1 Recognising native title in Australian law

Recognising native title in Australian law

Mabo v Queensland [No. 2]


In May 1982, five Murray Islanders initiated an action against the government of Queensland seeking declarations of rights to the use and enjoyment of traditional land that had been continuously occupied by the Meriam people before and since the annexation by the defendant government. To the surprise of many, the High Court decided in favour of the plaintiffs.1 The order contained a declaration to the effect that, apart from any inconsistent grants, the Meriam people are entitled ‘as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands’, subject to the power of the state government to extinguish the title by valid exercise of legislative or executive powers.2 Without denying its importance to the Meriam people, the greatest impact lay not in the order itself but, rather, in the context of the judgment. Each judgment considered the action in wider terms than would normally be sufficient to determine the case at hand. The principles enunciated in the judgments provided the basis for development of the law applicable to native title.

The High Court reviewed the cases decided in this and other jurisdictions, prior to and since the decision by Justice Blackburn in Milirrpum v Nabalco Pty Ltd,3 on the effect of colonisation. In view of these decisions, and in spite of many of them, the Court was prepared to reject longstanding assumptions of colonial legal theory. The standards adopted at the time of acquiring sovereignty were seen to be no longer appropriate for a rule of common law. In the lead judgment, Justice Brennan said that there was a ‘choice of legal principle to be made’, noting that:

it is imperative in today’s world that the common law should neither be or be seen to be frozen in an age of racial discrimination … The fiction by which the rights and interests of indigenous inhabitants in land were treated as nonexistent was justified by a policy which has no place in the contemporary law of this country.4

Before Justice Brennan was prepared to enter into a review of previous authority, he was concerned not to ‘fracture the skeleton of legal principle which gives the body of our law its shape and internal consistency’.5 Justice Brennan concluded that no such fracturing of legal principle occurred in bringing the law of Australia into line with notions of justice and human rights. Although the theoretical basis of the law was not destroyed, the practical implications were yet to be understood. There was an inherent inconsistency between the new doctrine and the principles upon which Australia’s land law had been based, which, no doubt, would give rise to complicated and intricate reconsideration of Australian property regimes.


The central question to be determined in Mabo v Queensland [No. 2] (Mabo) was whether, on acquiring sovereignty, the Crown became owner of all of the land or whether the Crown’s title was burdened by any prior title.6 The Court was not prepared to question the status of Australia as a ‘settled’ country, but it was prepared to examine the consequences of settlement and the way in which the common law was received into the territory. The Court in Mabo accepted that the settlers brought the common law with them in accordance with the settlement doctrine,7 but ‘only so much of it … as was “reasonably applicable to the circumstances of the Colony”’.8 The Court, in determining the content of the body of law received in the colony, reconsidered some of the conclusions that had earlier been drawn from the settlement thesis, in particular, the idea that the acquisition of sovereignty over territory automatically gave absolute beneficial ownership of land to the Crown.9 On the principle that ‘ownership could not be acquired by occupying land that was already occupied by another’,10 the way was clear of ‘fictional impediments’ to the recognition of Indigenous rights and interests in colonial land. Thus, the Court rejected the assertion that sovereignty invariably carries with it the beneficial title to all the lands of the territory, and determined that the pre-existing rights of the Indigenous peoples survived the acquisition of sovereignty.11


In a joint judgment, Justices Deane and Gaudron described common law native title as a title derived from and conforming to traditional custom but recognised and protected by the common law.12 As such, Justice Brennan explained, legislative or executive recognition by the sovereign is not required, and thereby, ‘[n]ative title, though recognised by the common law is not an institution of the common law’.13 According to Justice Brennan (and much like his colleagues):

Native title has its origins in and is given its content by the traditional customs observed by the Indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.14

The Court in Mabo was concerned that native title be a heterogeneous concept that reflects the diversity of Indigenous peoples’ law and custom. Justices Deane and Gaudron, commenting on the accommodation of the idea of native title within Australian law, suggested that:

Obviously, where the pre-existing native title interest was ‘of a kind unknown to English law’, its recognition and protection under the law of a newly settled British colony would require an adjustment either of the interests into a kind known to the common law or a modification of the common law to accommodate the new kind of interest.15

They concluded that the common law was capable of this accommodation.

