Introducing the native title system

From the Dreaming to the day

The Australian native title system has an often turbulent short history, but origins in the deep past. This chapter is an overview, first of the long genesis of native title, followed by an account of the Mabo case and then a précis of the legislative system in operation. The processes of native title are infamously labyrinthine and so a digest of their design is inevitably something of a catalogue of winding passages. The detail can be dreary but all the more devilish for the dullness, because the extent to which law and procedure constrain social and political choices can become obscured in the dry. The rules of the native title system restrict the options of the actors and condition the ways in which underlying interests can be expressed. On the other hand, merely understanding how the statute works provides only a partial and imperfect guide to explaining what happened. The functioning of the native title system then is more than the sum of the various instrumental parts and this chapter finishes with some specific ‘complications’ associated with the process. Some readers may prefer to start not with the evolution of the law but with the discussion of complexities at the end of this chapter, or indeed to skip to Chapter 2 and read this chapter only when the rest of the book has been completed.

The southern continent

Tens of thousands of years ago, human beings first arrived in Australia from the north and established societies that were largely isolated from the rest of humanity until well into the second half of the second millennia AD. In civilisational seclusion, the first inhabitants of Australia developed a distinctive culture, marked by the existence of hundreds of small entities with separate territories, languages and customs yet linked by systems of trade, cultural exchange and religious worship in networks that spanned the continent. Although these Aboriginal groups were nomadic to varying degrees, movement occurred inside broad boundaries and according to certain rules. It is thought that, in 1788, as many as 500 distinct indigenous societies covered the Australian mainland in a geopolitical patchwork. Other indigenous communities existed on the various islands off Australia’s coast. There was of course fluidity, change and conflict and while customary boundaries and entitlements can be presumed to have shifted over time, it is clear that indigenous civilisation in Australia involved a clear sense of ownership of land and waters. Under the various systems of law and custom the numerous societies present in pre-contact Australia each owned their respective countries.

No recognition of native title in Australia between 1788 and 1992

The formal acquisition of sovereignty over Australia by the British Crown occurred incrementally, between 1788 (New South Wales) and 1829 (Western Australia). In the course of colonisation the pre-existing indigenous societies were not acknowledged as having any particular rights under the new sovereign and were regarded as subjects of crown authority. Australia has no history of treaty-making.1 The elaborate system of customary land title that existed prior to the arrival of Europeans received no acknowledgement. Indigenous societies were effectively treated as itinerant and stripped of their property at the convenience and to the advantage of the colonials.2 The idea of ‘native title’, meaning a form of real property arising out of traditional law and custom that is acknowledged under the common law of the colonisers, was not recognised in any of the six British colonies in Australia. When the colonies federated to form the Commonwealth of Australia on 1 January 1901, the remnant indigenous peoples played no part in the process and native title was not considered a live question to be addressed. Nevertheless, the Commonwealth Constitution was not silent on the more general ‘native question’, among other things expressly prohibiting the new federal government from making laws in relation to Aboriginal people, a situation not remedied until the passage of the referendum in 1967.3

Although it had long gone without saying, the question of whether Indigenous customary land titles were capable of recognition under the common law of Australia was not tested in court until the late 1960s, in an action eventually decided by a single judge of the Northern Territory in Milirrpum v Nabalco in 1971.4 His Honour Justice Sir Richard Blackburn was faced with the difficulty that elsewhere in the common law world, including New Zealand, Canada and the United States, native title had indeed been recognised and there seemed to be no judicial precedent which explicitly explained why Australia was the exception. It was a legal and historical puzzle with no obvious solution. The judge attempted rather courageously (and as it turns out, wholly wrongly) to explain the anomaly by reference to different modes of acquisition of sovereignty and reached the conclusion that there was no doctrine of native title known to Australian law.5Milirrpum was not appealed. Instead, the political momentum for some form of recognition of traditional rights over land was answered with a legislative land rights scheme in the Northern Territory.6 Statutory land rights, though, do not represent ‘native title’ in a technical sense: the former is created by parliament while the latter refers to an inherent common law right, the recognition of something already there, with origins not in the authority of the settler state but in pre-existing systems of law and custom. It is the difference between a right and a favour.

