Native Title



6.1   Introduction

From very early history, the Australian colonies continued to grant land to settlers despite the fact that, when they arrived, the land was inhabited by indigenous Aboriginal people. It was always simply assumed that the British Crown had a right to claim sovereignty over the land; no compensation was ever paid to the Aboriginal people, and there was no specific legal formalisation of this assumed right in the form of a treaty. The only real recognition given to the Aboriginal people was the conferral of specific reserves for the creation and development of Aboriginal communities.

During early settlement, land became an important commodity for the settlers, as it represented a means by which income could be produced. By cultivating and growing productive crops and using the land as a means of feeding and raising working and productive agricultural animals, the early settlers were able to establish rudimentary communities. Furthermore, when gold was discovered in the 1850s, the ensuing gold rush confirmed the value and importance of land ownership. At no point during these early days was the right of the British Crown to issue grants of land to settlers questioned, despite the fact that all of these activities resulted in the widespread alienation, estrangement and destruction of the indigenous communities which had existed on these lands for many thousands of years beforehand. The attitude of the courts during these times was well summarised in the decision of Attorney General v Brown [1847] 1 Legge 312; 2 SCR (NSW) App 30, where the full court of the New South Wales Supreme Court noted that Australian lands ‘are, and ever have been, from the time of its first settlement in 1788, in the Crown’.

The perceived view, which remained an entrenched part of the common law until the momentous decision of Mabo in 1992, was that the British Crown could assume sovereignty over the lands because the Aboriginal communities in existence were devoid of any form of settled inhabitants and settled law at the time when the British Crown decided to annex the lands to its dominions. Consequently, it was believed to be unnecessary to acquire sovereignty from the Aboriginals by way of conquest or cession. This attitude is entrenched in the concept, referred to in Mabo as ‘extended terra nullius’. Lord Watson aptly summarised the belief in the decision of Cooper v Stuart (1889) 14 App Cas 286, p 291:

There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of land, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.

The fact that the Aboriginal people lived in their own well constructed societies, according to their own customs and cultures, was pretty much ignored by the courts and the legislature until the Mabo decision. This is itself a consequence of the entrenched parochialism apparent in the underlying foundation of colonialism; it was unable to recognise not only the validity but also the independence and value of separate, self-structured, self-governing societies. These communities were either marginalised or ignored completely. The problem, as noted by Kent McNeil, lay in the fact that colonialist perceptions were (and, in many cases, still are) firmly ingrained in the Western European psyche:

Yet Aboriginal people were there at the time, living in stable societies governed by elaborate systems of rules and customs which were highly adapted to the country in which they led their lives… Though Western European concepts of sovereignty were no doubt unknown to them, they lived in factually self-governing communities which were independent of any foreign power. The assumption of the Crown and courts of English law that the Aboriginals were devoid of sovereignty is rooted in a European view of the world, which probably would have been incomprehensible to the Aboriginals. It involves a denial of a valid Aboriginal perspective, and is thus characteristic of the self-serving ethnocentricity upon which colonialism is based.1

The question of whether the Aboriginal people retained any land rights since the annexation of the territories to the British Crown has, until the Mabo decision, been a vexed one. Until this point, the courts had generally denied the existence of any form of ownership, interest or land right in indigenous communities, because of the belief that, upon annexation, the British Crown assumed sovereignty and, under the doctrine of tenure, acquired full beneficial title over all land. As discussed in Chapter 3, the basis of the doctrine of tenure is that title to all land vests in the Crown. This gives the Crown the right to issue subsequent grants to individuals, thereby creating a tenurial relationship between the Crown and the grantee. The presumption of most courts until the Mabo decision was that, upon annexation, the doctrine of tenure gave the Crown title to all lands, irrespective of the presence of Aboriginal peoples. This was clearly confirmed by Blackburn J in Milirrpum v Nabalco Pty Ltd (1971)17 FLR 141, in which he stated:

On the foundation of New South Wales, therefore, and of South Australia, every square inch of territory in the Colony became the property of the Crown. All titles, rights and interests whatever in land which existed thereafter in subjects of the Crown were the direct consequence of some grant from the Crown.

