinate assessment of the state of native title could be made a mere 10 years after the promise engendered by the Mabo decision? Was this the outcome envisaged by the federal Parliament when it debated and passed the Act in 1993 or when the Act was amended in 1998? Was it the inevitable outcome of the political and social division that Mabo and the subsequent legislation revealed and that remains unreconciled? Is Pearson’s view an accurate assessment of the present state of the law of native title or is it possible to read the current state of native title in a more expansive way? Even if Pearson’s view is accurate, has the decade since Mabo produced changes and responses that cannot be undone? Has the ‘sunshine of the Rule of Law’ set or has it been temporarily clouded? Has a new course been charted?
These uncertainties illustrate the need for an exploration of the impact and meaning of native title and its legislative variations. The scope and content of the rights recognised by the Court in Mabo were varied and in some respects diminished by the NTA.[11] In relation to future uses of native title land and resources, the native title rights were arguably enhanced through the future act regime.[12] There is little doubt, however, that the nature of the rights that emerged from both the common law and the Act have been significantly diminished by both the Native Title Amendment Act 1998 (Cth) and the recent decisions in Ward, Wilson v Anderson and Yorta Yorta and, to a lesser extent, Commonwealth v Yarmirr.[13]
Arguably, the rights recognised in Mabo were never expansive. But equally, the rights there recognised have been slowly eroded with each new engagement with the institutions of the dominant legal system, whether the common law or the legislature. However, it is indisputable that the recognition and protection of native title afforded by Mabo provided the underpinning for a realignment of relationships between indigenous and non-indigenous Australians, including relationships with government and industry. Indigenous rights and interests in land could no longer be ignored. This was particularly so in relation to state jurisdictions and industry sectors that had traditionally disregarded indigenous rights.[14] This article argues that, in spite of both legislative and judicial limitation of the concept of native title and the rights associated with it, Mabo and the NTA unleashed a process of change that cannot be reversed. The question now is: where will this process of change lead?
Mabo was a watershed. The litigation lasted 10 years[15] and resulted in ‘the first determination by the High Court of the rights of Aboriginal people to land at common law’.[16] The decision produced responses across the legal and political spectrum. According to former Chief Justice Sir Harry Gibbs, ‘few, if any, [decisions] have given rise to such a diversity of responses, ranging from euphoria to deep anxiety’.[17] Indigenous people responded in a variety ways, some seeing it as a ‘most cautious and belated recognition’,[18] others as a self-serving decision giving indigenous people very little in terms of recognition of their rights in land.[19]
There was significant critical response from the non-indigenous community. Some questioned whether the Court had carried ‘judicial activism too far in departing from principles that were thought to be settled for over a century’.[20] Judicial activism was the theme of much critical legal commentary,[21] while some criticism encompassed the likely adverse economic impact of the decision.[22] The cry of ‘continued uncertainty’ was heard from the resources sector,[23] while one critic, Hugh Morgan, focused on the Court’s failure to perform its ‘important duty of providing a legal and public defence of property’, thus placing ‘the economic and political future of Australia and our territorial integrity ... under threat’.[24]
The reactions were not unexpected. The decision was unsettling. For some it challenged and disrupted deeply-held notions about the constitutional basis of the Australian nation,[25] while others saw it as a ‘cautious correction’[26] or an inevitable realignment of Australia’s common law with that of other jurisdictions.[27] It reignited tensions between old adversaries: the resources sector and its supporters (including state governments), and indigenous interests.[28] It was described by Frank Brennan as a ‘door which has been left slightly ajar by the High Court, now waiting to be prized open by a series of test cases and political agitation’, but one which some miners and pastoralists saw ‘as a door to be firmly closed before further uncertainty is caused.’[29] The state of uncertainty reflected in Brennan’s comment lies at the heart of the conflicts produced by Mabo; and it was these conflicts that were a portent of the battles to be fought over the ensuing legislation.
Until Mabo, there was a widely-held view that no indigenous rights, customs or law, including any land interests, survived the acquisition of sovereignty by the British Crown.[30] The basis of this view — whether or not an accurate or undisputed one[31] — was a series of appeal cases that confirmed that, with sovereignty, the laws of England had become the laws of the colony. These cases dealt with the power of the Crown to make grants of interests in land to settlers and confirmed that in accordance with the doctrine of tenure, the land was a Royal demesne in which the Crown had beneficial title to all land and, therefore, it was not possible for any interest in land to arise, be created or exist, other than by way of a grant from the Crown.[32] This approach was adopted in a number of High Court cases also dealing with the relationship between the Crown and settler interests, or between sovereign entities within the Australian Constitution.[33] The view was clearly enunciated by the Privy Council in Cooper v Stuart:
The extent to which English law is introduced into a British Colony and the manner of its introduction must necessarily vary according to circumstances. There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law and that of a Colony which consisted of a tract of territory, practically unoccupied, without settled inhabitants or settled law, at the time it was peacefully annexed to the British dominions. The colony of New South Wales belongs to the latter class.[34]
This was said to follow from the terra nullius doctrine, a set of common law principles deriving from international law at the time of Australia’s colonisation, under which a colony was considered settled if it was uninhabited at the time sovereignty was acquired.[35] Cooper v Stuart was said to take the doctrine further by indicating that a colony could be considered uninhabited if its occupants were nomadic with no settled law.[36]
None of these cases dealt with the relationship between the Crown and the land interests of indigenous people. Then, in Milirrpum,[37] Blackburn J considered this issue. Although the judgment recognises the complexity of the plaintiffs’ relationship to land,[38] Blackburn J felt himself bound by the decision in Cooper v Stuart on the effect of acquisition of sovereignty, concluding that ‘the Crown is the source of title to all land; ... no subject can own land allodially, but only an estate or interest in it which he holds mediately or immediately of the Crown’.[39] The claim that indigenous interests survived the acquisition of sovereignty was thus unsuccessful.[40] The decision was not appealed.[41]
While all these cases provided the basis for the conventional view that no indigenous rights survived the acquisition of sovereignty, this view was not universally held.[42] Most other common law jurisdictions around the world had accorded some recognition to indigenous rights and interests in land.[43] In 1984, a prescient piece by Hookey[44] critically examined the approach of the plaintiffs in Coe v Commonwealth[45] and suggested that there was support for the non-conventional view. Referring to the recently filed proceedings in Mabo v Queensland, he concluded that ‘the old issues of the constitutional origins of the Australian colonies and their implications for the status and rights of the Aboriginal people remain unresolved’.[46]
Perhaps as a portent of things to come,[47] the response to Milirrpum was to switch the focus away from the common law to the political process, with the prospect that legislation might fill the common law void by providing land for indigenous people.[48] Until that time, legislation had historically dealt with the setting aside of land as reserves[49] or, more recently, through limited heritage protection legislation.[50] The Whitlam government established the Aboriginal Land Rights Commission, which recommended the introduction of a form of statutory land rights.[51] The main elements of the report were implemented in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)[52] under which, perhaps paradoxically,[53] a large amount of Aboriginal reserve land was immediately handed over to its traditional indigenous owners,[54] while other Crown land was able to be claimed.[55] A claims process was established[56] and substantial control over land management decisions, especially in relation to mining, was given to indigenous land owners.[57]
Some states also introduced statutory schemes.[58] These varied widely in their scope and effect, with some delivering expansive rights, but others that were much more limited in scope, with each ‘shaped partly by the particular needs of the indigenous community, and partly by community and government attitudes’.[59] In some states — most notably Western Australia — no legislation was passed. However, Western Australia became the site of a major battle over indigenous rights to land when land rights proposals from both the State and Commonwealth governments foundered in the face of furious opposition from the resource industry.
Following the election of the Burke Labor government in Western Australia in 1982, a land rights inquiry was established. Paul Seaman chaired the inquiry and recommended a land rights scheme encompassing land grants accompanied by significant control and management of resources,[60] although the government ultimately proposed a legislative scheme with little control over resource management.[61] This process coincided with the federal Hawke Labor government’s proposal for a national land rights scheme under which minimum standards for land rights would be set by the Commonwealth and legislated by the states. The national proposal was based on principles similar to those that guided the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), including inalienable freehold title, protection of sites, control in relation to mining, access to royalty equivalent payments and negotiation of compensation for lost land.[62] Although watered down, both pieces of proposed legislation were met by a ferocious media campaign waged by the mining industry in Western Australia. This amounted to a racially-based fear campaign with advertisements about threats to private land, ideas of inaccessible Aboriginal land and disingenuous claims about significant sites. The State legislation failed to pass the Legislative Council and was not reintroduced. An opinion poll showed overwhelming opposition to both land rights proposals, and the impending Western Australian election provided the impetus for abandoning the national proposal.[63]
Competing interests over access to land and resources were also played out in other legal environments, particularly around specific resource development proposals and sites of cultural significance. Two such instances — Noonkanbah and Coronation Hill — exemplify the point.
At Noonkanbah in the Kimberley region of Western Australia, a dispute over two years culminated in a blockade of the land by its traditional indigenous owners and the forced entry of a drilling rig onto Noonkanbah station.[64] It was clear that the Heritage Act 1972 (WA) provided no assistance to indigenous people, since it neither protected areas or sites of significance to indigenous people nor defined any process for dealing with threats to such sites.[65] At the same time, perceived difficulties created by the Heritage Act 1972 (WA) for the government and the resource industry were overcome by amendments to the Act providing for the Minister to permit the destruction of sites of significance.[66]
Coronation Hill in the Northern Territory was centre stage for two years as the Hawke government considered whether to permit mining in the region in the face of opposition from the Jawoyn people based upon the cultural and spiritual significance of the area.[67] The Resource Assessment Commission conducted an investigation[68] and the government ultimately decided not to permit the mining project, incorporating the area into the Kakadu National Park.[69] However, over a two year period there was a destructive public debate about the authenticity of the Jawoyn beliefs and the extent to which they should be permitted to inhibit ‘development’.[70]
Consistent themes and issues emerged from these engagements with indigenous land interests by the settler system of law and politics. The battle over access to land and resources remained at the heart of conflicts. Discourses around the validity and even the existence of indigenous beliefs dominated any conflict that arose. As Langton points out, this was particularly so during and after the resources boom of the 1960s and 1970s.[71] Indigenous protection of land stood in stark contrast to the discourse of economic development as a ‘good thing’.[72] The culture of conflict that accompanied each dispute, and the overriding of indigenous aspirations seemingly at will, were ingrained in the practice of government decision-making, particularly at a state level. On the other hand, statutory land rights schemes granted title and established schemes for decision-making about land and resource use, giving indigenous people significant and enforceable rights. They provided a vision of a new way forward.
It was into this environment of dissonance, conflict and expectation that Mabo and its new way of seeing the relationship between settlers and indigenous peoples fell. It was these themes of dissonance and expectation that were reprised and reinvigorated as the debate about the NTA proceeded.[73]
Mabo’s leap was in declaring that the common law recognised and protected indigenous rights in land that existed at the time the British acquired sovereignty. The decision immediately extended the possibility of enforceable rights in land to those areas of the nation where no statutory schemes had been established or where those schemes were of limited application.
The decision had three broad and linked elements: it restated the constitutional basis of the Crown’s powers; by that restatement, the Court made a space for the recognition and protection of indigenous rights and interests, which it called native title; and finally, the Court articulated some elements of the protection afforded by the common law to the newly-recognised rights. The first two of these elements involved the Court unsettling — if not disrupting — preconceived notions, while the third assumed new significance in the protection afforded to these rights. In the highly-charged political environment of competing claims to land and resources, the decision was bound to provoke agitation and animosity.[74]
Without traversing the whole of the decision, it is important to identify some key elements in order to understand the response to it. The majority proceeded on the basis that Australia was not terra nullius when sovereignty was acquired. While the Court acknowledged that it might have been overturning some significant law on this issue,[75] it nevertheless considered that ‘[w]hatever 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 could no longer be accepted.’[76] It has been suggested that such a forthright statement that it was overturning accepted authority may not have been necessary,[77] but by rejecting the notion of terra nullius the Court found the conceptual space to allow for the survival of rights and interests existing at the time sovereignty was acquired. There was also a moral and ethical force in the rejection of terra nullius, whether or not it was doctrinally necessary.
The Court linked the acquisition of sovereignty to the Crown’s power to make grants of land: that is, it drew a distinction between the Crown’s radical title incorporating this power (‘the Crown’s title to a colony’)[78] and the notion of the Crown as the holder of absolute beneficial title to all the land (the Crown as ‘the owner of land in a colony’).[79] In this way, it became doctrinally possible for pre-existing land interests to survive the acquisition of sovereignty and to be recognised and protected by the common law,[80] but only to the extent that such a reordering did not ‘fracture a skeletal principle of our legal system’.[81] Rights that survived operated as a burden on the Crown’s radical title.[82] In both these aspects of its decision, the Court rejected the conclusion in Milirrpum that rights and interests in land could only derive from the Crown. By acknowledging that an interest in land could exist outside of, or unsourced from, a grant from the Crown, the Court prised open the doctrine that had previously been thought to underpin the property law system.[83]
This shift was described by Gummow J in Wik Peoples v Queensland[84] in the following terms:
Thus, it was appropriate to declare in 1992 the common law upon a particular view of past historical events. That view differed from assumptions, as to extent [sic] of the reception of English land law, upon which basic propositions of Australian land law had been formulated in the colonies before federation. To the extent that the common law is to be understood as the ultimate constitutional foundation in Australia, there was a perceptible shift in that foundation, away from what had been understood at federation.[85]
This perceptible shift became the focus of criticism of the judgment.[86]
The second element of the decision was the detail of the interest that was recognised and protected. Brennan J’s statement is now classic: ‘Native title has its origin in and is given its content by the traditional laws acknowledged and the traditional customs observed by the indigenous inhabitants of a territory.’[87] Where a 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 connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.[88]
It was clear from this and the other judgments that there must be a link between the laws and customs acknowledged and observed at the time sovereignty was acquired, and those currently practised. The boundaries of the link were unclear, but the possibility of loss of connection was raised.[89]
This uncertainty did not affect the outcome of Mabo:[90] the Court declared that the plaintiffs were ‘entitled as against the whole world to possession, occupation, use and enjoyment of Mer.’[91] However, it provided the basis for some commentary doubting the applicability of the decision to mainland Australia.[92] The title was clearly outside the common law’s tenurial system,[93] but it encompassed rights that were recognised[94] and protected[95] by the common law, although those rights were not a part of the common law itself. In fact, the title was said to be sui generis[96] and the precise nature of the title and where it sat within the broader property system was unclear. Was it proprietary or was it merely a usufructuary right?[97] Was it a right to exclusive occupation or was it a lesser right and, if so, what did that right conceptually entail?[98]
The third element of the decision dealt with protection of the title. The title was said to attract proprietary remedies.[99] However, it would not be protected if it was contrary to ‘natural justice, equity or good conscience’.[100] It was clear that native title could be extinguished by the Crown validly exercising its powers,[101] either by legislation or by executive act, in making grants of rights and interests to third parties or reserving land for its own use or for the benefit of the public.[102] It seemed that this could be done without consent or compensation.[103] However, it was emphasised that any Crown action must show a ‘clear and plain intention’ to extinguish.[104] In summarising his findings about native title, Brennan J gave indications about what actions might or might not extinguish native title, indicating that freehold and leasehold grants would extinguish but other grants might not.[105] These comments were not a necessary element of the decision, but came to be relied upon with adverse consequences for indigenous interests.[106]
Another central aspect of the protection afforded came from the Racial Discrimination Act 1975 (Cth) (‘RDA’): governments dealing with native title since that Act was passed were required to act in a manner consistent with its provisions.[107]
The decision recognised indigenous rights in land, linked to laws and customs associated with prior occupation. Recognition did not affect the laws and customs or create the rights, but rather expressed them ‘in a declaration of rights comprehensible in common law terms’.[108] It is only when a remedy is sought that the rights are enumerated. Moreover, enumeration of those rights, or even extinguishment of them at common law, does not touch, or say anything about, ‘traditional law or custom or the relationship of Aboriginal people to their land’.[109] The declaration proposed by Brennan J recognised the particularity of the rights of the Meriam people in relation to the island of Mer.[110]
The detail of the native title rights and their relationship with settler rights and interests was unclear, but the possibilities were clearly evident. It was these possibilities that at once produced excitement, optimism, caution, anxiety and fear among indigenous people, governments and industry. The application of the RDA raised the possibility that many rights granted or actions taken by the Crown since 31 October 1975 (the date the Act largely came into effect) were invalid because of the disregard by governments of native title that existed in the land subject to Crown actions.[111] Such actions prior to 31 October 1975 were not subject to the Act but their effect on native title was subject to the principles of common law extinguishment tentatively expressed in the various judgments. The combination of the effect of the RDA and the common law extinguishment provisions had to be considered in order to determine where native title might, in 1992, exist. It seemed to be accepted that freehold grants to third parties extinguished native title.[112] However, it was now possible that native title — whatever that title consisted of — might exist over all unallocated Crown land and even over land the subject of some (if not all) Crown leases, including pastoral and mining leases.[113] It was certainly possible that native title might exist in a large number of Crown reserves or even in land vested in Crown authorities.[114] It was clear that future dealings in relation to land in which native title subsisted would be subject to the RDA but this raised possibilities for a completely new land management order with acknowledgment of indigenous interests in land and the direct involvement of indigenous people in decision-making about their land. Now indigenous people, previously shut out of such processes in some states or with limited rights in others, could anticipate protection of their interests and engagement in decision-making. Large areas of land previously excluded from such considerations might now be subject to them.
