of Indigenous Australians
The Native Title Act
The Ten Point Plan and Harradine Amendments
Obtaining the Native Title Act On Line
Other relevant Australian cases
Coe v Commonwealth
Western Australia v Commonwealth
Croker Island Appeal
Mason v Triton
Significant Canadian Cases
In 1992 the Australian High Court finally recognised that Australia was not simply an empty piece of land when the Captain Cook sailed up the coast in 1770 and claimed the eastern half of a continent which had already been occupied for at least 40,000 years as a piece of British real estate.
In the historic Mabo decision they recognised
that the prior rights of Aborigines and Torres Strait islanders were
similar to those of indigenous groups in other parts of the
Instead in the public eye "Mabo", "Wik" and "Native Title" have tended to be rolled into a single issue, understood more in the broad terms of any given individuals perception of whether aborigines in general have been well or badly done by rather than in terms of the content of the decisions themselves. While this is, perhaps, understandable, it goes some way to explaining the difficulties which have arisen in addressing the issues which the decisions raise, with rhetoric replacing reason on both sides in much of the debate.
In 1993 the Keating Government introduced the Native Title Act to deal with the implications of the Mabo decision. The Native Title Act 1993 set forward procedures for dealing with Native Title claims and retrospectively validated the interests of non-indigenous land holders. In an historic compromise, indigenous groups accepted this validation process in exchange for guaranteed rights to negotiate.
In recent times much of the focus has fallen on elements of the Wik decision relating to pastoral leases, but it is worth bearing in mind that the Wik case itself raised little that was new in law. Instead it merely helped to clarify some aspects of the far more momentous Mabo decision.
In 1998 the Howard government, with the support of Tasmanian independent Senator Harradine, amended the Native Title Act in a manner which makes it much harder for indigenous groups to register claims, and which transfers extensive control of the operation of the Act from the Commonwealth Governments to the States. In so doing it allows the states to unilaterally extinguish Native Title to lands held under a wide range of categories.
It is inevitable that the amended legislation will find its way into the High Court in the near future.
To read the complete Mabo decision on line click here.
The Mabo decision was handed down by the full bench of the High Court of Australia in June 1992, after protracted proceedings in Queensland courts concerning indigenous rights in the Torres Straits. In handing down their decisions on the matter in favour of the islanders the judges concerned indicated that the legal points on which they based their views applied equally to the situation of indigenous people on the Australian mainland and thus the "native title era" was born.
By a majority of six to one the High Court ruled that the Australian common law required that indigenous rights to land had survived the simple acquisition of sovereignty of the continent by Britain, that the theory of "terra nullius" (i.e. of "land belonging to no one") was inappropriate to apply to a land which had so clearly been occupied and that, as the Chief Justice, Gerrard Brennan put it, " The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country."
In doing so , they brought Australian common law into line with the contemporary situation in other nations which had inherited the English common law system, including Canada, New Zealand, India and various former British African colonies. In this sense, Mabo was not a radical decision, but a conservative one. In refusing to recognise the validity of any pre-existing indigenous rights, Australia had been the odd one out for many years.
The court however recognised that the realities of life in Australia equally required recognition of the various forms of title which had been granted to non indigenous Australians since the advent of British sovereignty. Accordingly they also in part addressed the issue of the impact of grants made by the Crown over the intervening two centuries.
The fundamental principles of the decision were outlined in the following extract from the majority decision in Mabo by Chief Justice Brennan:
"83. After this lengthy examination
of the problem, it is desirable to state
in summary form what I hold to be the common law of Australia with reference
to land titles:
1. The Crown's acquisition of sovereignty
over the several parts of Australia
cannot be challenged in an Australian municipal court. 1
2. On acquisition of sovereignty over a
particular part of Australia, the
Crown acquired a radical title to the land in that part. 2
3. Native title to land survived the
Crown's acquisition of sovereignty and
radical title. The rights and privileges conferred by native title were
unaffected by the Crown's acquisition of radical title but the acquisition of
sovereignty exposed native title to extinguishment by a valid exercise of
sovereign power inconsistent with the continued right to enjoy native title.
