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Strelein, Lisa --- "A captive of statute" [2009] ALRCRefJl 16; (2009) 93 Australian Law Reform Commission Reform Journal 48


A captive of statute

By Lisa Strelein*

We have heard it so many times that it becomes rehearsed: the starting point for any native title application under the Native Title Act 1993 (Cth) (NTA) is the definition of ‘native title’ in s 223.1

This provision sought to encapsulate the concept of native title first outlined in Mabo’s case,2 in particular as explained by Justice Brennan:

Native title to particular land (whether classified by the common law as proprietary, 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.3

This was translated by the drafters of the NTA to read:

223(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.

Many expected that this language would allow the development of common law native title to continue while establishing structures under the NTA for identification, protection and extinguishment.4

However, an increasingly explicit distinction has been drawn by the courts between common law native title and native title under the NTA—particularly in the interpretation of s 223, which has not only come to define ‘native title’, but also the requirements of proof. The result is a voluminous amount of case law, much of it surrounding the meaning of one word: ‘traditional’.5

The distinction between statutory and common law native title remains abstract, as no ‘common law’ native title case has proceeded through the courts since Yanner in 1999.6 The structure of the NTA provides a process for the registration of claims and procedural rights for claimants prior to a determination. Any activity by government or private interests that may affect native title must go through the procedures set out in the NTA.7 This procedural regime has effectively ‘captured’ the whole native title market.

Definitional struggle

The distinction between common law native title and native title under the NTA emerged in the influential decisions of the High Court in 2002, Ward and Yorta Yorta. In Ward the Court was critical of arguments that began with a common law analysis based on Mabo and Wik:8

No doubt account may be taken of what was decided and what was said in [Mabo] when considering the meaning and effect of the NTA... It is, however, of the very first importance to recognise two critical points: that s 11(1) of the NTA provides that native title is not able to be extinguished contrary to the NTA and that the claims that gave rise to the present appeals are claims made under the NTA for rights that are defined in that statute.9

The Court ascribed to the common law the role of ‘recognition’, as encapsulated in s 223(1)(c),10 or more correctly, the limits of recognition under the common law.11

Yorta Yorta was concerned with the proof of native title, but again affirmed the primacy of the NTA. Focusing on s 223(1)(a), the Court embarked on a painful statutory interpretation exercise that added numerous interpretive layers to the terms of the provision, beginning with the word ‘traditional’:

A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act, ‘traditional’ carries with it two other elements in its meaning.12

These two elements were focused on continuity: first, the age of the laws and customs, tracing their origins prior to the assertion of British sovereignty; and second, their current observance and continuous existence and vitality, substantially uninterrupted, since sovereignty.13 The Court also introduced the idea of a ‘normative society’ to clarify the source of laws and customs’,14 recognising that laws and customs may change and adapt but must find their source in a pre-British-sovereignty normative society. Most recently in Bennell, the Full Federal Court added the proviso that continuity be demonstrated ‘for each generation’.15

Section 223(1)(b) also has work to do. In Bennell, the Full Federal Court explained that the:

genesis of the term ‘connection’ in the NTA is to be found in Brennan J’s judgment in Mabo (No2). We refer to it, not simply because it highlights ‘the opaque’ drafting of s 223(1)(b); but also because it has had influence in shaping aspects of the content of the connection requirement in this Court’s jurisprudence on s 223(1).16

In Ward, the High Court had held that only those rights and interests that give rise to a connection to land and waters are protected by the NTA.17

The opening provision of s 223 has also received judicial attention. In De Rose (No 2), the Federal Court noted that:

It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as ‘communal’, ‘group’ or ‘individual’. The classification is a statutory construct, deriving from the language used in Mabo (No 2). 18

In Bennell, the majority were uncomfortable with the idea of ‘communal title’ and argued that:

The definitional focus in s 223(1)(a) on ‘rights and interests’, not only contrives the inquiry to be undertaken in determining a claim of native title, it also is reflected in what is required in an order of the Court [under s 225] when making a determination that native title exists in relation to a particular area.19

This ‘statutory typology’ made the Full Court in Bennell question earlier presumptions that native title will normally be communal title.20 They drew a further distinction between statutory and common law native title as property, and stressed that ‘Mabo (No 2), though the herald of the NTA, was a decision at common law’. While I disagree with the Full Court’s analysis, it is further confirmation that statutory native title is seen as something different from—and less than—common law native title.