There was, then, not only a possibility for a realignment of power relations in land and resource allocation that challenged preconceived systems of decision-making, but also the possibility of a new relationship between indigenous and non-indigenous people that went beyond land management to embrace fundamental issues of rights and status.[115] The notion of equality, backed largely by the RDA, became a touchstone. These possibilities, and the doctrinal imperatives underpinning them, became the focus of academic and political debate and discourse. How should the nation and its institutions respond to the challenge of these possibilities?
Although there were trenchant criticisms of the Mabo decision, Markus suggests that the immediate response to the judgment was muted when compared with the ‘ferocity of the attack that was to be mounted and maintained over a period of months’[116] as the Commonwealth government’s legislative response was negotiated. This ‘time of Mabo madness’[117] intensified through the middle months of 1993. Of the five themes identified by Markus in this response,[118] at least two — the perceived threat to economic development and the denigration of indigenous culture — were familiar themes that had accompanied pre-Mabo land disputes.[119] Two others — the idea that indigenous people were privileged to the disadvantage of non-indigenous Australians, and the denigration of the High Court itself and thus the legitimacy of the decision — would have growing significance in the developing political discourses around native title.
Much of this rhetoric was directed at winning the political battle that was emerging between the Commonwealth and the states (and other interested parties, including indigenous people) about the proper response to the decision. The themes of this battle revolved around a number of key ideas. First, the economic cost of native title. Second, the tension between the need for ‘certainty’ and preservation of the states’ land management powers on the one hand, and on the other, the desire to build upon the Mabo decision by recognising the rights enunciated. Third, the desirability of a scheme to implement those rights against a background of substantive inequality, international obligations, past dispossession and principles of coexistence of indigenous and settler land interests.
The then Prime Minister Paul Keating set the basis for the Commonwealth’s position in his Redfern speech when he indicated that Mabo should be seen as a ‘practical building block of change’ and ‘the basis of a new relationship between indigenous and non-Aboriginal Australians.’[120] Although the Commonwealth government’s position varied over the course of the negotiations, it was basically set out in its discussion paper, Mabo: The High Court on Native Title, released on 3 June 1993.[121] Favouring a cooperative approach, the Commonwealth would validate any grants of interests in land up to 30 June 1993 and would similarly allow the states to validate their grants.[122] It would not permit negotiation on these validations.[123] In relation to future dealings it would support ‘consent’ provisions in relation to future acts where a similar consent right was enjoyed by other title holders.[124] State tribunals would determine native title.[125] There would be some financial support from the Commonwealth to the states.[126] The discussion paper also took up ideas flagged by the Prime Minister in his Redfern address[127] by proposing a settlement package that addressed broader issues of dispossession and disadvantage,[128] including the creation of a national fund for land acquisition[129] and the development of broader principles of reconciliation and settlement of outstanding issues.[130]
In April 1993, indigenous groups presented their approach, ‘The Aboriginal Peace Plan’,[131] in which they sought an approach of coexistence of native title and other interests.[132] They sought, among other things, an extension of native title to all reserves and the prevention of extinguishment of native title by future grants. The plan proposed validation of invalid mining titles granted since 1975, but subject to negotiation and agreement on a range of matters including protection of sites, environmental protection measures and financial arrangements. This position was further developed in the ‘Eva Valley Statement’ in August,[133] with a restatement of the propositions in the ‘Peace Plan’ and an exhortation that the Commonwealth honour its international obligations and redress past injustice.[134]
The various states had different positions but all required validation of past grants and that they be entitled to deal with land at the expense of native title, subject only to compensation if required by the RDA.[135] There was even talk of a constitutional referendum to reverse the Mabo decision.[136] The possibility of a cooperative approach appeared unlikely following the breakdown of talks at the Council of Australian Governments meeting on 8–9 June 1993, after which the Prime Minister announced that the Commonwealth would legislate to establish national minimum standards, regardless of the attitude of the states.[137] Ultimately, the states and territories accepted the Mabo decision, although they continued to negotiate with the Commonwealth about its approach and threatened to implement their own legislation.[138] Only Western Australia ‘expressly rejected’ the judgment,[139] and passed its own legislation in November 1993 in which it purported to extinguish native title and replace it with use rights, establishing a scheme for decision-making about land use and access which was significantly less favourable than that proposed by the Commonwealth.[140]
The Opposition in the Commonwealth Parliament offered ‘minimal recognition of the High Court’s new principle’[141] and was particularly opposed to the link in the June discussion paper between validation and the land acquisition and reconciliation proposals.[142] Ultimately, the Opposition in the Senate did not negotiate on amendments to the legislation once it was introduced.[143] It opposed the legislation in its entirety, thus requiring the government to negotiate with the Democrats and the Greens to secure passage of the legislation.[144]
Details of the Commonwealth’s proposed legislation were released on 2 September 1993.[145] The proposals allowed for significant state involvement in determination and management processes,[146] for the suspension of the RDA to allow for validation of potentially invalid acts,[147] and for renewals of previously granted mining and pastoral leases.[148] On the other hand, it also provided for the non-extinguishment of native title by the validation or grant of mining interests.[149] The proposals were seen as accommodating the states and the mining industry to the detriment of indigenous interests.[150] Over the next month, negotiations ensued with the various interested parties and changes were made to the proposed legislation. The Opposition maintained its position of opposing the whole of the legislation because it combined the issue with reconciliation[151] and because the legislation intruded into the state sphere of land management.[152] The states’ responses were varied, with the Victorian and Queensland Premiers reservedly supporting the proposals, while others, particularly the Western Australian and New South Wales Premiers, opposed it to varying degrees.[153]
Indigenous negotiators ultimately agreed to the validation of post-1975 grants (and the suspension of the RDA) but characterised this as a special measure under the RDA[154] because of the accompanying benefits in the legislation, including the maintenance of a federal jurisdiction for determining claims, ‘just terms’ as the measure of compensation for extinguishment of native title, expansion of the scheme for negotiation about future use of land and the inclusion of reference to a ‘social justice package’.[155] The agreement reached at this point was hailed by O’Donoghue:
Very late last night we secured a negotiated outcome that meets the major interests not only of our people but of all Australians and, by so doing, ensures that we start off together down the long path to genuine reconciliation. It is an historic decision ... We have been willing to compromise in the interests of a truly national settlement.[156]
The Native Title Bill 1993 (Cth) was introduced into Parliament on 16 November of that year.[157] In his second reading speech, the Prime Minister Paul Keating referred to the need to recognise the past and to grasp the legislative response to Mabo as ‘an opportunity’.[158] He identified the ‘twin goals ... to do justice to the Mabo decision in protecting native title and to ensure workable, certain, land management.’[159] Keating then set out a number of key elements of the legislation, many of which also appeared in the preamble to the Bill. These included ‘ungrudging and unambiguous recognition and protection of native title’; validation of past grants and laws that might have been invalid because native title existed; ‘a just and practical regime’ governing future grants and acts affecting native title; and a ‘rigorous, specialized and accessible tribunal and courts process’ dealing with both claims and future acts.[160] He asserted that the Bill complied with Australia’s international obligations, and set out the basis upon which the Bill operated as a ‘special measure’.[161] The Bill was said to incorporate the principle of non-discrimination by requiring that native title be treated in a similar fashion to freehold for the purposes of government grants (other than mining rights).[162] Keating made clear that he wanted a cooperative approach with the states and territories, but insisted that they comply with the standards set out in the Bill, and that the Western Australian extinguishment approach was unacceptable and would be overridden.[163] The Bill was presented as achieving a balance between indigenous rights and the need for commercial certainty and security of title.[164]
The Bill did not codify native title rights, but rather was arguably designed to give full play to the common law.[165] It also sought to redress the effects of colonisation where native title could not be claimed through the establishment of a land fund and through a social justice package.[166]
In the Senate, the Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs, which took evidence in early December and reported on 9 December 1993.[167] Considerable amendments were made while the Bill was in the Senate as negotiations continued with the various parties. However, in the face of Opposition intransigence, the government was required to negotiate with the Democrats and the Greens and this produced amendments favourable to indigenous negotiators.[168] The effect of the Opposition’s unwillingness to engage in negotiations was exemplified by a government proposal to allow renewals of mining and pastoral leases without negotiation. The amendment failed because it was not supported by the Opposition (although it was supported by three National Party Senators) and was opposed by the Democrats and the Greens.[169]
The Bill was passed by the Senate on 22 December 1993 after the longest debate in the Parliament’s history (at that time) of 51 hours and 45 minutes.[170] Passage through the House of Representatives was a matter of course. The Act came into operation on 1 January 1994.[171] The hopes for the Act were expressed by the Prime Minister in his second reading speech: ‘today we move that much closer to a united Australia which respects this land of ours, values the Aboriginal and Torres Strait Islander heritage and provides justice and equality for all’.[172] Senator Gareth Evans concluded his third reading speech thus:
We do owe our indigenous peoples, our Aboriginal and Torres Strait Islander fellow Australians, a huge debt for the destruction and dispossession that we non-Aboriginal Australians wreaked for over 200 years of Australian history. I hope that, by passage of this legislation tonight, we have repaid just a little of that debt.[173]
Born out of conflict, compromise and pressured last-minute negotiations, the Act was bound to have flaws. However, on its face, it also delivered on its twin goals of certainty for non-indigenous titles and the provision of a range of positive rights capable of the ‘special measures’ description, underpinned by a commitment to coexistence of indigenous and non-indigenous rights and interests in land and water.
Without traversing the NTA in too much detail, it is useful to refer to some key provisions that over time have become significant in the Act’s application, effect and subsequent amendment. The aspirations of the NTA are embodied in the Preamble which recalls past dispossession and states that the Act is a special measure to address past injustices; that compensation on just terms should follow any effects of the Act on native title; and that native title rights be fully enjoyed, significantly supplemented and protected in a similar fashion to freehold title, while giving certainty. The objects in s 3 also embody these four main aims of the Act.
The NTA recognised and protected native title by saying just that.[174] Section 11 provided that native title could not be extinguished contrary to the Act; s 11(2) made it clear that legislation passed on or after 1 July 1993 could only extinguish in accordance with the future act regime in Division 3 of Part 2 or by validating a ‘past act’.[175] The effect of these provisions was to establish a national code for dealings with native title.[176] Section 11, when read together with the definition of a ‘past act’ to include only legislation passed before 1 July 1993[177] (as opposed to grants or other acts done before 1 January 1994), was squarely designed to capture the attempt by Western Australia to extinguish native title by state legislation.[178]
A key element in the recognition and protection regime was the intention of the Commonwealth to exercise its authority under the race power[179] and the external affairs power[180] and thus to constrain the states, allowing them only to pass legislation or do acts in relation to native title that were not inconsistent with the Commonwealth Act.[181] Thus, the key protagonists — the Western Australian government on the one hand and the Commonwealth and indigenous groups on the other — were immediately joined in battle.[182] Western Australia sought a declaration that the NTA was beyond the legislative power of the Commonwealth and therefore invalid, or that the impact of the Act on Western Australia was disproportionate.[183] The Wororra people and the Martu people had also sought a declaration that the Western Australian Land (Titles and Traditional Usage) Act 1993 was inconsistent with both the RDA and the NTA, and was therefore invalid by operation of s 109 of the Constitution. The applications were heard together.
The Court upheld the NTA as a valid exercise of Commonwealth legislative power as a law in relation to ‘the people of any race for whom it is deemed necessary to make special laws’[184] and conferred ‘uniquely on the Aboriginal and Torres Strait Islander holders of native title ... a benefit protective of their native title.’[185] The Act removed ‘the common law general defeasibility of native title’[186] subject to the three exceptions in the Act: by validation of a ‘past act’; by agreement; and by a ‘permissible future act’.[187] The State Act was therefore invalid because it fell foul of these allowable extinguishment provisions and was racially discriminatory.[188] Importantly, the NTA had survived as a valid exercise of Commonwealth power that constrained the states and would impact upon their land and resource management practices.[189]
The second key element of recognition and protection was in the provisions defining the nature of the title and its accompanying rights. To this end, there was a clear conjunction of the common law and the Act. Section 223 adopted ‘the common law definition of native title’,[190] using the words of Brennan J to define native title in the following terms:
(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.
The definition expanded the common law by providing that native title could exist in water.[191]
Generally, this link between the common law and the Act was referred to in Western Australia v Commonwealth where the Court said that the Act should be read in the light of the common law.[192] It was thought that this section was intended to give legislative effect to Brennan J’s exposition of native title. However, subsequent decisions have significantly altered this view.[193]
Indigenous negotiators agreed to the validation regime and, in particular, the extinguishment of native title by validated pastoral leases, in return for an enhancement of the future act regime and other positive measures in the legislation. The mechanism for validation was simply to state in the NTA that ‘past acts’[194] were validated.[195] Consequences of validation were included in the Act. These ranged from extinguishment of all native title by validation of freehold titles and certain leases, including pastoral leases,[196] to suspension of the enjoyment of native title rights where a mining lease or other grant or Crown action was validated,[197] through to the application of the non-extinguishment principle.[198] Reservations in favour of indigenous people were preserved.[199] Compensation was available for any extinguishment or impairment of native title as a result of the operation of these provisions in the Act.[200] The states were permitted to validate their ‘past acts’ in a similar way.[201] This approach exemplified both the goals of coexistence of interests with native title and the principle of non-discrimination. The Prime Minister indicated that this accorded with the existing practice of mining tenements, allowing the exercise of full rights under the tenement but not extinguishing the title to the land over which it was granted.[202]
The significant element of the scheme has been the definition of a ‘past act’ as an act taking place before 1 January 1994[203] and that was ‘invalid to any extent but would have been valid to that extent if the native title did not exist’.[204] This provision was designed to validate those acts that might have breached the RDA since 1975. Only acts that were invalid because native title existed were validated, and thus attracted compensation.
Whether there were in fact any invalid acts was a matter of conjecture at the time the Act was passed. The Commonwealth indicated that the provisions were to ‘remove any doubt’[205] about validity, but added that ‘this is not to indicate that the Commonwealth is of the view that past acts by the Commonwealth, States or Territories are invalid.’[206] The extent of the application of the provisions must be ascertained on a case by case basis. If the provision is to apply, native title must subsist in the land[207] and the act must actually impair native title. Native title may subsist in land but if the act does not affect or impair it, there is no invalidity.[208] There must be a breach of the RDA to such an extent that the act is invalid, rather than simply being an act generating a right to claim compensation.[209] However, the narrow application of the provisions suggests that a right to claim compensation may well be the most common situation[210] and that, while the possibility of invalidity existed over land (and in some cases was a trigger for negotiations), there may be little invalidity in fact.
The third element of the NTA involved establishing a scheme for determining native title and compensation applications.[211] Applications were to be made to the National Native Title Tribunal.[212] Although not necessarily intended, the Federal Court interpreted s 63 of the Act as requiring the Registrar to register all applications provided they complied with the procedural and technical requirements of the Act. No account was taken of the likelihood of success in any application.[213] The Commonwealth government’s view was that this was not the intention of s 63 and proposed amendments that required the Registrar of the National Native Title Tribunal to register an application unless the Registrar was ‘of the opinion that prima facie ... the claim cannot be made out’.[214]
The Tribunal had power to mediate among the parties to an application and, if agreement was reached, to make a determination.[215] Where agreement could not be reached, the matter would be referred to the Federal Court for hearing and determination.[216] As a result of the High Court decision in Brandy v Human Rights and Equal Opportunity Commission,[217] this procedure became invalid and required amendment by ensuring that applications and determinations were made in the Federal Court.[218] Although the determination function of the Tribunal was rendered inoperative by Brandy, its mediation function continued.
The application process was slow. This was due in part to the requirements of proof in any claim. The burden on the applicants to address the two limbs of any claim — the continued connection with land or water in accordance with law and custom, and the lack of extinguishment by Crown act — required immense research, time and financial resources.[219] Often intra-indigenous disputes had to be resolved,[220] governments that held land tenure histories were not always cooperative,[221] and the adversarial framework and procedures for dealing with claims[222] inevitably led to delay. Even though there was provision for mediation, this produced its own difficulties.[223] For example, in the Yorta Yorta claim, there were some 470 parties involved in mediation, making meaningful discussions impossible.[224] Where a party — in this case, the New South Wales government — took a view that native title was extinguished, progress through mediation was clearly impossible.[225] Thus, it was not surprising that no determinations that native title existed were made in the early years.[226] Even though the reasons for this were myriad, the absence of such determinations was relied upon to support substantial amendments to the Act because of the supposed ‘uncertainty’ it caused.[227]
The final element of the NTA was ‘a specific protective structure’[228] for decision-making in relation to land[229] in which native title does or may exist.
