PROPERTY LAW A

Week 3: Native Title

Practice quiz
• Practice multiple choice quiz on native title
• Available from 9am tomorrow until 1pm of Thursday week 4
• 5 questions
• 12 minute time limit
• Available in Task 1 folder in assessment section of Blackboard
• Results will be released on after the quiz closes.

Lecture Outline
• Indigenous dispossession (recap)
• The road to Mabo
• Early legal cases on Indigenous land rights
• International decisions on native title

• Mabo
• The bright side of Mabo
• The dark side of Mabo
• The politics of Mabo
• The aftermath
• Wik
• Keating’s Native Title Act
• Howard’s amendments and High Court appointments
• Yorta Yorta and WA v Ward

• Proving Native Title

• Rights given under Native Title
• Native title today

Indigenous dispossession (recap)

• ‘A national legacy of unutterable shame’
• Mabo v Qld (no 2) 107 ALR 1 at 79 per Deane and Gaudron JJ
• Initial settlement, local Aborigines either removed from area by force or lived alongside
settlement
• Diseases unintentionally introduced
• Over hunting reduced food supplies
• Increase in hooved animals destroyed local vegetation and waterways
• Deforestation destroyed habitat for food sources
• Increase in European population expanded the settlement
• Aborigines either moved away by choice or were violently driven away (Frontier Wars)
• New settlements were then established and the process repeated thousands of times

Indigenous dispossession (recap)

• Law played a key role in dispossession
• Governor's authorised violence with police and soldiers frequently involved in state
sanctioned massacres with legal immunity (the last occurring in 1928)
• Prosecutions of Europeans for violence against Indigenous Australians was rare and
punishments were mild
• Law was tool used to dispossess through the denial of land rights, imprisonment, slavery,
segregation, and the stolen generations

Early cases on sovereignty (recap)

• No evidence that Cook, Banks, Phillip or colonial government thought of Australia as terra
nullius
• Early case law found that Indigenous people were not subject to British law and had
sovereignty
• R v Ballard (Unreported, NSWSC, 13 June 1829)
• This position was then reversed, though without explanation, in R v Murrell and Bummaree
[1836] NSWSC 3
• R v Murrell not viewed as binding by Justice Willis in R v Bonjon (Unreported, NSWSC, 16
September 1841)
• Justice Willis removed from bench and Secretary of State endorses Murrell decision
• Doctrine of discovery basis for denying Aboriginal sovereignty declared by Privy Council in
Cooper v Stuart (1889) 14 AC 286

Early Int. law on land rights

• United States Supreme Court, 1830s, Marshall CJ
• 1828 State of Georgia legislated to remove Cherokee Native Americans from their land
• Native title claimed to be a principle of international law
• Separate type of legal interest in land that exists outside of Sovereign grants based on traditional
laws and customs
• Sovereign had the right to extinguish NT but this didn’t happen automatically as a consequence
of annexation

• Canada
• Royal Proclamation of 1763 - much of Western Canada recognised as “Indian” land
• Calder v. British Columbia (Attorney General) (1973) – NT not dependent on Royal Proclamation
and exists outside of it

• New Zealand
• Treaty of Waitangi (1840); R v Symonds (1940)
• NT "cannot be extinguished (at least in times of
peace) otherwise than by the free consent of the
Native occupiers"

Gove Land Rights case (1971)

• First case on whether NT existed in Aus
• Blackburn J:
• NT is not part of Australian law
• The Yolngu people could not prove a continued system of property rights
• ‘On the foundation of New South Wales, therefore, … every square inch of territory in the colony
became the property of the Crown.'