The native title question was not agitated again before the courts until 1982, when a group of Meriam people led by Eddie Koiki Mabo initiated proceedings in the original jurisdiction of the High Court of Australia seeking a declaration of exclusive use, possession and ownership of the island of Mer, in the Torres Strait off the coast of far northern Queensland. Critical to the success of the case was the enactment of the Commonwealth’s Racial Discrimination Act 1975 (RDA). The Commonwealth Constitution contains no bill of rights or constitutional entrenchment of equality and the passage of the RDA marked the first time that discrimination on the basis of race had been proscribed in Australia. Under the Constitution, valid federal laws prevail over state laws to the extent of any inconsistency and so once the RDA had been enacted, it became impossible for a state government to act in a racially discriminatory fashion.7 The presence of the RDA meant that the State of Queensland could not, as it tried to do, simply pass a law to wipe out any native title that might exist before the Mabo case even reached trial.8 Instead, the litigation was able to proceed and in June 1992, by a majority of six judges to one, the High Court held that Milirrpum was wrong, that Australian law recognised the doctrine of native title and that the Meriam people were entitled to ‘possess, use, occupy and enjoy’ Mer as against the whole world.9 The logic of the High Court was, at its essence, that Australia could not sensibly be distinguished from the rest of the common law world and the continent was not to be treated as if it had belonged to nobody before the arrival of the colonisers.10 Although Mabo caused political convulsions in Australia, the High Court’s decision was conservative to the extent that it simply applied the common law as already well known elsewhere in the world.11 Where it could be proven on the facts, as it had been in the Mabo case, native title survived in Australia.

The post-Mabo dilemma, 1992–93

In deciding the Mabo case, the High Court was only required to determine the specific legal dispute at issue, but in so doing necessarily had to elaborate a broader doctrinal position on which to base the decision. The crucial implication of Mabo was the prospect that much of the Australian land mass could be the subject of future native title claims. After Mabo, the way was open for the various native title claims of other Indigenous peoples in Australia to be lodged in state and territory supreme courts and, indeed, in 1992 and 1993 a variety of such actions were initiated or reached an advanced stage of preparation.12 However, what was not clear from Mabo was how native title interacted with other forms of tenure that had been granted both by the colonies and after federation. What happened when native title clashed with a pastoral lease, mining tenement, pipeline easement, national park or countless other forms of title? The general principle that the High Court set out was that native title was extinguished where there was a clear and plain intention to do so and to the extent of the inconsistency.13Mabo made it clear that native title was extinguished by freehold title and exclusive leasehold (the ‘suburban backyard’ was always ‘safe’ from claim), but how the rule might be applied to other tenure types remained a subject for furious debate. Mabo also left open the possibility of claims for compensation for any native title that had been extinguished since the passage of the Racial Discrimination Act 1975.

The uncertainties created by Mabo were a dilemma for the Labor Commonwealth Government of Prime Minister Paul Keating (1992–96), which could either attempt a national response to Mabo or take no action, leaving the law of native title to be developed on a case by case basis through further litigation. Debate over what the Commonwealth should do was intense and prolonged, culminating in dramatic parliamentary sessions where the final shape of the Act was hammered out.14 The states and territories, the peak bodies representing primary industry and so-called ‘A’ and ‘B’ teams of Aboriginal negotiators, were all involved in an arduous process of lobbying the government and the Opposition, as well as the minor parties (the Greens and the Australian Democrats), which then controlled the balance of power in the Senate.15 The final shape of the Native Title Act 1993 (NTA) was a product of petitioning, alliance-building, negotiation and compromise that in the end and for diverse reasons was supported by Labor, the minor parties in the Senate, most of the Aboriginal leadership, the Labor-held state governments and the National Farmers’ Federation, but opposed by the Liberal and National parties, the Minerals Council of Australia, the states held by the parties of the centre-right and the government of the Northern Territory. The Western Australian Government attempted to circumvent the Commonwealth Act by enacting its own legislation, just prior to the passage of the NTA, which purported to extinguish all native title within the jurisdiction and to substitute a form of statutory title. Unsurprisingly, the Western Australian law was struck down in emphatic fashion by the High Court as unconstitutional because it was inconsistent with federal legislation.16 The creation of the NTA was an intensely political and politicising event, making it inevitable that the operation of the new statute would be controversial and vigorously contested.

1 January 1994: Australia’s new native title system in outline

The NTA created a system under which Indigenous people could lodge claims for the recognition of native title over land or waters in Australia with a newly established body, the National Native Title Tribunal (NNTT).17 A claimant application for a determination of native title needed to specify some named applicants, the group on behalf of whom the claim was being brought and the land and waters over which title was being sought. Although any Aboriginal group could make a claim supported by whatever advisers or representatives they might choose, the NTA also established a process for the Commonwealth Minister to recognise Aboriginal corporations as ‘native title representative bodies’ (NTRBs) with specific functions to facilitate and assist claims. Once a claim had been lodged, the Tribunal notified all interest holders within the area of the claim (pastoralists, miners, resource explorers and so on) who might be affected. The Commonwealth, the relevant state or territory and all local government municipalities were automatic parties to each claim. When the list of responding parties (‘respondents’) to a claim was finalised the Tribunal then initiated a process of mediation for the purposes of trying to resolve the claim through a ‘consent determination’ of whether native title existed or not, who held it and how it interrelated with other legal interests.18 Consent determinations would be given final legal effect by order of the Federal Court.