4. Where the Crown has validly alienated
land by granting an interest that is
wholly or partially inconsistent with a continuing right to enjoy native
title, native title is extinguished to the extent of the inconsistency. Thus
native title has been extinguished by grants of estates of freehold or of
leases but not necessarily by the grant of lesser interests (e.g., authorities
to prospect for minerals).
5. Where the Crown has validly and
effectively appropriated land to itself and
the appropriation is wholly or partially inconsistent with a continuing right
to enjoy native title, native title is extinguished to the extent of the
inconsistency. Thus native title has been extinguished to parcels of the waste
lands of the Crown that have been validly appropriated for use (whether by
dedication, setting aside, reservation or other valid means) and used for
roads, railways, post offices and other permanent public works which preclude
the continuing concurrent enjoyment of native title. Native title continues
where the waste lands of the Crown have not been so appropriated or used or
where the appropriation and use is consistent with the continuing concurrent
enjoyment of native title over the land (e.g., land set aside as a national
6. Native title to particular land
(whether classified by the common law as
proprietary, usufructuary or otherwise), its incidents and the persons
entitled thereto are ascertained according to the laws and customs of the
indigenous people who, by those laws and customs, have a connection with the
land. It is immaterial that the laws and customs have undergone some change
since the Crown acquired sovereignty provided the general nature of the
connection between the indigenous people and the land remains.
Membership of the indigenous people depends on biological descent
from the indigenous people and on mutual recognition of a particular person's
membership by that person and by the elders or other persons enjoying traditional authority among those
7. Native title to an area of land which
a clan or group is entitled to enjoy
under the laws and customs of an indigenous people is extinguished if the clan
or group, by ceasing to acknowledge those laws, and (so far as practicable)
observe those customs, loses its connection with the land or on the death of
the last of the members of the group or clan.
8. Native title over any parcel of land
can be surrendered to the Crown
voluntarily by all those clans or groups who, by the traditional laws and
customs of the indigenous people, have a relevant connection with the land but
the rights and privileges conferred by native title are otherwise inalienable
to persons who are not members of the indigenous people to whom alienation is
permitted by the traditional laws and customs.
9. If native title to any parcel of the
waste lands of the Crown is
extinguished, the Crown becomes the absolute beneficial owner."
While Mabo substantially changed the law of the land, it left unanswered many issues , as the judges themselves recognised.
"Grey" issues of particular importance included what would occur in situations where , for example, native title had been partly, but not wholly extinguished, and the impact of a variety of forms of title which amounted to something less than "exclusive possession".
The Wik decision sought to provide further guidance on such
1. By this Brennan meant that an indigenous group could not go along to an Australian court and argue that they were not subject to Australian sovereignty. Any such arguments had to be held in an international forum - RH.
2. This meant that on obtaining sovereignty the Crown acquired an underlying interest in the lands of Australia. Elsewhere he distinguished this from a "beneficial" title. The radical title did not , of itself, allow the Crown to usurp the interests of those with pre-existing interests - RH
To read the complete Wik decision of the High Court of Australia on line click here .
The Wik decision was handed down by the High Court of Australia on 23rd December, 1996.
Wik focused on the situation concerning pastoral leases in Queensland, but provided guidance concerning other types of title. The fundamental question at stake was whether the granting of a pastoral lease necessarily extinguished native title.
Perhaps the most fundamental aspect of the decision was the stress which it placed upon looking at the nature of rights and interests which any title to land specifically provided. Under the common law both "freehold" and "leasehold" title were seen as providing the holder with "exclusive possession", which according to Mabo, extinguished native title.
The majority of the court however pointed out that while common law titles were reasonably common in England, they played very little part in Australian property law. Instead most titles in Australia were granted under relevant acts of parliament , or statutory law. Accordingly when looking at the question of extinguishment of native title one had to look at both the legislation under which it was granted and the "instrument" (the lease, licence or title document) that applied to the land in question to determine to what extent it extinguished native title.
Where the statute or instrument provided a specific right to the
holder of the title, any conflicting native title interests were
extinguished. Where however, the rights provided by the title were
not necessarily in conflict, it was possible that native title rights
may continue to co-exist.
