Chapter 4 - Native Title

The evolution of native title in Australia

4.2
- indigenous society is culturally diverse and complex
- land plays key role in social org as well as economic and cultural life
- not only source of food and shelter, but also hold great spiritual significance
- central to Indigenous being and, consequently, the land imposes weighty responsibilities on all who
claim native title
- land is treated with reverence and care
- much Indigenous law relates to conduct which ensures the preservation of the land in good condition
for those who come
later
- Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) found that the Yolngu ppl had a more cogent
feeling of obligation to the land
than of ownership of it
dangerous to attempt to express a matter so subtle and difficult by a mere aphorism, but it seems
easier, on the evidence, to
say that the clan belongs to the land than that the land belongs to the clan
- indigenous law embraces some very subtle systems of inheritance, related to shifting kin definitions,
which in turn establish
overlapping degrees of responsibility for land
- some law is secret - traditions, stories, songs of country and special knowledge are only passed on once
members of the grp
demonstrate sufficient maturity to be entrusted with them
- some special knowledge is never shared with the whole grp but is held by traditional elders
- obligation to protect and nurture the land is even more onerous for these ppl, but al users are seen as
custodians
- according to this paradigm, present users are part of a continuum, and ones association with land is
seen as cyclical rather than
linear in nature
- protecting and caring for the land, or growing up the land as it is sometimes called, involves making
sure the land is passed on
to the next generation in a state fit for physical and spiritual use
- Milirrpum v Nabalco Pty Ltd (1971)
the fundamental trust about the Aboriginals relationship to the land is that whatever else it is, it is a
religious relationship
There is an unquestioned scheme of things in which the spirit ancestors, the ppl of the clan, particular
land and everything that
exists on and in it, are organic parts one indissoluble whole
- as the interconnectedness between land, law, history and spirituality is central to Indigenous existence,
any interference to one
of these (such as land) reverberates throughout Indigenous society generally
- result is that the whole community is left somewhat exposed and vulnerable

