Claims Disscusion with Africa/Australia Exchange (25/3/98)
NOTES PREPARED BY MICHAEL BARKER QC FOR THE LIMITED PURPOSES OF DISCUSSIONS WITH MEMBERS OF THE PILOTLIGHT "AFRICA/AUSTRALIA EXCHANGE" IN PERTH ON WEDNESDAY, 25 MARCH 1998. These notes are not to be reproduced in any form without the author's permission.
Author : Michael L Barker QC
- Michael Barker QC and Chris Pullin QC
Michael Barker is Senior Counsel for the Miriuwung and Gajerrong Peoples (First Applicants) in Federal Court of Australia proceedings NO WAG 6001 of 1995. Mr. Chris Pullin is Senior Counsel for the State of Western Australia (First Respondent) in the same action.
- The Miriuwung/Gajerrong claims
The First Applicants applied for a determination of native title in respect of their traditional lands in the East Kimberley region of the State of Western Australia pursuant to an application made under the Native Title Act 1993 (Commonwealth) lodged in May 1994. The application was received and registered by the Registrar of the National Native Title Tribunal under the Act. Mediation of the application involving various parties, including the Miriuwung and Gajerrong Peoples and the State of Western Australia, ensued. When it was clear the application could not be resolved by mediation, it was referred to the Federal Court of Australia for determination, pursuant to the Act.
- The trial of the action commenced with the taking of evidence in the East Kimberley
region, on the traditional lands of the applicants, on 21 July 1997. Direct evidence of
the applicants was taken at various locations throughout the claim area until 2 October 1997.
Further evidence was taken form witnesses other than the applicants themselves, especially
expert anthropologists, historians, oral historians, archaeologists, linguists, concerning
the application in Perth in late November and early December 1997, and again in January and
February 1998. Expert reports had been filed earlier in the proceedings. The evidence in
the proceedings is now complete and the parties have closed their cases. Written submissions
have been lodged with the court and oral submissions will be made commencing Monday, 30
March 1998 and completed on Thursday, 9 April 1998. It will then remain for the trial
judge to deliver a reserved judgment. It is quite possible that the reserve judgment will
be the first determination following a trial made by the Federal Court under the Native
Title Act. Such a determination may be the first court decision following a trial in
relation to native title since the landmark Mabo (No 2) decision of the High Court (1991 - 92)
175 CLR 1.
- The Determination requirements
A determination under the Native Title Act is a creature of statute, although reflecting the requirements of the common law of Australia as set out in Mabo (No 2).
Section 225 of the Native Title Act requires the Federal Court to determine -
a) whether native title exist:
b) if it exists:
I. who holds it
II. whether the native title confers possession, occupation, use and enjoyment of the land claimed on its holders to the exclusion of all others;
III. Those native title rights and interests that the court considers to be of importance:
IV. The nature and extent of any other interest in relation to the land that may affect the native title rights and interest.
- Under Mabo, and under s.223 of the Native Title Act, applicants for native title must
prove that the communal, group or individual rights and interests they claim in relation
to land --
I.are possessed under traditional laws acknowledged and traditional customs observed by their Aboriginal group:
II. that the Aboriginal group has, by those laws and customs, a connexion with the land claimed:
III. the rights and interests are recognised by the common law of Australia.
- The High Court held in Mabo (No 2) that native title is not proprietary in nature.
- In Mabo (No 2) Brennan J (as he then was, now the Chief Justice of Australia) (with whom
Mason CJ and McHugh J agreed) found the under Australian common law the traditional community
of an Aboriginal group will remain in existence -
"where a group has continued to acknowledge the laws and (so far practicable) to observe the customs based on the traditions of that group, whereby their traditional connexion with land has been substantially maintained."
- All majority justices of the court accepted that the requirement of substantial maintenance
of a connexion in accordance with traditional law and custom permits of some discontinuities
over time, and that change in the laws and customs of the people does not prevent the survival
of native title if the people remain as an identifiable community and continue to live under
traditionally based laws and customs, as currently acknowledged and observed: see Brennan
J in Mabo (No 2) at p. 61.
- Extinguishment
The High Court in Mabo (No 2) also held (by majority) that native title could be extinguished without compensation by clear executive or legislative acts, but that there had to be a clear and plain intent to extinguish native title before a court would so hold.
- However, since the coming into operation of the Racial Discrimination Act (Cth) on 1
September 1979, any purported act of extinguishment would be invalid as it would involve
a breach of that Act.
- The general position, after Mabo (No 2), was that it was thought many acts of colonial
governments and Parliaments in Australia prior to the federation of the Australian States and
the coming into being of the Australian nation pursuant to the Commonwealth Constitution on 1
January 1901, as well as acts of State governments and Parliaments after Federation and prior
to the coming into operation of the Racial Discrimination Act on 1 September 1975, were likely
to have extinguished native title in whole or in part. For example, the grant of freehold
titles to European settlers was considered to have extinguished native title wholly. In
Australia, both before and after Federation, land management powers remained in the hands of
the colonial governments/State governments. Mabo (No 2) left unanswered many questions,
including whether native title survived to any extent on Crown lands the subject of "pastoral
leases," mining leased, national parks and the like.
- The Wik case
Whether or not total partial extinguishment of native title may have occurred through much of "remote" Australia where, historically, "pastoral leases" had been granted to European settlers, remained a moot issue. In Wik People v State of Queensland (1996) 187 CLR 1, the High Court (by majority) held that "pastoral leases" do not, as a matter of law, necessarily extinguish the whole of native title. Rather, it is necessary to ascertain the native title rights and interests claimed under traditional laws by an Aboriginal group and then to assess the extent to which such native title is inconsistent with the rights ranted under a "pastoral lease". To the extent that the native title is not inconsistent with a pastoral lease, native title survives. However, in the event of inconsistency, the rights under the "pastoral lease" prevail. In the course of its analysis, it is fair to say that the majority of the High Court treated pastoral leases differently from a "lease" as ordinarily understood under the general property law. Pastoral leases, so called, were treated by the High Court as more akin to a statutory license.