The case before them involved two pastoral leases in Northern Queensland. In one case, the lease, despite being in existence for many decades, had never been actually used to run cattle. In the other , use had been minimal. The evidence in fact indicated that Aboriginal people had continued to use and occupy one of the areas concerned for many years without knowing that the area had been gazetted as a pastoral lease.
The court found that the holders of the leases had been provided with the right to pasture their cattle , and to undertake various other associated activity, but that in neither case had they been granted "exclusive possession" and in neither case could it be said that the activity allowed necessarily extinguished all indigenous rights and interests.
It should be noted, that the court did not say that native title should be granted over the leases concerned. They simply indicated that on the basis of the statutes and instruments concerned, it was possible that native title continued. They sent the matter back to the Federal court for determination, where it still rests awaiting adjudication unless the matter can be peacefully resolved through negotiation.
It is unlikely that the Wik case will be the end of the word from the High Court on Native Title.
The "leading" judgement in Wik was handed down by Justice Toohey:
He expressed the fundamental questions in the following terms:
The second element of Toohey's :second step" involves the issue of the possibility of the revival of native title interests when a title expires. A recent decision of the Federal Court found that such revival is impossible if exclusive possession has been granted (i.e. if the title granted was "freehold" or similar). An appeal has been lodged and the matter is now awaiting adjudication by the High Court.
The findings of law in Mabo and Wik become part of the common law of Australia. They may be modified by subsequent statutes and by subsequent decisions of the court, but as law they bind us all. As such , if one recognises the law of the land, it is impossible not to recognise them .
In 1993 the Australian Federal Government introduced legislation dealing with the Mabo High Court decision . In so doing they established mechanisms aimed at "validating" the land titles of the occupiers which may have been called into question by the decision and established "claims" procedures for indigenous people who maintained that their traditional rights had not been extinguished.
Many Australians believe that the Native Title Act gave substantial new rights to Aboriginal people. This is simply not true. The indigenous rights and interests which the Native Title Act deals with derive directly from the rights and interests which indigenous people possessed at the time when the British Crown claimed sovereignty over the various parts of the continent. The need to deal with these rights and interests stems from the High Court's belated recognition in Mabo that these rights and interests received (and should always have received) protection from the common law.
The Native Title Act does not grant these rights, it simply provides mechanisms for dealing with them. A strong case can be made, in fact, that one of the effects of the Native Title Act is to reduce indigenous rights. By retrospectively validating various forms of land title which may have been improperly made ( especially those granted after the passage of the Racial Discrimination Act) , the Native Title Act may have forestalled recognition of indigenous interests in some places. Paradoxically, it would appear that the grossly simplistic One Nation policy of simply revoking the Native Title Act may have the potential to actually increase area of land over which indigenous groups could assert their interests!
On the other hand, the Act does provide mechanisms for the
processing and hearing of Native Title Claims. In theory these
mechanisms should have made the hearing of claims more efficient than
would be the case if Native Title claimants had to proceed using
common law procedures. In practice such hopes have been dashed by the
massive level of opposition to claims by state governments and other
parties, resulting in lengthy and immensely expensive court
cases. Many millions of taxpayers dollars are being spent
opposing claims - far, far more than by those indigenous groups
making them. There is, of course, a massive imbalance in
the resources available to those making claims and those opposing
them. The Yorta Yorta, for example, in the first contested Native
Title case before the Federal Court, found themselves confronting the
combined might of three State governments, the Murray Darling
Irrigation Authority and a host of smaller parties, represented by a
cohort of QC's and barristers and supported by unknown numbers
of solicitors, bureaucrats and other ancillary staff for the duration
of the eighteen months of hearing.
Given such circumstances it is difficult to see any effective means of reducing the length and complexity of Native Title cases unless other parties learn to accept the underlying principles and spirit of the Mabo decision. It is ironic that those opposing claims used such delays as a major plank of their argument that the 1993 Act was "unworkable". Any process for dealing with indigenous claims can, of course, be made to seem unworkable when opposition is pursued with such vigour and with such extensive resources.