6.2   Pre-Mabo approach

Prior to the Mabo decision, the Aboriginal people tried, on numerous occasions, to have their claims to the land upheld. A number of different approaches were adopted, each one being ultimately unsuccessful. One method was the attempt to reclassify the so-called ‘annexation’ of Australian territories to the British Crown as a ‘conquering’ of Australian territories. From the perspective of the Aboriginal community, such a reclassification has the advantage that, unlike annexation, it is not dependent upon a determination that Aboriginal communities did not have a societal structure and that the land was terra nullius. Furthermore, if the colonisation of Australia were to be reclassified as a ‘conquering’ of the Aboriginal community, it would at least provide recognition that the Aboriginal people did, in fact, exist. The distinction between an ‘annexation’ of land and a ‘conquering’ of the land appears, however, to be somewhat obscure: whether the colonisation of Australia can be formally classified as an act of conquest or annexation would ostensibly depend upon the enactment of a formal battle. Whilst a ‘particular’ battle cannot be historically detected, the ultimate annihilation of the indigenous communities upon annexation through weapons, disease, abuse and exploitation has practically the same effect.

Despite the obscurity between the two terms, it is argued that a reclassification of ‘annexation’ as a ‘conquering’ of indigenous communities would provide a better springboard for land right claims. This is founded upon the basic tenet of British colonial law that, where a land has been conquered, the existing societal structure and laws will remain in place until they are either expressly repealed or replaced. By contrast, under annexation, British law is applicable from the outset.2 If the laws of indigenous communities remained intact, their proprietary claims over the land might never have been extinguished.

This argument was raised in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 as well as in Coe v Commonwealth of Australia (1979) 53 ALJR 403. However, in both instances, it provided no greater judicial inspiration for the acceptance of indigenous land claims. Indeed, in the Milirrpum decision, Blackburn J concluded that indigenous land rights could only be enforceable where expressly recognised by legislation, even if such a reclassification of history could be accepted. Where no such legislative recognition could be established, it was to be assumed that the Crown acquired immediate title to all lands whether the title was annexed or whether it was achieved by conquering the indigenous inhabitants.

What Blackburn J said in Milirrpum v Nabalco was similar to what had already been said by Stephen CJ in Attorney General v Brown [1847] 1 Legge 312 and in a long line of authority prior to the Milirrpum decision—that is, that the Crown acquired absolute title to all lands in the Australian colonies at the time they were settled. This principle was held to be unimpeachable and not alterable by historical reinterpretation.

In Attorney General v Brown [1847] 1 Legge 312, the existence of Crown title over coal mines was challenged. The defendant argued that the Crown had neither title nor possession to the mines and, consequently, without further documentary record, could not claim title. The court held that all lands are automatically vested in the Crown from the date of its first settlement. Stephen CJ set out two broad justifications for this. First, the Crown has taken occupancy of these lands as the representative and executive authority of the nation, and secondly, ‘by the adaptation of the feudal fiction’ the Crown’s title could be justified on the basis of the doctrine of tenures. The doctrine of tenures postulated that the Crown, as ultimate conqueror, owned all lands, which it then granted to its subjects.

This English doctrine was applied in substance to the Australian context. The obvious difficulty with this decision was that the complicated system of tenures, as had evolved in England, had no history in or relevance to the Australian colonies. The application of the doctrine of tenure within Australia was, nevertheless, confirmed by the Privy Council in Cooper v Stuart (1889) 14 App Cas 286.

The continued refusal of the courts to reject the doctrine of tenure and reassess its claims to sovereignty over the lands meant that Aboriginal land right claims, whatever form they took, were consistently rejected. On the facts of Milirrpum v Nabalco Pty Ltd (1971) 17 FLR141; [1972–73] ALR 65, Aboriginal clans claimed to hold a customary land title to land in the Gove Peninsula area on the basis of their continuing traditional and cultural association with the land which predated the Crown’s acquisition of sovereignty. They proceeded to challenge the validity of mineral licences granted by the Crown in this area.