Gove Land Rights case

Cultural enlightenment
1960s-70s:
• Civil Rights Movement
• Anti-Vietnam protest
• Anti-apartheid movement
• Aboriginal land rights protest movement
• 1966 Vincent Lingiari led Gurindji walk off
• 8 year strike
• Led to Aboriginal Land Rights (Northern Territory) Act 1976
 • “From Little Things Big Things Grow”

• Tent Embassy 1972

• Free university in 1974

Statutory progress
• Racial Discrimination Act 1975 (Cth)
• Section 9(1) prohibits discrimination on the basis of race, colour or descent

• Aboriginal Land Rights (Northern Territory) Act 1976

• This was NOT native title
• Grants of freehold title to land available for use and occupation of traditional lands
• Between 1976 and Mabo number of claims made
• Anthropologists, lawyers and (soon to be HC) judges learnt about AB connection to country and
how to prove it, were taken onto land, introduced to songs, dances and performances that
demonstrated connection to specific land
• Land available for claim was minimal

Statutory progress
The road to Mabo
• Three Australian cases concluding that native title is not part of the common law and that the
Crown obtained radical title (absolute title) to all of Australia in 1788
• Many jurisdictions in the British empire found native title to be part of the common law (NZ,
CAN) drawing on U.S. and international decisions
• Social activism and land rights claims lead to Aboriginal Land Rights (Northern Territory Act)
1976
• Justice Toohey was an Aboriginal land rights commissioner, Justice Brennan had acted for
claimant groups

• Mabo decision 1992

Mabo
• 6:1 the common law recognises native title
• Brennan (Mason and McHugh agreeing), Deane and Gaudron, and Toohey. Dawson in dissent

• Settled colony doctrine of tenure based on the fiction of terra nullius

• Doctrine of tenure still the basis of land rights, but this operates alongside native title

Mabo
The source of native title:
• Traditional laws and customs enjoyed at the acquisition of sovereignty provide the basis for
“property rights”
• Native title is created through this relationship to land. This relationship is not frozen in time
but changes.
• ‘Of course in time the laws and customs of any people will change and the rights and
 interests of the members of the people among themselves will change too. But so long as the
people remain as an identifiable community… the communal native title survives to be
enjoyed by the members according to the rights and interests to which they are respectively
entitled under the traditionally based laws and customs, as currently acknowledged and
observed’ – Justice Brennan at 44.

Mabo
Terra Nullius is rejected

• “The common law of Australia rejects the notion that, when the Crown acquired sovereignty
over territory… it thereby acquired the absolute beneficial ownership of the land… and
[instead] accepts that the antecedent rights and interest in land possessed by the Indigenous
inhabitants of the territory survived the change in sovereignty” - Justice Brennan at 41.

Mabo
The substance of native title:
• “Traditional rights” such as possession for ceremony; taking from land (e.g. hunting)
• Does not include the right to alienate (sell) land unless through traditional laws such as
marriage
• Perhaps a better name is “Native possession,” not “Native title”
Mabo
Proving native title under common law:
• The claimant bear the onus of proof and must show:
• An identifiable community at the time of settlement/ invasion that remains until the present
• A traditional connection to the land that is still observed
• The rights of the group need to be ascertainable
• The limits to the group must be ascertainable

Mabo
Extinguishment under common law:
• Legislation with plain and clear intention extinguishes NT so long as no breach of Racial
Discrimination Act
• Legislation granting freehold title is an example
• This legislation does not extinguish all NT immediately
• Each grant of freehold title permanently extinguishes native title to that land

• Inconsistency between NT and non-NT interests in land – NT is permanently extinguished to

the extent of the inconsistency
• Leases?
• Two leases on the island
• Extinguished native title (Brennan, Toohey)
• Did not extinguish (Gaudron and Deane)
• Leased area excluded from native title to islands

• By loss of traditional connection to the land

The bright side of Mabo
• Native title recognised for the first time
• Isolated areas where limited interaction between Indigenous and non-Indigenous could be
claimed
• Myth of terra nullius critiqued and abandoned
• High Court directly dealt with the tragedy of Indigenous dispossession