Judicial constraints and choices

Given the genesis of native title as a common law concept, the approach taken by the courts seems extraordinary, reading significant import into words that were part of a barely developing Australian jurisprudence at the time they were captured in the statute, while ignoring the rich traditions of common law native (or Aboriginal) title both prior to and since Mabo.

In the months that followed Mabo, the High Court was heavily criticised for overt judicial activism.21 The recognition of native title, and the protection afforded by the Racial Discrimination Act 1975 (Cth), forced the hand of Parliament to clarify how native title would be accommodated into Australia’s existing framework. By and large, the then Labor Government publicly accepted the decision.22 However, the response of the incoming Liberal Government to the Wik decision was quite different, with the public criticism of the High Court by senior Ministers leaving no doubt that they did not trust the Court with the development of native title law and would legislate to restrict the recognition and protection of native title.23

Australia’s tradition of judicial deference may have impelled the High Court to withdraw once the legislature had asserted its intentions by statute.24 But where does the Court cross the line between judicial deference and judicial impotence? Sadly, the courts historically have used the separation of powers to shield the acts of the legislature against Indigenous populations.25

Further, jurisdiction over the NTA is vested in the Federal Court, rather than in the ordinary courts —where common law native title would reside. The Federal Court can only carry jurisdiction ascribed to it by statute.26 Its work is almost exclusively in the application and interpretation of Commonwealth legislation. This statutory bias in the Federal Court’s work creates a presumption that the external reference points should not be required if the words of the statute are clear.

Rules of interpretation

The problems created by the courts’ statutory native title approach are compounded by their failure to take into account common law traditions for the interpretation of legislation or agreements concerning Indigenous peoples. These rules have their roots in the common law protection of the rights of citizens against arbitrary exercises of power by the state, especially in relation to property.27 The Mabo decision, while recognising the power of the state to take the property of Indigenous peoples, held that the exercise of such power ‘must reveal a clear and plain intention’.

This requirement, which flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land, has been repeatedly emphasized by courts dealing with the extinguishing of the native title of Indian bands in North America. ...It is patently the right rule.28

As a compromise, accommodating 200 years of the exercise of legislative and executive power without regard for Indigenous interests, Mabo held that extinguishment can occur by necessary implication (eg where inconsistent rights have been granted to another), despite the absence of an express intention to extinguish the rights of Indigenous peoples.29

The NTA Future Act regime was introduced to ensure that native title would not be extinguished without due process. But the principle of clear and plain intention and beneficial construction has been lost. Even if we can accept that native title has become a statutory right, the common law rules regarding the interpretation of legislation should not have been ignored.

The High Court recently considered the power of the Crown to compulsorily acquire the private rights of one group of citizens—in this case the native title holders—for the immediate benefit of another private citizen.30 The majority did not venture outside the four walls of the statutes involved. Relying on the ‘freehold equivalence’ tests in the NTA, the Court dealt with this issue as simply a matter of two indistinguishable competing interests in land.31 Ironically, the majority judgments point to the purpose of the future act provisions to avoid racial discrimination, yet the result achieved that very effect.32

In dissent, Justices Kirby and Kiefel considered the common law tradition that protects the rights of individuals from arbitrary deprivation by the state. Justice Kirby went further, emphasising that the unique nature of native title and the special connection to the land it seeks to protect requires additional rigours.33 He referred to his discussion of the applicable principles in Ward:

Because the statutory concepts of ‘recognition’ and ‘extinguishment’ are themselves ambiguous or informed by the approach of the common law, this Court should adopt, and consistently apply, several interpretative principles in giving those concepts meaning. First, it should observe the principle that, in the case of any ambiguity, the interpretation of the statutory text should be preferred that upholds fundamental human rights rather than one that denies those rights recognition and enforcement. Secondly, so far as is possible, it should take into account relevant analogous developments of the common law in other societies facing similar legal problems. Thirdly, a clear and plain purpose is required for a statute to extinguish property rights, particularly where the legislation purports to do so without compensation.34

By treating native title the same as any other fungible property right, the law threatens the cultural survival of Indigenous peoples.