The future acts scheme had two broad aspects. The first was the requirement that native title land be treated the same as freehold title for the purpose of Crown actions. If the Crown could do the act over freehold land, then it could be done over native title land.[230] Similar procedural rights also extended to native title holders.[231] In all other circumstances, the future act procedures applied and an act would be invalid if it did not comply with the provisions.[232] The second was a special scheme ‘in recognition of the special attachment that Aboriginal peoples and Torres Strait Islanders have to their land’[233] for dealing mainly with mining and compulsory acquisitions for third parties, known as the right to negotiate.[234] Similar procedures requiring negotiation existed under statutory schemes in the Northern Territory and South Australia,[235] and so there was some positive experience of these procedures. However, for the majority of indigenous people, it represented a significant shift in their capacity to be involved in decision-making affecting their land. This was also the provision that created the most fear among state and territory governments and industry.[236] The provisions operated on land where native title existed or may have existed. The states and territories were permitted to establish their own schemes provided they satisfied the Commonwealth that the schemes met minimum standards.[237] In spite of the states’ fierce arguments in 1993 about their need to control these functions, only South Australia established its own scheme.[238]
The main focus of activity under these provisions and a major source of criticism of the Act was in relation to the right to negotiate.[239] The right was triggered by the state issuing a notice of its intention to do the act under s 29.[240] The procedure operated concurrently with the process for determining whether native title existed in land. Many claims for native title were lodged within the two month period (as they were required to be)[241] in response to the notification of a proposed grant of an interest on native title land, in order to preserve native title rights. This period for response was then increased to three months by the Native Title Amendment Act 1998 (Cth).[242] Once a claim was registered, the right to negotiate came into play.[243] Inevitably in the early years, negotiation about projects became entwined with issues of whether native title existed as applications moved through the various stages of mediation and hearing. The difficulty with the process was real, since the first consent determination was not made until 7 April 1997.[244] However, it was more a function of timing, rather than there being any fundamental flaw in the process. Most early criticisms about the process by government and industry were directed at the uncertainty produced by this situation.[245]
Another major focus of criticism from the indigenous point of view was the operation of the expedited procedure, which allowed governments to make limited grants without the right to negotiate procedures[246] if the proposed act did not directly interfere with community life or areas or sites of particular significance, or did not involve major disturbance.[247] Bartlett was scathing about the National Native Title Tribunal’s implementation of these provisions as creating ‘illusory rights’ and further dispossession,[248] a view endorsed by the Aboriginal and Torres Strait Islander Commission Social Justice Commissioner.[249] However, Bartlett also points out the paradox in the Federal Court’s emphasising the importance of spiritual affiliation in interpreting ‘interference’,[250] which thus dramatically changed the approach of the National Native Title Tribunal.[251] Other factors were identified as creating difficulties, such as the lack of resources for indigenous parties[252] and the rigid time frames.[253]
Section 21 of the Act allowed for native title parties to enter into agreements with governments to either surrender their native title or to authorise future acts in relation to their native title land. It had been anticipated that this provision would encourage agreements outside of the more formal procedures and even allow for wide-ranging regional agreements.[254] However, this did not occur because of doubts about the enforceability of agreements, at least insofar as they would displace the operation of the right to negotiate, and some ancillary matters, such as determining who should be party to such agreements.[255] The Act also allowed for non-indigenous parties to apply for a determination that native title did not exist — thus ensuring the validity of any acts done in relation to the land.[256]
Amendments addressing some of the procedural and related issues were proposed in September 1995.[257] The main contentious amendment was in relation to the new registration test which would have imposed a higher standard on the likelihood of success and made clear that only claimants meeting this higher standard could access the right to negotiate.[258] The amendments lapsed when the Parliament was prorogued for the March 1996 election.
Other changes were occurring. Throughout 1995 a change was apparent in the approach of some major resource companies[259] and even state governments such as Western Australia.[260] CRA Ltd lead the way publicly in a series of addresses by its then Managing Director Leon Davis arguing that there were sound business reasons to embrace indigenous communities and work with them.[261] These gradual changes, however, were lost in the fog of the new battle that arose in response to the High Court decision in Wik.[262]
‘Certainty’ and ‘workability’ had become the touchstones of the native title debate for those promoting amendment to the NTA. On the other hand, ‘coexistence’ and recognition of their unique relationship with land[263] were the guiding principles for indigenous people.[264]
The Howard government was elected in March 1996. The Coalition’s policy was to retain the NTA but to amend it ‘to ensure workability’,[265] to respect the RDA and to consult widely.[266] By May 1996, the new government had produced an outline of proposed amendments which were much more far-reaching than the 1995 proposals.[267] Apart from the necessary procedural amendments, there were proposals to raise the threshold test for registration; to allow governments to alter and expand the conditions of pastoral lease holders; to exclude exploration from the right to negotiate; to shorten the time allowed for negotiation; to remove renewals of pre-1994 mining leases from the right to negotiate; to impose statutory obligations on Native Title Representative Bodies,[268] while expanding their role; and to amend the agreement-making provisions.[269] The Council for Aboriginal Reconciliation brought indigenous and resource industry negotiators together in an attempt to present a united position to government.[270] Despite these efforts, industry and indigenous negotiators took different positions on the proposals.[271] According to Farley, these talks failed over the issue of whether groups and individuals could lodge applications and make agreements without the involvement of the Representative Bodies.[272] The Bill became bogged down but the issue of native title and amendments to the Act was reignited by the High Court’s Wik decision on 23 December 1996.[273]
Wik involved the grant of a number of pastoral leases in Far North Queensland between 1910 and 1974. The central issue was whether or not these grants extinguished native title. The issue of the relationship between native title and pastoral leases had been central in much of the discourse about native title. It was a key element for indigenous negotiators in finally reaching agreement with the Commonwealth government on validation in 1993.[274] In spite of assertions to the contrary,[275] the possibility of native title surviving the grant of a pastoral lease had been discussed widely[276] and the High Court had considered the proposition arguable.[277] It is now well known that the Court held by a majority of four to three that native title was not necessarily extinguished by the grant of a pastoral lease. This was decided on the basis that a pastoral lease was a specific statutory interest, and the interpretation of the statute and the grant indicated that it did not grant exclusive possession to the pastoralist and certainly not possession to the exclusion of indigenous people.[278] Pastoral leases were valid grants of interests and the grantee could exercise the rights granted but, at the same time, the native title holders could continue to exercise their native title rights. If there was a conflict, the rights of native title holders would yield to the rights of the pastoralist.[279]
The decision was significant for a number of reasons, but two stood out.[280] The possibility of native title existing across vast areas of Australia was now a reality for many indigenous people[281] and, if native title existed, then the future act provisions of the Act might be triggered.[282] This raised the possibility of invalidity of resource tenements and other rights granted or created on any pastoral lease since the Act came into effect. Also, the rights, duties and obligations of pastoral lessees under their grants became an issue of critical importance.
The press headlines at the time tell the story of political and industry responses to Wik.[283] Indigenous people responded by emphasising the shared aspects of land use as a result of the decision, and the idea of coexistence became the theme for their response to the decision.[284] The significant political response was that the Commonwealth government framed both its previous and newly-proposed amendments as a response to Wik, claiming that the decision necessitated wide-ranging changes to the Act, while also in a technical sense claiming that it was implementing the decision. This was the Ten Point Plan.
Delivering what was described as ‘bucket loads of extinguishment’,[285] the plan included a number of elements. Grants made after the NTA came into effect but before the 1996 Wik decision would be validated in a similar manner to ‘past acts’ in the original Act.[286] No account was taken of the various governments’ disregard for the Act during the period and indigenous groups argued that there should at least be rights to negotiate before the validation of some grants.[287] Whereas the ‘past act’ validation was ultimately agreed to by indigenous groups in 1993, there was no such agreement here.[288] There would be legislative extinguishment under the Act by grants (including historical grants) that purported to give ‘exclusive possession’.[289] Major changes to the future acts regime would allow many activities previously subject to the regime to be lawfully done. These included grants of freehold to third parties,[290] certain mining activity,[291] the expansion of permitted activities on pastoral leases[292] and limiting native title holders to procedural rights of notice but not rights to negotiate in relation to a range of activities or on particular types of land.[293] A sunset clause on applications was proposed.[294] There was also a proposal to allow states and territories to establish their own future act regimes which would allow them to opt out of the right to negotiate.[295] Justification for these changes was said to be the backlog of resources applications that were documented in the government’s briefing material.[296] It was clear that the balance of interests had shifted.
Most of the amendments were strongly opposed by indigenous people[297] on the basis that they amounted to a significant diminution of the rights recognised at common law and either protected or extended by the original NTA in 1993.[298] Apart from some of the procedural amendments, there was support for the proposal to enhance agreement-making possibilities by amending s 21, ultimately appearing in the amended Act as Indigenous Land Use Agreements (‘ILUAs’).[299]
The Native Title Amendment Bill 1997 (Cth) incorporating the Ten Point Plan was introduced into Parliament on 4 September 1997.[300] The Senate made 217 amendments to the Bill, about half of which were accepted by the House of Representatives.[301] The contentious areas of the Bill related to the changes to the right to negotiate, the future act provisions and the threshold test for registration.[302] The Bill was reintroduced into the House of Representatives with the agreed amendments in March 1998 and covered 346 pages.[303] Ultimately, the Bill was passed on 8 July 1998 with the support of independent Senator Brian Harradine, who obtained some minor concessions in relation to the Bill.[304] The Act came into effect on 30 September 1998.
The overall effect of the amendments was to significantly diminish the area of land and water over which native title might exist and the areas of land or water and the types of activities over which indigenous people have meaningful rights in relation to future uses. The effect of the changes, which provide only for procedural rights and notice, have been of little consequence, with the courts unwilling to provide injunctive or other relief in the event of breaches of those procedural requirements.[305] The Aboriginal and Torres Strait Islander Social Justice Commissioner argued that rather than building on the principle of shared land use and coexistence underpinning the Wik decision, the amendments not only amounted to a lost opportunity but were also ‘destructive of the most valuable resource ... trust’.[306] Indigenous people made it clear that they rejected the amendments and that they were not consulted nor did they consent to the Act.[307] It was clear that native title was a subordinate right.[308] This appeared to conflict with the requirement of non-discrimination and the goal of substantive equality,[309] a result described by Bartlett as the ‘specific disapplication of the protection of the Racial Discrimination Act’.[310]
The most recent piece in the jigsaw of native title has been a trilogy of High Court decisions which have had the effect of narrowing the scope of the rights recognised as native title and limiting the range of people who might successfully seek a determination that native title exists:[312] Ward,[313] Wilson v Anderson[314] and Yorta Yorta.[315] In these decisions, the Court has focused narrowly on the provisions of the NTA almost to the exclusion of the common law. This has elevated the Act to a previously unimagined status. In taking this approach, the Court has, as Pearson says, ‘disavowed native title as a doctrine or body of law within the common law’.[316] The corollary has been that the common law has been relegated to a position of insignificance.[317] The combination of this approach by the Court and the provisions of the Act has diminished rights of native title claimants and holders, and has turned native title into little more than a barren statutory right. Through this process, the Act has assumed a force and effect that may never have been envisaged. Arguably, such an approach is inconsistent with the original intent of the Act expressed in both the second reading speech[318] and the Act’s Preamble, which both indicate the purposes of the Act as overcoming past injustices and implementing the Mabo decision. McHugh J in Yarmirr made the point that during the parliamentary debates ‘more than once, [Senator Gareth Evans] made statements in the Senate to the effect that native title for the purpose of the Act was to be determined by the courts in accordance with the principles laid down in Mabo [No 2]’.[319]
Two forerunners of the recent trilogy must first be remembered. Wik represented the high point of the common law, with the decision promoting the idea of coexistence of rights[320] while also reinforcing the superiority of granted rights over native title rights.[321] The 1998 Fejo case was unremarkable in that it dealt primarily with two narrowly defined issues[322] and unanimously found that native title was extinguished by the grant of a freehold estate to a third party[323] and that, once extinguished, native title could not revive.[324] The Court indicated that the Act ‘provides for the establishment of native title’[325] and that native title was an ‘inherently fragile’ right.[326] At the time, the former point passed unnoticed but with the benefit of hindsight can be seen as a portent. The latter point (and the approach to revival and historic extinguishment) was the subject of criticism,[327] while the extent of the vulnerability of the right has only become clear in the recent trilogy of High Court decisions.[328]
In Yarmirr, the Court indicated that while the Act should be the starting point for any inquiry,[330] it may be seen ‘as supplementing the rights and interests of native title holders under the common law of Australia’.[331] A little over a year later, the Court turned this approach on its head with the majority in Ward saying:
No doubt account may be taken of what was decided and what was said in [Mabo] 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.[332]
The point was more explicitly made by the majority when speaking of the effect of ss 23B and 23F (‘previous exclusive possession acts’ and ‘previous non-exclusive possession acts’) in the amended NTA: ‘Yet again it must be emphasised that it is to the terms of the NTA that primary regard must be had, and not the decisions in Mabo [No 2] or Wik. The only present relevance of those decisions is for whatever light they cast on the NTA.’[333] These provisions were central to the Court’s disposition of the extinguishment question and consideration of common law aspects of extinguishment were relegated to a subsidiary status.[334] The majority asserted the dominance of the Act by using various provisions to inform the Court’s reasoning on questions relating to the nature of the title and extinguishment not directly covered by the Act. In particular, the Court pointed to references in the Act to aspects of the title that supported the view that native title was a bundle of rights and not a title to the land itself (and therefore could be partially extinguished).[335] Interpreting the specific provisions and the general intent of the Act in this way gave full force and effect to the extinguishing and diminishing effects of the Native Title Amendment Act 1998 (Cth), perhaps even beyond the expectations of those who had sought significant legislative regulation and extinguishment of native title.[336]
The twofold impact of Ward on native title was not just the narrow application and use of the statutory provisions, but also the impact of the Court’s reasoning on extinguishment issues generally.[337] The relevant principles included that native title might be partially extinguished, a preference for the inconsistency test[338] over the requirement for a clear and plain intention[339] and, as Bartlett suggests, the presumption against extinguishment.[340] The application of the principles produced extinguishment, entirely or in part, in a significantly wider range of circumstances.[341] Wherever any rights were created in third parties,[342] including rights in the general public, the native title right to control access or use of land was said to be extinguished.[343] By the application of the ‘inconsistency of incidents’ test,[344] it is possible that most if not all surviving native title rights might also be extinguished. The application of this test in all situations, including in relation to Crown reservations, was at odds with Brennan J’s view in Mabo that use of land rather than its reservation for a purpose will cause extinguishment,[345] thus unexpectedly extinguishing some native title rights.[346] Further, unexpected and complete extinguishment was held to occur as a result of vesting of Crown reserves, in particular nature reserves and national parks.[347]
The majority found that native title was not entirely extinguished by Western Australian pastoral leases as these did not amount to grants of exclusive possession.[348] However, the right to control access to, or activities on, the land was extinguished. Whether other native title rights might also be extinguished depended upon the application of the inconsistency of incidents test.[349] Similarly, mining leases were held not to extinguish all native title as they were grants of exclusive possession for the purpose of mining,[350] but they did extinguish rights to control access and activities on the land.[351] Again, whether other native title rights might also be extinguished depended upon the application of the inconsistency of incidents test.[352]
The combined effect of the amended Act and the change in approach by the Court was also evident in Wilson v Anderson,[353] a decision handed down on the same day as Ward. The case considered whether leases for grazing purposes in the Western Lands Division in New South Wales extinguished all or any native title. The case required consideration of the applicability of the Wik decision to these New South Wales leases in the post-Native Title Amendment Act 1998 (Cth) environment. In three separate judgments, a majority (Kirby J dissenting)[354] held that the leases granted exclusive possession, and therefore native title was extinguished by operation of s 23B of the NTA. First, the majority judgments distinguished Wik in various ways in finding that the perpetual lease granted exclusive possession rights, and therefore found that the lease fell within the definition of a ‘previous exclusive possession act’ in s 23B of the Act.[355] As a result of the operation of that provision, all native title was extinguished.[356] The Western Lands Division leases covered approximately 40 per cent of the land in New South Wales and, as a result of the decision, that land is no longer subject to the future act provisions of the Act, and some agreements over the land may be reviewed.[357]
The approach of the majority in Yorta Yorta[358] similarly focused on the NTA as determinative, particularly s 223, and found no place for the common law. Pearson suggests that, in giving meaning to s 223(1) of the Act, the Court had a choice of either seeing it as the embodiment of the common law or ‘as somehow altering or replacing the meaning of native title under the common law of Australia’.[359] The Court chose the latter approach, indicating, in perhaps its only criticism of the decision at first instance, that ‘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.’[360]
In construing s 223(1), the judgments make almost no mention of Mabo or of the body of common law that underpinned it.[361] Rather, the judges sought to give meaning to concepts of tradition, connection and currently observed laws and custom as legislative concepts. In so doing, the joint judgment imposed requirements of proof and continuity that harked back to the reasoning in Milirrpum,[362] essentially requiring evidence of a society and a system of law cognisable to the settler system.[363] The Court interpreted s 223(1) as requiring that laws and customs currently acknowledged and observed must arise out of and define a particular society[364] and derive from a ‘body of norms’ or ‘normative system of law’[365] that has a continuous existence and vitality since sovereignty.[366] This requirement appears to be at odds with the approach in Mabo, where it was suggested that these issues should not be viewed from the perspective of the settler law.[367] However, the Court concluded that native title did not exist because the society or community claiming it was not the same society with the same or similar rules as existed at the time sovereignty was acquired and which had continued to exist since that time.[368] This, the Court said, was the consequence of the application of these statutory provisions.[369]
The second key element of the decision was the finding of fact by Olney J that by 1881 the Yorta Yorta community had ceased to acknowledge its traditional laws and customs.[370] Although the methodology of the judge in reaching this view by relying on particular written histories had been criticised,[371] the joint judgment concluded that the assessment of such matters ‘was quintessentially a matter for the primary judge’.[372] This dubious assessment and the methodology applied were thus allowed to stand.
Whether the result would have been different even if this strict statutory approach had not been taken is uncertain. At least some commentators consider that it would not. Basten, for example, suggests that the decision was in accordance with principle,[373] while Waters suggests that ‘much of what is said echoes and clarifies propositions that originate in Mabo’.[374] It may be that the problems associated with the evidence and findings of fact would have been fatal in any event. Nevertheless, the combination of the strict statutory approach, the Court’s failure to criticise the methodology and its reliance upon the finding to support the view that the society bound by normative rules had not survived and was different from the contemporary society,[375] suggest that it will be difficult for many groups to satisfy the requirements of continuity now seemingly required by the Court.[376]
That native title is a vulnerable right was soundly reinforced in these cases, particularly in Ward. By providing that native title rights can be extinguished one by one,[377] together with the view that certain Crown reservations and vestings extinguish native title completely,[378] the decision has overturned some views about extinguishment deriving from Mabo,[379] with the result that native title will now not exist at all or, at best, only minimal native title rights will now exist on much Crown land. It is true that the decision in relation to the non-extinguishing aspects of pastoral leases and mining leases potentially preserves some native title rights over these leases. However, the combined effect of the three recent cases is to dramatically reduce the numbers of indigenous people who will be able to successfully claim native title either because native title has been extinguished over land or because of the difficulties of proving the necessary elements said to be required under s 223 of the Act. Given the requirement for the listing of native title rights in determinations,[380] it is now possible that some consent (and possibly contested) determinations will be revisited, and the rights enunciated in the determinations or the area of land over which the determinations have been made will be diminished. In relation to the future act regime, the various rights flowing to native title holders will also be correspondingly diminished because the regime will not apply to some areas of land and, where it does apply, the requirement to notify, consult or negotiate will be diminished as the range of rights affected by proposed acts is limited.
