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13 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.

This is the final installment in my series on native title and terra nullius in Australia. In Terra Nullius And The Issue Of Indigenous Sovereignty, I traced the history of the doctrine of terra nullius in Australia, and how that was ended in 1992 with Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo‘). I then discussed the debate over native title rights of the Aboriginal and Torres Strait Islander peoples in Mabo And The 1990s: A Move From Terra Nullius To Native Title? In this article, I will analyse how native title has been treated in the twenty-first century, and will conclude with a discussion of whether Australia needs to do more to recognise the rights and history of our First Nations Peoples.

At the turn of the millennia, the High Court of Australia heard the case Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (‘Yorta Yorta Community‘), where the Yorta Yorta peoples sought a determination of their native title claim to land in Victoria. The Federal Court of Australia ruled against the Yorta Yorta peoples, a decision upheld on appeal to the Full Court of the Federal Court of Australia and to the High Court of Australia. Central to this decision was the Native Title Act 1993 (Cth) (‘NTA‘). Under section 225 of the NTA, a determination of native title requires reconciling the rights and interests of the holders of the native title claim and the rights and interests of any other parties. This depends on subsection 223(1) of the NTA, which defines the meaning of ‘native title,’ or its alternate name of ‘native title rights and interests,’ which reads as follows:

“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 recognised by the common law of Australia.”

The trial judge found that the tide of history had washed away any acknowledgment by the Yorta Yorta peoples of their traditional customs and laws, so therefore the test under subsection 223(1) was not met. The High Court of Australia dismissed the appeal, with Chief Justice Gleeson and Justices Gummow and Hayne delivering the majority judgment, with Justices McHugh and Callinan agreeing with the ultimate conclusion of the majority. Only Justices Gaudron and Kirby ruled in favour of the Yorta Yorta peoples. The majority were critical of the trial judge and the Full Court for relying too heavily on Mabo, and not giving due respect to the NTA. However, they came to the same conclusion, deciding that if there had been an interruption of the acknowledgment and observation of the traditional laws and customs, that was sufficient for the test to not be met; there had to be continuous observation and acknowledgment, so any interruption extinguished a native title claim. The majority decided that the ancestors of the Yorta Yorta peoples had “ceased to occupy their lands in accordance with traditional laws and customs,” and that there was no proof that the observation and acknowledgment continued. Therefore, as the Yorta Yorta society no longer observed those laws and traditions, they were not the same society that created the laws and traditions. The Yorta Yorta peoples had sought an appeal because the trial judge and the Full Court were “frozen in time” in their understanding of Aboriginal peoples, and the fact that the High Court did not recognise that customs and laws could evolve over time, or be manifested differently. International law lawyer James Cockayne criticised the courts for being selective about which parts of law, tradition, and custom the common law recognised as falling under native title. Indigenous rights advocate and lawyer Jeremy Webber argued that decisions like this one try to enforce common law over native title, and prevent Aboriginal and Torres Strait Islander peoples from exercising self-government.

Yorta Yorta Community was preceded by Commonwealth v Yarmirr (‘Yarmirr‘). This is a unique case because the native title claim was made over the sea and seabeds surrounding Croker Island. In that case, the High Court of Australia upheld the appeal by the Commonwealth government of the decision by Justice William Olney of the Federal Court of Australia, the same judge to also hear the original trial of Yorta Yorta Community, and who later became the Aboriginal Lands Commissioner. The majority ruling by the High Court of Australia held that because native title isn’t derived from or a result of common law, the Crown does not need to have radical title over a place in order for native title to exist. Instead, the majority stated that

“[t]he inquiry must begin by examining what are the sovereign rights and interests which were and are asserted over the territorial sea [of Australia by the Crown]. Only then can it be seen whether those rights and interests are inconsistent with the native title rights and interests … which are claimed.”

It was determined that the Crown did not hold absolute beneficial title over the territorial sea, with there being some limitations on the sovereign rights and interests. The limited rights and interests meant that there was “no necessary inconsistency” with native title. Therefore, it was not necessary to consider the issue of radical title. As a result, the High Court agreed with Olney that the native title rights and interests of the people of Croker Island included non-commercial fishing rights; the right to travel in the claimed land; and the freedom to travel to spiritual and cultural places of importance within the area claimed. However, the High Court agreed to limit the claim to the internal waters of the Northern Territory. That limitation to internal waters of the Northern Territory would later be applied by Federal Court in Akiba v Queensland [No 2] (2010) 270 ALR 564, in relation to Queensland’s internal waters.

