12 The jurisprudence of native title ‘Recognition’ and ‘protection’
CHAPTER 12
The jurisprudence of native title ‘Recognition’ and ‘protection’
The Australian law, in both the courts and parliament, has offered to recognise and protect native title. But what is meant by ‘recognition’? What means of ‘protection’ is this title to enjoy? The answer to these questions sheds light on the place that has been provided for native title in Australian law and the degree to which the law has been able to provide the kind of ‘retreat from injustice’ that the High Court in Mabo v Queensland [No. 2] (1992) (Mabo) had set out to achieve.1
If we begin with the objective of the native title doctrine, at base, native title is a common law doctrine aimed at ‘recognising and protecting’ the interests of Indigenous peoples, arising from their own normative system, to the land over which they once enjoyed sovereignty and continue to assert rights. The legislature, through the objects of the Native Title Act 1993 (Cth) (NTA), has in turn undertaken to augment the objective of the common law by providing for ‘the recognition and protection of native title’.2 While the High Court has clearly placed the NTA at the centre of the inquiry, the common law retains its significance in determining the threshold for recognition and protection. Justice McHugh has argued that:
The stipulation in s 223(1)(c) that the common law must recognise those rights and interests inevitably poses questions as to where, when and in what circumstances the common law will recognise and enforce those rights and interests.3
The High Court has, on numerous occasions, explained that native title in Australia does not recognise a ‘dual system of laws’.4 But the courts have struggled with the juxtaposition of recognising the existence of a normative system, as a matter of fact, and denying its authority as part of the law of Australia. In Commonwealth v Yarmirr (2001) (Yarmirr), the majority, in a joint judgment, explained that recognition does not operate under the principles of ‘conflict of laws’, but went on to note that native title allows, even requires, two systems of law to operate together. The majority remarked that:
It is inappropriate to see the present issues as engaging the common law rules of choice of laws because the Act requires no resolution of any conflict or competition between two systems of law. The Act presupposes that, so far as concerns native title rights and interests, the two systems — the traditional law acknowledged and traditional customs observed by the relevant peoples, and the common law — can and will operate together. Indeed, not only does it presuppose that this will happen, it requires that result.5
Similarly, for Justices Deane and Gaudron in Mabo, the purpose of native title was to leave room for ‘the continued operation of some local laws and customs among the native people and even the incorporation of some of those laws and customs as part of the common law’.6
Interestingly, the doctrine of native title that has developed in South Africa has taken this approach further. The Constitutional Court of South Africa in 2003 upheld a decision of the Supreme Court of Appeal (SCA) recognising communal title on a similar foundation to other common law native title. The SCA had relied on the decision of the High Court in Mabo and the suite of cases upon which Mabo relied.7 The Constitutional Court went further, with the aid of constitutional recognition of ‘indigenous law’, to declare that the customary law of the Indigenous inhabitants of South Africa was not simply recognised by the law of South Africa, but was part of that law. The Court stated that:
While in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law … the Constitution acknowledges the originality and distinctiveness of indigenous law as an independent source of norms within the legal system.8
In Australia the terms upon which Indigenous law will operate is asserted to be the province of the ‘new sovereign’. The common law doctrine of native title and the legislative response do not give the same authority to Indigenous law as that afforded by constitutional recognition in South Africa. In Wik Peoples v Queensland (1996) (Wik), Justice Kirby, in a less conventional presentation of the relationship between the two systems of law, concluded that:
The theory accepted by this Court in Mabo [No. 2] was not that the native title of indigenous Australians was enforceable of its own power or by legal techniques akin to the recognition of foreign law. It was that such title was enforceable in Australian courts because the common law in Australia said so.9
Thus, the place of native title in Australian law is determined, according to the joint judgment of the majority in Yarmirr, on two bases: first, what is meant by ‘recognition of native title’ and, second, what is meant by ‘the assertion of sovereignty’ by the Crown.10
NATIVE TITLE AND THE ASSRETION OF CROWN SOVEREIGNTY