In the end, as Pearson says, in interpreting the Act, the Court discarded the spirit of Mabo and Wik and the intent of the Parliament in 1993, and produced decisions that failed to take account of the fundamental principle of prior indigenous occupation of the land.[381] Thus, native title might now be aptly described as remnant lands and remnant rights.
The story told so far is of native title as a legal artefact and a political battlefield; of a right that has been slowly diminished; a hope disillusioned; an opportunity lost.[382] There is, however, another story — of negotiation, of agreement-making, of changed approaches, of activity beyond the strict requirements of native title law. This story is one of gradual change from the rigid attitudes and approaches that characterised relationships before 1992. This change was evident prior to the period when the Act was amended and has continued since.
The change in attitude and culture should not be overstated: it did not manifest itself during the debate on the 1998 amendments to the Act in which state governments and the resource industry sought to wind back the beneficial elements of the Act. However, over the post-native title period there has been a gradual change in approach and an embracing of agreement-making — a stark contrast, particularly in jurisdictions such as Western Australia, to the pre-native title era.[383]
An emerging culture of agreement-making may not be all it seems. Agreements may not be negotiated in environments of equal bargaining power and resources.[384] Agreements may fail to deliver promised benefits because of a lack of resources or a failure to address implementation issues,[385] or because the terms have been poorly negotiated.[386] However, a changed approach to accommodating indigenous interests is discernible and it is this change that may provide a path for the future.
Tracking this change is challenging, as there is no central recording of agreements and the existence or content of many agreements is confidential.[387] The precise number of agreements being negotiated has always been difficult to quantify.[388] Agreements cover every part of the country and a wide variety of matters.[389] What does emerge from a review of these agreements is that there was initially a reluctance to engage in negotiation, and an adversarial and litigious approach predominated.[390] The Century Zinc case is one example of this approach,[391] while the Western Australian government’s insistence on negotiating heritage clearances through the native title procedure, rather than through a protocol agreement, is another.[392] This approach appeared to gradually change, and negotiations and agreement-making became more common.[393] However, agreement-making had also been occurring from the early stages of the post-Mabo period. Some well-known examples of agreements made across this period provide some insight into the process of engagement and change.
The Cape York Peninsula Heads of Agreement[394] was negotiated between the Cape York Land Council, the Cattlemen’s Union and conservation groups in the region, and provides a framework for future resource decision-making. Indigenous groups agreed to exercise their rights in a manner that did ‘not interfere with the rights of pastoralists’[395] and the pastoralists agreed to ‘continuing rights of access for traditional owners to pastoral properties for traditional purposes.’[396] The agreement also dealt with regimes for identifying areas of high conservation value and the World Heritage listing of Cape York.[397] This did not involve either an acknowledgment that native title existed or a surrender of native title interests. The agreement was reached outside of any formal native title negotiation procedures, although funds for a mediator were provided by the Council for Reconciliation.[398]
The 1997 agreement involving Hamersley Iron (a subsidiary of RTZ-CRA Ltd, now Rio Tinto Ltd) and the Gumala Aboriginal Corporation allowed for the development of a $500 million iron ore deposit at the Yandicoogina mine in Western Australia. In return, the Gumala Aboriginal Corporation received compensation of $60 million and a range of other benefits and cultural and environment protection mechanisms. Native title remained unaffected and claims were to proceed in the usual way.[399] More recently, Hamersley Iron has reached agreement with the Eastern Guruma people covering mining and other matters over 7276 square kilometres of land in the Pilbara.[400] There has also been a large-scale agreement covering the Burrup Peninsula in which there was a transfer of title and a lease-back of land, as well as financial agreements.[401]
One of the most significant agreements is the Western Cape Communities Co-Existence Agreement. Finalised in 2001, the agreement covers areas of land in and around Weipa on Cape York Peninsula, the site of a Comalco alumina mine.[402] The parties to the agreement are Comalco, the Queensland government, the Cape York Land Council, traditional landowners and community representatives.[403] The agreement is registered as an ILUA under the NTA[404] and covers land that is, or will be, the subject of native title as well as land over which native title does not exist. It also provides for some of the land, currently leased by Comalco, to be returned to indigenous people once it is no longer required for mining.[405] The agreement acknowledges the traditional owners of land covered by the Weipa township, which will continue to be used for development.[406] It provides for the transfer of other lands, including pastoral leases, to traditional owners.[407] There is provision for payments starting at $4 million annually — including a contribution of $2.3 million from Comalco to communities and a further commitment of $500 000 annually from Comalco — to be expended on training and education, and a government contribution of $1.5 million for community projects.[408] The agreement also provides for heritage protection. The term of the agreement is around 50 years and includes obligations to allow further mining and development to proceed under protocols and a decision-making process specified in the agreement.
In South Australia, negotiations are continuing on a state-wide ILUA.[409] Other agreements, such as a multi-party agreement to allow exploration to occur in the Cooper Basin, have been reached.[410] In Victoria, there have also been agreements of different types and involving various governments.[411]
The Western Australian government has agreed to a number of consent determinations that native title exists.[412] Four of these were agreed to by the Liberal government,[413] the same government that passed the Land (Titles and Traditional Usage) Act 1993 (WA). Some of these determinations were accompanied by agreements that established protocols for subsequent land use decisions. The first of these involved a group known as the Spinifex People.[414] The area covered by the determination was a remote location in the Great Victoria Desert. There were no competing settler interests other than some mining interests. The group involved had not had contact with settlers until the 1950s and 1960s. The determination involved rights of exclusive possession over an area of approximately 45 000 square kilometres and non-exclusive rights over a further 7000 square kilometres.[415] Agreement was reached not only about native title but also about the process or protocols for future decision-making over land use, particularly mining.[416]
The determination in Smith v Western Australia[417] involved an area of land that had been the subject of intensive settler land use through the grant of pastoral leases and some mining activities. The rights were determined to be non-exclusive native title rights, which consisted of rights to hunt and fish, to be acknowledged as the traditional Aboriginal owners of the area as against any other Aboriginal group, to travel through the area and to visit and care for places of cultural and spiritual significance.[418] The consenting parties were not only the Western Australian government but also 14 pastoralists over whose land the claim had been made. The consent determination also involved a further agreement under the ILUA provisions of the NTA covering future use (including mining activity) in the area.[419]
Agreements have been made that go beyond resolution of native title or resource issues. For example, the Western Australian government and the Aboriginal and Torres Strait Islander Commission have signed a Statement of Commitment to better distribute resources and to develop partnerships and regional agreements covering a wide range of activities.[420]
Agreement-making is not new: it was a feature of some of the earlier statutory land rights schemes. What is new are the parties that now engage in agreement-making, the process and willingness to negotiate, the numbers engaged and the scale and subject matter of agreements. Many agreements are made outside formal native title processes. However, the role of native title as an enforceable right in bringing about this change cannot be understated as a trigger to engagement and negotiation. Recognition by the common law and the NTA both extended rights and possibilities for engagement in decision-making over land, requiring new approaches and new relationships to be formed between indigenous people and settlers. The significant factor that can be discerned in the post-Mabo period is this change in approaches and relationships, however incomplete and complex.
To suggest that there has been a perceptible change in attitudes is not to deny that there have been significant difficulties both in the process of negotiating agreements, and in the substance of those agreements. Indeed, Pearson,[421] Jonas,[422] Ritter[423] and O’Faircheallaigh,[424] among others, have identified serious issues about the disparate bargaining power of parties, the unwillingness of some parties and governments to enter into good faith negotiations and the significant failure of some agreements to deliver benefits. The agreement in Smith referred to above has been the subject of particular criticism.[425] Nor does acceptance of the proposition discount the real diminution in rights effected by the 1998 amendments or the problematic future act regime, which have generally reduced indigenous participation in negotiations to one of process rather than substantive agreement about access and use of resources.[426] The effect of these processes in the long term is yet to be gauged.
With the dilution of native title in its breadth of rights, its geographical spread and application as a result of both the Native Title Amendment Act 1998 (Cth) and the recent High Court decisions, the impetus to negotiate has been diminished and removed in some areas. Agreements made as risk-management tools to take account of native title rights may not be so easily reached now that the possibility of native title existing is so diminished. Yet the change that has occurred over the last 10 years in the approach to negotiation between indigenous people and settler institutions is dramatic. This is not to say that events such as ‘Noonkanbah’ will not occur,[427] but it is less likely.
What, then, has 10 years of the NTA produced? Can the clock be rewound to the pre-Mabo era? Has the paradigm shift brought about by Mabo and the NTA produced such change that turning the clock back is now impossible? Whatever now happens will occur in this new and changed post-Ward and Yorta Yorta environment, in which indigenous interests lack the expansive protection they might once have had.
For some time, disquiet has been expressed about the capacity of the native title scheme to meet the aspirations of indigenous people.[428] In the wake of Yorta Yorta, politics, not law, was identified as the way forward.[429] As Pearson remarks, the failure of law to live up to the promise of Mabo is now apparent.[430] With curious prescience, Dawson J in dissent in Mabo said that ‘the responsibility, both legal and moral’ for change lay ‘with the legislature and not with the courts’,[431] a view echoed by Callinan J in Ward.[432]
Politics was the site of change when law failed in Milirrpum. But politics itself failed in 1986 and even in 1997 to address the fundamental claims of indigenous people to recognition of their place as prior occupiers. We may be at a similar place now as we were immediately post-Milirrpum when, at least for a time, politics, not law, became the site of negotiation and action to address ‘the outstanding question of indigenous land justice in Australia’.[433] Politics may again fail. The political possibilities and challenges are significant as governments and other parties consider whether to reopen consent determinations and agreements, whether to return to the period of disregard and denigration of indigenous laws and cultures or to sustain the change in approach engendered over 10 years. Any political debate will occur in a changed environment where negotiation and agreement are now commonplace and the manner of engagement is respect rather than fear. Native title has produced the change, even though native title as envisaged in Mabo may not survive the change.
Ten years of the NTA has seen the common law of native title emerge, blossom, change and wilt. The promise engendered by Mabo has failed to materialise in the form of a robust and enforceable native title. To that extent, the sun may have set, with native title fatally wounded by the NTA and the High Court. However, the ideas, discourses and practices unleashed by Mabo and the Act, and particularly the practice of negotiation, cannot easily be set aside. As the common law of native title lies dormant, waiting for the common law to revive and reinvigorate it as a set of fuller rights, the promise and process of change and the search for a fair and just relationship will continue.
[*] BA (Melb), LLB (Hons) (Monash), LLM (Melb); Senior Lecturer, Faculty of Law, The University of Melbourne. The author acknowledges the assistance of the Australian Research Council Linkage Project ‘Agreements, Treaties and Negotiated Settlements with Indigenous Peoples in Settler States: Their Role and Relevance for Indigenous and Other Australians’, and the anonymous referees for their constructive comments.
[1] Cole Harris, The Resettlement of British Columbia: Essays on Colonialism and Geographical Change (1997) xii. The term ‘settler societies’ are those that were colonised during the period of European expansion, in which colonising institutions of government and law are dominant, and in which colonising populations form a majority (and indigenous peoples a minority).
[2] Heather Goodall, Invasion to Embassy: Land in Aboriginal Politics in New South Wales
1770–1972 (1996) 1–19.
[3] Harris, The Resettlement of British Columbia, above n 1, xii.
[4] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).
[5] The word ‘indigenous’ is used in this article to refer to people of Australian Aboriginal and Torres Strait Islander descent. Other terms such as ‘Aboriginal’ or ‘Torres Strait Islander’ are used as the context requires.
[6] See, eg, Galarrwuy Yunupingu (ed), Our Land Is Our Life: Land Rights Past, Present and Future (1997).
[7] [2002] HCA 28; (2002) 191 ALR 1 (‘Ward’).
[9] [2002] HCA 58; (2002) 194 ALR 538 (‘Yorta Yorta’).
[10] Noel Pearson, ‘Native Title’s Days in the Sun Are Over’, The Age (Melbourne), 28 August 2002, 15.
[11] See the discussion about validation and extinguishment in below Part IV(B).
[12] Whether the right created by the future acts regime did enhance and go beyond the body of rights which are native title at common law, it was presented in this way by indigenous negotiators and the Commonwealth government during the negotiations about the Act in 1993: see below Part III.
[13] (2001) 208 CLR 1 (‘Yarmirr’).
[14] See below nn 63–72 and accompanying text.
[15] See Bryan Keon-Cohen, ‘The Mabo Litigation: A Personal and Procedural Account’ [2000] MelbULawRw 35; (2000) 24 Melbourne University Law Review 893; Susan Burton Phillips, ‘Reconstructing the Rules’ in Essays on the Mabo Decision (1993) 1, 1–2; Mabo v Queensland [1992] 1 Qd R 78.
[16] Richard Bartlett, The Mabo Decision (1993) v.
[17] Sir Harry Gibbs, ‘Foreword’ in Margaret Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution (1993) xiii, xiii.
[18] Noel Pearson, ‘204 Years of Invisible Title’ in Margaret Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution (1993) 75, 75.
[19] Michael Mansell, ‘The Court Gives an Inch but Takes Another Mile’ (1992) 57(2) Aboriginal Law Bulletin 4; Michael Mansell, ‘Australians and Aborigines and the Mabo Decision: Just who Needs whom the Most?’ [1993] SydLawRw 13; (1993) 15 Sydney Law Review 168.
[20] Gibbs, ‘Foreword’, above n 17, xiii.
[21] Gabriel Moens, ‘Mabo and Political Policy-Making by the High Court’ in Margaret Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution (1993) 48, 50. See also J R Forbes, ‘Native Title: Issues in Australia’ [1994] Australian Mining And Petroleum Law Yearbook 1; L J M Cooray, ‘The High Court in Mabo: Legalist or l’Egotiste’ in Murray Goot and Tim Rowse (eds), Make a Better Offer: The Politics Of Mabo (1994) 65; Peter Durack, Ron Brunton and Tony Rutherford, Mabo and after (1992) 1.
[22] Colin Howard, quoted in Heather McCrae, Garth Nettheim and Laura Beacroft, Indigenous Legal Issues (1997) 215.
[23] Geoffrey Ewing, ‘The Likely Impact of the Mabo Case on Aboriginal Land Rights Claims’ (1992) 16(5) Mining Review 8.
[24] Hugh Morgan, quoted in G Hughes, ‘High Court Failed Nation with Mabo, Says Mining Chief’, The Australian (Sydney), 1 July 1993, 1–2.
[25] R D Lumb, ‘The Mabo Case: Public Law Aspects’ in Margaret Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution (1993) 1, 11; Howard, above n 22.
[26] Garth Nettheim, ‘Judicial Revolution or Cautious Correction? Mabo v Queensland’ [1993] UNSWLawJl 2; (1993) 16 University of New South Wales Law Journal 1.
[27] Richard Bartlett, ‘Mabo: Another Triumph for the Common Law’ [1993] SydLawRw 14; (1993) 15 Sydney Law Review 178.
[28] See below Part III.
[29] Frank Brennan, ‘Mabo and the Racial Discrimination Act: The Limits of Native Title and Fiduciary Duty under Australia’s Sovereign Parliaments’ [1993] SydLawRw 16; (1993) 15 Sydney Law Review 206, 206.
[30] See, eg, Lumb, ‘The Mabo Case’, above n 25. See also Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118, 129–30 (Gibbs J), 135 (Jacobs J), 137 (Murphy J) where this view was accepted but also suggested that alternative views may be arguable.
[31] Barbara Hocking, ‘Does Aboriginal Law Now Run in Australia?’ (1979) 10 Federal Law Review 161; John Hookey, ‘Settlement and Sovereignty’ in Peter Hanks and Bryan Keon-Cohen (eds), Aborigines and the Law (1984) 1; John Hookey, ‘The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?’ [1972] FedLawRw 5; (1972) 5 Federal Law Review 85; Richard Bartlett, ‘Aboriginal Land Claims at Common Law’ (1983) 15 University of Western Australia Law Review 293; Kent McNeil, Common Law Aboriginal Title (1989) 290–7; R D Lumb, ‘Aboriginal Land Rights: Judicial Approaches in Perspective’ (1988) 62 Australian Law Journal 273, in which the author notes that the perceived state of the law was wrong but that it should not now be altered.
[32] Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App Cas 286; A-G v Brown (1847) 1 Legge 312; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (‘Milirrpum’).
[33] Williams v A-G (NSW) [1913] HCA 33; (1913) 16 CLR 404; Randwick Municipal Council v Rutledge [1959] HCA 63; (1959) 102 CLR 54; New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337.
[34] [1889] UKLawRpAC 7; (1889) 14 App Cas 286, 291 (Lord Watson).
[35] Ibid. See also Re Southern Rhodesia [1919] AC 211, 223–34 (Lord Sumner).