Blackburn J, in the Northern Territory Supreme Court, rejected the validity of these customary land claims. His Honour held that such title did not, and never had, formed the basis of fundamental principles of land law as they exist in Australia, stating that ‘communal title…does not form and has never formed, part of the law of any part of Australia’ (p 245). His Honour went on to hold that the mining leases were valid exercises of the sovereign power of the Crown, and that, as the Aboriginal peoples did not hold any title over the land, they could not challenge these licences. In making this determination, Blackburn J, unlike the earlier authority of Cooper v Stuart (1889) 14 App Cas 286, at least recognised the existence of indigenous communities at the time of settlement. Nevertheless, his Honour concluded that ‘as a matter of law’ the principles of terra nullius were still applicable. Furthermore, Blackburn J held that the relationship that the indigenous people had with the land involved rights which were ‘non-proprietary’ in nature. One of the reasons given by Blackburn J in this regard was that the Aboriginal clans accepted communal rather than private notions of property and therefore, as they did not recognise the right to exclude, the relationship could not properly be regarded as proprietary. This argument is quite circular because indigenous land claims, by their very nature, will be different to the proprietary rights existing in Western societies.

After continued judicial rejection, statutory measures dealing with Aboriginal land rights were eventually introduced. In 1976, the Commonwealth government introduced the Aboriginal Land Rights (Northern Territory) Act, which provided for the establishment of Land Councils which were to represent the Aboriginal peoples in various negotiations and dealings with the government concerning land rights. In particular, the Land Councils sought to enforce customary land claims over areas of land which had traditional cultural significance. Following the introduction of these councils, a variety of states introduced legislation dealing with the regulation of successful land claims over specific areas of traditional significance. These acts include: Pitjantjatjara Land Rights Act 1981 (SA); Maralinga Tjarutja Land Rights Act 1984; and Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld). Unfortunately, however, the statutory measures were not consistent throughout the states and often failed to provide basic protective measures to Aboriginal claimants. Consequently, it was deemed necessary to resort again to the courts for further legal support.

6.3   The Mabo decision

The Mabo decision is important for its re-assessment of property rights in terms of traditional Aboriginal culture and society, and for its recognition and substantiation of customary, native title in the land. The judgment shows a new awareness of the difficulties of trying to fit fundamental English property law principles into a totally different social structure, and it attempts to identify Aboriginal property rights in terms of their own social rules and regulations rather than classifying them according to English principles. The case is extremely significant, not only for its advancement of Aboriginal land rights, but also, more generally, for its recognition and explication of the inherently discriminatory and unjust history of the Crown’s assumption of ownership over the Australian colonies. The recognition of native title in the Mabo case provides explicit recognition of a long standing tenet of common law which has finally obtained authoritative judicial support. As noted by Richard Bartlett:

The decision in Mabo is of benefit to resource development in Australia. The decision gave explicit recognition to the concept of native title at common law. The common law has, over two centuries, established the concept. It is a pragmatic compromise derived from experience and disputes over that time between settlers, resource developers and Aboriginal peoples. It provides a long term regime that enables the interests of all parties to be substantially met. The concept enables resource development to proceed with the support of the Aboriginal people. The decision in Mabo is also of significance in the establishment of human rights in Australia. The common law has long set the minimum standard of human rights. The Mabo decision gives explicit recognition to native title as part of that threshold standard.3

6.3.1   The determination

The plaintiffs4 were Murray Islanders who initiated proceedings in the High Court in 1982 in response to the Queensland (Aboriginal and Islander Grants) Amendment Act 1982, which established a system for issuing land grants on trust for Aboriginals and Torres Strait Islanders. The Murray Islanders refused to accept the system introduced under this legislation. The action was brought as a test case to determine the rights of the Meriam people to land on the islands of Mer, Dauar and Waier in the Torres Strait, which were annexed by the State of Queensland in 1879. The Meriam people had been in occupation of the islands for generations prior to the colonisation and have continued to live in the villages. The plaintiffs sought declarations inter alia that the Meriam people were entitled to the Murray Islands as owners, as possessors, as occupiers or as persons entitled to use and enjoy the said islands.