Successfully establishing that a community continues to possess native title in a particular area is an onerous, one might well say daunting, task under the Native Title Act. To succeed indigenous people must establish:
1. that they have maintained a traditional
connection with the lands since the time of British sovereignty (1788
in eastern parts of Australia), and
2. that their interests have not been "extinguished" by inconsistent acts (such as the grant of freehold title etc.)
Even if they are successful they are likely to find that their
interests have been at least impaired by any number of other types of
lesser grants, which provide other people, government agencies or
businesses with ongoing rights in their lands. The Act (section
212) also provides for Commonwealth, State and Territory governments
to ensure the maintenance of any pre-existing public access rights ,
and public access to waterways , beaches, banks, and
foreshores. The simple truth is that the general public have
nothing to fear from a successful Native Title application under the
existing Act, notwithstanding the rhetoric of those who see
personal political benefit in creating division and conflict.
AUSTLII provide the full text of the Native Title Act on-line. For the 1998 Amendments see below.
The National Native Title
Tribunal WWW site also provides extensive information about
Native Title. Anyone looking for a good basic introduction to
the issue should check out their Frequently
Asked Questions section.
In July 1998 The Howard Government convinced Senator Harradine (a Tasmanian ex Labor independent who holds the balance of power in the Australian Senate) to accept the majorioty of the amendments to the Native Title Act embodied in the so called "Ten Point Plan" which substantially modifies the Native Title Act originally passed by the former Keating Labor government.
The amendments affect many aspects of the Native Title process. The greatest media coverage was given to issues such as the removal of the indigenous "right to negotiate" on pastoral leases, but there were many other matters of detail which have a substantial impact on matters such as claim procedures. It is also possible that some claims currently before the courts may have to be modified and that those currently in preparation will require substantial modification.
It is important to remember that it is not simply the "Harradine" amendments which have come into effect, but also the other changes proposed by the government and passed by the Senate during the first round of discussion. In many cases these may pose more problems for indigenous groups than the more recent changes.
I will provide further information about such matters when I have
had the opportunity to examine the amendments more thoroughly.
It is already becoming clear though, that indigenous Australians have paid a shocking price for Harradine's panic over the threat from the rapidly self-destructing One Nation party and a "race based election".
The Native Title battle did not end with the Howard Ten Point Plan and the Harradine amendments. Solicitors Peter Seidel and James Fitzgerald, suggests some very useful directions for lobbying the various State governments in an article which they have kindly allowed me to make available on line. Click here to read it
Peter and James are solicitors working with Arnold Bloch Leibler. Both have a substantial track record working for indigenous groups on Native Title claims.
Click here to read it
This paper was prepared by a working group comprising representatives of Victorian indigenous communities for discussions with the then Victorian premier , Jeff Kennett. The Premier met with the group on 1st October,1998 and rejected the indigenous peoples' proposals. He indicated that he proposed "confirming" and "validating" those acts extinguishing native title to the full extent available in the NTAA.
Subsequently, however, the government changed its position and allowed some further debate on the matter. The legislation had not been passed by the time the Kennett government fell in September 1999.
The complete, consolidated, version of the Native Title Act is now available on line through SCALE (The Attorney General's legal data base site).
You will find the "html" version (usable in your WWW Browser) at http://scaleplus.law.gov.au/html/pasteact/2/1142/top.htm
An "rtf" version , for use with wordprocessors, is available for download at http://scaleplus.law.gov.au/html/pasteact/2/1142/rtf/
The National Native Title Tribunal also posted an unofficial but very useful consolidated version of the Native Title Act, incorporating the 1998 amendments, on their WWW site. It is available in a variety of formats. Thanks NNTT! Saves an awful lot of paper shuffling!