The bright side of Mabo

The dark side of Mabo
• Indigenous sovereignty was not argued and so the question of Indigenous land rights
decided by a non-Indigenous court – dominance of non-Indigenous law over Indigenous law
continues
• Native title is very limited in scope
• Often rights limited to possession (no right to develop land)
• Cannot sell land
• Right to exclude others is very limited and often non-existent

• 4:3 where native title has been extinguished in the past there is no compensation
• Indigenous peoples need to prove “rights” to land which is a foreign concept
• Proving the continual observance of traditional laws and customs from acquisition until the
present is very difficult given Indigenous dispossession, the policy of segregation, and the
stolen generations
The politics of Mabo
Overt racism by political leaders:
• Leader of the National Party Tim Fischer
• West Australian Liberal Party President Bill Hassel
• https://www.abc.net.au/4corners/judgement-day/4003760
• Claims that suburban backyards under threat by liberal party

• Keating gives Redfern address

• ‘We took the traditional lands and smashed the traditional way of life. We brought the diseases.
The alcohol. We committed the murders. We took the children from their mothers. We practised
discrimination and exclusion’

• Long and difficult process led by Keating for a national response to Mabo
• Native Title Act 1993 (Cth)

Native Title Act 1993 (Cth)

• s 3 Objectives:
• to provide for the recognition and protection of
native title; and
• to establish ways in which future dealings affecting
native title may proceed and to set standards for
those dealings; and
• to establish a mechanism for determining claims to
native title; and
• to provide for, or permit, the validation of past acts
invalidated because of the existence of native title.
• NT cannot be extinguished contrary to this Act (s 11)
• NTA provides system of claims, regulates future dealings that affect native title, and validates
past acts and intermediary acts (between 1992 and 1994) affecting native title

Proving Native Title

• Section 223(1): Native title is ‘communal, group, or individual rights and interests of
Aboriginal peoples or TS Islanders in relation to land or waters where:
• The rights and interests are possessed under the traditional laws acknowledged, and the
traditional customs observed, by the Aboriginal peoples or TS Islanders; and
• The Aboriginal peoples or TS Islanders, by those laws and customs, have a connection with
the land or waters; and
• The rights and interests are recognised by the common law of Australia

• The onus of proof is on the applicants (i.e. Indigenous peoples)

• Applications are often very complicated, involving many groups and often overlapping claims

Proving Native Title

Evidence typically is:
• Testimony from Indigenous people
• Expert evidence (archaeologists, historians, linguists, botanists, palaeontologists, and
anthropologists)
Proving Native Title
Difficulties in proving native title:

“Claimants in native title litigation suffer from the disadvantage that, in the absence of a written
tradition, there are no indigenous documentary records that enable the Court to ascertain the
laws and customs followed by Aboriginal people at sovereignty. While Aboriginal witnesses may
be able to recount the content of laws and customs acknowledged and observed in the past, the
collective memory of living people will not extend back for 170 or 180 years” - Sackville J
in Jango v Northern Territory
Proving Native Title
Difficulties in proving native title:
• Very complex and expensive litigation process
• Imbalance in resources between state governments and industry on one hand, and
Indigenous peoples on the other
• Very lengthy process – an average claim takes 6 years to settle
• Past dispossession and policies of assimilation, segregation and the stolen generations
means that many Indigenous communities were forced to stop practicing traditional laws and
customs and so are excluded from native title

Unanswered questions
• HC in Mabo split on the issue of pastoral leases
• Native Title Act states that ‘freehold leases’ will extinguish NT, excludes ‘non-freehold leases’
• Pastoral lease:
• Very large leases for pastoral purposes e.g. grazing on grasslands
• Often no right of exclusive possession
• Many abandoned
• In 1993 WA 38%, QLD 54%, SA 42%, NSW 41%, NT 51% of land subject to a pastoral lease
• Created to provide Aborigines and pastoralists shared access to land

• Does a pastoral lease extinguish native title?

• What is required to prove NT under the NTA?