In 1985, the Queensland government attempted to terminate the proceedings by enacting the Queensland Coast Islands Declaratory Act, which declared that, on annexation of the islands in 1879, they vested in the State of Queensland and were ‘freed from all other rights, interests and claims whatsoever’. No provision was made in the legislation to compensate the Meriam people. In the first Mabo case (Mabo v Queensland (1988) 166 CLR 70 (Mabo (No 1)), the High Court held that this legislation was invalid as it was contrary to the Racial Discrimination Act 1975 (Cth).

In the second Mabo case (Mabo v The State of Queensland (1992) 175 CLR 1 (Mabo (No 2)), the High Court case based its findings of fact on the determinations of Moynihan J of the Supreme Court of Queensland in November 1990. Moynihan J determined that, prior to colonisation, the Meriam people had lived on the islands in a subsistence economy based on gardening and fishing. Gardening was a central part of the social organisation of the Meriam people, and the village land itself was divided into plots owned by individuals or family groups. Land was regarded by the Meriam people as belonging to either individuals or groups, and not to the general community The Meriam people currently occupying the land were held to be direct descendants of the original population, as there was little permanent immigration. Furthermore, the present Meriam people have retained a strong affiliation with their traditional customs and cultures. In May 1991, the court heard arguments on questions of law concerning rights to land existing under common law. The final decision of the High Court was handed down on 3 June 1992. Unfortunately, Eddie Mabo’s individual claim was unsuccessful, and he and two of the other five applicants died before the final determination was handed down.

In a six to one majority (Mason CJ, McHugh, Gaudron, Brennan, Deane and Toohey JJ, with Dawson J in dissent), the High Court held that the people of the Murray Islands retained native title to their lands which was not extinguished by the annexation of the islands to Queensland in 1879 or by legislation subsequently enacted. Three of the judges went further to hold that native title holders could claim compensation for wrongful extinguishment of their title through an inconsistent Crown grant. Mason CJ, Brennan, McHugh and Dawson JJ concluded that no compensation was payable.

The judgment of Brennan J

In his leading judgment, Brennan J (accepted by Mason CJ and McHugh J) illustrates the general approach taken by the majority and provides an excellent summary of the fundamental common law principles in issue. His Honour critically examined the proposition of the defendant that when the Crown assumed sovereignty over an Australian colony it became the universal and absolute beneficial owner of the land. If this principle is accepted, as soon as the land was colonised, the interests of the indigenous inhabitants in colonial land were extinguished in favour of the Crown. His Honour notes:

The proposition that, when the Crown assumed sovereignty over an Australian colony, it became the universal and absolute beneficial owner of all the land therein, invites critical examination. If the conclusion at which Stephen CJ arrived in Attorney General v Brown be right, the interests of indigenous inhabitants in colonial land were extinguished as soon as British subjects settled in a colony, though the indigenous inhabitants had neither ceded their lands to the Crown nor suffered them to be taken as the spoils of conquest. According to the cases, the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provides, vested the land effectively in the control of the imperial authorities without any rights to compensation, and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilised standard, such a law is unjust, and its claim to be part of the common law to be applied in contemporary Australia must be questioned.5

His Honour felt that, in declaring the common law of Australia, the court was not free to adopt rules, even where they accord with contemporary notions of human rights and justice, if those rules damage or interfere with the ‘skeleton of principle which gives the body of our law its shape and internal consistency’. Brennan J concluded that, since the Australia Act 1986 (Cth) came into operation, the law of this country has been entirely free of imperial control; the ultimate responsibility of declaring the law lies with the High Court of Australia; the law that should govern Australia is ‘Australian law’. His Honour noted that the task of the court was to consider whether or not the principles relied upon by the defendants, which offended contemporary fairness notions, were nevertheless an inextricable part of the common law.

