In fact, the Mabo decision confirms that the domestic recognition of Indigenous people's relationship to land continues to be strongly influenced by international law standards. It also confirms that where international law standards change, the common law approach to Indigenous people should, where possible, change to reflect this. Thus, in Mabo, the influence of terra nullius on the common law's denial of Indigenous rights to land is replaced by the influence of international human rights standards on the recognition of Indigenous rights to land.
This exchange takes place in Justice Brennan's judgment with which the majority agreed ;. If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depends on the notion. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.
The fiction [terra nullius] 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.
The policy appears explicitly in the judgment of the Privy Council in In Southern Rhodesia in rejecting an argument that the native people "were the owners of the unalienated lands long before either the Company or the Crown became concerned with them and from time immemorial.
Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports.
The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. 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 fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands. However recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system.
The court's receptivity to changes in international law standards contributed to its recognition of native title. In developing principles that will determine the nature of native title and its protection within the common law, the court should continue to take into account the evolution and elaboration of international law as it affects Indigenous people. In Mabo Brennan J. Justice Brennan confirmed that while 'the common law does not necessarily conform with international law, international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights'.
His Honour held that it would be contrary both to international standards and to fundamental values of the common law to entrench a discriminatory rule, which because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denied them a right to occupy their traditional lands.
The singularity of the common law lies in the ability of the courts to mould the law to correspond with the contemporary values of society. This is not to say that responsibility for keeping the common law consonant with contemporary values means that changes in the common law are made whenever a judge thinks change desirable.
Clearly, the law must be kept in logical order and form, for an aspect of justice is consistency in decisions affecting like cases and discrimination between unlike cases on bases that can be logically explained. There is no doubt that the common law of native title is in a developing stage. As discussed previously, in the Miriuwung Gagerrong case the issue of extinguishment is, for the first time presented to the court with the claimants' connection fully argued and accepted.
The interrelationship of the Court's construction of native title and the consequent extinguishment or survival of native title is, for the first time, laid bare. The basis of the majority's finding that the common law does not recognise a traditional spiritual relationship with the land reflects the lack of authoritative precedent available to it. In Fejo six members of the High Court in their joint judgment at CLR say that a grant of fee simple 'simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land' and at CLR ; 'the rights of native title are rights and interests that relate to the use of the land by the holders of the native title'.
In our opinion references to enjoyment of rights and interests in respect of the land in these passages, confirm that the native title rights and interests that are recognised and protected by the common law are those which involve physical presence on the land, and activities on the land associated with traditional social and cultural practices.
The link between finding that the common law does not protect spiritual connections to authority is very tenuous. Similarly the determination that native title is a bundle of rights is not based on clear authority to this effect. The authority for this construction comes from decisions where the court has referred to native title rights as a pluralistic concept. These authorities are not conclusive of a bundle of rights approach because they could also be read as consistent with the title to land approach.
The title to land construction of native title also contains a plurality of rights. However these rights are dependant on and tied together by an underlying relationship to the land. None of these authorities relied on by the majority say that native title is nothing more than a multiplicity of rights and interests.
In view of the lack of direct authority on the nature of native title the court should be guided by international law governing the relationship of Indigenous people to their land. On this basis the courts would seek to maintain the integrity of both the grant of non-Indigenous interests and native title as much as possible. Inconsistency can be dealt with through suspension or regulation and extinguishment would be the last option. Native title is characterised as an interest in land based on something entirely outside the common law Indigenous law and custom , but nevertheless 'recognisable' by the common law.
Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.
The existence of the Indigenous law and custom is defined in the above paragraph as a matter of fact. Between the proof of the fact of Indigenous connection and the grant of common law protection is a further process of 'recognition'.
This is a critical ambiguity in native title doctrine. Indigenous law and custom is understood as the origin of the right, but is legally unenforceable until it is recognised by the common law.
Legal protection is thus dependant on a process of translation, and only that which is 'translated' will be protected by the common law. Like any translation process, the recognition of Indigenous interests in land within the non-Indigenous legal system seeks to find equivalence between that which is the subject of the translation and that which is the product of translation. The construction of native title as a product of translation should find equivalence with the traditional law and customs of Indigenous people as the subject of the translation process.