In order to assert title, Justice Brennan explained that a group of Indigenous inhabitants must show a connection with the relevant land that is maintained through continued acknowledgment of the laws and the customs of the group.16 Justices Deane and Gaudron referred to:

an established entitlement of an identified community, group or (rarely) an individual to the occupation or use of particular land and that that entitlement be of sufficient significance to establish a locally recognised special relationship between the particular community, group or individual and that land.17

On this construction, the majority argued that it was not necessary to superimpose a regime of property rights that were approximate to those known to English common law and that to do so defeated the purpose of protection and recognition.18 The connection with the land in accordance with traditional law and custom is the source of the title. Any difficulty that arose from this characterisation could not justify non-recognition.19 For this reason, native title was described as sui generis, or unique in law, because it reflects the rights of Indigenous people under their own legal system.20

The laws and customs are therefore considered to be a matter of fact, and their idiosyncratic details were considered irrelevant to the proof of native title.21 Justice Toohey argued that it should be proof of a presence amounting to occupancy, which is not random or coincidental, that forms ‘the foundation of the title and which attracts protection, and it is that which must be proved to establish title’.22 The nature of occupancy should be determined by ‘the demands of the land and society in question’.23 Like Justices Deane and Gaudron, Justice Toohey held that there is therefore no separate requirement to prove the kind of society, only to prove that its presence is part of a functioning system.24 Importantly, Justice Brennan (with whom Chief Justice Mason and Justice McHugh agreed) did not require that the connection include some kind of physical presence, recognising that the spiritual connection of Indigenous peoples to the land may also constitute proof of continued connection.25

For Justices Deane and Gaudron, proof of occupancy was likely to provide adequate proof of the continued connection to land and the continued operation of law and custom. The two judges did not expressly separate physical presence (as proof of title) and law and custom (as the content of title). Nor did they overstate or over-prescribe the kind of evidence required. This formulation allows for circumstances in which proof of occupancy may not be the appropriate standard of proof, particularly where physical connection has been affected by the grant of other interests or the actions of others. In the result, a continuous chain of occupation is not required where there is acknowledgment of connection through law and custom.

The requirements of proof set forth in the substantive judgments of the majority can be summarised thus:

• existence of an identifiable community or group;

• traditional connection with or occupation of the land under the laws and customs of the group; and

• the substantial maintenance of the connection.26

Justice Toohey most clearly expressed the qualification that, while the connection with the land must be shown to be significant, it would not be necessary to prove an exclusive relationship.27 The judges contemplated a range, or continuum, of native title from a kind of title that approaches full ownership to a lesser interest that recognises limited rights to hunt or traverse the land.

In many parts of Australia, the failure of governments to satisfactorily recognise Indigenous rights to land has led to reliance by Indigenous peoples on the spiritual relationship with the land in order to assert any control over the use of that land, primarily through heritage legislation. There is no comparable experience elsewhere, with North American jurisprudence having emphasised traditional occupancy of the land, often recognised in treaties or through doctrines dating back to early contact.28 Under the formulation put forward by the High Court in Mabo, physical presence is not the sole consideration or a condition precedent to establishing title. An arguable case can be put forward by Indigenous people who have been dispossessed or excluded from their land but maintain a connection in some other way.

Generally, native title will contain communal rights for the use and enjoyment of the group but Justices Deane and Gaudron did not rule out the ‘rare’ possibility of an identified individual entitled to occupation and use of a particular land where the other requirements are satisfied.29 At base, those entitled to use and enjoyment under those rights are to be ascertained from the traditional laws and customs. Similarly, there was no allusion to biological determinants of ancestry in defining the membership of the group.30 This was consistent with the idea that the native title is founded in the laws and customs of the group, including laws and customs in relation to membership.

In the United States, the courts have attempted to identify groups by common social, cultural or political elements. Canadian authority has developed a similar criteria: a ‘distinctive cultural entity’,31 or an ‘organised society’.32 In the Inuit claim in Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development, Justice Mahoney required that the claimants prove that ‘they and their ancestors were members of an organised society’.33

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