The proposition that the sovereign acquired absolute beneficial ownership of all land rested, according to Brennan J, upon a number of grounds. First, the sovereign acquired absolute beneficial ownership because there is no other proprietor. Clearly, this ground completely denies the existence of any proprietary interest in the indigenous inhabitants. This proposition is reinforced by the belief that when English law was brought to Australia, the common law which was to be applied to the colonies included the feudal doctrine of tenure. On this basis, just as the Crown acquired all land in England, so too, when the Australian colonies were settled, the Crown acquired universal ownership of Australian land. Universal title, under the feudal doctrine of tenure, could be acquired by conquest, cession and occupation of territory that was terra nullius. The foundation for the application of Crown sovereignty and ownership in Australia was that the land was terra nullius, and therefore absolute ownership could be properly assumed.

6.3.2   Terra nullius and extended terra nullius

Brennan J examined the principles relating to terra nullius. Literally, terra nullius means land which is vacant, empty, null and void. With respect to land, it traditionally meant that the conquering lords found the land uninhabited. Under the feudal system of tenure, the Crown was able to acquire any land which was considered to ‘belong to no one’. The concept of terra nullius was extended when new inhabited lands were being discovered. Sovereignty over these lands was able to be recognised where the territory was inhabited by ‘backward people’. The theory here was that, because there was no local law already in existence, the law of England became the law of the territory. Upon annexation, the assumption was that the indigenous people were backward people’ and therefore that the land was effectively terra nullius. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign, and primitive in their social organisation. This conclusion was established despite the fact that, in 1879, the Meriam people were settled on their land, the gardens were being tilled and the ‘Mamoose’ and the ‘London Missionary Society’ were keeping the peace with a form of justice being administered.

Brennan J concluded that the extended theory of terra nullius, establishing that indigenous inhabitants of a ‘settled’ colony had no proprietary interest in their ancestral land, depended upon a discriminatory denigration of indigenous inhabitants, their social organisation and their customs, and it ignored and devalued their whole way of life. His Honour felt that the common law should not 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 non-existent is justified by a policy which has no place in the contemporary law of this country. His Honour stated:

The facts as we know them today do not fit the ‘absence of law’ or ‘barbarian’ theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law which were the product of that theory. It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty’s indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands. Yet the supposedly barbarian nature of indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land… The theory that the indigenous inhabitants of a ‘settled’ colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs.6

Brennan J felt that it would be contrary to international standards and to the fundamental values of our common law to entrench a discriminatory rule; he therefore concluded that the principle of ‘extended terra nullius’ should not longer be recognised and accepted by contemporary common law.

6.3.3   Radical title

Brennan J then went on to consider the proposition that colonial land became a ‘royal demesne’ upon occupation. In this respect, it is important to distinguish between the two forms of sovereignty that the Crown could assume. The first relates to the power of government; the second relates to title and ownership of the land. Sovereignty of power can only belong to the Crown, whereas title to land is not so restricted. His Honour noted that it was only by accepting the notion of extended terra nullius that sovereignty of title could be asserted. This did not, however, mean that the fundamental principles of common law ownership were now overruled:

It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other. If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too. Though the rejection of the notion of terra nullius clears away the fictional impediment to the recognition of indigenous rights and interests in colonial land, it would be impossible for the common law to recognise such rights and interests if the basic doctrines of the common law are inconsistent with their recognition.7

6.3.4   The doctrine of tenure

Feudal tenure is the English legal theory whereby every parcel of land in England is held either mediately or immediately of the King, who is the ‘Lord Paramount’. (See the discussion in Chapter 3.) The term ‘tenure’ signifies the relationship which exists between the tenant and the lord rather than the tenant and the land. When the Crown acquired land outside England, it was naturally assumed that the doctrine of tenure would apply. It is possible, as noted by Brennan CJ, that the assumption need not have been made, because the doctrine of tenure may, in fact, be a purely English phenomenon which is only applicable where the land is conquered. In this sense, it is clearly arguable that the universality of tenure is not reasonably applicable to the Australian colonies. Nevertheless, the doctrine of tenure is an integral component of the Crown’s claim to title over land in Australia; the radical title assumed by the Crown is a direct result of the feudal system. As pointed out by Brennan J:

The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty… The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown’s purposes.8

His Honour held, however, that it was not a corollary of the Crown’s acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of all indigenous inhabitants. If the land was truly terra nullius, then the doctrine of tenure and radical title would enable the Crown to acquire absolute beneficial title to the land because there would, in fact, be no other proprietor. As ‘extended terra nullius’ was rejected, the inevitable conclusion was that radical title ‘cannot itself be taken to confer an absolute beneficial title to the occupied land’.