The original legislation (the Native Title Act as it stood prior
to the amendments being passed) is at http://austlii.law.uts.edu.au/au/legis/cth/consol_act/nta1993147/
If you are looking for the actual House of Reps and Senate debates
on the matters you can access them through the Hansard WWW site
NB.To make use of the various materials mentioned in this section you will need either a WWW browser with a "plug in"which can handle Adobe Acrobat documents or a copy of Adobe Acrobat or Adobe Acrobat reader. The files relating to the amendments are quite large (some over 1 megabyte). For most people the best way to deal with them is to download them and use the Adobe Acrobat reader. [ Handy Hint ...You can download the pdf files listed above easily by holding down your mouse button with the pointer over the links above and releasing it over the "Save this link as.." or "Download Link to Disk.." submenu command. ]
A number of other important court decisions from cases relating to Native Title issues can be found on the WWW.
case - this deals with matters such as the role of National
Native Title Tribunal and the indigenous right to negotiate
The Coe v Commonwealth case - an early case which deals with issues such as the basic levels of proof and documentation required in NT claims
Western Australia v Commonwealth - the case which followed Western Australia's attempt to extinguish native title in that state.
The Hindmarsh Island Bridge High Court Case - which examined some aspects of constitutional law concerning indigenous people and heritage protection matters.
The Croker Island case - This was one of the first Federal Court determinations in a contested Native Title case. It deals with indigenous rights to the sea. Justice Olney found that such Native Title does exist, but also found that these rights are not exclusive in nature. Justice Olney subsequently made a number of variations to the orders handed down in his original Croker decision. The changes can be found here.
Croker Island Federal Court Appeal The result of the Croker Island case was appealed by both sides. The appeal result, a split 2/1 decision by the full bench of the Federal Court is now available here. The majority judgement upheld Olney's original finding. Both the majority decision, by Justices Beaumont and von Doussa, and the minority decision by Justice Merkel, contain important discussion of matters relevant to all native title claims, not merely those involving sea claims.
Fejo (Larrakia) - this High Court case establishes that if freehold title was ever granted over an area of land, then Native Title was extinguished forever, even if the land had subsequently reverted to the Crown.
Miriuwung Gajerrong - This important, and learned, judgement by Justice Lee of the Federal Court found in favour of the Miriuwung Gajerrong claimants to land in the vicinity of the Ord River in WA and the Northern Territory. His decision draws significantly on recent Canadian cases and finds a path through complex questions concerning the interplay of indigenous and non-indigenous interests. The claim has been appealed by the WA and NT governments amongst others.
Yorta Yorta - Justice Olney took 19 seconds to hand down his judgement refusing the Yorta Yorta Native Title claim. He found that Native Title had ceased to exist by the 1880's, relying primarily for this conclusion on discrepancies between the reminiscences of a white pastoralist present in the area in the 1840's and those of a white missionary writing at the turn of the century. Students can learn useful lessons about the manner in which the courts may attempt to interpret history and cultural processes by examining his judgement. A warning however. Attempting the same approach in History 101 is unlikely to lead to a positive result. The decision has been appealed to the full bench of the Federal Court. A decision is hopefully imminent.
Alice Springs Another Olney Federal Court decision. In this case he found partially in favour of the claimants, though he stopped short of recognising exclusive possesion or enjoyment.
Yanner The latest High Court decision relating to Native Title. An important decision in that it recognises the right of common law Native Title holders to hunt in accordance with traditional law and custom.
An important NSW case, often cited in the course of Native Title
cases, was Mason
v Triton. One of the judges involved in this case was Justice
Kirby, now a member of the High Court. It should be noted,
however, that this is a NSW Supreme Court decision, and that some
aspects of the decision are likely to be superseded by High Court
interpretations of the law.
AUSTLII provide a wonderful resource for anybody seeking on-line access court decisions and legislation. They also provide links to a variety of other relevant sites, both Australian and international.
In Canada, a number of important cases relating to indigenous
rights have also been decided in recent years. Although the Canadian
legal system is a little different to Australia's, it is not uncommon
to find Canadian cases mentioned in major Australian judgements and
Perhaps the most important Canadian case involving indigenous issues is the recent Canadian Supreme Court decision in Delgamuukw.
Other important cases include:
R. v. Van der Peet
R. V. Sparrow
There is a good index and search engine for locating Canadian Supreme Court cases, run by the University of Montreal.
AUSTLII also provides a number of useful Canadian Links
The Alaskan Court System Decisions tend to be whisked off this site fairly quickly (within a month or so), but worth checking if you are looking for a new Alaskan decision.
© Rod Hagen 1998, 1999
email the author