The implications of the acquisition of sovereignty by the British on the rights of the Indigenous peoples of the colonised territory was the central question for the High Court in Mabo. The Court examined the consequences of the acts of state that established the colonies in Australia while seeking to leave undisturbed the basis for asserting sovereignty by way of settlement. The Court relied on the principle, articulated in New South Wales v Commonwealth (1975) (Seas and Submerged Lands case), that ‘[t]he acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state’.11
In Yarmirr the High Court adopted the understanding of sovereignty expressed by Justice Jacobs in the Seas and Submerged Lands case:
[s]overeignty under the law of nations is a power and right, recognised or effectively asserted in respect of a defined part of the globe … External sovereignty, so called, is not mere recognition by other powers but is a reflection, a response to, the sovereignty exercised within the part of the globe. Looked at from the outside, the sovereignty … is indivisible because foreign sovereigns are not concerned with the manner in which a sovereign state may under the laws of that sovereign state be required to exercise its powers or with the fact that the right to exercise those powers which constitute sovereignty may be divided vertically or horizontally in constitutional structure within the State. Therefore, although a sovereignty among nations may thus be indivisible, the internal sovereignty may be divided under the form of government which exists.12
The internal ordering of authority is not an international matter; rather, it is a matter for the courts, the legislature and the executive.13 For the courts, then, ‘the critical question … is what reach the Sovereign claims for itself, not what reach other Sovereigns may concede to it’.14 But the deference of the courts to the interests of the state creates a level of judicial impotence and a self-fulfilling jurisprudence if the ‘reach’ of the claims of the sovereign are not subject to checks and balances under the rule of law.15
In the Mabo decision, the High Court was prepared to check the claims of the sovereign to the lands of Indigenous peoples. Justice Brennan explained that there is a clear distinction between the Crown’s title to a colony and the Crown’s ownership of land in the colony. The Court reconfirmed in Western Australia v Commonwealth (1995) (Native Title Act case) that:
Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended. That presumption is applicable by the municipal courts of this country in determining whether the acquisition of the several parts of Australia by the British Crown extinguished the antecedent title of the Aboriginal inhabitants.16
The legal device used to explain how the pre-existing title survived the assertion of sovereignty relied on a long history of case law from other colonial territories. The idea of a ‘native title’ that ‘qualifies’ or ‘burdens’ the radical title of the Crown emerged from the 1921 judgment of Viscount Haldane in Amodu Tijani v Secretary, Southern Nigeria:
A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the Sovereign where that exists. In such cases the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached.17
Having separated the Crown’s acquisition of sovereignty over land from ‘ownership’ of it, Justice Brennan explained that:
On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part … The rights and privileges conferred by native title were unaffected by the Crown’s acquisition of radical title.18
Importantly, the Court held that an express act of recognition by the new sovereign was not necessary for recognition.19
The issue was raised again in Yarmirr; the emphasis on radical title in the reasoning in Mabo and the links with property law did not make for a straightforward inquiry into whether native title would be recognised offshore. The majority of the Court in its joint judgment explained its understanding of the nature of the inquiry:
it is of the very first importance to bear steadily in mind that native title rights and interests are not created by and do not derive from the common law. The reference to radical title is, therefore, not a necessary pre-requisite to the conclusion that native title rights and interests exist.20
Radical title was explained as the relevant tool of legal analysis to determine the Crown’s interest in land over which it asserted sovereignty in order to judge whether the Crown’s interest could coexist with native title rights.21 For the Court in Yarmirr, the anterior question to be considered was as follows: what was meant by the claim of sovereignty and, further, what rights and interests were asserted over the territory (whether land or sea)?22
From Yarmirr we can conclude that native title is a burden or qualification on the sovereignty of the Crown. It limits the extent to which the new sovereign can exercise authority over the territory — it limits the reach of the assertion of sovereignty. This is consistent with the discussion in Mabo with reference to acquisition of sovereignty by settlement of inhabited territories. The consequences of settlement are no different from those of conquered territories, at least with respect to the recognition of continuing rights to enjoy communal lands under traditional law and custom.