Hence, whilst the doctrine of tenure was perceived as a skeleton principle firmly entrenched in the common law, to refuse recognition of the rights and interests in land of the indigenous inhabitants was not an essential feature of the Australian form of tenure. Brennan J noted: ‘The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant.’9

Ultimately, then, Brennan J felt that both radical and native title could exist jointly because the doctrine of tenure never applied to native title interests. Radical title could therefore be burdened by native title. It was only if sovereignty of power was automatically equated with sovereignty of title that native title would have been extinguished upon colonisation and, as his Honour points out, these two concepts are quite distinct: ‘It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty.’10

6.3.5   Recognition of native title

The ownership of land within a territory in the exclusive occupancy of a people should be vested in that people: land is susceptible to ownership and, where there are no other owners, it is only fair and just that the ‘occupiers’ of that land be recognised as having ‘good’ title. This does not necessarily mean that the ‘good title’ be equivalent to a common law estate. Land which is in the possession of indigenous people is not alienable, for the laws and customs of an indigenous people do not generally contemplate alienation of traditional land, nor is it ‘exclusive’ or ‘private’ in nature; however, this does not prevent the interests from being recognised as proprietary. Indeed, the very fact that the Crown retains sovereignty of power over the land supports this. For if it is contemplated that the Crown could extinguish indigenous people’s interests in the land and create proprietary rights in their place, it would be ‘curious if, in place of interests that were classified as non-proprietary, proprietary rights could be created’. As explained by Brennan J:

The fact that individual members of the community, like the individual plaintiff in Milirrpum, enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title. Indeed, it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title.11

Hence, the fact that the Meriam people simply used and cultivated the land does not mean that their interest and relationship with the land cannot be regarded as proprietary. They hold a ‘native’, communal title which is usufructuary in nature.

Native title, in this context, refers to the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by, and the traditional customs observed by, the indigenous inhabitants. Native title can only be assumed by the indigenous inhabitants of a territory and their descendants; it is recognised by the common law; however, it is not an institution of the common law and therefore not alienable by the common law. Alienability depends upon the laws or customs of the indigenous community. Native title will cease with the abandoning of traditional laws and customs which cannot be revived for contemporary recognition. As Brennan CJ expressly notes:

It follows that a right or interest possessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs; nor can such a right or interest be acquired by a clan, group or member of the indigenous people unless the acquisition is consistent with the laws and customs of that people.12

Both legal and equitable remedies will be available to enforce and protect native title rights, and the form of remedy which is appropriate will depend upon the form of rights asserted. The rights acquired under native title will vary according to the particular laws and customs recognised by the indigenous clan in occupation. As long as those individual laws do not offend natural justice and good conscience, they will be protected.

Brennan J felt that the Meriam people had proven a sufficient connection with traditional customs and culture to establish native title rights; they had maintained their identity as a people and they continued to observe and uphold long standing traditional customs.

6.3.6   Extinguishment of native title

Native title may cease to exist in a number of circumstances. First, where the traditional title holders lose their connection with the land, any title that may have existed will automatically cease. Native title will not, however, cease merely through proof of a modified lifestyle or minor changes in customs, but only where it can be established that a complete cessation of traditional customs and a fundamental change of lifestyle have occurred.

Secondly, native title may be extinguished by an act of Parliament or the granting of a freehold or non-freehold estate which is inconsistent with the legal rights conferred under native title. Once established, native title can only be extinguished by a clear and plain intention to do so by the legislature or the executive. The statutory intention must be explicit because of the seriousness of the consequences upon indigenous inhabitants. Where a common law estate has been granted by the Crown, Brennan J noted that native title would only be extinguished to the extent of the inconsistency:

A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title.13

Brennan J felt that the grant of lease would extinguish native title because it confers the right to exclusive possession upon the lessee for the duration of the lease, with the Crown retaining the reversion expectant. Where the Crown grants land in trust or on reserve, or dedicates land for a public purpose, native title may be extinguished if it can be proven that the rights conferred under such a grant are inconsistent with native title rights. His Honour felt that this will sometimes be a question of fact, sometimes of law, and sometimes of mixed fact and law. Where, however, the Crown has not granted estates or interests, or has reserved the land inconsistently with the rights of native title holders, native title must survive and will be legally enforceable.14 Where native title is extinguished, the Crown will become the absolute beneficial owner of the land.