Wik
Holroyd Lease and Mitchelton Lease were referred to in the conferring statutes as “leases” –
however both were granted with significant restrictions:
• Past leases had been designated as expressly for “pastoral purposes only” (though the most
recent grant of the Holroyd lease contained no such restriction).
• The right of persons authorized by the Governor to enter the land for any purpose
whatsoever.
• The right of prospectors to seek minerals.
• Third parties could de-pasture their stock on the land
• There were third party rights to profit from timber, stone and gravel.
• The lease-holders were required to improve the land by installing fences, water access,
airfields etc.

Wik
Majority (Gaudron, Toohey, Kirby and Gummow) found that the “leases” in substance were not
leases
• Extinguishment of NT requires a clear and manifest intention by parliament
• Pastoral leases did not provide exclusive possession
• Pastoral leases fell somewhere between freehold leases and mere licences
• There was no clear intention to extinguish NT (the acts explicitly provided Aborigines rights to
access land)
• Native title could co-exist with pastoral leases but would be extinguished to the extent of any
inconsistency

Wik aftermath
• Wealthy pastoralists and mining companies outraged by Wik decision
• Newly elected Liberal-Coalition government in 1996
• Howard holds press conference and holds up map showing how much of the country is
under threat
• Liberal premiers again claim suburban backyards are under threat
• National Party Leader and Deputy Prime Minister Tim Fischer promises pastoralists ‘bucket
loads of extinguishment’
• Howard/Fischer coalition amends Native Title Act through ‘10 point plan’

Howard’s 10 point plan

• The National Native Title Tribunal holds absolute authority over claims for Native Title
• State governments are empowered to extinguish Native Title over crown lands for
matters of 'national interest'
• Lands providing public amenities are exempt from Native Title claims
• Mining and pastoral leases are allowed to co-exist with Native Title
• The National Native Title Tribunal can create access to traditional lands rather than
granting full Native Title
• A registration test is imposed on all claimants
• The right to claim Native Title in or around urban areas is removed
• Government is permitted to manage land, water, and air issues on any site
• Very strict time limits will be placed on all claims
• Indigenous Land Use Agreements will be created to promote co-existence

Howard’s 10 point plan

• Pastoralists can upgrade their pastoral lease to a freehold lease for a fee outside of scope of
 the NTA resulting in permanent extinguishment of NT in these enormous tracts of land
• New jurisdiction – Federal Court – dramatically increases the cost and difficulty in proving NT
• Aboriginal and TS Islander Social Justice Commissioner called the plan ‘disgusting, unjust,
unfair, miserable, mean-spirited and greedy… It takes everything from us and gives us
nothing.’
• Howard’s legal adviser thought it could breach RDA
• Native Title Amendment Act 1998 (Cth)

Howard’s HC appointments
• In the wake of Wik acting Prime-Minister Tim Fischer declares the government would appoint
‘capital C conservative[s]’ to the HC
• Howard appointments – Callinan, Gleeson, Hayne, Heydon, Crennan and Kiefel
• Callinan – hostile legal submissions against Indigenous Australians in Hindmarsh Bridge case
• Gleeson – made submissions against Indigenous Australians in Tasmanian Dams, critique by
Justice Deane in judgement at 274-5
• Heydon – outspoken critic of ‘judicial activism’ of Mason High Court

Yorta Yorta
• 500 respondents including governments, powerful commercial interests and even Telstra
• 5:2 NT had been extinguished because the society which once observed traditional laws and
customs had ceased to do so
HC found claimants must prove:
• that the laws and customs acknowledged and observed are substantially the same as those
observed over the claim area in 1788; and
• that the acknowledgment and observance has continued substantially uninterrupted to the
date of claim.