An issue in the twenty-first century has been reconciling national security interests and native title. In Queensland v Congoo (2015) 256 CLR 239 (‘Congoo‘), the Bar-Barrum people from the Atherton Tableland in north Queensland sought a determination of their native title claim to that land. During World War 2, the Commonwealth government exercised its power under regulation 54 of the National Security (General) Regulations 1939 (Cth), a regulation authorised by the National Security Act 1939 (Cth) (‘NSA‘), to take possession of that land for military use, before relinquishing possession in 1946. As demonstrated in Yorta Yorta Community, for a native title claim to exist, there must be a continuous connection to the claimed land. Therefore, the issue was whether the military orders made under section 54 and the actual physical occupation of the land extinguished the native title claim. If the military orders and/or occupation interrupted the continuous connection, native title would be extinguished, but the actions of the Commonwealth could also extinguish the native title claim without interrupting the connection. The Full Court of the Federal Court of Australia ruled 2:1 in favour of the Bar-Barrum people. The decision was appealed to the High Court of Australia, which split 3:3 over the matter, which meant that the earlier ruling was affirmed. It is worthwhile noting that the judgment in favour of the Bar-Barrum people included Chief Justice Robert French, who was the first President of the National Native Title Tribunal, which was established under the NTA, in the aftermath of Mabo. French CJ, ruling jointly with Justice Keane, considered the Second Reading Speech made by Prime Minister Robert Menzies, in relation to the NSA. In that speech, Menzies explained that the NSA was to limit existing rights as little as possible, and French CJ and Keane J interpreted the speech to mean that the Commonwealth was taking possession of the land under statutory power, not as a property right. Combining that speech with other High Court rulings on non-native title rights affected by the NSA, French CJ and Keane J held that pre-existing native title rights would continue to exist, though they were affected by the Commonwealth’s actions. The majority considered native title rights to be equivalent to other property rights in relation to the statutory scheme established by the NSA, with Justice Gageler, also part of the majority, saying that the regulation “expressly acknowledged the continuing existence of all such pre-existing rights, irrespective of the source of those rights.” We shall revisit this discussion of property rights later. This decision was very important, as it upheld native title rights in relation to military orders made by the Commonwealth, and with over 13,000 such orders made, if native title rights were not upheld then many native title claims would be extinguished.

One of the most important cases regarding native title is Northern Territory v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (‘NT v Griffiths‘), the result of around two decades of litigation against the Northern Territory by the Ngaliwurru and Nungali peoples. In Griffiths v Northern Territory (2007) 165 FCR 391, the Full Court of the Federal Court of Australia granted exclusive native title rights to the claimed land. In Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900, Justice Mansfield held that the native title had been extinguished by 53 acts committed by the Northern Territory government between 1980 and 1996. These acts were carried out after the passage of the Racial Discrimination Act 1975 (Cth). Accordingly, the Ngaliwurru and Nungali peoples were entitled to compensation under Part 2 of the NTA

“for loss, diminution, impairment or other effect of certain acts on the [Ngaliwurru and Nungali peoples’] native title rights and interests over lands in the area of the township of Timber Creek in the north-western area of the Northern Territory.”

Kiefel CJ, Bell, Keane, Nettle and Gordon JJ in NT v Griffiths

Mansfield J ordered compensation for 31 of the 53 acts. The High Court upheld the order for compensation, although reduced it from the $3,300,661 ordered by Mansfield J and $2,889,446 ordered on appeal to the Full Court of the Federal Court in Northern Territory of Australia v Griffiths (2017) 256 FCR 478, down to $2,530,350. This case is a landmark case because the High Court of Australia allowed for compensation for cultural loss. The High Court recognised that the extinguishment of native title and the acts carried out by the Northern Territory had caused cultural and spiritual loss and harm, and so included cultural loss in the calculations for compensation.

In Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People (2019) 374 ALR 448 (‘FMG v Warrie‘), the Full Court of the Federal Court of Australia upheld the Federal Court of Australia’s determination that the Yindjibarndi people held exclusive native title to Fortescue Metals Group’s Solomon Hub mines, in addition to other claimed land. The claim was held to be valid under the NTA, and the court affirmed the decision of the trial judge that “spiritual necessity” was a valid reason for granting exclusive native title rights. Justices Robertson and Griffiths noted that “the spiritual, cultural and social context” of the connection to the land can be used as evidence of occupation under the NTA. Therefore, carrying out spiritual ceremonies on the land is evidence that can be seen as occupation, because the essence of the requirement of occupation is that the Yindjibarndi must establish that they exercised their traditional rights and interests in a manner that is consistent with a finding that they treated the land as if it was their own. Robertson and Griffiths JJ also stated that traditional customs, laws, and practices are intricate and may be difficult for common law lawyers, who have been educated in a different legal system, to understand. Fortescue sought special leave to appeal that decision to the High Court of Australia, but it was dismissed by Justices Keane and Edelman in Fortescue Metals Group Ltd & Ors v Warrie & Ors [2020] HCATrans 65.

Cases like NT v Griffiths and FMG v Warrie demonstrate that the legal system was developing a much more nuanced and accepting stance towards native title, certainly more so than in the complicated years following Mabo, as the comments of Robertson and Griffiths JJ indicate. Meanwhile, Yarmirr and Congoo reflect the greater importance that was placed on native title by the courts, with it being equated to property rights in Congoo. Gone were the days of the 1990s, where native title was seen as secondary to other rights and interests. However, the issue of native title and the rights of Australia’s First Nations Peoples also developed outside of the courts.

Many important amendments were made to the NTA in the twenty-first century. Most recently, the Native Title Amendment Act 2021 (Cth) (‘NTAA 2021‘) amended the NTA to add section 47C, which allowed for the extinguishment of native title over national, State, and Territory parks to be disregarded, with the consent of the relevant government. Schedule 4 of the NTAA 2021 also allowed native title body corporates to seek compensation. Under the Native Title Amendment Act 2009 (Cth), the Federal Court of Australia was granted greater statutory authority to determine native title claims, as well as being provided with authority to create broader agreements than native title ones. Further administrative refinement to the process was made with the passage of the Courts and Tribunals Legislation Amendment (Administration) Act 2013 (Cth) and Courts Administration Legislation Amendment Act 2016 (Cth). Schedule 3 of the Human Rights Legislation Amendment Act 2017 (Cth) removed the requirement for the Aboriginal and Torres Strait Islander Social Justice Commissioner to make an annual report on the NTA and its impact on the human rights of Aboriginals and Torres Strait Islander peoples.

A variety of other policies and laws were enacted that are tangential to the issue of native title. One of the most important ones, in terms of symbolism, was the National Apology speech made by Prime Minister Kevin Rudd on 13 February 2008, which recognised and apologised for the treatment of Australia’s First Peoples at the hands of white Australians. Although it came nowhere remotely close to making up for the atrocities committed, it was a symbolic gesture that signalled a willingness to move forward to make a better Australia. As Rudd said,

“We today take this first step by acknowledging the past and laying claim to a future that embraces all Australians, a future where this Parliament resolves that the injustices of the past must never happen again.”

The federal government passed the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) in 2013, to recognise the status of Australia’s First Peoples. However, it included a sunset clause in section 5, which caused it to lapse in 2018. The intention was that a referendum would then be held to grant constitutional recognition of their status. That proposal never came to fruition, with the government scrapping it and citing a lack of public support for it. However, many Aboriginal and Torres Strait Islander leaders, academics, and communities have continued to oppose constitutional recognition, with Kombumerri academic Mary Graham saying that it would not achieve anything of substance. Instead, there is a preference for a treaty between the First Nations peoples and the Australian government. The concept of a treaty, and why it wasn’t adopted, was discussed in Terra Nullius And The Issue Of Indigenous Sovereignty. On 26 October 2019, following the wishes of the Anangu people, it was decided that Uluru, which had already been given back to the Anangu people, would be closed to tourists, as it had previously been a rock-climbing attraction. Climbing Uluru was not condoned in Anangu culture.

Finally, in 2020 the High Court of Australia appeared to recognise the status of Australia’s First Peoples. The government attempted to deport two men who were not citizens of Australia, nor were they born in Australia, although they each had one Australian parent. Brendan Thoms, a member of the Gungarri people and a native title holder, and Kamilaroi man Daniel Love held permanent residential visas, which were cancelled after the two served jail time in 2018. In Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152 (‘Love‘), the High Court of Australia was required to determine if persons of Aboriginal or Torres Strait Islander descent could be deported under section 51(xix) of the Commonwealth of Australia Constitution Act 1900 (Imp). That provision allowed the Commonwealth to pass laws regarding aliens, which could be deported under the Migration Act 1958 (Cth). All seven judges issued separate judgments, but a majority of four judges held that Aboriginals and Torres Strait Islanders could not be deemed to be aliens, so therefore could not be deported under section 51(xix). Because Brendan Thoms was a native title holder, it was deemed that he was an Aboriginal person, while the case of Daniel Love was returned to the Federal Court, to determine whether he was an Aboriginal person. As the case is less than two years old at the time of writing, its impact is yet to be fully determined.