Applying this to the Meriam people, Brennan J concluded that the Meriam people were entitled to possession, occupation and the use and enjoyment of the whole island of Mer except for that parcel of land which had been validly leased out. The lease granted to the London Missionary Society, which was later transferred to the Australian Board of Missions, and the sardine factory lease had the effect of extinguishing native title claims in that area because the rights conferred under the lease were inconsistent with the native title claims. The fact that the leases contained express conditions ensuring that the lessees would not interfere with native use of gardens or plantations on the land or with native fishing on the reefs did not, according to his Honour, preserve native title from extinguishment because the very effect of granting a lease was inconsistent with native title rights.

Joint judgment of Deane and Gaudron JJ

Deane and Gaudron JJ both issued a judgment similar in substance to that of Brennan J. One of the primary differences lay in the fact that their Honours went on to deal with the issue of compensation for the extinguishment of native title. Whilst their Honours both recognised that native title could be extinguished through clear legislative action, they felt that compensation would be payable in this instance unless clearly exempted within the express terms of the legislation. Significantly, their Honours felt that, as the Crown had the right to extinguish native title and exclude the right to compensation, native title rights should truly be classified as personal rather than proprietary rights.

Further, their Honours felt that, where extinguishment results as a consequence of a grant of an inconsistent estate or interest in the land, the extinguishment may be classified as wrongful and, in such a situation, the Crown will also be liable to pay compensation. Their Honours felt that the obligation to pay compensation was supported by s 51(xxxi) of the Commonwealth Constitution, which confers on the Commonwealth the power to acquire property on just terms provided just compensation is granted. Deane and Gaudron JJ further note that any state legislation which attempts to override this would be ineffective under the inconsistency provision in s 109 of the Commonwealth Constitution:

…the power of the Crown wrongfully to extinguish the native title by inconsistent grant will remain, but any liability of the Crown to pay compensatory damages for such wrongful extinguishment will be unaffected.15

Unlike Brennan J, their Honours held that the leases which had been granted over the lands claimed by the Meriam people were not inconsistent with native title claims. In discussing the ‘sardine factory’ lease, their Honours stated: ‘It would seem likely that, if it was valid, it neither extinguished nor had any continuing adverse effect upon any rights of Murray Islanders under common law native title.’16

No firm conclusion on this issue of inconsistency between leases and native title rights was established, although the matter has now been directly raised in the Wik decision: see below, 6.5.

The judgment of Toohey J

Toohey J agreed in substance with Brennan, Deane and Gaudron JJ that the doctrine of terra nullius should be rejected and that traditional native title continued after annexation of the Murray Islands. Like Brennan J, Toohey J concluded that an inquiry into the kind of society from which rights and duties emanate is ultimately irrelevant to the existence of title, because it is inconceivable that indigenous inhabitants in occupation of land did not have a system by which land was utilised in a way determined by that society. Hence, extended terra nullius was both discriminatory and ineffective as a means of conferring absolute title upon the Crown. According to Toohey J, the important issue was that native title claims may be established through proof of continuous occupation of and association with the land. For this purpose, a nomadic lifestyle could amount to occupancy and, furthermore, title will not be precluded merely on the basis that more than one group utilises the land.

6.3.7   Fiduciary duties of the Crown

Toohey J also went on to consider in some detail whether any equitable, fiduciary duties should be imposed on the Crown. The majority of the court did not come to any firm conclusion on this issue. Brennan J simply noted that: ‘…there may be a fiduciary duty on the Crown to exercise its discretionary power to grant a tenure in land so as to satisfy the expectation, but it is unnecessary to consider the existence or extent of such a fiduciary duty in this case.’17

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