Yorta Yorta
• Court privileged evidence of European squatters (diary entry) and missionaries over an
archaeologist, two anthropologists and a linguist who supported the oral evidence of the
Yorta Yorta people
• Substantially uninterrupted observance of substantially the same laws and customs is at
odds with anthropology and is almost impossible to prove in areas so dramatically effected
by dispossession

WA v Ward
Does the granting of mining leases/interests extinguish NT?
• NT viewed as a ‘bundle of rights’
• NT right to exclusive possession, such as right to control access to land, is extinguished by
granting of mining interests where mining rights are inconsistent with NT
• Non-exclusive rights such as to hunt or occupy for ceremonies will not be extinguished
automatically
• If interest holder (e.g. mining company) exercises right in a way that is inconsistent with NT,
NT is extinguished
• There is no native title right to minerals or petroleum.
• A physical connection is not necessary to prove that NT exists

Recent High Court decisions

• Akiba v Cth; Karpany v Dietman; Western Australia v Brown; Queensland v Congoo

The pendulum slightly swings back…

• NT can be claimed over water (Akiba)
• If the NT right cannot be exercised without abrogating the statutory right, then it is
extinguished. Otherwise, they can co-exist.
• Presumption of non-extinguishment when considering whether legislation intends to
extinguish
• ‘High threshold’ to prove legislative intention to extinguish
• Native title rights can be suspended (not immediately and permanently extinguished)
• Commercial rights and NT can co-exist
• NT viewed as a whole title, not a bundle of rights

Indigenous Land Use Agreements

• If native title over land and government wants to grant mining lease, ILUA often used
• Once registered ILUA acts like a contract
• Only about 25% of all agreements between mining companies and NT holders deliver
financial results to First Australians
• Taylor’s 2007 research based on last 17 decisions of Tribunal found clear advantage to
mining companies due to Howard’s amendments to the NTA.

Compensation for extinguishment

• The NTA allows Indigenous peoples to seek compensation for wrongful extinguishment of
native title
• Section 51(1) applies to compensation entitlements and, subject to s 51(3), the entitlements
must be on “just terms to compensate the native title holders for any loss, diminution,
impairment or other effect of the act on their native title rights and interests.”
• 31 of the 38 compensation claims made under the NTA date back to 1998 or prior. All of
these have now been withdrawn, discontinued or dismissed.
• First compensation paid in 2013 with consent from state gov’t. Settlement is confidential

Compensation for extinguishment

Griffiths v Northern Territory of Australia (No 3) (“Timber Creek”) [2016] FCA 900
• Ngaliwurru and Nungali peoples had native title, and various government acts extinguished
this. They sought compensation
• Justice Mansfield assessed compensation as being due under three categories: economic
loss, interest and non-economic loss (which it described as intangible loss or solatium), and
awarded:
• $512,000 for the economic value of the extinguished Native Title rights;
• $1,488,261 in interest; and
 • $1,300,000 for non-economic/intangible loss or solatium.

Compensation for extinguishment

Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru
and Nungali Peoples [2019] HCA 7
• Compensation should be limited to 50% of the freehold value of the land (not 80% as
Mansfield decided at first instance).
• Cth and NT argued against compensation for cultural loss. The HC rejected this argument. In
terms of cultural loss, the High Court agreed with Justice Mansfield that the task was to
"determine the essentially spiritual relationship which the [Holders] have with their country
and to translate the spiritual hurt from the compensable acts into compensation". This will
need to be determined on a case-by-case basis
• Interest should be payable, but simple interest not compound interest

Summary
• Mabo (no 2) acknowledges native title for the first time
• Keating introduces NTA to legislate pathway to NT
• Wik finds that pastoral leases and NT can co-exist
• Howard gov’t waters down NT through 10 point plan and makes several conservative HC
appointments
• Yorta Yorta finds that laws and customs must be substantially the same now as during
colonisation to prove NT.
• WA v Brown finds that commercial interests granted over NT land do not automatically
extinguish NT, but can if the rights are incompatible

• First compensation for extinguishment of NT in 2013

• Compensation ordered by HC in 2019 Timber Creek case for cultural loss