- The decision in Wik Peoples v State of Queensland was on a preliminary issue whether or
not there was an arguable cause of action. The decision in Wik therefore dealt with the
question of extinguishement by pastoral leases as a preliminary point and before a full
trial of factual matters had been conducted. At present, no determination has been made by
a court as to the extent to which pastoral leases partially extinguish native title.
- The Miriuwung Gajerrong claim may be one of the first decisions, if not the first, to
grapple with the issues left unanswered in Mabo (No 2) and Wik.
- The Native Title Act and the "right to negotiate"
The Native Title Act was passed in order to deal with a number of practical and, ultimately, political uncertainties that arose out of the Mabo (No 2) decision. The mining and pastoral industries, in particular, were anxious to have settled the circumstances in which native title may have ceased to exist. The Native Title Act was enacted following difficult political negotiations led by the Commonwealth (Keating, Labor) Government. It is complex legislation. It attempts to make clear that certain "past acts" have been effective in extinguishing native title, with or without compensation. The date the Racial Discrimination Act came into operation is relevant to those issues. However, in relation to "future acts" it provides a system for deciding whether they may be carried out, notwithstanding interference with native title. In relation to certain, more important, future acts (such as mining proposals) Aboriginal people have been given a "right to negotiate" with State governments and the third parties who which to carry out the future act (for example, mining companies) and the State has a duty to facilitate negotiations. The negotiating parties may complete enforceable agreements. If they cannot arrive at an agreement, they may go to the National Native Title Tribunal (or equivalent State-based tribunals) and obtain a ruling as to whether the act may be done and, if so, the conditions, if any, upon which a future act may be carried out. The tribunal can award compensation as a condition of allowing a future act to be carried out.
- Much negotiation in respect of future acts has been occurring over the past number of years
since the Native Title Act was passed, even though in all cases Aboriginal groups have not
yet been awarded native title. Such negotiations and agreements reached have been
prospective, in the sense that they may depend upon an award of native title being
granted in the future. However, some agreements appear to have been entered into between
Aboriginal people and mining companies, for example, that do not depend upon a subsequent
grant of native title being made.
- The right to negotiate has been the subject of much political debate in Australia,
particularly in recent times. The right to negotiate in relation to land that is the
subject of a pastoral lease, has been the subject of particular political controversy.
Proposals to amend the Native Title Act by the present Commonwealth Government have
included the removal or significant downgrading of the right to negotiate in respect of
future acts on pastoral leases. This has been strongly opposed by the Aboriginal community.
- Other claims
It is early days in Australia so far as the application of the principles of Australian common law in respect of Aboriginal native title is concerned. Four cases are likely to be the subject of Federal Court determinations within the next 6-12 months. The include the Miriuwung Fajerrong case; the Yorta-Yorta case in the State of Victoria; and action involving Aboriginal people near Alice springs in the Northern Territory for whom the Central Lands Council acts; and another action for Aboriginal people in respect of Croker Island in the Northern Territory, for whom the Northern Land Council acts.
- Statutory land rights
It should be carefully noted that, prior to Mabo (No 2) and the recognition by the Australian common law of Aboriginal native title, statutory recognition of Aboriginal title to land had been achieved, to varying degrees, in different parts of Australia. Attached is an offprint of an article by Michael Barker concerning the statutory land rights position as of 1984: Michael Barker, Aboriginal Land Rights Law in Australia: Current Issues and Legislative Solutions, 1984, AMPLA Yearbook. It surveyed the basis upon which statutory Aboriginal land rights had either been implemented or proposed throughout Australian jurisdictions. This was, of course, well before Mabo (No 2) arrived on the legal horizon. The model for statutory Aboriginal land rights in Australia has been the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which has operated in the Northern Territory for the last 20 years and pursuant to which land has been returned to Aboriginal people, together with a considerable measure of resource control.
- The statutory Aboriginal land rights movement was successful in the Northern Territory,
to an extent in South Australia, to an extent in New South Wales and also to an extent
in Queensland. Limited grants to Aboriginal groups were made in Victoria. Western
Australia and Tasmania, however, failed to adopt any (or any significant) statutory
land rights reform in the 1980's or since. In the main, Aborigines succeeded under
this type of legislation in gaining occupation and a measure of control over lands
designated "vacant Crown lands" a large State like Western Australia, with a
significant Aboriginal population, apart from some lands vested in the State controlled
Aboriginal Lands Trust, only minimal protection of traditional lands outside Trust areas
was achievable under legislation such as the Aboriginal Heritage Act (WA).
- The legislative land rights schemes continue to operate notwithstanding Mabo (No 2).
However, the decision in Mabo (No 2) radically altered the position of Aboriginal people
throughout Australia in relation to the ownership or management of land, and empowered
Aborigines for the first time, in a substantive legal sense. Whereas Aborigines were,
in effect, prior to Mabo (No 2) treated as invaders or trespassers on their won traditional
lands (with some statutory exceptions), that is no longer the case, under Australian common
law.
| MICHAEL L BARKER QC | |
| Chamber Address | Francis Burt Chambers 15th Floor, Allendale Square 77 St. George's Terrace Perth Western Australia 6000 |
| Postal Address | GPO BOX C122 Perth Western Australia 6839 Australia |
| Telephone Business |
+61 8 9220 0517 +61 8 9339 6017 |
| Fax Business |
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| barker@cygnus.uwa.edu.au | |
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