Native title, then, is a recognition by the new sovereign that the acquired territories were the territories of another sovereign, taken by force without consent, if not always by violence. A ‘mere change in sovereignty’ does not extinguish the rights and interests of those prior societies to enjoy their territories as communities according to their own laws and customs, at least until those rights are abrogated by force of law. So much we know from Mabo. The wresting of sovereignty from a people should not come without consequence. The seizing of territories ‘parcel by parcel’ should not be easy.23 There is a legal, as well as a moral, burden on the sovereign to recognise and protect the rights of those over which it has asserted authority.
As is evident in the decision of the High Court in Griffiths v Minister for Lands, Planning and Environment (2008) (Griffiths), the seriousness with which the Court in Mabo considered the obligations of the acquiring sovereign appears to have been lost as the practice of native title and its curtailment becomes a more mundane business.24 But it remains the courts that stand between the citizen and the Crown. The presumptions in favour of the recognition and protection of native title need to maintain their robustness.
NON-RECOGNITION
It was envisaged in Mabo that there may be circumstances in which the common law would not recognise the rights of the Indigenous inhabitants under their own laws. Justice McHugh in Yarmirr usefully summarised the findings of Justice Brennan in Mabo, in relation to circumstances in which the common law will recognise native title:
In appropriate circumstances, as Mabo [No. 2] expressly held, the common law of Australia recognises and enforces by appropriate remedies rights and interests, possessed under traditional laws and customs, in respect of areas of land. In general terms, it will do so if:
• at the date when the Crown acquired sovereignty over a particular territory, the indigenous inhabitants of the territory possessed those rights or interests in land in the territory ‘under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants’;
• since the acquisition of sovereignty, the indigenous inhabitants and their descendants have continued to enjoy those rights and interests under their traditional laws and customs even if the laws and customs have undergone some change since sovereignty was acquired;
• the rights and interests have not been surrendered to or been extinguished by acts of the Crown or abandoned at any stage since sovereignty was acquired; and
• the rights and interests are not ‘so repugnant to natural justice, equity and good conscience’ or so inconsistent with ‘a skeletal principle of our legal system’ that the courts will refuse to enforce them. If these conditions are met, the common law will recognise and enforce the particular native title rights and interests claimed in respect of land in a given case.25
There is a presumption that the Court would recognise native title unless it was abhorrent to the common law to do so, or if to do so would ‘fracture the skeleton of legal principle which gives the body of our law its shape and internal consistency’.26 In relation to the former, this is generally understood to refer to particular rights or laws and customs rather than the system as a whole.27 The latter, if Mabo is read more closely, was a threshold question as to whether the Court would recognise any surviving rights at all, if to do so after two hundred years of settlement required a rejection of legal authority and revision of legal principles that would create an insoluble dilemma for the law. In Mabo the skeletal principle that Justice Brennan was most concerned to leave intact was the land tenure system that underpinned Australian land law.28 It may be, as the High Court said in Yarmirr, pointless to try to determine what is and is not part of the skeleton of legal principle.29 But, as discussed in Chapter 5, the Court tried to frame the bases for withholding recognition in terms similar to the test for withdrawing recognition of rights and interests once recognised (extinguishment), and did so on far too broad terms. The Court misread the reasoning in Mabo by suggesting that the basis for withholding recognition was simply one of inconsistency. The majority referred to the judgment of Justices Deane and Gaudron in Mabo to conclude that:
the question about continued recognition of native title rights requires consideration of whether and how the common law and the relevant native title rights and interests could co-exist. If the two are inconsistent, it was accepted in Mabo [No. 2] that the common law would prevail. (The central issue for debate in Mabo [No. 2] was whether there was an inconsistency.) If, as was held in Mabo [No. 2] in relation to rights of the kind then in issue, there is no inconsistency, the common law will ‘recognise’ those rights.30
The justification for this approach was somewhat confused by what was said in the joint judgment in the Native Title Act case:
At common law, a mere change in sovereignty over a territory does not extinguish pre-existing rights and interests in land in that territory. Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended.31
The idea that the sovereign could extinguish rights in the course of acquiring the territory was not explained, although normal rules of extinguishment presumably were in mind; that is, a manifestly clear and plain intention to extinguish rights or interests that otherwise burden the sovereignty of the Crown and are recognised and protected by the common law.