Settlement and onwards

4.4
- strong connection with the land existed in Australia before European contact and continued until 1770,
when James Cook
claimed Australia for Great Britain
- from this point on, it became more difficult for Indigenous Australians to maintain their connection to
the land
- invasion of land itself is a more common historical phenomenon
 - usually involves force and subjugation
- experience of Indigenous Australians was peculiar in that the imperial govt of Britain issued specific
instructions concerning the
taking of possession of land, which referred to the gaining of Indigenous permission: that is, it referred
to the European
immigrants need to gain consent
- e.g. Admiraltys instructions to Captain Cook, issued in 1768, were in the following terms:
You are also with the consent of the natives to take possession of convenient situations in the
country in the name of the King
of Great Britain, or if you find the country uninhabited take possession for His Majesty by setting up
proper marks and
inscriptions as first discoverers and possessors
- these instructions leave open whether a simple courtesy was afforded to the indigenous population
or, alternatively, whether
the instructions incorporated a legal acknowledgement that pre-existing indigenous rights and
interests would be interfered
with by European contact
- ultimately, the consent aspect of these instructions was not followed
- Cook simply claimed possession of NSW on 22 nd August 1770, without either seeking or obtaining
indigenous permission
- Nettheim, citing Reynolds, suggests that the reason for disregard of the imperial govts instructions
lay in Sir Joseph Banks
testimony to the House of Commons committee on transportation in 1785
- Banks surmised that natives lived only on the coastal fringes of NSW and hence NSW could be taken
to be uninhabited
- such reasoning very comfortably fed into acceptance of the terra nullius doctrine and acquisition of
the colony by settlement
rather than conquest
- would seem the falsity of Banks surmise assisted the Indigenous ppl being led into a future of
dispossession, disentitlement,
and deprivation
- redress of this situation underpins the reconciliation movement, and influenced the negotiation and
consultative processes
which preceded the passing of the Native Title Act 1993 (Cth) and the Native Title Amendment
Act 1998 (Cth)
- effect of Banks conclusions could be seen more immediately when Governor Arthur Phillip took up his
post
- his instructions did not acknowledge any rights of the pre-existing inhabitants
- Phillip was merely encouraged to establish friendly relations with indigenous ppl: but, it was also
recognised that he might
have to take steps to curb their interference
- significantly, he was authorised to grant land to ppl who would improve it, yet there was no
reference to his having to obtain
the consent of the prior inhabitants before any grant was made
- Deane and Gaudron JJs words in Mabo (No.2) (1992)
as political power in relation to domestic matters was transferred from the Imperial Govt in England to
the European Colonists
on the other side of the world, the Aborigines were increasingly treated as respassers to be driven, by
force if necessary, from
their traditional homelands
the oppression and, in some areas on the continent, the obliteration and near obliteration of the
Aborigines were the
 inevitable consequences of their being dispossessed of their traditional homelands
The acts and events by which that dispossession in legal theory was carried into practical effect
constitute the darkest aspect of
the history of this nation
- Dawson J, although in dissent, appeared to conclude similarly on the issue, when he stated that there
may not be a great deal to
be proud of in this history of events
- incidents of Indigenous resistance to European invasion attest to the facts that natives were present
and that they were
particularly attached to their land, having special entitlements to the use and occupation of defined
tracts
- judicial divergence on the issue of Indigenous legal rights
- Burton J of NSW Supreme Court in 1836
- rejected idea that Indigenous ppl ere governed by law, stating that their practices are only such as
are consistent with a state
of the grossest darkness and traditional superstition and although in some cases being a show of
justice - are founded entirely
upon principles, particularly in their mode of vindication for personal wrongs, upon the wildest most
indiscriminatory notions
of revenge
- without recognisable system of law, was open to him to conclude that Indigenous ppl had no
recognisable rights to be
protected
- Willis Js judgment in case of R v Bonjon (1841) and the judgments of Dowling J and Forbes CJ in R
v Ballard or Barrett (1829)
- Forbes CJ though that intra-Aboriginal crimes should be settled according to the Aboriginal ppls
own customs, thus
acknowledging a kind of self-governance based on pre-existing Indigenous law and traditions
- Dowling J introduced the concept of consent, stating that:
Until the Aboriginal natives of this country shall consent, either actually or by implication, to the
interposition of our laws in
the administration of justice for acts committed by themselves upon themselves, I know of no
reason human, or divine,
which ought to justify us in interfering with their institutions even if such an interference were
practicable
The Englishman has no right wantonly to deprive the savage of any property he possesses or
assumes a dominion over
- Dowling J and Forbes CJs views serve to demonstrate significance accorded by some to Indigenous
customs and traditions
- Dowling Ks view also recognised that indigenous ppl owned property, although according to him the
notions of property may
be very imperfect in the native

- Attorney-General v Brown (1847)

- dealt with the issue of whether indigenous rights survived settlement
- a coal miner sought to defend an action for trespass by rejecting the proposition of Crown ownership
- the Full Courts response was quite plain and held that the lands of the colony:
. Are, and ever have been, from the time of its first settlement in 1788, in the Crown as his or
her property, they have been
and may now be effectually granted to subjects of the Crown