At the same time there is implicit in the translation process a recognition that exact equivalence between the Indigenous relationship to land and a common law interest in land can never be found. If an exact equivalence could be found then there would be no need to differentiate between the common law recognition of native title and its origins and content.
The impossibility of constructing an exact equivalence between these two systems of meaning, of constructing an equivalent notion of Indigenous relationships to land within the common law, should not be a basis for abandoning the recognition process. To do so would mean a return to the terra nullius approach of Lord Sumner in In re Southern Rhodesia: The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society.
It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. The High Court rejected this approach of not recognising Indigenous interests in land because their 'usage and conceptions of rights and duties' were irreconcilable with 'rights of property as we know them'. Justice and equality require that the common law recognise Indigenous 'social organisation' and 'transmute it into the substance of [transferable] rights of property as we know them'.
Requiring the court to recognise Indigenous law and culture still leaves it with a discretion as to what meaning to give it. How the 'translation' process is constructed will influence the extent to which the meaning and content of Indigenous connection to land is expressed through or diminished by the native title recognised.
Translating Indigenous law so as to render it comprehensible within the common law will always involve to some degree an imposition of concepts and assumptions of the common law onto the understanding of the Indigenous law system.
Yet if the recognition of native title is to be ascertained by reference to Indigenous laws and culture then direct analogy to common law titles may efface the Indigenous character of the interest almost entirely. What is argued in this section is that the impossibility of finding a perfect equivalence between an Indigenous relationship to land and common law recognition of native title should not signal to the courts that the search for equivalence in its translation of Indigenous law and culture can be set aside.
Human rights principles provide the court with guidelines for the translation of Indigenous law and culture within the common law. As discussed above the international law concept of equality is a substantive one. The essential distinction between a formal and a substantive standard of equality is their treatment of difference.
Formal equality is achieved by erasing difference. Substantive equality on the other hand not only permits the recognition of difference but may require it where this is necessary to achieve equality between racial groups.
Judge Tanaka of the International Court of Justice explained this concept as follows:. The principle of equality before the law does not mean the absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equals and unequally what are unequal.
To treat unequal matters differently according to their inequality is not only permitted but required. Rather than the courts focusing on the differential treatment on the basis of race, a substantive equality approach focuses on the impact of that treatment on the racial group concerned. Differential treatment is discriminatory where it has an invidious impact on the racial group concerned.
On the other hand, not to recognise differences is also discriminatory where it denies and oppresses the cultural identity of the racial group. This approach can provide a guide to the court's recognition of cultural difference through the concept of native title. Equivalence is to be found in the level of respect or protection that the common law extends to native title being equal to the level of respect and protection that the common law extends to non-Indigenous interests in land.
A substantive equality approach would seek to provide Indigenous interests in land with the protection necessary to ensure they can be enjoyed, according to their tenor and to the same extent as non-Indigenous interests in land.
Constructed in this way, native title is a vehicle for the continued enjoyment of Indigenous culture within the protection of the common law. Within this human rights framework based on equality it is possible to compare the two constructions of native title that are before the High Court in the Miriuwung Gagerrong case. The translation of Indigenous relationships to land into a bundle of rights fails to provide protection to the enjoyment of Indigenous law and culture within the common law.
In constructing native title as a bundle of rights their Honours, Justices Beaumont and von Doussa, appreciate that native title is necessarily a translation of traditional laws and customs and as such, a construction of the common law.
Once rights and interests that involve the physical use and enjoyment of land are identified, their recognition by the common law gives rise to jural rights under the common law system. Native title rights and interests thus give rise to jural rights which are "artificially defined" under the common law because they arise from the acknowledgment and observance of traditional laws and customs under a different legal system.
The common law accords a status to, and permits enforcement of, those rights according to common law principles. The artificiality is a consequence of the intersection of the common law system of law with traditional laws and customs of the indigenous people. They argue that native title as a construction of the common law, is subject to the limitations in the capacity of the common law to recognise particular attributes of Indigenous culture.
One of these limitations is its recognition of the spiritual connections which constitute the underlying relationship between Indigenous people and the land. The authors, while recognising that an aspect of the behavioural notion of property is a perception of belonging to the land, which in the context of native title would include spiritual, cultural and social connection with the land, it is the empirical facts, and the behavioural data that evidences that connection, which is recognised and protected by the common law.
As a result of this 'inherent' limitation in the common law, that in the context of native title it only recognises 'empirical facts and behavioural data', there is no recognition of a spiritual level within Indigenous culture which transforms physical activities or presence on the land into a system of laws.
The failure in the bundle of rights approach to recognise and protect this aspect of Indigenous culture is, as their Honours make clear, a denial of its unique and essential identity.
It is unclear why their Honours maintain that the common law will only recognise and protect 'native title rights and interests. As a premise it is simply a terra nullius style denial of Indigenous culture. As a conclusion it appears to be linked to the way in which their Honours approach the task of translating Indigenous culture into the common law recognition of native title.
One reason why their Honours posit this limitation in common law recognition of native title is that to give native title a systematised basis, is to give it the character of common law property rights.
Because native title is not an institution of the common law then, it is argued, it 'cannot be elevated to something akin to common law tenure by describing them [native title rights] as "incidents" 90 of an abstract form of title from which pendant rights are derived.
Implicit in their Honours reasoning is that because there is no equivalent of Indigenous relationships to land within the common law system of tenure, the recognition of these unique relationships within the common law cannot resemble or bear any equivalence to the common law.
Where a resemblance does appear between native title and common law tenures it is a misrepresentation of the sui generis nature of native title. This reasoning can be criticised from a human rights perspective in three ways. First, the task of cultural translation before the court does not require that native title be constructed as a title bearing no resemblance to a common law system of tenure. The uniqueness lies in the relationship that Indigenous people have with the land.
The task for the court is to render this unique relationship comprehensible recognisable within the common law. As indicated above this process will always involve to some degree an imposition of concepts and assumptions of the common law onto the understanding of the Indigenous law system. Second, the impossibility of there being a common law construct of native title which is equivalent to the Indigenous relationship to land does not require that the search for equivalence be abandoned.
Instead the search for equivalence in the common law's translation of Indigenous culture should be aimed at the level of protection that the common law gives to Indigenous relationships to land compared with the protection it gives to non-Indigenous interests in land.
If likening native title to a proprietal interest within a tenurial system provides a vehicle for the enjoyment of the unique Indigenous laws and customs within the protection of the common law then such a translation is justifiable as providing substantive equality to Indigenous people. Richard Bartlett makes this point in his argument that, on the basis of equality, the common law presumption against the extinguishment of a proprietary interest should be extended to native title.
Third, native title does not have to be 'elevated' to a common law tenure to recognise that, within Indigenous culture, a systemic relationship exists between the activities that are traditionally carried out on the land.
Anthropologist Peter Sutton characterises these relationships according to core and contingent rights. Where the right to control access is disconnected from or given the same value as the right to fish, each equally extinguishable by the creation of any inconsistent rights, then the protection which the right to control access gives to the right to fish or hunt is denied.
This, in turn, denies native title the inherent strength which comes when rights are interrelated and systematised. The refusal of the common law to construct native title in a way that accepts Indigenous forms of social organisation in their own terms can be seen as a return to the terra nullius approach overturned in the Mabo decision.
The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory though inhabited could be treated as a "desert uninhabited" country. The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory and not merely the personal law of the colonists.
Colonies of this kind were called "settled colonies". Ex hypothesi, the indigenous inhabitants of a settled colony had no recognised sovereign, else the territory could have been acquired only by conquest or cession.
The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organisation. Terra nullius deemed that the failure to exhibit an organisational structure analogous to 'civilised' society was tantamount to a failure to exhibit an organisational structure at all. The recognition of native title by the High Court in was a recognition that law did govern Aboriginal society when sovereignty was acquired by the British and that Indigenous law was a subtle and elaborate system which provided a reasonably stable order of society.
The bundle of rights approach, like terra nullius, denies recognition and protection to an Indigenous system of rights on the basis they are unique and therefore not analogous to 'part of the tenure system of the common law'.
In contrast to the bundle of rights approach, native title as a right to land does recognise the systemic nature of Indigenous traditional law and custom. By conceptualising native title as a holistic entity from which all pendant rights derive their meaning and authority, the 'right to land' approach;. The 'title to land' approach employs common law property notions to establish the degree of protection of native title that is to be granted by the common law.
It reflects the fact of aboriginal law translated into the language of the Australian legal system. What is involved is a characterisation of the relationship between aboriginal people and the land translated into terms which have meaning for Australian law. North's approach is consistent with the following statement of Brennan CJ in Mabo, which illustrates how the analogy to common law proprietary interests ensures the capacity of the common law to protect native title.
If it be necessary to categorize an interest in land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category. In this statement Brennan C. Rather, the statement signifies that while the indigenous relationship with land is entirely different to common law 'proprietary' interests in land, it requires an equivalent degree of protection.
It indicates that native title is to be regarded as a common law property right and entitle to the protection that this characterisation warrants.
Consequently, the 'right to land' approach satisfies a substantive equality standard in relation to property rights, in that it protects the circumstances required to protect the right, without prescriptively defining the exact content of native title.
Rather than merely substituting common law categories for the Indigenous nature of the right, it provides a greater degree of openness for the expression of the Indigenous character of the right to be protected. It was argued above 98 that, within the common law doctrine of native title, the processes of recognition and extinguishment are posited as distinct and separate.
Recognition is a process of the common law, while 'extinguishment' is a process of the executive or legislature. Extinguishment occurs at the time that the Crown act creates an interest in the land which is inconsistent with native title while recognition occurs at the time of the court's determination.
Accordingly the Court's role in the extinguishment of native title is limited to interpreting the legislative or executive act that created a non-Indigenous interest in the land to determine whether there was an intention to extinguish native title. As pointed out above, this approach fails to appreciate the interrelationship between the court's contemporary construction of native title and the capacity of native title to survive the past creation of non-Indigenous interests in land.
It also fails to appreciate the anomaly created by the fact that native title was only recognised by the court after the 'extinguishing' acts took place. In this section it is argued that even if it is accepted that the extinguishment of native title is effected through legislation, the court should be guided by human rights principles in its interpretation of these statutes.
This argument is not without judicial precedent. It is a long-established presumption that a statute is to be interpreted and applied, as far as its language admits, so as to be consistent with the established rules of international law. The rules of statutory interpretation determining whether the Crown has extinguished or appropriated a citizen's property is that this will not occur unless there is a clear and plain intention to do so.
The corollary of the requirement for a clear and plain intention is the common law presumption that the Crown will not so intend. Because the statutes which created non-Indigenous interests in land were based on an assumption that there was no prior Indigenous interests in the land there could never be an express intention to extinguish native title.
In both the Mabo and Wik decisions this difficulty appears to be overcome by a finding that a clear and plain intention to extinguish native title can be implied when interests created by past Crown acts and native title are unable to co-exist. Implicit extinguishment is extinguishment brought about by sovereign power acting legislatively in an enactment which does not provide in its terms for extinguishment but which brings into operation a legislative scheme which is not only inconsistent with Aboriginal title or Aboriginal rights but which makes it clear and plain by necessary implication that, to the extent governed by the existence of the inconsistency, the legislative scheme was to prevail and the Aboriginal title and Aboriginal rights were to be extinguished.
This then is the inconsistency test. It takes the focus away from whether, at the time of the enactment, there was an express intention to extinguish proprietary rights, to a comparison between two sets of proprietary interests; those created by the Crown and native title. It is the effect, or implication of the creation of interests by the Crown on native title rather than the actual intention of the Crown in the creation of these interests that extinguishes native title.
In determining whether native title is extinguished as a result of the creation of non-Indigenous interests over native title land, constitutional jurisprudence should be applied to the extinguishment of native title in the same way as it is applied to the appropriation of general property. For the purposes of s51 xxxi of the Constitution, before an acquisition of property is held to have occurred, a very thoroughgoing elimination of practical enjoyment of the ownership of land should be applied.
In relation to s 51 xxxi , there are numerous situations in which a diminution of rights or restriction of use will not amount to an acquisition of property.
In general property law, an example of the temporary displacement of rights dependent on underlying freehold title which does not destroy the underlying title can be seen in planning legislation. Such legislation does not have the effect of extinguishing the underlying freehold title. Instead, for the period of restrictions upon the rights of the freehold title holder to use and enjoy the land in specific ways, the rights affected are suspended, but the freehold title remains in existence.
Another example in general law is the effect of statutes giving the Crown or a statutory authority control over waterways. Again, the rights of the holder of the freehold are overridden, but not extinguished. Similarly in general property law, the notion of suspension of rights and interests is well accepted, reflecting an idea which lies at the foundation of the doctrine of estates.
On an ordinary approach to statutory interpretation, courts require very plain words to reveal a legislative intention to abrogate rights of private property.
If there is any doubt as to the way in which language should be construed, it should be construed in favour of the party who is to be dispropriated. The effect of these aspects of law in Australia applying to land generally that is, land not held under native title by indigenous people is that such title or ownership is not treated as extinguished or expropriated, or acquired, or destroyed unless that is, effectively, the only possibility.
The effect of the majority's decision is to disregard the different character of native title rights, which ought not be seen for these purposes as merely a bundle of severable rights, but rather as communal rights which derive from the distinct underlying religious or spiritual relationship of indigenous peoples with their country.
The consequence of applying a presumption against extinguishment is to seek to find a way in which native title could be reconciled with the interests created by statute. The negotiation of the contemporary legal relationship between Indigenous and non-Indigenous rights may involve co-existence, regulation or suspension rather than extinguishment.
This approach is reflected in the decision of Justice North. The law will recognise consequences on native title short of extinguishment, such as suspension of the enjoyment of some of the incidents dependent upon the holding of native title, in order to allow full scope for the enjoyment of the inconsistent rights or interests but permits native title to survive and permits the rights or interests dependent on holding native title to be enjoyed without interfering with countervailing rights or interests.
This can be contrasted to the approach of the majority who posit the inconsistency test in this way;. The bundle of rights characterisation of native title coupled with an inconsistency test which results in the extinguishment of one or more native title rights whenever there is any inconsistency with the grant ensures that the accumulation of every incursion, large or small, will result in the complete erosion of native title.
The dynamic relationship between the common law and the legislature is set to be a long term one. It is my role to ensure that this relationship is one based on equality. In the High Court broke the inertia over Indigenous rights. Since then the issue has been high on the political agenda of successive governments. In this chapter I have made it clear that the role of the courts is instrumental in maintaining the momentum on native title. The common law is still the central plank on which the statutory definition of native title rests.
Where the common law gives Indigenous culture a meaningful place within contemporary society then the standard of equality will form the benchmark against which a legislative response will be measured. Where however the common law reduces native title to an historic right that cannot be exercised or enforced within contemporary society then it is incumbent on the legislature to reset the standard in keeping with its international obligations.
The Miriuwung Gajerrong case op cit, per North J. These comments were made in the course of Dr. Pritchard's comments were discussed in the Non-government Members Report at p Issue: Does Australia regard the Convention as requiring formal or substantive equality. This is discussed in greater detail in Chapter 1. Cobo M. Martinez, M. In particular, it must state the nature and extent of the native title rights and interests in relation to the determination area ….
It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead.
More typically, determinations have involved lists of activities which native title holders are able to undertake on the land and waters claimed. The distinction turns on whether the evidence supports exclusive use and enjoyment under laws and customs, and whether there has been extinguishment of the right to control access.
The bundle of rights concept of property derives from mainstream Anglo-American legal philosophy and one may well question what place it has in native title, particularly because native title is viewed by Aboriginal and Torres Strait Islander people as being holistic in nature.
The purposes may be well defined or diffuse. One use may advance more than one purpose. The lesser rights would be as numerous as the purposes that could be imagined. A native title right or interest defines a relationship between the native title holders and the land or waters to which the right or interest relates. The situation is not akin to the circumstances in which the claimants in Akiba No 3 were found traditionally to take whatever resources they found at sea and were apt to trade and use it however they could.
In many cases, proof of activities undertaken pursuant to laws or customs will assist in proving the existence of the right. However, the decision is of relevance to the holders of resources tenements and other developers who, because native title did not exist at the date of the grant, did not have to proceed through any "future act" process, as a possible argument for suggesting that native title could not be revived has been removed.
This may mean that the resource tenement holder or developer will have to proceed through a future act process for subsequent renewals or additional approvals for the project that were not foreshadowed at the commencement of the project. Therefore, as a result of this decision, extra diligence will be required in assessing areas where the extinguishment of native title may be disregarded. Get in touch information is loading.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories. You are here: Home Knowledge July Exploration tenements and prior native title extinguishment — the High Court resets the relationship.
Share and print this article Share.
0コメント