Common law native title

It is certainly worth exploring whether a nascent common law native title remains claimable in Australia, and at some point it may be necessary to consider the difference between the two forms of native title in order to determine compensation.35 A common law claim will raise two issues. First, what impact has the NTA had on common law native title? That is, may the common law still develop separately, or does the NTA permanently change the common law of native title? Second, would the Courts take a different view if they were working without the statutory net of the NTA? While the Courts attribute the current standards of proof to the carefully chosen words of the legislature, it has been their choices in the interpretation of ‘tradition’, for example, that has worked against the rights of native title claimants. Despite the risk of leaving native title in the hands of the courts, Noel Pearson has suggested repeal of s 223, to make clear that native title should be defined by the common law.36

Common law native title has a long history that did not commence with Mabo—it begins as far back as Calvin’s Case and the Case of Tanistry in 1608,37 which began to define the common law treatment of the rights of the peoples of English colonies and conquests.38 Drawing on the development of these doctrines in various jurisdictions, the High Court rejected the historical legal position in Australia.

A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.39

However, the work to overcome the injustice of the legal heritage in Australia did not end with Mabo.

Common law native title has developed in other jurisdictions since Mabo. While Mabo has been influential internationally, there are also differences that may lead to a more just native title doctrine. The requirements of proof, the nature of the right and who holds it, as well as the powers of government have all been scrutinised,40 and decisions relied upon by the High Court in Mabo have been considered and reconsidered elsewhere.41

The common law may provide a more principled approach to native title than we currently see in NTA cases.42 By focusing on the terms of the statute, the Courts have ignored the history of the native title doctrine. In so doing, they ignore—and thus perpetuate— the racially discriminatory aspects of native title that require remedy. Likewise, this approach has meant that developments in international law, which might have been taken into account in developing the common law, have been ignored.

The promise of Mabo, that Australian law must keep step with the international community and not be frozen in an age of racial discrimination, has been thwarted by the NTA.43 Many parties to native title claims are looking for alternatives, including some state governments—which must say something about the adequacy of statutory native title as a remedy. It is time to review Australia’s approach to the recognition and protection of the rights of Indigenous peoples to their lands, both by the courts and the legislature, to ensure a remedy that is based on equality of peoples and the special place that land holds for Indigenous peoples.

* Dr Lisa Strelein is the Director of Research Programs and Native Title, Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS).

A version of this paper was presented to the Federal Court of Australia’s Native Title User Group in Adelaide in July 2008. The views expressed are those of the author and not necessarily those of AIATSIS.

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Endnotes

1 See Bodney v Bennell [2008] FCAFC 63 (Bennell), [137]. See also De Rose v South Australia (No 2), [2005] FCAFC 110 (8 June 2005) (De Rose (No 2)) [28]; Commonwealth v Yarmirr; Yarmirr v Northern Territory [2001] HCA 56 (Yarmirr), [7]; Western Australia v Ward (2002) 213 CLR 1, [16] (Ward); Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, [32] (Yorta Yorta).

2 Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo).

3 Mabo [83]. Brennan J’s judgment was concurred with by Mason CJ and McHugh J, and thus became the preferred one.

4 N Pearson (Paper presented to the Federal Court of Australia’s Native Title User Group, Adelaide, 9 July 2008).

5 See generally S Young, The Trouble with Tradition: Native Title and Cultural Change (2008).

6 Yanner v Eaton (1999) 201 CLR 351, regarding the use of native title as a defence to a criminal prosecution.

7 This is known in the legislation as the ‘Future Act’ process. The Native Title Act 1993 (Cth) s 11 renders invalid any act that does not go through this process.

8 Wik Peoples v State of Queensland (1996) 187 CLR 1.

9 Ward, [16] (emphasis added); reiterated at [25].

10 Ward, [20].

11 Ward, [21].

12 Yorta Yorta, [46]–[47].

13 The minority judgment disagreed that the NTA gave a particular meaning to traditional other than its ordinary meaning: Yorta Yorta, [101] and [117] (per Gaudron and Kirby JJ).

14 Yorta Yorta, [49]–[50].

15 Bennell, [72], affirming Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404, [97(c)]; cf Gumana v Northern Territory (2005) FCA 50, 195 (Selway J).

16 Bennell, [163] (references omitted).

17 Ward, [64]. As a result ‘incorporeal rights’, such as the safeguarding of knowledge about sites, are outside the protection of the NTA: Ward, [59]–[61].