[36] [1889] UKLawRpAC 7; (1889) 14 App Cas 286, 291 (Lord Watson). This principle was critically considered by Brennan J in Mabo [1992] HCA 23; (1992) 175 CLR 1, 25–31. The discussion of the terra nullius doctrine in this context has been criticised: Robert van Krieken, ‘From Milirrpum to Mabo: The High Court, Terra Nullius, and Moral Entrepreneurship’ [2000] UNSWLawJl 3; (2000) 23 University of New South Wales Law Journal 63; Gerry Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993) 19 Melbourne University Law Review 195; David Ritter, ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis’ [1996] SydLawRw 1; (1996) 18 Sydney Law Review 5.
[38] Ibid 270.
[39] Ibid 245.
[40] Ibid 267.
[41] For a discussion of the case, see Paul Watson, ‘The Gove Land Rights Case: Hard Cases Make Hard Law’ (1994) 1 Canberra Law Review 97.
[42] Hocking, ‘Does Aboriginal Law Now Run in Australia?’, above n 31; Hookey, ‘The Gove Land Rights Case’, above n 31; Bartlett, ‘Aboriginal Land Claims at Common Law’, above n 31.
[43] For a brief summary of recognition in the United States, Canada, New Zealand, Africa and Papua New Guinea, see Richard Bartlett, Native Title in Australia (2000) 5–11.
[44] Hookey, ‘Settlement and Sovereignty’, above n 31.
[45] [1979] HCA 68; (1979) 24 ALR 118.
[46] Hookey, ‘Settlement and Sovereignty’, above n 31, 18. Hocking had previously raised some of these issues directly in response to Milirrpum: Hocking, ‘Does Aboriginal Law Now Run in Australia?’, above n 31.
[47] See below Part VIII, where it is argued that the current state of law and politics is not dissimilar to that post-Milirrpum, and that possible responses to the current situation might be found in the actions taken in response to Milirrpum.
[48] South Australia had already begun a process of recognising indigenous interests in land by vesting ownership of Aboriginal reserve land in an Aboriginal body: Aboriginal Lands Trust Act 1966 (SA).
[49] See Goodall, above n 2, 44–56.
[50] Aboriginal and Historic Relics Preservation Act 1965 (SA); Aboriginal Relics Preservation Act 1967 (Qld); Aboriginal Heritage Act 1972 (WA); Archaeological and Aboriginal Relics Preservation Act 1972 (Vic).
[51] Aboriginal Land Rights Commission, First Report (1973); Aboriginal Land Rights Commission, Second Report (1974).
[52] For an overview of the operation of the original legislation, see Justice John Toohey, ‘Aboriginal Land’ (1985) 15 Federal Law Review 159; Justice John Toohey, Seven Years On: Report by Mr Justice Toohey to the Minister for Aboriginal Affairs on the Aboriginal Land Rights (Northern Territory) Act 1976 and Related Matters (1984); Graeme Neate, Aboriginal Land Rights Law in the Northern Territory (1989). For more contemporary commentary, see John Reeves, Building on Land Rights for the Next Generation: Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976 (2nd ed, 1998); Julie Finlayson, ‘Northern Territory Land Rights: Purpose and Effectiveness’ (Research Discussion Paper No 180/1999, Centre for Aboriginal Economic Policy, 1999) <http://www.anu.edu.au/caepr/1999/1999_DP180.pdf> Jon Altman, Frances Morphy and Tim Rowse (eds), Land Rights at Risk? Evaluations of the Reeves Report (1999); Standing Committee on Aboriginal and Torres Strait Islander Affairs, Parliament of Australia, Unlocking the Future: The Report of the Inquiry into the Reeves Review of the Aboriginal Land Rights (Northern Territory) Act 1976 (1999); Garth Nettheim, Gary Meyers and Donna Craig, Indigenous Peoples and Governance Structures: A Comparative Analysis of Land and Resource Management Rights (2002) 240–57.
[53] Paradoxically, because by 1976 Aboriginal reserves had come to be seen in a negative light as a significant element of the discredited assimilation policy: see Goodall, above n 2, 115–260; Christobel Mattingley and Ken Hampton (eds), Survival In Our Own Land (1988). See Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, 317–19 (Murphy J) for a particularly cogent and contemporary discussion of the operation of this system.
[54] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) sch 1.
[55] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 50.
[56] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 50(1)(a).
[57] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) pt IV. See Reeves, Building on Land Rights for the Next Generation, above n 52, ch 24; Maureen Tehan, ‘Practising Land Rights: The Pitjantjatjara in the Northern Territory, South Australia and Western Australia’ (1993) 65(4) Australian Quarterly 34. Indigenous control has often been described as a ‘veto’. This is not strictly accurate as there is a capacity for intervention by the Minister and limited arbitration: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 43, 48E. However, the right to control resource activity is significantly greater than under either the original or the amended NTA: see below Parts IV(D) and V.
[58] Pitjantjatjara Land Rights Act 1981 (SA) and Maralinga Tjarutja Land Rights Act 1984 (SA) provided for direct grants of inalienable freehold land to land-holding corporations with varying processes for decision-making about mining and other developments; Aboriginal Land Rights Act 1983 (NSW) under which application could be made to the Minister for a land grant of freehold title; Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld) under which freehold title, known as a deed of grant in trust (‘DOGIT’) was vested in the councils of Aboriginal reserves. Queensland subsequently passed more comprehensive legislation: Aboriginal Land Act 1991 (Qld) and Torres Strait Islander Land Act 1991 (Qld). In Victoria, some legislation vesting ownership of reserves or small areas of land was passed: Aboriginal Lands Act 1970 (Vic); Aboriginal Land (Aboriginal Advancement League) (Wall Street Northcote) Act 1982 (Vic); and later Aboriginal Land (Northcote Land) Act 1989 (Vic); Aboriginal Lands Act 1991 (Vic); Aboriginal Land (Manatunga Land) Act 1992 (Vic). Most curiously, the Commonwealth Parliament passed the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth). The Act operated in Victoria and was accompanied by a preamble in which certain historical matters were asserted and the following curious provision: ‘and whereas the Commonwealth does not acknowledge the matters acknowledged by the Government of Victoria, but has agreed to the enactment of such an Act’.
[59] McCrae, Nettheim and Beacroft, above n 22, 171.
[60] Paul Seaman, The Aboriginal Land Inquiry (1984).
[61] Aboriginal Lands Bill 1985 (WA).
[62] Commonwealth, Parliamentary Debates, House of Representatives, 8 December 1983, 3487 (Clyde Holding, Minister for Aboriginal Affairs).
[63] McCrae, Nettheim and Beacroft, above n 22, 155–7. A detailed analysis of this period can be found in Ronald Libby, Hawke’s Law: The Politics of Mining and Aboriginal Land Rights in Australia (1989). Although no legislation was ever passed in Western Australia following the failure of the land rights proposals, the government negotiated 99 year leases of some reserve land in the far east of the State and various administrative procedures were established under existing reserves management legislation (Aboriginal Affairs Planning Authority Act 1972 (WA)) to facilitate indigenous participation in land management decisions. See Tehan, ‘Practising Land Rights’, above n 57 for a discussion of the operation of these processes.
[64] Steve Hawke and Michael Gallagher, Noonkanbah: Whose Land, Whose Law (1989) esp
270–88.
[65] M C Dillon, ‘“A Terrible Hiding ...”: Western Australia’s Aboriginal Heritage Policy’ (1983) 42 Australian Journal of Public Administration 486.
[66] Aboriginal Heritage Act 1972 (WA) s 18, amended by Aboriginal Heritage Amendment Act (No 2) 1980 (WA) s 6. On the heritage legislation issue specifically, see Dillon, above n 65.
[67] Clive Hamilton, ‘Mining in Kakadu: Lessons from Coronation Hill’ (Discussion Paper No 9, Australia Institute, 1996); Bob Hawke, The Hawke Memoirs (1994) 505–10; Francesca Merlan, ‘The Limits of Cultural Constructionism: The Case of Coronation Hill’ (1991) 61 Oceania 341; Kenneth Maddock, ‘God, Caesar and Mammon at Coronation Hill’ (1988) 58 Oceania 305.
[68] Donald Stewart, Report under Section 10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 on the Kakadu Conservation Zone (1991).
[69] Kakadu Board of Management, Kakadu National Park Plan of Management (1998) 16. See Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, in which the decision to prevent the exercise of rights under mining leases was held to be an acquisition of property for the purposes of s 51(xxxi) of the Constitution.
[70] Hamilton, above n 67, 1; Marcia Langton, ‘The Hindmarsh Island Bridge Affair: How Aboriginal Religion Has Become an Administrable Subject’ (1996) 11 Australian Feminist Studies 211.
[71] Langton, above n 70, 214–15.
[72] Ibid 216.
[73] See Below Parts III (concerning the original Act) and V (the amending Act). This remained the situation notwithstanding that the Parliament passed the Council for Aboriginal Reconciliation Act 1991 (Cth) with bipartisan support, with the aim of transforming ‘Aboriginal and non-Aboriginal relations in this country’: Commonwealth, Parliamentary Debates, House of Representatives, 30 May 1991, 4499 (Robert Tickner, Minister for Aboriginal Affairs).
[74] See above nn 21–7 for some of these reactions.
[75] Mabo [1992] HCA 23; (1992) 175 CLR 1, 20, 43 (Brennan J).
[76] Ibid 42 (Brennan J).
[77] Ritter, ‘The “Rejection of Terra Nullius” in Mabo’, above n 36, 20–9; Nettheim, ‘Judicial Revolution or Cautious Correction?’, above n 26, 3–10; Simpson, above n 36, 205–9.
[78] Mabo [1992] HCA 23; (1992) 175 CLR 1, 43–4 (Brennan J).
[79] Ibid (emphasis added).
[80] Ibid 48 (Brennan J).
[81] Ibid 43 (Brennan J). It is this ‘accommodation of the rights of settlers and aboriginal people’ that is Bartlett’s ‘pragmatism’: Bartlett, ‘Mabo: Another Triumph for the Common Law’, above n 27, 182.
[82] Mabo [1992] HCA 23; (1992) 175 CLR 1, 48–52 (Brennan J).
[83] Curiously, Grattan and McNamara have suggested that this aspect of the decision has actually reinvigorated the feudal nature of the property law system: Scott Grattan and Luke McNamara, ‘The Common Law Construct of Native Title: A “Re-Feudalisation” of Australian Land Law’ [1999] GriffLawRw 3; (1999) 8 Griffith Law Review 50. See also Patricia Lane, ‘Native Title — The End of Property As We Know It?’ (2000) 8 Australian Property Law Journal 1.
[84] (1996) 187 CLR 1 (‘Wik’).
[85] Ibid 182.
[87] Mabo [1992] HCA 23; (1992) 175 CLR 1, 58.
[88] Ibid 59–60 (Brennan J).
[89] Ibid 60 (Brennan J).
[90] The issue of laws and customs giving a connection to land and the current practices establishing this connection were contested in the case but were established by the findings of fact by Moynihan J in Mabo v Queensland [1992] 1 Qd R 78. The approach of Moynihan J to the evidence has been strongly criticised, but ultimately did not affect the outcome of the case: see Nonie Sharp, ‘No Ordinary Case: Reflections upon Mabo (No 2)’ [1993] SydLawRw 11; (1993) 15 Sydney Law Review 143, 151–6.
[91] Mabo [1992] HCA 23; (1992) 175 CLR 1, 76 (Brennan J).
[92] The basis of this view was that the manifested aspects of land use by the people of Mer, such as cultivation and ideas of individual ownership found by Moynihan J, were different from that of indigenous people on the mainland: Pearson, ‘204 Years of Invisible Title’, above n 18, 77. See also Michael Hunt, ‘Mineral Development and Indigenous People — The Implications of the Mabo Case’ (1993) 11 Journal of Energy and Natural Resources Law 155; Lumb, ‘The Mabo Case’, above n 25, 4–6.
[93] Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J).
[94] Ibid 57–8 (Brennan J). The notion of recognition is important in establishing native title as a continuing right from the time sovereignty was acquired, rather than one that was granted or enlivened by the Crown or the common law. The rights or title always existed. Viewing the title in this way allows for the interplay of two systems of law and reinforces the social reality of indigenous law. Extinguishment principles operate to extinguish ‘recognition’ rather than the social and lived reality of indigenous law in relation to land: Noel Pearson, ‘The Concept of Native Title’ in Galarrwuy Yunupingu (ed), Our Land Is Our Life: Land Rights Past, Present and Future (1997) 150, 155–6, 159.
[95] Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J).
[96] Ibid 59 (Brennan J).
[97] Ibid 61 (Brennan J), 112–13 (Deane and Gaudron JJ).
[98] This issue was given considerable attention prior to the High Court decision in Ward [2002] HCA 28; (2002) 191 ALR 1. In Mabo, the declaration was to the effect that the rights and title of the Meriam people amounted to exclusive possession: [1992] HCA 23; (1992) 175 CLR 1, 76 (Brennan J). The view developed that the title gave rights to the land itself, and the particular laws and customs enunciated and emerging from law and custom were expressions of, or rights pendant upon, that title to the land. Consequently, no native title was extinguished unless all the rights were extinguished. The alternative view was that each of the observable expressions of law and customs were individual rights or sticks in a bundle, each of which was amenable to extinguishment. The different approaches are considered in some detail in the majority and minority decisions in the Full Federal Court decision in Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159. For detailed consideration of this issue, see also Katy Barnett, ‘Western Australia v Ward — One Step Forward and Two Steps Back: Native Title and the Bundle of Rights Analysis’ [2000] MelbULawRw 17; (2000) 24 Melbourne University Law Review 462. In Ward, the High Court majority held that the title consisted of a number of separate rights in a bundle and could be extinguished one by one, but did not engage in any detailed analysis of the conceptual issues: [2002] HCA 28; (2002) 191 ALR 1, 35–6, 40 (Gleeson CJ, Gaudron, Gummow and Hayne JJ), and see below Part VI(A). On this latter view, exclusive possession might be among the separate rights or sticks that comprise the native title rights. Rights of exclusive possession might also arise under a possessory title. This argument was advanced in Mabo but only dealt with by Toohey J: [1992] HCA 23; (1992) 175 CLR 1, 206–14. Toohey J concluded that the plaintiffs may well have a possessory title based upon prior possession, called common law aboriginal title, but this argument was ‘no more beneficial for the plaintiffs’ than traditional (native) title: at 214. This approach took up the work of Kent McNeil, Common Law Aboriginal Title, above n 31, which subsequently provided substantial assistance to the Canadian Supreme Court in its decision in Delgamuukw v British Columbia [1997] 3 SCR 1010. Pearson has suggested that these two approaches can be reconciled: Pearson, ‘The Concept of Native Title’, above n 94, 153. Whether they are able to be reconciled or subsumed into the same conceptual set of rights is uncertain. However, McNeil has argued that Brennan J’s decision in Mabo in effect was recognising a proprietary title based on exclusive and prior occupation: Kent McNeil, ‘The Relevance of Traditional Laws and Customs to the Existence and Content of Native Title at Common Law’ in Kent McNeil (ed), Emerging Justice?: Essays on Indigenous Rights in Canada and Australia (2001) 416, 420–3, 435. Note that Strelein has taken a slightly different approach, suggesting that Brennan J’s characterisation of the title allows for a ‘continuum of interests to accommodate non-possessory rights’: Lisa Strelein, ‘Conceptualising Native Title’ [2001] SydLawRw 4; (2001) 23 Sydney Law Review 95, 115.
[99] Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J), 112–13 (Deane and Gaudron JJ). See also Bartlett, ‘Native Title in Australia’, above n 43, 184–97.
[100] Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J).
[101] Ibid 63 (Brennan J), 110–11 (Deane and Gaudron JJ), 184 (Toohey J).
[102] Ibid 68 (Brennan J), 89–90 (Deane and Gaudron JJ), 195 (Toohey J).
[103] Ibid 15 (Mason CJ and McHugh J), 126 (Dawson J). The principle of derogation was said not to apply because the title was not sourced in a grant from the Crown: at 64 (Brennan J). Both McNeil and Pearson have argued that this approach is incorrect: Kent McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (1996) 1 Australian Indigenous Law Reporter 181; Pearson, ‘The Concept of Native Title’, above n 94, 153. However, the principle has now been accepted in subsequent cases: Ward [2002] HCA 28; (2002) 191 ALR 1; Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538; Yarmirr (2001) 208 CLR 1. See below Part VI.
[104] Mabo [1992] HCA 23; (1992) 175 CLR 1, 64 (Brennan J). The emphasis on ‘clear and plain intention’ was significantly diminished in Ward [2002] HCA 28; (2002) 191 ALR 1, 35–6 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See below Part VI(A).
[105] Mabo [1992] HCA 23; (1992) 175 CLR 1, 69–70.
[106] The assumption that all leases extinguished native title created difficulties that were played out following the Wik decision and the amendments to the NTA: see below Part V. Assumptions about the extinguishing effects of the creation of national parks continued until surprisingly overturned in Ward [2002] HCA 28; (2002) 191 ALR 1, 77–82, 128–9 (Gleeson CJ, Gaudron, Gummow and Hayne JJ): see below Part VI(A).
[107] Mabo [1992] HCA 23; (1992) 175 CLR 1, 71 (Brennan J), 112 (Deane and Gaudron JJ), 214–16 (Toohey J).
[108] Justice Robert French, ‘The Role of the High Court in the Recognition of Native Title’ (2002) 30 University of Western Australia Law Review 129, 146.
[109] Ibid 147.
[110] Mabo [1992] HCA 23; (1992) 175 CLR 1, 76.