The NTA did not assume that all mediations would be successful and provided the Tribunal with the power to refer any claim that could not be settled to the Federal Court for determination by trial. If a claim went to litigation, the claimants would need to present the same proof of native title that had been set out in the jurisprudence of the Mabo case: the existence of a social group with a continuing traditional connection to the land claimed unbroken since sovereignty. If a trial occurred, the claimants would need to demonstrate their case by adducing sufficient evidence to satisfy each of the factual elements giving rise to the existence of the title. The NTA also made it possible for non-Indigenous interests to bring their own actions, known as ‘non-claimant applications’, to establish whether there might be any native title over a particular area not yet under claim. If a non-claimant application was met with a claim, then the latter simply proceeded and the former fell away, but in any other case there could be a determination that no native title existed.

The legislation explicitly guaranteed the validity of all existing property rights so, from the commencement of the NTA’s operation, non-Indigenous interests did not have to be concerned about actually being dispossessed of any valid existing interest. However, the NTA did not for the most part confirm or impose extinguishment of native title by any particular class of tenure. Rather, all holders of non-extinguishing legal interests in an area covered by a native title claim were separately given the automatic right to respond to the application by becoming a party and so joining in the process of resolving the matter through mediation and litigation if necessary. As a consent determination could only be achieved with the acquiescence of all parties, in theory every respondent possessed something near to a right of veto over the settlement.19

Where a claim had been made but not yet decided, the NTA set out an elaborate set of procedures governing how new interests could be obtained in the meanwhile. The critical policy question at stake was one of balance: how much of a say should native title claimants get over dealings on land subject to claim? Under the Australian federal system, the power over land titles generally resides with the states so the effect of the NTA was to impose overarching national rules and conditions over the normal processes for how interests in land are granted. Once a claim had been lodged with the Tribunal it was made subject to a secondary acceptance procedure which, if passed, resulted in formal ‘registration’ giving the claimant group a ‘right to negotiate’ over ‘future acts’ on the land in question, including the creation of new mining rights and compulsory acquisitions. The ‘future act system’ operated quite independently from the claims process proper and required the state or territory government making the grant to negotiate ‘in good faith’ with registered native title claimants. Grants and land acquisitions that occurred without compliance with the future act system were at risk of invalidity. If no claim had been made over an area, the state or territory government in question was still required to advertise a proposed grant or acquisition, giving potential native title claimants a window of opportunity in which to have a claim lodged and registered. The NTA also created a short cut, known as the ‘expedited procedure’, which could potentially remove the right to negotiate in relation to certain less invasive types of exploration tenement. An act attracting the expedited procedure could be converted to one accruing the right to negotiate via a process of objection and inquiry. Where the right to negotiate did apply, if negotiations did not result in an agreement about the act being done (that is, the tenure being granted or the land being acquired) then the NNTT would arbitrate on the matter, subject even then to ministerial override on public interest grounds. Apart from the future act system, the NTA also allowed claimants to surrender native title, but it was otherwise inalienable and so not susceptible to being commercially sold on the open market.

The native title system in operation

It is possible to discern three phases of the operation of the native title process since 1994, differentiated by marked shifts in the rules and politics governing the system.

1994–98: Flux

The NTA was difficult legislation to understand (once described as like attempting to ‘read porridge’20); not only intrinsically complex, but open-ended. Although the Act established a system for dealing with claims, there were many fundamental matters that were still left to the elaboration of the courts. After following some complicated process in the NTA through various sub-sections to a logical conclusion, the reader might come up with a reference to common law principles which were as yet undetermined. The statute offered a string through a maze that might lead nowhere except to an indefinite wait in some judicial ante-room. Precedents in Canada in particular suggested that native title was a robust form of legal entitlement that could include or give rise to commercial rights of resource exploitation and even limited self-government, but whether Australia would follow suit was completely unknown. In relation to extinguishment, the NTA gave little direction as to the effect of pastoral or mining tenure on any underlying native title. The parties to native title claims and the claimants themselves were in a state of some considerable confusion and uncertainty as to what exactly was even in issue. The system’s functionaries were often forced to address the rage or perplexity of the parties by iterating the honest but inherently unsatisfying position that nobody yet knew the answer at law.

The internal logic of the NTA also became considerably distorted by a number of early judicial decisions which enforced statutory interpretations rather different from those that Parliament had intended.21

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