18 De Rose (No 2), [38].

19 Bennell, [146].

20 Bennell, [150], citing Mabo, 62 (per Brennan J); 109–110 (per Deane and Gaudron JJ); cf the decision of the Full Court shortly after in Western Australia v Sebastian [2008] FCAFC 65.

21 See P H Lane, ‘The Changing Role of the High Court’ (1996) 70 Australian Law Journal 246.

22 See, eg, Prime Minister P Keating, ‘The Redfern Address’ 10 December 1992. See also Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373.

23 R McClelland, ‘In Defence of the Administration of Justice: Where is the Attorney-General?’ [1999] UTS Law Review 13.

24 A Mason, ‘Future Directions in Australian Law’ (1987) 13 Monash University Law Review at 163. See generally, L Strelein, ‘The ‘Courts of the Conqueror’: The Utility of the Courts for the Assertion of Indigenous Self-determination Claims’[2000] AUIndigLawRpr 22; , (2000) 5(3) Australian Indigenous Law Reporter 1–23.

25 See L Strelein, ‘The ‘Courts of the Conqueror’: The Utility of the Courts for the Assertion of Indigenous Self-determination Claims’[2000] AUIndigLawRpr 22; , (2000) 5(3) Australian Indigenous Law Reporter 1–23.

26 Federal Court of Australia Act 1976 (Cth) s 19(1).

27 See eg Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363, 373; Balog v ICAC [1990] HCA 28; (1990) 169 CLR 625, 635–36; Davis v The Commonwealth [1988] HCA 63; Coco v the Queen [1994] HCA 15; (1994) 179 CLR 427, 436–37; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 18.

28 Mabo [75]. Brennan J cites cases from those jurisdictions, including Calder v Attorney-General of British Columbia (1973) 34 DLR (3d), 210; R v Sparrow (1990) 70 DLR (4th) 385, 401; United States v Santa Fe Pacific Railroad Co. (1941) 314 US 353, 354; Lipan Apache Tribe v United States (1967) 180 Ct Cl 487, 492; Te Weehi v Regional Fisheries Officer [1986] NZHC 149; (1986) 1 NZLR 680, 691–2.

29 Mabo, [81].

30 See Werribee Council v Kerr [1928] HCA 41; (1928) 42 CLR 1, 33.

31 NTA s 24MD(6A) gives native title holders ‘the same’ procedural rights as a holder of any ordinary title.

32 For more detail, see L Strelein, ‘Compulsory Acquisition powers: Griffiths v Minister for Lands Planning and Environment [2008] HCA (15 May 2008)’ Native Title Research Unit Resource page: <ntru.aiatsis.gov.au/research/griffiths/compulsory_ acquisition_griffiths.pdf> at (17 December 2008).

33 Griffith, [109]. Kirby J pointed to comparative treatment of Indigenous titles in Canada and New Zealand where the significance of the land to the group has an impact on the legal principles to be applied: [107]–[108].

34 Ward, [557]. See also Griffith, [107].

35 See for example, compensation contemplated under ‘confirmation provisions’ under the NTA, s 23J, Division 2B.

36 N Pearson (Paper presented to the Federal Court of Australia’s Native Title User Group, Adelaide, 9 July 2008).

37 Calvin’s Case (1608) 77 ER 377; The Case of Tanistry (1608) Davis 28; 80 ER 516. See also Blankard v Galdy [1738] EngR 444; (1693) 90 ER 1089; Campbell v Hall [1790] EngR 1905; (1774) 98 ER 848, 895–6.

38 See K McNeil, Common Law Aboriginal Title (1989).

39 Mabo, [42].

40 Most recently, Tsilhqot’in Nation v British Columbia 2007 BCSC 1700. See also R v Adams [1996] 3 SCR 101; Delgamuukw v British Columbia [1997] 3 SCR 1010; R v Marshall; R v Bernard, [2005] 2 SCR 220.

41 See eg Calder v British Columbia (AG) [1973] SCR 313 and Guerin v The Queen [1984] 2 SCR 335.

42 At the forefront of Canada’s approach, for example, are principles of non-discrimination and reconciliation; accordingly, the ‘court must take into account the perspective of the aboriginal people claiming the right . . . while at the same time taking into account the perspective of the common law’: R v Van der Peet [1996] 2 SCR 507, [30] (per Lamer CJ), repeated in Delgamuukw, [80].

43 Mabo, [41]–[42].


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