As noted in Chapter 5, the Court concluded in Yarmirr that the recognition of native title offshore was a qualified recognition:
there was no necessary inconsistency between the rights and interests asserted by Imperial authorities and the continued recognition of native title rights and interests. The qualification is required because the rights and interests asserted at sovereignty carried with them the recognition of public rights of navigation and fishing and, perhaps, the concession of an international right of innocent passage. Those rights were necessarily inconsistent with the continued existence of any right under Aboriginal law or custom to preclude the exercise of those rights.32
It was held that it was insufficient to simply reconcile the two assertions by suggesting that the exercise of native title is subject to the other public and international rights, despite the common understanding that native title is subject to laws of general application and can be regulated.33 This was borne out by the decision of the High Court in Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) (Blue Mud Bay).34 There, the High Court held that the title granted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) confers exclusive possession over tidal waters. This decision confirmed that waterways are susceptible to ownership and that the common law rights to fish and navigate are susceptible to regulation or derogation and are not a skeletal part of our system of law.
The High Court in Yarmirr seemed to provide two alternative rationales for its approach. One is perhaps defensible and consistent with the seriousness of the consequences of wresting sovereignty; the other is not. First, it could be read from the majority joint judgment that the assertion of sovereignty of the Crown over the territorial waters was inherently limited because the public and international rights referred to come from a source outside the control of the sovereign legal system, therefore constraining the ability of the Crown to recognise native title to the full extent. The judges argued, for example, that the ‘[a]ssertion of sovereignty, on those terms, is not consistent with the continuation of a right in the holders of a native title to the area for those holders to say who may enter the area’.35 On the other hand, they posed the test of inconsistency on the same terms as the extinguishment doctrine:
Although the inconsistency does not arise as a result of the exercise of sovereign power (as is the case where a grant in fee simple extinguishes native title) the inconsistency which exists in this case between the asserted native title rights and the assertion of sovereignty is of no different quality. At its root, the inconsistency lies not just in the competing claims to control who may enter the area but in the expression of that control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights.36
On this latter understanding the formulation of the grounds upon which recognition will be withheld in Yarmirr goes much further than the judgment in Mabo. The idea of a skeletal principle implies that it would be impossible for the law to change and adjust to the new circumstances. In Yarmirr it does not have to. The common law principle, that only so much of the law should be imported as necessary and appropriate, is undermined by this approach. It disguises the denial of protection under the veil of ‘recognition’. In any event, the result is the same. The Court has claimed greater power for the Crown and greater privilege for non-Indigenous interests.
THE JUXTAPOSITION OF RECOGNITION AND DENIAL
In 1996 Noel Pearson sought to explain the concept of recognition:
The High Court tell us in Mabo that native title is not a common law title but it is instead a title recognised by the common law. What they fail to tell us, and something which we have failed to appreciate, is that neither is native title an Aboriginal law title. Because patently Aboriginal law will recognise title where the common law will not. Native title is therefore the space between the two systems, where there is recognition. Native title is, for want of a better formulation the recognition space between the common law and Aboriginal law which [is] now afforded recognition in particular circumstances.37
In a similar vein, explaining the formulation of Justice Brennan in Mabo, the joint majority judgment in Fejo v Northern Territory (1998) (Fejo) said that ‘[t]here is, therefore, an intersection of traditional laws and customs with the common law’.38 But the capacity of the courts to accept an intersection with a parallel normative system has proved limited. In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) (Yorta Yorta), the High Court attempted to resolve the meaning of this ‘intersection’, as discussed in Chapter 7, by interrogating exactly what it is that intersects with the common law.39
The conceptual difficulty presented by the jurisprudence of the Yorta Yorta case is the High Court’s treatment of the consequences of the acquisition of sovereignty on the Indigenous normative system. The idea of native title as an intersection of two normative systems, which ‘requires the two systems to operate together’,40 is jettisoned in an effort to preserve the internal ordering of authority. The Court identified the central importance of understanding the ‘consequences of sovereignty’, stating that:
Upon the Crown acquiring sovereignty, the normative or lawmaking system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only