4.8
- Dean and Gaudron JJ commented on the issue of the recognition of pre-existing local law and its
relationship to property in that
ignorance may have been an excuse in the very early days but:
increasingly the fact that particular tribes or clans enjoyed traditional entitlements to the occupation
and use of particular lands
for ritual, economic and social purposes was understood. Increasingly, that fact was even
acknowledged by govt authorities
and in formal dispatches - Mabo (No.2) (1992)
- James Stephen, Head of the Imperial Colonial Office, noted:
it is an important and unexpected fact that these Tribes had proprietary rights in the Soil - that is, in
particular sections of it
which were clearly defined or well understood before the occupation of their country - Mabo (No.2)
(1992)
- 19th Century legal luminary Dr Lushington appeared to recognise both the radical title held by the
Crown and the rights in
relation to the territory of the Aboriginal occupants
- a legal fiction flourished which was based on the view that the land belonged to no one and which was
embodied in the
doctrine of terra nullius and the interaction of that doctrine with the doctrine of tenure
- doctrine of tenure permitted full legal and beneficial ownership of all lands to best in the Crown,
thereby serving to help
dispossess Indigenous Australians
- followed that the land was either desert uninhabited or inhabited by ppl so barbarous that there was
no settled law
- hence, was impossible to reconcile any customary rights with the institutions or the legal ideas of
civilised society
- as there was no sovereign Indigenous lawmaker in the colony, the British Crown became the
sovereign lawmaker on
acquisition of the colony - British Crowns sovereignty filled a void
- Crown became owner because there was no other owner - Brennan J in Mabo (No.2) (1992)
- Once Crown held all land, then others, according to the doctrine of tenure, could only hold of the
Crown: land being held
mediately and intermediately of the Crown
- there is no place for allodial holdings under the doctrine of tenure
- hence, if the proposition that the land were terra nullius is rejected, then the notion that
sovereignty carried ownership in
its wake must be rejected too - Brennan J in Mabo (No.2) (1992)
- when this rejection finally occurred, it left open a window for the recognition of Indigenous customs
and traditions
- they could be recognised outside the doctrine of tenure

4.10
Milirrpum v Nabalco (1971) - The Gove Case
- in 1960s, was growing awareness of indigenous identity and pride, in part fuelled by a worldwide Black
Power movement
- indigenous ppl began to demonstrate resistance in various forms, much of which culminated in the
Wave Hill strike
- involved the Gurindji ppl walking off a cattle station in the NT in response to poor pay and conditions,
and ultimately retaking
their tribal lands
- reserves where indigenous ppl lived, and which had remained untouched y outsiders for many yrs
because they were remote
 and inhospitable, became subject of non-indigenous interest with the advent of the mining boom
- result was indigenous ppl living on reserves faced unprecedented pressure to accommodate mining
interests
- in 1971, Yolngu ppl from Yirrkala, on the Gove peninsula unsuccessfully resisted this pressure in
Milirrpum v Nabalco (1971)
- Blackburn J found that indigenous ppl did have a recognisable system of law, but that they didnt have
a proprietary interest
in land
- found that the usual indicia of property were not present: the right to use and enjoy, the right to
alienate, and the right to
exclude
- held that, even if these indicia were present, some formal act by the Crown would have been needed
to recognise the
Indigenous relationship with the land before it could be protected
- case was not appealed but instead, over next decade or so the fight for rights in land became a
statutory one
- Whitlam govt was elected in 1972 and there followed 2 reports on how indigenous land rights could be
best achieved
- these reports formed the basis of a Whitlam govt bill that was modified and eventually enacted by the
Fraser govt as the
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
- act directly vested existing reserves in Aboriginal ownership, as well as providing a mechanism for
claims to be lodged by
Aboriginal grps
- latter process involves Aboriginal ppl convincing an Aboriginal Land Commissioner that they are the
owners of the land in
question under Aboriginal law
- commission then makes a recommendation to the relevant Cth Minister about whether the land
should be pass to the
Aboriginal ppl by the grant of a title under Australian law
- while process doesnt recognise a title to land outside the CL, does permit recognition of the
significance of the indigenous
connection to the land, as well as recognition of custom and traditions
- direct vesting was not introduced by the Aboriginal Land Rights Act 1983 (NSW)
- allows claim to be made to land without requiring proof of anything other than that the land is
claimable within the terms of
the Act
- therefore, it moves away from proof of traditional ownership as a cornerstone
- Act has created tension between traditional owners and other Indigenous ppl resident in the same
area
- Act has been subject of criticism as it fails to provide the opportunity to make a claim on the ground
of historical or traditional
connection