[111] Brennan, ‘Mabo and the Racial Discrimination Act’, above n 29, 212; Greg McIntyre, ‘Aboriginal Title: Equal Rights and Racial Discrimination’ [1993] UNSWLawJl 5; (1993) 16 University of New South Wales Law Journal 57. The High Court by a narrow majority in Mabo v Queensland [No 1] dealt with the effect of the Act on (at that time) a potential native title:
In practical terms, this means that if traditional native title was not extinguished before the Racial Discrimination Act came into force, a State law which seeks to extinguish it now will fail. It will fail because s 10(1) of the Racial Discrimination Act clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community. A State law which, by purporting to extinguish native title, would limit that immunity in the case of the native group cannot prevail over s 10(1) of the Racial Discrimination Act which restores the immunity to the extent enjoyed by the general community. The attempt by the 1985 Act to extinguish the traditional legal rights of the Miriam [sic] people therefore fails.
(1988) 166 CLR 186, 218–19 (Brennan, Toohey and Gaudron JJ). Following the decision of the High Court in Ward, the possibility of invalidity was diminished as the Court articulated a distinction between two types of breaches of the RDA. In the first, where there is prohibition of the enjoyment of a right, invalidity will result, while in the second, where a person is treated differently because of their race, compensation but not invalidity will result: Ward [2002] HCA 28; (2002) 191 ALR 1, 43–4 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[112] Mabo [1992] HCA 23; (1992) 175 CLR 1, 69 (Brennan J), later confirmed in Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 (‘Fejo’), although the issue of Crown to Crown grants was not determined.
[113] Henry Reynolds, ‘Native Title and Pastoral Leases’ in Margaret Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution (1993) 119.
[114] Mabo [1992] HCA 23; (1992) 175 CLR 1, 69–70 (Brennan J).
[115] Pearson, ‘204 Years of Invisible Title’, above n 18, 89; Noel Pearson, ‘From Remnant Title to Social Justice’ (1993) 65(4) Australian Quarterly 179, 179–81; Paul Keating, ‘Australian Launch of the International Year for the World’s Indigenous People’ [1993] AboriginalLawB 9; (1993) 3(61) Aboriginal Law Bulletin 4, 5. Although not writing at the time, Justice McHugh has suggested that the decision was an example of changes in ‘political and ethical ideas’ over time: Justice Michael McHugh, ‘Judicial Method’ (1999) 73 Australian Law Journal 37, 40–1. See also Alex Reilly, ‘From a Jurisprudence of Regret to a Regrettable Jurisprudence: Shaping Native Title from Mabo to Ward’ (2002) 9(4) E Law — Murdoch University Electronic Journal of Law [28] <http://www.murdoch.edu.au/elaw/issues/v9n4/reilly94.html/> .
[116] Andrew Markus, ‘Between Mabo and a Hard Place: Race and the Contradictions of Conservatism’ in Bain Attwood (ed), In the Age of Mabo: History, Aborigines and Australia (1996) 88, 89.
[117] Ibid 93.
[118] Ibid 89–93.
[120] Keating, above n 115, 5.
[121] Commonwealth, Mabo: The High Court Decision on Native Title (Discussion Paper, Commonwealth of Australia, 1993); Tim Rowse, ‘How We Got a Native Title Act’ (1993) 65(4) Australian Quarterly 111, 113–14.
[122] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, 42–51; Rowse, ‘How We Got a Native Title Act’, above n 121, 113–14.
[123] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, 48; Rowse, ‘How We Got a Native Title Act’, above n 121, 113–14.
[124] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, 52–69. This implemented the idea of equality for native title holders — that they should be treated no less favourably than ordinary title holders: see, eg, M J Detmold, ‘Law and Difference: Reflections on Mabo’s Case’ [1993] SydLawRw 12; (1993) 15 Sydney Law Review 159; Andrew Lokan, ‘From Recognition to Reconciliation’ [1999] MelbULawRw 3; (1999) 23 Melbourne University Law Review 65, 79–84.
[125] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, 31–8; Bartlett, Native Title in Australia, above n 43, 34.
[126] Rowse, ‘How We Got a Native Title Act’, above n 121, 114.
[128] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, ch 9.
[129] Ibid 85–7. Simone Muller and Gary Meyers, ‘Mabo — Through the Eyes of the Media: The Land Fund Legislation’ (Part II) [1995] DeakinLawRw 5; (1995) 2 Deakin Law Review 99.
[130] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, 87–97.
[131] Aboriginal and Torres Strait Islander Social Justice Commissioner, First Report (1993) 26.
[132] The idea of coexistence of interests has been a consistent theme of indigenous people: National Indigenous Working Group on Native Title, Coexistence — Negotiation and Certainty: Indigenous Position in Response to the Wik Decision and the Government’s Proposed Amendments to the Native Title Act 1993 (1997) <http://www.faira.org.au/niwg/coexistence.html> . Arguably, the idea has been diminished by the 1998 amendments to the NTA (see below Part V) and the recent High Court decisions which have the effect of subjugating native rights to settler land interests: see below Part VI. On the idea of coexistence, see also Maureen Tehan, ‘Co-Existence of Interests In Land: A Dominant Feature of the Common Law’ (Issues Paper No 12, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997); Kent McNeil, ‘Co-existence of Indigenous and Non-Indigenous Land Rights: Australia and Canada Compared in Light of the Wik Decision’ [1997] IndigLawB 77; (1997) 4(5) Indigenous Law Bulletin 4.
[133] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995 (1995) 221–2.
[134] Ibid.
[135] Rowse, ‘How We Got a Native Title Act’, above n 121, 114–16.
[136] Bartlett, Native Title in Australia, above n 43, 36.
[137] Rowse, ‘How We Got a Native Title Act’, above n 121, 114–16.
[138] Ibid 121–2.
[139] Bartlett, Native Title in Australia, above n 43, 36.
[140] Land (Titles and Traditional Usage) Act 1993 (WA). This legislation was held to be invalid in Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373. See Meredith Wilkie and Gary Meyers, ‘Western Australia’s Land (Titles and Traditional Usage) Act 1993: Content, Conflict and Challenges’ [1994] UWALawRw 4; (1994) 24 University of Western Australia Law Review 31.
[141] Rowse, ‘How We Got a Native Title Act’, above n 121, 117.
[142] Ibid.
[143] Ibid 130–1.
[144] Ibid 130.
[145] Commonwealth, Mabo: Outline of Proposed Legislation on Native Title (1993).
[146] Ibid 10–15, 21.
[147] Ibid 7–9.
[148] Ibid 34.
[149] Ibid 7–8, 15, 35.
[150] Rowse, ‘How We Got a Native Title Act’, above n 121, 124–5.
[151] Ibid.
[152] The Opposition was not necessarily united in this outlook. Some members were supportive of aspects of the Bill and others crossed the floor to support some amendments in the Senate. The approach of coalition governments in Victoria and Western Australia varied, Victoria being accommodating towards the Commonwealth Bill: ibid 128–31.
[153] Ibid 128–9.
[154] It is arguable that the treatment of the RDA in the validation regime is not a ‘special measure’: McCrae, Nettheim and Beacroft, above n 22, 327–8.
[155] Rowse, ‘How We Got a Native Title Act’, above n 121, 127.
[156] Lois O’Donoghue, ‘A Step towards Reconciliation’, The Australian (Sydney), 20 October 1993, 2.
[157] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2883.
[158] Ibid 2878.
[159] Ibid 2877–8.
[160] Ibid 2878.
[161] Ibid.
[162] Ibid 2880.
[163] Ibid 2878–9. This was achieved by invalidating past legislative acts only if they were passed before 30 June 1993. If the Western Australian legislation fell foul of the RDA, it would not be rescued by the validation provisions of the Commonwealth Act.
[164] Ibid 2880.
[165] Ibid 2879. See below Part VI(C) for a discussion of how this idea has been addressed in subsequent cases.
[166] Ibid 2882–3.
[167] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Native Title Bill 1993 (1993).
[168] O’Donoghue, ‘A Step Towards Reconciliation’, above n 156; Rowse, ‘How We Got a Native Title Act’, above n 121, 131.
[169] Rowse, ‘How We Got a Native Title Act’, above n 121, 130. In fact it was a proposition revived by the Coalition once it returned to office in 1996.
[170] Commonwealth, Parliamentary Debates, Senate, 16 December 1993, 5500 (Gareth Evans, Minister for Foreign Affairs).
[171] The Land Fund provisions in s 201 came into effect on 30 June 1994: Attorney-General’s Legal Practice, Native Title Legislation with Commentary (1994) C1.
[172] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2883 (Paul Keating, Prime Minister).
[173] Commonwealth, Parliamentary Debates, Senate, 16 December 1993, 5502 (Gareth Evans, Minister for Foreign Affairs).
[174] NTA s 10: ‘Native title is recognised and protected in accordance with this Act’.
[175] This provision was specifically drafted to capture the invalidity of the Land (Titles and Traditional Usage) Act 1993 (WA).
[176] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 453 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). However, the Court did not appear to be saying that all aspects of native title were codified. Such a view would have been contrary to the comment in the Prime Minister’s second reading speech that
[t]his bill does not codify native title rights. Rather it provides that, in determining native title claims, the federal or state bodies involved will ascertain the rights in each particular case. Because the foundation of our position is acceptance of the High Court’s decision, the bill protects native title to the maximum extent practicable.
Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2879 (Paul Keating, Prime Minister).
[177] NTA s 228(2)(a)(i).
[178] Land (Titles and Traditional Usage) Act 1993 (WA). See above n 140.
[179] Australian Constitution s 51(xxvi).
[180] Australian Constitution s 51(xxix).
[181] The approach in the NTA varied from requiring strict compliance with the Act (s 19) to allowing for the Commonwealth to recognise state bodies and tribunals for the purpose of determining native title or carrying out various functions relating to future acts subject to the state’s arrangement satisfying the criteria set out in s 251 of the Act.
[182] The battle was played out in Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, which became known as the ‘Native Title Act Case’.
[183] The State also sought a declaration that no native title rights existed in the State: ibid 421.
[184] Australian Constitution s 51(xxvi); Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 462 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[185] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 462 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[186] Ibid 460 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). The idea of defeasibility here refers to the possibility of extinguishment at common law.
[187] Ibid 461 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). However, the common law remained relevant and the Court indicated that the Act should be read in the light of the common law: at 452.
[188] Ibid 451 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[189] Bartlett, Native Title in Australia, above n 43, 69.
[190] Attorney-General’s Legal Practice, above n 171, C9. Note also the comments of the Prime Minister in his second reading speech: see above n 176.
[191] Native title in water as a right recognised by the common law was confirmed in Yarmirr (2001) 208 CLR 1. Other provisions preserved the existing rights to hunt and fish, whether at common law or under statute: NTA ss 223(2)–(3), 210–11, 47; and allowed any prior extinguishment by pastoral leases to be disregarded if the lease was held by native title claimants: s 47.
[192] [1995] HCA 47; (1995) 183 CLR 373, 452 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[193] Ward [2002] HCA 28; (2002) 191 ALR 1; Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538; Yarmirr (2001) 208 CLR 1. See below Part VI.
[194] Section 228.
[195] Section 14.
[196] Section 15(2).
[197] Section 15(2).
[198] Section 238.
[199] Section 16.
[200] Section 17.
[201] Sections 19–20. All the states and the Northern Territory passed legislation validating their past acts: Native Title Act 1994 (ACT) ss 8(1)–(2); Native Title (New South Wales) Act 1994 (NSW) ss 10–11; Validation (Native Title) Act 1994 (NT) ss 5–6; Native Title (Queensland) Act 1993 (Qld) ss 10–11, 15; Native Title (South Australia) Act 1994 (SA) ss 33–4; Native Title (Tasmania) Act 1994 (Tas) ss 6–7; Land Titles Validation Act 1994 (Vic) ss 7–8, 13; Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ss 6–7.
[202] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2880 (Paul Keating, Prime Minister). In fact, this approach was used in argument in relation to the 1998 amendments to support a formal equality approach to many future act amendments: Jennifer Clarke, ‘Racial Discrimination Standards and Proposed Amendments to the Native Title Act’ (Issues Paper No 16, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997) 1.
[203] Note that only legislation made before 1 July 1993 was validated: NTA s 228(2)(a)(i).
[204] NTA s 228(2)(b).
[205] Attorney-General’s Legal Practice, above n 171, C12.
[206] Ibid.
[207] Re Savage Togara Coal Pty Ltd [1999] 2 Qd R 307.
[208] Mineralogy Pty Ltd v National Native Title Tribunal [1997] FCA 1404; (1997) 150 ALR 467.
[209] Although this was not clear at the time, Ward confirmed this as the correct approach: [2002] HCA 28; (2002) 191 ALR 1, 43–4 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[210] No compensation claims have yet been determined.
[211] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2881 (Paul Keating, Prime Minister); NTA s 3.
[212] NTA s 61.
[213] Northern Territory v Lane (1995) 59 FCR 332; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595.
[214] Department of the Prime Minister and Cabinet and Attorney-General’s Department, Commonwealth, Outline of Proposed Amendments to the Native Title Act 1993 (1995) 4. This aspect was ultimately amended in 1998 by inserting ss 190A–190C into the NTA: Native Title Amendment Act 1998 (Cth) sch 2, item 64.
[216] NTA s 74.
[217] [1995] HCA 10; (1995) 183 CLR 245 (‘Brandy’).
[218] Department of the Prime Minister and Cabinet and Attorney-General’s Department, Commonwealth, above n 214, 6–9.
[219] Aboriginal and Torres Strait Islander Commissioner, Native Title Report: July 1994–June 1995, above n 133, 59–93.
[220] Ibid 54–5. See, eg, Mary Edmunds, ‘Conflict in Native Title Claims’ (Issues Paper No 7, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1995); Peter Sutton, ‘Atomism versus Collectivism: The Problem of Group Definition in Native Title Cases’ in Jim Fingleton and Julie Finlayson (eds), Anthropology in the Native Title Era: Proceedings of a Workshop (1995) 1.
[221] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 133, 96–7; Commonwealth, First Report of the Parliamentary Joint Committee on Native Title: Consultations during August 1994, Parl Paper No 177 (1994) 9–10.
[222] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 133, 57.
[223] Ibid ch 3.
[224] Ibid 100.
[225] Ibid 101.
[226] By June 1994, 16 claimant applications had been made: ibid app 3.
[227] Commonwealth, Parliamentary Debates, House of Representatives, 27 June 1996, 3054 (Daryl Williams, Attorney-General); Department of the Prime Minister and Cabinet, Commonwealth, Towards a More Workable Native Title Act: An Outline of Proposed Amendments (1996).
[228] Gary Meyers and Sally Raine, ‘Australian Aboriginal Land Rights in Transition: The Legislative Response to the High Court’s Native Title Decisions in Mabo v Queensland and Wik v Queensland’ (Part II) (2001) 9 Tulsa Journal of Comparative and International Law 95, 101.
[229] These provisions did not extend to offshore waters: NTA s 235(8)(a).
[230] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2880 (Paul Keating, Prime Minister). This was the ‘similar compensable interest test’: NTA ss 23(3), 23(6), 240.
[232] NTA s 22.
[233] Attorney-General’s Legal Practice, above n 171, C17.
[235] See above Part II(B). See also Tehan, ‘Practising Land Rights’, above n 57.
[236] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: January 1994–June 1994 (1995) 135.
[238] Mining (Native Title) Amendment Act 1995 (SA). Following the amendments to the NTA in 1998, Western Australia and the Northern Territory unsuccessfully sought to establish their own schemes. Queensland also established its own scheme but has since discontinued it and reverted to the Commonwealth scheme.
[239] NTA pt 2, div 3B. The procedure required that the government give notice of its intention to make a grant of an interest to a native title party (that is, a person who may have native title or who has claimed native title): s 29; the native title party could object to the proposed grant, and negotiation between the native title party and the government and third party then ensued:
ss 26–31; if negotiation was unsuccessful, the parties could seek arbitration by the National Native Title Tribunal: ss 35–9; there was provision for the Minister to override the decision of the arbitrator in the interest of the state or Commonwealth: s 42; time limits were imposed at each stage — the process must be completed within 14 months of notice being given in the case of a proposed grant of a mining tenement for production, or within 12 months of the notice being given in the case of an exploration tenement; the purpose of the process was to determine whether the proposed grant should be made and, if so, on what conditions: ss 38–9.
[240] Note that the South Australian system operates differently.
[241] NTA s 30.
[242] NTA s 29(4).
[243] NTA ss 29(2), 30.
[244] Buck v New South Wales (Unreported, Federal Court of Australia, Lockhart J, 7 April 1997). See also Dunghutti People, New South Wales Minister for Land and Water Conservation and New South Wales Aboriginal Land Council, Crescent Head Agreement (9 October 1996), reproduced in [1997] AUIndigLawRpr 3; (1997) 2 Australian Indigenous Law Reporter 100.
[245] The Aboriginal and Torres Strait Islander Social Justice Commissioner suggested one solution to this ‘uncertainty’ might be ‘to assume that the entire continent is still owned by indigenous peoples’: Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: January 1994–June 1994, above n 236, 143.
[246] NTA s 32.
[247] NTA s 237.
[248] Richard Bartlett, ‘Dispossession by the National Native Title Tribunal’ [1996] UWALawRw 3; (1996) 26 University of Western Australia Law Review 108, 121. The use of this procedure was also of concern to the Social Justice Commissioner: Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 219, 171.
[249] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 219, ch 4.
[250] Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208.
[251] Bartlett, ‘Dispossession by the National Native Title Tribunal’, above n 248. The Native Title Amendment Act 1998 (Cth) had the effect that interference must be to the physical manifestations of native title rights and that such interference must be likely rather than possible. See Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32; Smith on Behalf of Gnaala Karla Booja People v Western Australia [2001] FCA 19; (2001) 108 FCR 442.
[252] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 219, 168–70.
[253] Ibid 166–8.