The treatment of Australia’s First Nations peoples in the twenty-first century, although not perfect, was much better than in the years immediately following Mabo. Yorta Yorta Community and the issue of constitutional recognition demonstrate that the matter is not fully resolved. However, the courts have taken a much more accommodating approach to Aboriginal and Torres Strait Islander peoples, and Love appears to reflect the greater recognition of the diverse and nuanced culture of Australia’s First Nations peoples, as seen in FMG v Warrie.

Epilogue: An Argument For Equality Of Native Title Rights And Other Rights

The approach taken by the courts of allowing native title rights to co-exist with other property rights, as was recognised in Congoo, grants everyone all Australians an equal position in society. Although Australia’s First Peoples ought to be recognised, that does not mean that other Australians should be granted a lower status in society. This is not a zero-sum game. Native title rights can be seen as being somewhat analogous to property rights, although it should be remembered that such a comparison is not perfect, because as Glen Kelly pointed out, they are different systems, with Kelly going so far as to say that the NTA is imperfect, as it is a “white fella construct.” Co-existence is possible, because of the concept of custodianship, which is an attempt by Westerners to understand how Aboriginal and Torres Strait Islander peoples describe their relationship to the land, as it is not ownership in the Western sense of the term. According to international human rights law expert Rhona Smith,

“the essential and timeless nature of the relationship of a man to his Dreaming and of the ownership and power that the land exerts over him has never been fully understood. A man deprived of his homeland (and therefore of his Dreaming sites) becomes nothing, a non-person without vitality or hope for the future. The Aboriginal claim is not to a specified area on behalf of an individual, but to the spiritual content of a whole territory on behalf of the group, so that the places made sacred in the Dreaming can be carefully safeguarded and tended for perpetuity.”

It is important that Australia’s First Peoples be included in decision-making processes, to reflect their position as the first inhabitants of Australia. A democratic government acts with the consent of the governed. As native title exists outside of the common law legal system, nor is it derived from the common law, the consent of Aboriginal and Torres Strait Islander peoples should also be attained by governments during decision-making. This is similar to how a government must negotiate with private property owners when the government wants to develop public projects, such as the construction of infrastructure. A right to negotiate with regard to ‘future acts’ in an area claimed under native title already exists in Part 2, Division 3, of the NTA. This involvement must be done at a local level. Just as a local government can best understand and represent the people in their area, so too must the local Aboriginal and Torres Strait Islander peoples also be consulted, rather than a broad national body that is less equipped to deal with the intricacies and nuances of each different First Nations people. For example, a lack of involvement by the Western Wakka Wakka and Jagera peoples of Toowoomba meant that the construction of the Toowoomba Second Range Crossing was almost faced with a protest over concerns that cultural sites could be destroyed. Members of the Western Wakka Wakka people claimed that they had not been consulted. One claimant, Adrian Beattie, compared these sites with churches. A decentralised, regional approach to working with native title claimants, giving the native title claimants key influence over the decision-making process will allow for native title rights and interests to be properly respected, is necessary. This reflects their status as equal citizens of Australia, yet also as peoples with their own traditions and customs.

Generally, the courts have been inclined to order non-exclusive native title rights. For example, exclusive native title rights were only granted in FMG v Warrie because of disputes between Fortescue Mining Group and the native title claimants, so exclusive native title was necessary to prevent Fortescue Mining Group from infringing upon the native title rights of the Yindjibarndi people. Otherwise, it is possible for non-intrusive property rights to exist alongside non-exclusive native title rights like access to the property, use of sites of cultural significance, and hunting rights. This is a solution that benefits all parties and is in keeping with the rulings in cases like Congoo. However, it requires cooperation between all levels of government and native title claimants to ensure that native title rights are not infringed on, but similarly that Aboriginal and Torres Strait Islander peoples are respecting the rights of others. Co-existence like this is possible once Australians acknowledge that Australia was not merely settled peacefully, but that there was friction and conflict between the colonisers, or even invaders, and the Aboriginal and Torres Strait Islander peoples.

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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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