Mabo (No. 2)
Background
4.13
- failure of Yolngu ppls claim in Milirrpum v Nabalco and the passing of land rights legislation seemed
to deter indigenous
Australians from seeking recognition of their rights through the CL
- internationally, CL recognition through native or Aboriginal title, was a known phenomenon
- e.g. in the US, Johnson v McIntosh (1823) had settled the question of competing claims between
Aboriginal ppl and settlers
on the basis of native title at CL, while Calder v Attorney-General of British Columbia (1973) in
Canada and R v Symonds (1847)
in NZ both relied on the continued existence of native title
- Administration of Papua v Daera Guba (1973) - Barwick CJ intimated that native title might exist
- Coe v Commonwealth (1979) - whole court agreed that the issue of native title amounted to an
arguable question if properly
raised - Gibbs J
- Northern Land Council v Commonwealth (No. 2) (1987) - native title was referred to as a
question of fundamental importance
- Gerhardy v Brown (1985) - Deane J seemed to reveal dissatisfaction with the decision in Milirrpum
when he stated that if
Milirrpum were correct, Australia has not yet achieved the treat from injustice which had taken place
in American jurisprudence
at the beginning of the 19th century

4.14 - Case facts

- 5 Meriam plaintiffs initiated proceedings in the HC against the State of QLD
- 2 dropped out, leaving Eddie Mabo, David Passi and James Rice to continue
- these men sought a decalaration that the Meriam ppl were entitled to their lands and the surrounding
waters in the Murray
Islands, on the basis that they held a traditonial native title to them; or, in the alternative, that they
held their land by virtue of
possessory title or local custom
- plaintiffs argued that any interference with or infringement of these rights constituted a breach of a
fiduciary duty owed by the
state of QLD to the Meriam ppl
- they argued that such a breach would cause compensation to flow
- in Feb 1986, mattr was remitted to the Supreme Court of QLD for hearing
- court was also to determine all matters of fact that the pleadings raised, but its task was interrupted
when the status of the
QLD Coast Islands Declaratory Act 1985 (Qld) had to be clarified midstream
- defendant relied on this Act and while its validty was tested, the case had to be adjourned
- effect of this Act was to declare retroactively that, upon annexation, the islands off the Qld coast
(including the plaintiffs home
island of Mer):
were vested in the Crown in the right of the Qld freed from all other rights, interests and claims of
any kind whatsoever and
became waste lands of the Crown in Qld - s 3 of QLD Coast Islands Declaratory Act 1985 (Qld)
- HC held that the Qld Act contravened s 10 of the Racial Discrimination Act 1975 (Cth) because it
aborgated the immunity of the
Meriam ppl from arbitrary deprivation of their legal rights in and over the Murray Islands - Mabo v
Queensland (No. 1) (1988)
- the finding allowed the litigation to proceed to the next stage, where the question of whether native
title existed was decided

The finding in Mabo (No. 2)

4.15
- HC held that that CL of Aust recognised a form of native title that was grounded in the laws and
customs of Indigenous ppl
- court concluded that the rights and interests in land possessed by the Indigenous inhabitants of the
territory existed long
 before the relevant laws of England were brought to Australian shores and that they survived the
change in sovereignty
- Per Brennan CJ
- first time appellate court recognised native title, enforcement through the courts of the rights
associated with native title
became available only from 1992

Sovereignty
4.16
- Crowns acquisition of sovereignty was held not to be justiciable in a municipal court - Per Brennan CJ
in Mabo (No. 2) (1992)
- when British Crown acquired sovereignty, native title was not automatically extinguished
- instead, sovereignty gave rise to radical or ultimate title, rather than absolute beneficial ownership
- therefore, it was only where native title was extinguished altogether that the Crowns radical title
blossomed into absolute
beneficial ownership
- this approach (best exemplified in the leading judgment of Brennan J) allowed the court to recognise
native title rights while
retaining the basic structure or skeleton of the CL property system

Origin and nature of native title

4.17
- according to reasoning in Mabo case, origins and content of native title lie in the traditional laws
acknowledged by and the
traditional customs observed by the Indigenous inhabitants of a territory
- nature and incidents of native title are also determined by reference to the customs and laws of the
indigenous grp, and their
ascertainment is a matter of fact
- however has placed large burden on indigenous ppl to prove by factual evidence what those customs
and traditions involve
- rights under native title generally belong to grp members and membership is determined, according to
Brennan J, by biological
descent