[254] Mary Edmunds (ed), Regional Agreements: Key Issues in Australia (1998) vol 1; Mary Edmunds (ed), Regional Agreements: Key Issues in Australia (1999) vol 2.
[255] Department of the Prime Minister and Cabinet, Commonwealth, Towards a More Workable Native Title Act, above n 227, 19–20; Department of the Prime Minister and Cabinet and Attorney-General’s Department, Commonwealth, above n 214, 13.
[256] NTA s 24.
[257] Department of the Prime Minister and Cabinet and Attorney-General’s Department, Commonwealth, above n 214; Native Title Amendment Bill 1995 (Cth).
[258] Department of the Prime Minister and Cabinet and Attorney-General’s Department, Commonwealth, above n 214, 4; Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 219, 91.
[259] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 219, 188–91; Richie Howitt, ‘The Other Side of the Table: Corporate Culture and Negotiating with Resource Companies’ (Regional Agreements Paper No 3, Australian Institute of Aboriginal and Torres Strait Islander Affairs, 1997).
[260] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: January 1994–June 1994, above n 236, 191–2.
[261] Ibid.
[263] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998 (1998) 9, 50.
[264] National Indigenous Working Group on Native Title, above n 132.
[265] ‘Policies for a Coalition Government’, quoted in McCrae, Nettheim and Beacroft, above n 22, 155–7, 229.
[266] Ibid.
[267] Department of the Prime Minister and Cabinet, Commonwealth, Towards a More Workable Native Title Act, above n 227.
[268] The Native Title Representative Bodies are those bodies corporate recognised under pt 11 of the NTA as representing the interests of native title holders in a defined region.
[269] Department of the Prime Minister and Cabinet, Commonwealth, Towards a More Workable Native Title Act, above n 227.
[270] ABC Radio 2CN, ‘Interview with Rick Farley’, The World Today, 3 September 1996.
[271] ‘Native Title Stakeholders Meeting: Outcome on Agreements’ (16 June 1996) (copy on file with author).
[272] ABC Radio 2CN, above n 270; Lenore Taylor, ‘Native Title Dialogue Breaks Down’, The Australian Financial Review (Sydney), 3 September 1996, 2.
[274] O’Donoghue, above n 156.
[275] NTA preamble; Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2880 (Paul Keating, Prime Minister).
[276] Reynolds, ‘Native Title and Pastoral Leases’, above n 113; Frank Brennan, ‘Pastoral Leases, Mabo and the Native Title Act 1993’ (Issues Paper No 1, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1994), and Justice Robert French, ‘Pastoral Leases, Reservations and Native Title’ (Issues Paper No 1, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1994); Henry Reynolds and James Dalziel, ‘Aborigines and Pastoral Leases: Imperial and Colonial Policy 1826–1855’ [1996] UNSWLawJl 17; (1996) 19 University of New South Wales Law Journal 315.
[277] North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595.
[278] Wik (1996) 187 CLR 1, 121–2 (Toohey J).
[279] Ibid 132–3 (Toohey J). The factual issues about the precise detail of the laws and customs of the group claiming native title and the extent of the rights of each party were referred back to the Federal Court for determination. The lack of clarity raised the possibility that native title was ‘suspended’ in this instance. This became a focus of much debate.
[280] For a range of views on the effect of the decision see ‘Forum — Wik: The Aftermath and Implications’ [1997] UNSWLawJl 11; (1997) 20 University of New South Wales Law Journal 1; Graham Hiley (ed), The Wik Case: Issues and Implications (1997).
[281] Pastoral leases covered 38 per cent of the land in Western Australia, 42 per cent in South Australia, 41 per cent in New South Wales, 54 per cent in Queensland and 51 per cent in the Northern Territory: Bartlett, ‘Native Title in Australia’, above n 43, 273.
[283] See, eg, Lenore Taylor and Paul Syvret, ‘Industry Dismayed by Wik Ruling’, The Australian Financial Review (Sydney), 24 December 1996, 1; Alan Moran, ‘Wik Decision Settles Nothing for Miners’, The Australian (Sydney), 24 December 1996, 13; Denis Burke, ‘Judgment Adds to Delay and Expense’, The Australian (Sydney), 7 January 1997, 11; Lenore Taylor, ‘It’s True – A Wik is a Long Time in Politics’, The Australian Financial Review (Sydney), 24 January 1997, 33.
[284] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1996–June 1997 (1997) ch 2.
[285] Ibid 36. This phrase was also used by the then Deputy Prime Minister Tim Fisher to describe the effect of the plan: ABC Television, ‘Interview with Tim Fischer by John Highfield on Native Title Act Amendments’, World at Noon, 4 September 1997, 1.
[286] These were called ‘intermediate period acts’: NTA div 2A.
[287] National Indigenous Working Group on Native Title, above n 132. The government’s position was that it was not unreasonable to assume that native title was extinguished: Nick Minchin, Fairness and Balance: The Howard Government’s Response to the High Court’s Wik Decision (1998) 11.
[288] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, above n 263, 3.
[289] By confirmation of ‘previous exclusive possession acts’: NTA div 2B.
[290] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, above n 263, 17–18. See generally Bartlett, Native Title in Australia, above n 43, 57–61.
[291] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, above n 263, 17.
[292] Ibid 15.
[293] For example, pastoral leases: see Bartlett, Native Title in Australia, above n 43, 58.
[294] This provision was deleted before the final amending Act was passed.
[295] Apart from the South Australian regime established under the original Act, there are no state or territory schemes: see above n 238.
[296] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, above n 263, 4–5.
[297] Aboriginal and Torres Strait Islander Commission, The Ten Point Plan on Wik and Native Title: Issues for Indigenous People (1997) <http://www.atsic.gov.au/issues/land/native_title/
Default.asp>; Aboriginal and Torres Strait Islander Commission, Native Title Amendment Bill 1997: Issues for Indigenous People (1997) <http://www.atsic.gov.au/issues/land/native_title/
Default.asp>; Aboriginal and Torres Strait Islander Commission, ATSIC Report on the Senate Amendments to the Native Title Amendment Bill (1998) <http://www.atsic.gov.au/issues/land/
native_title/Default.asp>; Aboriginal and Torres Strait Islander Commission, Detailed Analysis of the Native Title Amendment Act 1998 (1998) <http://www.atsic.gov.au/issues/land/
native_title/Default.asp>.
[298] Bartlett, Native Title in Australia, above n 43, 51–70, 299–322, 396–403.
[299] NTA ss 24AA–EC. See also National Indigenous Working Group on Native Title, above n 132; ‘Alcan Agreement “Would Not Be Permitted under Wik Law”’, AAP (Canberra), 3 September 1997.
[300] Bartlett, Native Title in Australia, above n 43, 52.
[301] Ibid.
[302] Ibid.
[303] Ibid 53. Bartlett points out that the consolidated Act now runs to 443 pages.
[304] These included the removal of the sunset clause and a requirement for notice (but not negotiation) in relation to the construction of infrastructure on pastoral leases: NTA s 224KA.
[305] See, eg, Harris v Great Barrier Reef Marine Park Authority [2000] FCA 603; (2000) 173 ALR 159.
[306] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, above n 263, 9.
[307] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1996–June 1997, above n 284, 7.
[308] Ibid.
[309] Ibid.
[310] Bartlett, ‘Native Title in Australia’, above n 43, 53 (emphasis in original). Bartlett also raises the possibility that the amended Act is unconstitutional because it can no longer claim the status of a ‘special law’ under the race power or a special measure under the RDA: at 69–70. See also Gillian Triggs, ‘Australia’s Indigenous Peoples and International Law: Validity of the Native Title Amendment Act 1998 (Cth)’ [1999] MelbULawRw 16; (1999) 23 Melbourne University Law Review 372; Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Parliament of Australia, Sixteenth Report: Consistency of the Native Title Amendment Act 1998 with Australia’s International Obligations under the Convention on the Elimination of All Forms of Racial Discrimination (2000).
[311] Pearson argues that this is all native title has been about but it is an especially apt description of the current state of indigenous native title rights since the decisions of the High Court in Ward, Wilson v Anderson and Yorta Yorta: Noel Pearson, ‘Where We’ve Come from and where We’re at with the Opportunity that Is Koiki Mabo’s Legacy to Australia’ (Speech delivered at the Native Title Representative Bodies Conference, Mabo Lecture, Alice Springs, 3 June 2003) <http://www.capeyorkpartnerships.com/noelpearson/np-mabo-lecture-3-6-03.doc> 3–4.
[312] For a review of the High Court’s decisions from Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 to Yorta Yorta, see Lisa Wright, ‘Themes Emerging from the High Court’s Recent Native Title Decisions’ (Occasional Paper 1, National Native Title Tribunal, 2003) <http://www.nntt.gov.au/metacard/
files/Emerging_decisions/Themes_emerging_from_the_High_Courts_recent_native_title_decisions.pdf>.
[313] [2002] HCA 28; (2002) 191 ALR 1.
[315] [2002] HCA 58; (2002) 194 ALR 538.
[316] Pearson, ‘Where We’ve Come from and where We’re at’, above n 311, 13. See also Reilly, above n 115, [34].
[317] Reilly suggests in a detailed analysis of Ward from the first instance hearing through to the appeal to the High Court decision that the case ‘exemplifies how the potential of native title has been restricted’: Reilly, above n 115, esp [5].
[318] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2880 (Paul Keating, Prime Minister).
[319] (2001) 208 CLR 1. McHugh J also stated (at 77) (citations omitted):
As this Court pointed out in Western Australia v Commonwealth the effect of s 11(1) is to remove the vulnerability of native title to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. The corollary of that proposition is that the Act alone governs the recognition, protection, extinguishment and impairment of native title.
Pearson argues that this is his understanding of what was meant by s 223(1) during the negotiations about the Act: Noel Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law” in Its Interpretation of Native Title in Mirriuwung Gajerrong and Yorta Yorta’ (Speech delivered at the Sir Ninian Stephen Annual Lecture, University of Newcastle, 17 March 2003) <http://www.capeyorkpartnerships.com/noelpearson/lecture.doc> 13.
[320] For commentary on this aspect of the decision, see Richard Bartlett, ‘The Fundamental Significance of Wik v State of Queensland in the High Court of Australia’ [1997] 2 Canadian Native Law Reporter 1; Frank Brennan, ‘How to Share the Land, Not Divide It’ [1997] 3 Uniya Focus <http://www.austlii.edu.au/au/other/IndigLRes/1997/1/2.html> Kent McNeil, ‘Co-Existence of Indigenous and Non-Indigenous Land Rights’, above n 132; ‘Wik: The Aftermath and Implications’, above n 280; Shaunnagh Dorsett, ‘“Clear and Plain Intention”: Extinguishment of Native Title in Australia and Canada Post-Wik’ [1997] GriffLawRw 4; (1997) 6 Griffith Law Review 96; Maureen Tehan, ‘The Wik Peoples v Queensland; The Thayorre Peoples v Queensland’ [1997] MelbULawRw 9; (1997) 21 Melbourne University Law Review 343; National Indigenous Working Group, The Co-Existence of Native Title on Pastoral Leases <http://www.faira.org.au/niwg/fact_sheets/
fs3.html>.
[321] (1996) 187 CLR 1, 132–3 (Toohey J). Pearson makes the point that from Mabo on, there has never been any doubt about the superiority of granted titles over native title and that ‘native title could never result in anyone losing any rights they held in land or in respect of land’: Pearson, ‘Where We’ve Come from and where We’re at’, above n 311, 3.
[322] [1998] HCA 58; (1998) 195 CLR 96. These issues were whether the grant of a freehold estate to a third party extinguished native title and the idea of suspension or revival of native title.
[323] Ibid 126 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 150–1 (Kirby J).
[324] Ibid 126–7 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 154–5 (Kirby J).
[325] Ibid 120 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[326] Ibid 152 (Kirby J).
[327] Lisa Strelein, ‘Extinguishment and the Nature of Native Title: Fejo v The Northern Territory’ (Issues Paper No 27, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1999) 1.
[328] Ward [2002] HCA 28; (2002) 191 ALR 1; Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538; Wilson v Anderson (2002) 190 ALR 313. Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 appears aberrant when viewed in the light of these decisions.
[329] For commentary and critical consideration of the case, see Lisa Strelein, ‘Western Australia v Ward on Behalf of the Miriuwung Gajerrong, High Court of Australia, 8 August 2002: Summary of Judgment’ (Issues Paper No 17, vol 2, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002); Reilly, above n 115; articles in ‘Special Edition: Native Title after Ward’ (2002) 21 Australian Mining and Petroleum Law Journal 205; ‘The Miriuwung and Gajerrong High Court Appeal’ [2002] 1 Native Title Hot Spots 2; articles in (2002) 5 Native Title News 158–77; Graeme Neate, ‘Agreement Making after Western Australia v Ward and Wilson v Anderson’ (Paper presented at the Native Title Conference 2002: Outcomes and Possibilities, Geraldton, 4 September 2002) <http://www.nntt.gov.au/metacard/files/speech/
Geraldton_conference_Sept_2002_Graeme_Neate_Agreement_Making_After_Ward.pdf>; Just-ice Robert French, ‘Western Australia v Ward: Devils and Angels in the Detail’ (Paper presented at the Native Title Conference 2002: Outcomes and Possibilities, Geraldton, 4 September 2002).
[330] (2001) 208 CLR 1, 39 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[331] Ibid 35 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[332] [2002] HCA 28; (2002) 191 ALR 1, 16 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[333] Ibid 19 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See Melissa Castan and Sue Kee, ‘The Jurisprudence of DENIAL’ (2003) 28 Alternative Law Journal 83, 84.
[334] These provisions were also central to the Court’s decision in Wilson v Anderson (2002) 190 ALR 313.
[335] Ward [2002] HCA 28; (2002) 191 ALR 1, 35–7 (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Reilly, above n 115, [31]. Although this issue occupied considerable space in the judgments of the Full Federal Court, the issue was dealt with by the High Court in 10 short paragraphs (namely
[73]–[82]): Ward [2002] HCA 28; (2002) 191 ALR 1, 34–7. The minority judgment, which dealt primarily with these issues, was dismissed in one paragraph on a question of the meaning of ‘inconsistency’. Interestingly, the majority did not conversely use the existence of references in the Act to suspension (in s 23G) to support the notion that suspension of native title rights might be possible. For a discussion of the bundle of rights/title to land issue, see Lane, above n 65, 20–2; Barnett, above n 98.
[336] See above Part V.
[337] Richard Bartlett, ‘General Principles of Extinguishment after Ward’ (2002) 21 Australian Mining and Petroleum Law Journal 255.
[338] Ward [2002] HCA 28; (2002) 191 ALR 1, 35–6, 73 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[339] Ibid 35–6 (Gleeson CJ, Gaudron, Gummow and Hayne JJ), 175–6 (Callinan J).
[340] Bartlett, ‘General Principles of Extinguishment after Ward’, above n 337, 257–60.
[341] It is impossible to cover all of the circumstances in this article. For a more detailed statement of the extinguishment findings, see Doug Young, ‘Native Title after Ward: A General Overview of the Implications for the Mining and Petroleum Industries’ (2002) 21 Australian Mining and Petroleum Law Journal 207; Graham Hiley, ‘Pastoral and Grazing Leases and Native Title’ (2002) 21 Australian Mining and Petroleum Law Journal 268; Kenneth Pettit, ‘Crown Reserves and Native Title’ (2002) 21 Australian Mining and Petroleum Law Journal 276; Raelene Webb, ‘Nature Reserves, National Parks and Native Title after Ward’ (2002) 21 Australian Mining and Petroleum Law Journal 282.
[342] For example, by non-exclusive pastoral leases: Ward [2002] HCA 28; (2002) 191 ALR 1, 68, 122 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[343] Ibid 74–5 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[344] Ibid 37 (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Kirby J reaffirmed this view, which he had previously expressed in Wik: at 164–5; Callinan J accepted this as the test although his Honour suggested that use of land might extinguish in some situations: at 175–9.
[345] [1992] HCA 23; (1992) 175 CLR 1, 68.
[346] Ward [2002] HCA 28; (2002) 191 ALR 1, 73 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[347] This was said to create a fee simple in the nature of a public trust, which thus extinguished all native title: ibid 77–9 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[348] Ibid 68–9, 121 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[349] Ibid 68–9 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[350] Ibid 94, 97, 105 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[351] Ibid 97–8, 105 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[352] Ibid 55, 97, 105 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[354] Kirby J found that there was no exclusive possession. Perhaps more significantly, Kirby J suggested that Wik should be adhered to:
This Court should be slow to reverse the steps, taken by Mabo [No 2] and Wik, in the recognition of the native title rights of Aboriginal peoples. Particularly so, because no party in this case sought to reargue the correctness of either of those decisions. Especially so, because the Federal Parliament accepted the holdings in those cases, adopted and amended the NTA accordingly and also facilitated the enactment of comparable companion legislation enacted by State and Territory legislatures throughout the country. Where the Parliament has not relevantly overridden Mabo [No 2] and Wik by clear prescription and where this Court has not retreated from the principles there stated, there are already enough legal and practical impediments to the attainment of legal protection for native title rights without now eroding the principles accepted by the majority in those two cases.
Wilson v Anderson (2002) 190 ALR 313, 355–6.
[355] Wilson v Anderson (2002) 190 ALR 313, 343 (Gaudron, Gummow and Hayne JJ), 368 (Callinan J).
[356] NTA s 23F; Native Title (New South Wales Act) 1994 (NSW) s 20. Interestingly, in Ward the Court found that the pastoral leases under consideration in that case did not grant exclusive possession rights: [2002] HCA 28; (2002) 191 ALR 1, 68–9, 121 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See Hiley, ‘Pastoral and Grazing Leases and Native Title’, above n 341, 271–5.
