11 The development of native title jurisprudence
CHAPTER 11
The development of native title jurisprudence
The recognition of native title under the common law of Australia ensured that the courts would continue to play a central role in the development of native title law, despite the intervention of legislation seeking to clarify, regulate and institutionalise native title. The key cases discussed in the previous chapters provide a perspective on the development of — as well as the moments of confusion in — the law in the years since the decision in Mabo v Queensland [No. 2] (1992) (Mabo).1 It is now possible to track how the central native title doctrines and concepts have developed to see how some ideas have settled, some have fallen aside and others remain dormant for possible future consideration. Indeed, some concepts considered to be settled have been rediscovered as contested ideas that may be revisited in due course.
The Mabo case first established the key concept of recognition and the reconsideration of the consequences of settlement. The High Court established the uneasy notion of native title as having its source in, and deriving its content from, the laws and customs of the Indigenous peoples. The declaratory nature of the common law provided not that native title was to be recognised from then on, but that, in law, it had always existed. The reordering of legal theories, land law, legislative power and private legal relations could only be guessed at the time.
Many elements of proof can be drawn from the Mabo decision, which determined the nature of native title as based on traditional law and custom. The Mabo decision determined that native title was a communal right that could be proved by an identifiable community, group or individual who was able to demonstrate a continued connection to the land through law and custom. From this same presumption, it was thought that native title, not being a creature of the common law, was not dependent on any law or statute to bring it into being, nor did it require express recognition by the sovereign. This idea did not rest easily with the apparent compromise to sovereign power at the heart of the extinguishment doctrine and the preferencing of non-Indigenous interests, which also found its source in Mabo.
Much of the statutory framework for the Native Title Act 1993 (Cth) (NTA) is based on Justice Brennan’s decision in Mabo, with which Chief Justice Mason and Justice McHugh agreed. But the prioritisation of that judgment masks the diversity of approaches of the majority. Justice Brennan’s judgment was arguably the narrowest of the three substantive majority judgments in relation to some matters, particularly extinguishment and compensation, and, more fundamentally, in the scope of the concept of native title on the mainland, as was evidenced in his dissent in Wik Peoples v Queensland (1996) (Wik).2
Justice Brennan’s reasoning in Mabo on other matters still remains to be explored, for example, in relation to fiduciary duty. While the idea of a freestanding fiduciary obligation upon the Crown arising out of the power to unilaterally extinguish native title has not received support, the idea of fiduciary duty emerging from particular dealings or undertakings in relation to land was mooted from early on, though it is yet to be fully argued before the High Court.3
In Mabo the idea of possessory title was considered primarily by Justice Toohey. It was not revisited in Wik, although the statement of claim asserted possessory title as an alternative. It was assumed that a possessory title, if found to exist, would be of no benefit to Indigenous peoples who could prove native title because it was thought to provide similar rights and protection. Given the limits placed on native title by more recent decisions, this may be an idea that could be revisited. In particular, the standards of proof required by Members of the Yorta Yorta Aboriginal Community v Victoria (2002) (Yorta Yorta)4 and the vulnerability to extinguishment of a title without the protection of a Crown grant may distinguish native title. While the High Court in Western Australia v Ward (2002) (Ward) confirmed that native title itself was not a possessory title, the notion of an independent possessory title has not been fully argued.5
Before the new system for determining whether native title existed through the structures established under the NTA came into effect on 1 January 1994, a number of claims had already been lodged in the courts for recognition of common law native title. The High Court decision in Western Australia v Commonwealth (1995) (Native Title Act case) confirmed the power of the Commonwealth to pass legislation affecting native title and confirmed that, in recognising and protecting native title under legislation, the vulnerability to extinguishment by state governments had been removed.6
In Wik the High Court dealt with the appeal on the basis of common law native title, indicating that its findings in this respect might be of assistance for claims under the NTA. The idea of the parallel development of common law native title and native title under legislation is difficult to conceptualise given the extent to which the NTA relies on common law concepts and development through the courts. But in Ward, while the High Court confirmed that the NTA did not create a new right, the suggestion that there may be scope within the common law for the development of independent doctrines was made. This is of particular interest in relation to the compensation provisions of the NTA, which confirm that any extinguishment of common law native title caused by the legislation attracts compensation. The comments of the High Court with regard to the interrelationship between the NTA and ‘common law native title’ have remained ambiguous, as the two concepts appear inextricably bound. But the Federal Court has continued to draw this distinction in its decisions as it fiercely applies a textual interpretation approach to the requirements of proof under s 223(1).
The Native Title Act case, Yanner v Eaton (1999) (Yanner)7 and Wik all highlighted the way in which the recognition of native title had changed how statutes were to be interpreted in order to provide appropriate recognition and protection of the newly recognised native title. The idea of clear and plain intention, whether express or implied, was supported by presumptions against extinguishment and the consideration of the presence and enjoyment, as of right, of native title holders. Wik was, of course, the high point of coexistence and a strict test of necessary inconsistency.
Beginning with Fejo v Northern Territory (1998) (Fejo) and highlighted in Wilson v Anderson (2002) (Wilson), beneficial construction and necessary implication have been put aside to a large degree.8 In Fejo the joint majority judgment concluded that:
It was sought to draw some analogy with rights recognised in English land law like rights of common or customary rights. But reference to those rights in the present context is misplaced … That a right owing its existence to one system of law (a right of freehold tenure) may be subject to other rights created by that same legal system (such as customary rights or rights of common) is not surprising. But very different considerations arise when there is an intersection between rights created by statute and rights that owe their origin to a different body of law and traditions.9
Interestingly, Justice Gummow had drawn just these analogies in Wik.10
The majority in Ward extended this conservatism to the common law extinguishment doctrine that underpins the NTA, but the articulation in Wik of the extinguishment to the extent of inconsistency formed the basis for much of the current extinguishment discussion. Before Ward the reasoning in Wik made clear the process of comparing legal interests and the rights conferred by the colonial tenure or statute on the one hand, and, on the other, the rights conferred under law and custom asserted through native title and derived from a factual inquiry. The extent of inconsistency suggested a concept of partial extinguishment or impairment of aspects of native title while leaving undisturbed the enjoyment of other rights as far as possible.
Fejo also confirmed that revival or suspension of native title would not be considered. Fortunately, provisions of the amended NTA, such as ss 47A and 47B, have ameliorated the impact of this position to a large degree.11 A paralysing vulnerability was attached to native title in a clear exercise of Crown enrichment in the guise of protecting the security of freehold tenures of private citizens. In Fejo, too, the ‘bundle of rights’ language began to emerge.
In a sense Fejo stood out in these early years as a correction and a move towards providing a certain or ‘settled’ legal status where it was possible. In Wik Justice Kirby had criticised the approach of Justice Drummond in effecting a ‘strike out’ by failing to determine the rights and interests asserted before determining the impact of the grant. Justice Kirby warned that:
[t]he Wik [people] could only have stood to lose from the procedure adopted by Drummond J … Any future elucidation or elaboration of such complex questions as the relationship in this case between pastoral leases and native title could be better attempted against a thorough understanding of the facts.12
But the Court did exactly that in Fejo. In order to make out the argument that the grant of freehold was inconsistent with the continued enjoyment of native title, the High Court ‘assumed’ what the rights asserted would be: