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6 February 2022

Cultural warning: Aboriginal and Torres Strait Island viewers are advised that this article and linked sources may contain images, voices, and videos of deceased persons. In addition, culturally insensitive words and phrases may be used, but this is purely for educational purposes.

In Terra Nullius And The Issue of Indigenous Sovereignty, I explored the application of the doctrine of terra nullius to the Indigenous peoples of Australia. I ended that article with a brief discussion of the decision by the High Court of Australia in Mabo v Queensland (No 2) (1992) 175 CR 1 (‘Mabo‘), which ruled that the application of terra nullius by the British and Australian governments was based on Euro-centric understandings of civilisation. This article will explore how laws and policies developed throughout the rest of the decade, and whether that is for the better or for worse.

Before analysing post-Mabo Australia, it is important to discuss that case itself. In that case, Eddie Koiki Mabo brought an action against the Queensland state government, on behalf of his people on Mer (Murray) Island in the Torres Strait, which had fallen under the state government’s jurisdiction since 1879. Eddie Mabo had been a long-time activist in the Aboriginal and Torres Strait Islander peoples’ rights campaign, including serving as President of the Council for the Rights of Indigenous People, and campaigned during the 1967 Referendum to remove discriminatory provisions from the Commonwealth of Australia Constitution Act 1900 (Imp) (‘Australian Constitution‘). It should be noted that Reverend David Passi, Sam Passie, Celuia Mapo Salee, and James Rice, fellow Mer Islanders, were co-plaintiffs, but because Eddie Mabo’s name was listed first, the case was named after him. Together, they sought to overturn terra nullius and the legal notion that all Australian land vested in the Crown and colonial government upon the declaration of British ownership over the land, rendering any property rights claims put forward by Indigenous peoples invalid.

The Queensland government sought to prevent any claim that might be recognised by the courts, and so passed the Queensland Coast Islands Declaratory Act 1985 (Qld) (‘Coast Islands Act‘). The state government under Sir Joh Bjelke-Peterson knew that if they could pass a statute that retrospectively extinguished any native title claims, the courts could not award any such claims. Therefore, the Mer Islanders would have to challenge the validity of that law before their original action could continue. In Mabo v Queensland (No 1) (1988) 166 CLR 186 (‘Mabo No 1‘), the Mer Islanders sought a declaration that the Coast Islands Act was inconsistent with Commonwealth law or that the Queensland government be demurred (prevented) from relying on their law. The High Court of Australia ruled in favour of the plaintiffs on both matters. Section 109 of the Australian Constitution prevents state laws from being inconsistent with federal laws, and section 10(1) of the Racial Discrimination Act 1975 (Cth) (‘RDA‘) prevents laws that restrict the rights of “persons of a particular race, colour or national or ethnic origin.” Therefore, the original action could proceed.

In Mabo, the High Court of Australia held that native title existed at common law. Importantly, the majority found that when the Crown annexed the land, the Crown only held radical title. Radical title is a doctrine of English comm law that gives the Crown authority to grant itself or another party an interest in the land, meaning that they have a right to use or possess it. However, as was explained by Justice Brennan:

“But it is not a corollary of the Crown’s acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants. If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title … [b]ut, if the land were occupied by the indigenous inhabitants, and their rights and interests in the land, are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land.”

In essence, what this meant was that although the Crown, and by extension the government, held a radical title to the land, and could therefore give land to itself and others, but if the Indigenous people who held a claim to the land could prove their claim, native title would overrule the Crown’s interest in the land. This is because the claim of the local Aboriginal or Torres Strait Islander people originated outside of the Crown. Therefore, the Mer Islanders had a successful native title claim.

However, although Mabo appeared to be a victory for the Mer Islanders, and all Aboriginal and Torres Strait Islander peoples, several issues arose. Firstly, the court recognised that a government could extinguish a native title claim, provided that the native title claim was inconsistent with government interest, and the actual extinguishing was not inconsistent with law. This suggests that Coast Islands Act could be valid if it didn’t contradict the RDA. Even more alarmingly, Chief Justice Mason and Justice McHugh concluded that “native title, where it exists, is a form of permissive occupancy at the will of the Crown.” Justice Brennan also agreed, and the only dissenting judge, Justice Dawson, appeared to agree as well. In addition, the court split 4-3 on the issue of compensation, with the majority concluding that if a government did extinguish a native title claim, it did not have to compensate the claimants. Thus, an implication of Mabo was that even though native title claims existed outside of the Crown, and therefore a claim could be made, the interests of the government were superior, and there was no need to compensate the Indigenous claimants.

The recognition of native title at common law, meaning that it could be granted by the courts, which was a result of Mabo, led to the creation of the Native Title Act 1993 (Cth) (‘NTA‘). This law governed the process of lodging a native title claim. Its passage also encouraged other groups to come forward with their own claims. Additionally, section 51 of the NTA overruled the High Court of Australia’s divisive ruling on compensation, instead allowing for compensation to be given to claimants who had their claim extinguished. Following Mabo, native title claims existed outside of the common law, and were instead dependent on the customary law of the Aboriginal or Torres Strait Island people who had a historical claim to that land.1 But despite the apparent victory of Mabo, the battle for native title was far from won.

Colonial governments had taken advantage of the size of Australia for a long time, issuing pastoral leases for cattle and sheep farms. In Wik Peoples v Queensland (1996) 187 CLR 1 (‘Wik’), the High Court of Australia was asked to resolve the competing claims of the Wik peoples from Cape York in Queensland and the claims established under pastoral leases. The Wik peoples had brought previous claims against the Queensland government. For example, the state government granted Comalco a mining lease in 1975, which the Wik peoples challenged. Although they were successful in the Queensland Supreme Court, the Privy Council of the House of Lords in Britain overturned that judgment in Corporation of the Director of Aboriginal and Islanders Advancement v Peikinna & Ors (1978) 52 ALJR 286, to the dismay of the Wik peoples and their supporters. Shortly afterwards, the Aboriginal Development Commission sought to purchase part of a pastoral lease, which Sir Joh Bjelke-Petersen’s government denied. Although the High Court of Australia upheld the purchase of the lease in Koowarta v Bjelke-Petersen (1982) 39 ALR 417, the state government then turned the land into a national park, to avoid having to follow the court ruling. These two cases demonstrate the lengths that governments would go to maintain the discriminatory status quo.

However, with the success of Mabo, the Wik peoples tried again in Wik. They claimed that the granting of pastoral leases over their land did not extinguish their claim to the land. The court was much more divided this time than they were in Mabo, with a 4:3 split rather than a 6:1 split on whether there was a native title claim. This was further complicated by the fact that each judge in the majority had different reasoning for their judgment. Two of the judges, Chief Justice Brennan and Justice McHugh, who had found in favour of the Mer Islanders in Mabo did not rule in favour of the Wik peoples. Ultimately, it was concluded that granting a pastoral lease does not extinguish any native title claim, as the holder of the lease does not have exclusive possession of the property. That is similar to the finding in Mabo that the Crown did not have absolute beneficial ownership. However, when the rights conferred to the holder of the lease conflict with the native title rights, the rights conferred under the lease are held to be superior, and will overrule native title rights to the extent of any inconsistency. If there is no inconsistency, the rights of the native title holders and pastoralists will co-exist.

Wik is one of the most important cases about native title to have been held in post-Mabo Australia. The reaction to the verdict of the High Court of Australia demonstrates how Australia still had a long way to come on this issue, but also the progress since Mabo. Aboriginal and Torres Strait Islanders welcomed the decision. Marcia Langton, a descendant of the Yiman and Bidjara peoples, and a member of the Council for Aboriginal Reconciliation, praised it for its support for co-existence, arguing that the issue of inconsistency is not a significant one, as there is little conflict between the pastoralists’ rights and native title rights. On the other hand, those in the agricultural and mining sectors were concerned, with President of the United Graziers’ Association, Larry Acton, claiming that 28%, or more, of Queensland could be subjected to native title claims. Although this complicated the situation for the Department of Natural Resources, who now had to review past decisions that could conflict with native title claims, they pledged to consult Aboriginal and Torres Strait Islander stakeholders in future decisions for land development. The National Indigenous Working Group on Native Title (NIWG) was established in 1997 from a meeting held between representatives of Aboriginal and Torres Strait Islander peoples, the mining and agricultural sectors, and other stakeholders, with NIWG seeking to work with the government to advocate for native title rights, but not at the extent of invalidating all other grants and decisions. This was co-existence in action.

In Parliament, the situation was much more difficult. Prime Minister John Howard was faced with calls to outright extinguish all native title claims by the National Party and the National Farmers Association. Without the National Party, Howard’s Liberal Party would not be able to form government with a majority in the House of Representatives. Howard refused to cave in, warning them that they had to accept “the sensitivity of the Aboriginal community to the notion of extinguishment of title.” Furthermore, the Australian Labor Party expressed concerns that extinguishing native title would lead to costly compensation. Howard proposed a compromise solution, telling the Aboriginal and Torres Strait Islander peoples that the decision of the High Court could not be accepted automatically. On May 1, 1997, his ‘10 Point Plan‘ was released. This plan focused on negotiating native title claims, and gave states and territories the autonomy to put in place their own plans. A registration test was also placed on all claims. This plan proved to be controversial in the National Party, with Fischer supporting it, but other prominent figures in the party, like Queensland Premier Rob Borbidge, still demanding that common law native title claims on pastoral leases be abolished. The Aboriginal and Torres Strait Islander Commission opposed the broad language of the proposal. Many ordinary Australians also continued to support immediate extinguishment. Therefore, the compromise solution was seen as a solution that neither side supported.

However, to gain the support of Fischer, Howard was forced to compromise further, changing Point 2 of the plan. The amendment, released on May 8, read as follows:

“States and Territories would be able to confirm that ‘exclusive’ tenures such as freehold, residential, commercial and public works in existence on or before 1 January 1994 extinguish native title. Agricultural leases would also be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended. Any current or former pastoral lease conferring exclusive possession would also be included.”

The importance of Jan. 1, 1994, is that is when the NTA came into effect. This amended point meant that states and territories could extinguish native title claims on pastoral leases, if the state or territory government could prove that it was reasonably intended for the lease to convey exclusive possession. This would effectively reverse a major part of the decision in Wik, as in that case the court held that pastoral leases did not grant exclusive position.

The 10 Point Plan entered law as the Native Title Amendment Act 1998 (Cth) (‘NTA Amendment‘), to amend the NTA. Section 3 of the amendment provided that the NTA would have to be read in the context of the RDA. This is important, because there was some debate in Mabo about the importance of the RDA. Section 3 resolved that debate, ensuring that the NTA would be affected by section 10(1) of the RDA. However, the rest of the NTA Amendment undermined much of the progress made in Mabo and Wik. Amongst these provisions were the validation of some leases that had been granted illegally between Mabo and Wik; the right of the native title claimants to negotiate was reduced to only be applicable at the start of the grant of mining and pastoral leases, and in government and commercial development it was reduced to mere consultation; and although existing access rights were confirmed in some cases, that confirmation only lasted until the claim was decided. There was also a preference towards an agreement between parties on native title rights, rather than a tribunal or court handing down a legally binding verdict. The reduction of the right to negotiation was a further modification to the 10 Point Plan, which placed much more importance on it.

By the time of the passage of the NTA Amendment, the High Court of Australia was also reducing native title rights. In Fejo v Northern Territory of Australia (1998) 195 CLR 96 (‘Fejo‘), the court heard a case brought by the Larrakia people over vacant Crown land in the Northern Territory that had once been held as freehold title. Freehold title meant that it was held in fee simple, which granted complete ownership over the land. The High Court of Australia affirmed their earlier rulings in Mabo and Wik that if the land was granted as freehold title, native title was extinguished, and could not be revived. Native title can only apply to lands that have always been held as Crown land or leased out by the Crown. Thus, the claim of the Larrakia people was extinguished. The court also held that although Indigenous law was necessary to establish native title, it was not sufficient on its own to warrant recognition by the courts at common law. This was a major blow to native title activists. The position held by a majority of six of the seven judges was that “[t]he underlying existence of the traditional laws and customs is a necessary pre‑requisite for native title but their existence is not a sufficient basis for recognising native title.” This is despite the fact that the court recognised the ruling of Justice Brennan in Mabo that native title originates from the traditional laws and customs of the Indigenous custodians of the land, and that common law recognises native title.

However, not all court decisions were so negative. In Western Australia v The Commonwealth; Wororra Peoples v Western Australia; Biljabu v Western Australia (1995) 128 ALR 1 (‘WA v Cth‘), the Commonwealth government brought an action against the state government of Western Australia over the Land (Titles and Traditional Usage) Act 1993 (WA) (‘WA Act‘), which was passed by the Western Australian government “to extinguish native title and replace it with statutory rights of traditional usage.” The Wororra, Yawuru, and Martu peoples also brought native title claims against the state government, and these were heard at the same time as the case between the state and Commonwealth governments. The Aboriginal cases were successful. With regard to the Commonwealth action, the High Court of Australia unanimously held that the creation of Western Australia as a separate colony to New South Wales did not extinguish native title. The joint judgment of six judges “held that the presumption remained that native title was not extinguished by settlement.” It was also unanimously held that the WA Act was inconsistent with section 10 of the RDA. That is similar to the verdict in Mabo No 1. The intervention of the federal government was important, as Western Australia was the only state to not pass land rights legislation; indeed, in the previous decade the state’s Premier Brian Burke had convinced Prime Minister Bob Hawke to not pass land rights legislation, and the Western Australian Chamber of Commerce carried out a propaganda campaign against native title, telling non-Aboriginal Western Australians that “your right of ownership could be under threat.”2

Although native title did receive recognition and protection prior to Mabo, this was only in a patchwork fashion. For example, the federal government passed the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘ALRA‘) for the Northern Territory, before the Northern Territory was granted self-government, with that law being considered “as the high water mark in land rights legislation,” as it granted Aboriginal peoples in the Northern Territory a strong right to native title over land; granted them significant control over relevant decision-making processes; and provided for financing arrangements that allowed for the creation of organisations to represent Aboriginal peoples.3 Similarly, South Australia passed the Aboriginal Lands Trust Act 1966 (SA), which created the Aboriginal Lands Trust that could transfer or lease lands to Aboriginal peoples.4 In 1985, the Hawke government returned Uluru and Kata Tjuta to the Anangu people. That land had not been affected by the ALRA, as it had been declared a national park in 1977.

However, it was not until the 1990s that native title came to be recognised more broadly. Mabo No 1 and WA v Cth both saw the High Court of Australia strike down discriminatory laws that prevented the operation of the RDA. There was also a more uniform national response to native title claims, although friction remained between various governments. And in Mabo, international law that recognised equality and opposed discrimination was received well. It also encouraged more native title claims than before, many of which were successful, unlike in the past. The Aboriginal and Torres Strait Islander Protection Act 1984 (Cth) was invoked to prevent the Northern Territory from interfering with sacred sites.

But Australia still had a long way to come. Although cases like Mabo, Wik, and WA v Cth recognised native title, Fejo undermined the importance of Aboriginal and Torres Strait Islander laws and customs. Similarly, Chief Justice Mason of the High Court of Australia ruled in Coe v Commonwealth (1993) 118 ALR 193 (‘Coe‘) that the claims of sovereignty and autonomy put forward by the Wiradjuri people were inconsistent with the sovereignty of Australia, and he held that the only rights they were entitled to were those granted to them by the law. The consequence of Fejo and Co was that Indigenous law was considered to be inferior to white Australian law. Glen Kelly, chair of the South West Aboriginal Land and Sea Council of Western Australia and a member of the Noongar people, said of the NTA that “[i]t’s a white fella legal construct and what it is actually designed to do, in my view, is not to enliven traditional law and custom but to control traditional law and custom.”

Although the 1990s signalled a move away from terra nullius, native title rights remained a complicated issue. Important steps were made in the courts and in Parliament, and proper legislative schemes were drawn up, but the approach taken to native title was marred by politics and racial tension, with the Bjelke-Petersen government going out of its way to prevent native title claims from being successful.

Bibliography

  1. Vines, P 2013, Law and justice in Australia: Foundations of the legal system, 3rd edn, Oxford University Press, Oxford, p. 8.
  2. McRae, H and Nettheim, G 2009, Indigenous legal issues: Commentary and materials, 4th edn, Thomson Reuters Lawbook Co Of Australasia, Sydney, p. 273.
  3. McRae, H and Nettheim, G 2009, Indigenous legal issues: Commentary and materials, 4th edn, Thomson Reuters Lawbook Co Of Australasia, Sydney, pp. 225-6.
  4. McRae, H and Nettheim, G 2009, Indigenous legal issues: Commentary and materials, 4th edn, Thomson Reuters Lawbook Co Of Australasia, Sydney, pp. 257-8.
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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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