[357] Young, above n 341, 223–4. This also follows from the decisions in Ward and Yorta Yorta and would apply in circumstances where consent determinations or agreements have been made in relation to native title rights which, as a result of the principles enunciated in these decisions, may not exist, having been extinguished or otherwise lost.
[358] [2002] HCA 58; (2002) 194 ALR 538.
[359] Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319, 9.
[360] Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, 558 (Gleeson CJ, Gummow and Hayne JJ). This issue of ‘choice’ in the context of the decision in Ward was considered at length in Reilly, above n 115, [38]–[80].
[361] Pearson, ‘Where We’ve Come from and where We’re at’, above n 311, 13. Note in particular that the Court appears to have discarded any reference to, or reliance upon, common law principles emanating from outside Australia, notwithstanding that these principles played a significant part in the majority Mabo judgments: Reilly, above n 115, [67]–[80]; Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319, 19–22.
[363] Ibid 169–207, 266–72; Castan and Kee, above n 333, 85.
[364] Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, 553–4 (Gleeson CJ, Gummow and Hayne JJ).
[365] Ibid 550.
[366] Ibid 550, 553–4.
[367] [1992] HCA 23; (1992) 175 CLR 1, 51–2 (Brennan J). It is also at odds with recent Canadian jurisprudence on the issue. In Delgamuukw v British Columbia [1997] 3 SCR 1010, Lamer CJ reinforced the need to consider issues of laws and customs from an indigenous perspective: ‘first, that trial courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims, and second, that trial courts must interpret that evidence in the same spirit’: at 1066.
[368] For critical analysis of this decision and its consequences in terms of difficulty in establishing native title, see Castan and Kee, above n 333, 85–7; Pearson, ‘Where We’ve Come from and where We’re at’, above n 311 and Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319; Richard Bartlett, ‘An Obsession with Traditional Laws and Customs Creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta’ [2003] UWALawRw 3; (2003) 31 University of Western Australia Law Review 35.
[369] It is not clear whether the application of the common law would have produced a different result.
[370] Members of the Yorta Yorta Aboriginal Community v Victoria (1999) 4(1) Aust Indig LR 91.
[371] Valerie Kerruish and Colin Perrin, ‘Awash in Colonialism’ [1999] AltLawJl 1; (1999) 24 Alternative Law Journal 3; Wayne Atkinson, ‘“Not One Iota” of Land Justice: Reflections on the Yorta Yorta Native Title Claim 1994–2001’ [2001] IndigLawB 12; (2001) 5(6) Indigenous Law Bulletin 19; James Weiner, ‘Diaspora, Materialism, Tradition: Anthropological Issues in the Recent High Court Appeal of the Yorta Yorta’ (Issues Paper No 18, vol 2, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002); James Cockayne, ‘Members of the Yorta Yorta Aboriginal Community v Victoria: Indigenous and Colonial Traditions in Native Title’ [2001] MelbULawRw 25; (2001) 25 Melbourne University Law Review 786.
[372] Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, 556–7 (Gleeson CJ, Gummow and Hayne JJ), 591 (Callinan J).
[373] John Basten, ‘Beyond Yorta Yorta: Recent Developments in Native Title Law’ (Paper presented at the Native Title Representative Bodies Conference, Alice Springs, 4 June 2003).
[374] John Waters, ‘Members of the Yorta Yorta Community v Victoria’ (2003) 6 Native Title News 6, 10.
[375] Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, 555 (Gleeson CJ, Gummow and Hayne JJ).
[376] This difficulty may not be restricted to groups in settled areas where there has been considerable movement and dislocation: see De Rose v South Australia [2002] FCA 1342 (Unreported, O’Loughlin J, 1 November 2002).
[377] The consequence of its finding that the title is a ‘bundle of rights’: Ward [2002] HCA 28; (2002) 191 ALR 1,
35–37 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[378] Ibid 78–80.
[379] [1992] HCA 23; (1992) 175 CLR 1, 69–70 (Brennan J).
[380] NTA s 228.
[381] Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319; Noel Pearson, quoted in Peter Botsman, ‘Pearson Strikes a Blow in Title Fight’, The Australian (Sydney), 17 April 2003, 13.
[382] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2883 (Paul Keating, Prime Minister).
[383] Agreement-making was not unknown in the pre-native title era but it was unusual. Negotiations and agreements under the various statutory land rights schemes were becoming more common. For example, in relation to the Pitjantjatjara area there was an agreement in 1981 with Shell in relation to oil exploration: see Phillip Toyne and Daniel Vachon, Growing Up the Country (1984) 111–19; and also with Amoco in 1985 in relation to oil exploration: see Yami Lester, Yami: The Autobiography of Yami Lester (1993) 158–9. In relation to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), there have been many agreements, including those in relation to Kakadu National Park: see Tony Press and David Lawrence, ‘Kakadu National Park: Reconciling Competing Interests’ in Tony Press et al (eds), Kakadu: Natural and Cultural Heritage Management (1995) 1, 1–14. In relation to Uluru-Kata Tjuta National Park, see Phillip Toyne, The Reluctant Nation: Environment, Law and Politics in Australia (1994) 48–64. In relation to resource development, see Paul Kauffman, Wik, Mining and Aborigines (1998)
56–77, 81–96.
[384] See especially Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2001 (2001) ch 2; William Jonas, ‘Reflections on the History of Indigenous People’s Struggle for Human Rights in Australia — What Role Could a Treaty Play’ (Paper presented at the Treaty: Advancing Reconciliation Conference, Perth, 27 June 2002) <http://
www.treaty.murdoch.edu.au /Conference%20Papers/Dr%20William%20Jonas.htm>. Jonas said:
I must say that I do not share the optimism that has been voiced at this conference, and in many other forums — including by parliamentary committees, that agreement making processes under the Native Title Act offer a de facto treaty making process. This is too simplistic and fundamentally ignores the point that the native title system as structured is one that is not based on equality and non-discrimination. It does not facilitate the full and effective participation of indigenous people. It is not a respectful system. Only when the native title system does provide real equality of opportunity — ranging from adequate, and equitable, resourcing of native title representatives through to the ability to negotiate over economic and development opportunities through to processes which facilitate indigenous governance rather than imposed management structures — can it aim to fulfill this broader role.
[385] Ciaran O’Faircheallaigh, ‘Implementing Agreements between Indigenous Peoples and Resource Developers in Australia and Canada’ (Research Paper No 13, School of Politics and Public Policy, Griffith University, 2003); Ciaran O’Faircheallaigh, ‘Negotiating a Better Deal for Indigenous Land Owners: Combining “Research” and “Community Service”’ (Research Paper No 11, School of Politics and Public Policy, Griffith University, 2003).
[386] Michelle Riley, ‘“Winning” Native Title: The Experience of the Nharwuwangga, Wajarri and Ngarla People’ (Issues Paper No 19, vol 2, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002) 2; Frances Flanagan, ‘Pastoral Access Protocols: The Corrosion of Native Title by Contract’ (Issues Paper No 19, vol 2, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002) 5.
[387] The Agreements, Treaties and Negotiated Settlements project has a database including a wide range of agreements, which gives a sense of the breadth and scope of agreements, but is not and cannot be quantitatively exhaustive: see Agreements, Treaties and Negotiated Settlements Database <http://www.atns.net.au/database.html> .
[388] At least 30 agreements were the subject of press releases between March 1997 and September 1998: Aboriginal and Torres Strait Islander Commission, Media Reports of Land Use Agreements in 1997 and 1998 <http://www.atsic.gov.au/programs/Social_and_Cultural/Native_Title/
native_title_agreement_summaries.asp>. There may well have been many other small-scale or local agreements that were not the subject of publicity during this period. National Native Title Tribunal, Annual Report 1999–2000 (2000) indicates that for the period 1 July 1999–30 June 2000, 14 ILUAs were lodged as compared with an anticipated 50. This was explained by the fact that there was uncertainty in the registration process for ILUAs: at 72. The report also indicates that the Tribunal was directly involved in 260 negotiations that led to determinations by consent: at 85. The Tribunal was involved in 285 budgeted agreement negotiations in the year 2001–02: Aboriginal and Torres Strait Islander Commission, Performance Information and Level of Achievement 2001–2002 <http://www.nntt.gov.au /about/perf_tables.html> . There are no comparable figures available for 1998–99. National Native Title Tribunal, Annual Report 2001–2002 (2002) details the scale of agreement making: in 2001–02, 40 ILUAs were lodged for registration (at 48), 96 claimant, non-claimant and compensation agreements were negotiated with Tribunal assistance (at 55). At 1 August 2003, 84 ILUAs were registered nationally: National Native Title Tribunal <http://www.nntt.gov.au/ilua/browse_ilua.html> . These figures do not take account of agreements made outside the native title process or not resulting in ILUAs. Indeed, many agreements are now being made even where no native title exists: Marcia Langton and Lisa Palmer, ‘Modern Agreement Making and Indigenous People in Australia: Issues and Trends’ (2003) 8(2) Australian Indigenous Law Reporter (forthcoming). Indigenous heritage protection legislation of the various states, territories and the Commonwealth still operates regardless of the existence of native title and this will continue to operate as a lever for negotiations. It should also be noted that it is not possible to say that this change would not have occurred without Mabo and the protection given to native title by the RDA and the future act provisions of the NTA.
[389] Langton and Palmer, above n 388.
[390] Maureen Tehan, ‘Customary Title, Heritage Protection, and Property Rights in Australia: Emerging Patterns of Land Use in the Post-Mabo Era’ (1998) 7 Pacific Rim Law and Policy Journal 765, 795–6.
[391] See Robert Blowes and David Trigger, ‘Negotiating the Century Mine Agreement: Issues of Law, Culture and Politics’ in Mary Edmunds (ed), Regional Agreements in Australia (1999) vol 2, 84, 85–135.
[392] George Irving, ‘The Kimberley Region Native Title and Heritage Protection Memorandum of Understanding and the Native Title and Heritage Protection Model Agreement’ in Bryan Keon-Cohen (ed), Native Title in the New Millenium: A Selection of Papers from the Native Title Representative Bodies Legal Conference (2001) 163, 164.
[393] This change is tracked in Tehan, ‘Customary Title, Heritage Protection, and Property Rights in Australia’, above n 390, 795–801. Again, the precise number is difficult to quantify. At least 30 agreements were the subject of press releases between March 1997 and September 1998: Aboriginal and Torres Strait Islander Commission, Media Reports of Land Use Agreements in 1997 and 1998 <http://www.atsic.gov.au/programs/Social_and_Cultural/Native_Title/native_title_
agreement_summaries.asp>. There may well have been many other small-scale or local agreements that were not the subject of publicity.
[394] Reprinted in (1996) 1 Australian Indigenous Law Reporter 446
[395] Ibid 447.
[396] Ibid.
[397] Ibid 447–8.
[398] Rick Farley, ‘Reflections on the Cape York Agreement’ (Paper presented at the Native Title Representative Bodies Legal Conference, Melbourne, 16–20 April 2000).
[399] Richard Sproull, ‘Title Bouts’, The Australian (Sydney), 7 April 1997, 24; Clive Senior, ‘The Yandicoogina Process: A Model for Negotiating Land Use Agreements’ (Regional Agreements Paper No 6, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1998).
[400] ‘Native Title in the News’ [2010] NativeTitleNlr 51; [2002] 6 Native Title Newsletter 7, 8.
[401] See National Native Title Tribunal, Burrup Peninsula Native Title Agreement WA <http://
www.nntt.gov.au/media/Burrup.html>:
The benefits to flow from the agreement include:
[402] For a brief overview of Comalco’s activities at Weipa, see Richard Howitt, ‘Developmentalism, Impact Assessment and Aborigines: Rethinking Regional Narratives at Weipa’ (Discussion Paper No 24, North Australia Research Unit, 1995).
[403] Cape York Land Council and Comalco, ‘A Way Forward’ (Press Release, 14 March 2001).
[404] Ibid. See also National Native Title Tribunal, Register of Indigenous Land Use Agreements <http://www.nntt.gov.au/ilua/bynumber_index.html> .
[405] Cape York Land Council and Comalco, above n 403.
[406] Ibid.
[407] Ibid.
[408] Ibid.
[409] Parry Agius et al, ‘Negotiating Comprehensive Settlement of Native Title Issues: Building a New Scale of Justice in South Australia’ (Issues Paper No 20, vol 2, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002) 2.
[410] ‘SA Agreements Give Australia a Native Title Template’ (2002) 10 Flowline 19, 19–20.
[411] For example, an agreement between the Gunai/Kurnai People, Yallourn Energy Pty Ltd and the Victorian Government: National Native Title Tribunal, Annual Report 1999–2000, above n 388, 88–9; and a protocol agreement between the Victorian Government, the Aboriginal and Torres Strait Island Commission and Mirimbiak Nations Aboriginal Corporation which aims to develop a state-wide framework agreement for dealing with native title issues: Office of the Attorney-General, Victoria, ‘Bracks Government Signs Native Title Protocol’ (Press Release, 3 November 2000).
[412] Karajarri People: Nangkiriny v Western Australia [2002] FCA 660; (2002) 117 FCR 6; Kiwirrkurra People: Brown v Western Australia [2001] FCA 1462 (Unreported, French J, 19 October 2001); Martu and Ngurrara Peoples: James v Western Australia [2002] FCA 1208 (Unreported, French J, 27 September 2002); Nharnuwangga People: Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494; Spinifex People: Anderson v Western Australia [2000] FCA 1717 (Unreported, Black CJ, 28 November 2000); Tjurabalan People: Ngalpil v Western Australia [2001] FCA 1140 (Unreported, Carr J, 20 August 2001). Note the suggestion that some of these determinations might be revisited following the decision in Ward in which some previously held views about the survival of native title have been revised: see above n 357 and accompanying text.
[413] Kiwirrkurra People: Brown v Western Australia [2001] FCA 1462 (Unreported, French J, 19 October 2001); Nharnuwangga People: Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494; Spinifex People: Anderson v Western Australia [2000] FCA 1717 (Unreported, Black CJ, 28 November 2000); Tjurabalan People: Ngalpil v Western Australia [2001] FCA 1140 (Unreported, Carr J, 20 August 2001).
[414] Anderson v Western Australia [2000] FCA 1717 (Unreported, Black CJ, 28 November 2000).
[415] Note that post-Ward there is a question whether this determination might be revisited because of the High Court’s findings in relation to partial extinguishment and extinguishment of the right to control access.
[416] ‘Spinifex People in Big WA Land Deal’, The Age (Melbourne), 17 October 2000, 6. See generally Scott Cane, Pila Ngura: The Spinifex People (2002).
[417] [2000] FCA 1249; (2000) 104 FCR 494 (‘Smith’).
[418] Ibid 502–3 (Madgwick J).
[419] Sections 24BA–24EC. See David Reardon, ‘Landmark Result in Native Title Case’, The Age (Melbourne), 30 August 2000, 10; National Native Title Tribunal, ‘Tribunal Advertises Nharnuwangga, Wajarri and Ngarlawangga Indigenous Land Use Agreement’ (Press Release, 29 November 2000) <http://www.nntt.gov.au/media/1019638330_20791.html> .
[420] Aboriginal and Torres Strait Islander Commission, Annual Report 2001–2002 (2002) 179–80.
[421] Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319.
[422] Aboriginal and Torres Strait Islander Commission, Annual Report 2001–2002 (2002) 179–80.
[423] David Ritter, ‘The Long Spoon: Reflections on Two Agreements with the State of Western Australia under the Court Government’ (Paper presented at The Past and Future of Native Title and Land Rights Conference, Townsville, 29 August 2001).
[424] O’Faircheallaigh, ‘Implementing Agreements between Indigenous Peoples and Resource Developers’, above n 385; O’Faircheallaigh, ‘Negotiating a Better Deal for Indigenous Land Owners,’ above n 385.
[425] O’Faircheallaigh, ‘Implementing Agreements between Indigenous Peoples and Resource Developers’, above n 385; O’Faircheallaigh, ‘Negotiating a Better Deal for Indigenous Land Owners,’ above n 385. See also David Ritter, ‘So, What’s New? Native Title Representative Bodies and Prescribed Bodies Corporate after Ward’ (2002) 21 Australian Mining and Petroleum Law Journal 302, 304–5, esp fn 25.
[426] See the Agreements, Treaties and Negotiated Settlements Database, above n 387.
[427] The Hindmarsh Island Bridge case is a reminder of that: see Margaret Simons, The Meeting of the Waters: The Hindmarsh Island Affair (2003).
[428] For example, in Re Waanyi People’s Native Title Application (1995) 129 ALR 118, 166, French J referred to the need for Parliament to address the ‘moral shortcomings’ of the native title scheme. See also Kirby J in Wilson v Anderson (2002) 190 ALR 303, 345, who referred to the land law scheme as an ‘impenetrable jungle’ and said:
That impenetrable jungle of legislation remains. But now it is overgrown by even denser foliage in the form of the Native Title Act ... and companion State legislation ... It would be easy for the judicial explorer to become confused and lost in the undergrowth to which rays of light rarely penetrate. Discovering the path through this jungle requires navigational skills of a high order. Necessarily, they are costly to procure and time consuming to deploy. The legal advance that commenced with Mabo v Queensland (No 2), or perhaps earlier, has now attracted such difficulties that the benefits intended for Australia’s indigenous peoples in relation to native title to land and waters are being channelled into costs of administration and litigation that leave everyone dissatisfied and many disappointed.
[429] ‘Yorta Yorta Look to UN’, Herald Sun (Melbourne), 14 February 2003, 31.
[430] Pearson, ‘Where We’ve Come from and where We’re at’, above n 311; Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319.
[431] [1992] HCA 23; (1992) 175 CLR 1, 175.
[432] [2002] HCA 28; (2002) 191 ALR 1, 281.
[433] Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319, 6.
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