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Published online by Cambridge University Press: 24 January 2025
In a recent article Andrew Lokan has suggested that the courts are faced with political choices as they deal with native title. The purpose of this paper is to consider the history of the recognition of Aboriginal customary rights to land in Australia, assess the extent to which policy and political issues have thus far been relevant in those developments and then to consider the extent to which such policy and political issues may be relevant in the future. Possible limitations upon the policies that might be considered by the courts are discussed. The discussion also affords an opportunity to look back over the development of the law of native title and to review how and why we have come to where we now are.
I acknowledge the assistance of Laura Grenfell and Jane Cox, both of the SA Crown Solicitor's Office and of Katya Lakes, law student from Flinders University, in researching and commenting on this paper. Tom Pauling QC, Solicitor-General for the Northern Territory and Robert Meadows QC, Solicitor-General for Western Australia were good enough to give me their comments. Some of the material herein relating to international comparisons is derived from the submissions I put on behalf of South Australia in Wik v Queensland (1996) 187 CLR 1 at 55-58 which were refined in Fejo v Northern Territory (1998) 195 CLR 96 at 110 and Yanner v Eaton (1999) 166 ALR 258. Esther David, Danielle Seal and Rod Smith, all then of the SA Crown Solicitor's Office, assisted in preparing the original submissions. The mistakes are mine.
1 Lokan, A, “From Recognition to R0conciliation: Tl10 Functions of Aboriginal Rights Law” (1999) 23 MULR 65 at 67-68Google Scholar: “As the courts move beyond Mabo and Wik, however, to the processing of the hundreds of claims currently in the Native Title Act system and possibly to claims of a non-proprietary nature, they will face increasingly difficult questions as they attempt to give effect to the broad principles set out in those cases. Inevitably, given the intractability of the competing parties' positions and the uncertainty surrounding their legal rights, the courts will be forced to give definition to Aboriginal rights in a way that fashions compromises of a markedly political nature. Especially since Wik, the future of Aboriginal rights litigation seems to require the courts to make such judgments, with little (so far) to guide them in Australian law or history. In short, the courts can be expected to shift their emphasis further from recognition towards reconciliation.”
2 For the purposes of this paper I have used the word “political” to describe policy decisions involving the resolution of competing interests, particularly from a partisan perspective. The word need not bear this meaning. On some occasions it is used interchangeably with “policy”. For example, it appears to have been so used by Kirby J in Newcrest Mining (Western Australia) Ltd v Commonwealth (1997) 190 CLR 513 at 646. It can also be used to mean “of or about the political system”. It was used in this way by Dixon J in Melbourne Corp v Commonwealth (1947) 74 CLR 31 at 82. In this paper the word bears the meaning I have given it. It seems to me that this is also the meaning that it bears in the Loka1.1 article above n 1.
3 This was subject to the qualification that, where the English settlers formed their own separate community, that community was governed by English law: see Advocate General of Bengal v Ranee Surnomoye Dossee (1863) 15 ER 811 at 824. This qualification seems to have been a 19th centmy policy response to the apparent need to ensure that the English “factories” in India and later in China and other Asian countries were governed by English law: see the reference to the “tender concern” of the common law in the judgment of Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR l at 35. The effect of the qualification was the creation of “pluralism” within the legal system: see Amankwah, H A, “Post-Mabo: The Prospect of the Recognition of a Regime of Cnstomary (Indigenous) Law in Anstralia” (1994) 18 UQLJ 15 at 17Google Scholar. This pluralism seems to apply in most of the British colonies established in Africa and Asia: see, eg, Asean Law Association, Asean Legal Systems (1995) at 81-90, 214-231, 245-249. However, in more recent limes some courts in former colonies in Asia seem to have adopted some of the analysis from Canada, Australia and New Zealand: as to Malaysia, see Adong Bin Kuwau v Johor [1997] l MLJ 418 at 426-430; (appeal) [1998] 2 MLJ-158.
4 Forsyth, W, Cases and Opinions on Constitutional Law (1869) at 12-18Google Scholar.
5 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 201-204; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 122-128.
6 For example, Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399. That case concerned land in Lagos which had been acquired by cession: see at 404 and 409.
7 Cooper v Stuart (1889) 14 App Cas 286 at 291-292; W Forsyth, above n 4 al 17-18; Castles, A C, “Reception and Starns of English Law in Anstralia” (1963) 2 Adel LR lGoogle Scholar; Castles, A C, An Australian Legal History (1982) at 1-19Google Scholar.
8 Although beyond the scope of this paper, it should be noted that there is a current debate in the High Court about whether the qualification has any application to Australia and, it so, how: see Lipohar u R (1999) 168 ALR 8 at [43-59] and contrast [230-259]. See also ACCC v Berbatis (2000) 169 ALR 324 at [9-11] and john Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 at [15]. The relevant issue in Lipohar concerned the meaning and effect of there being a single common law in Australia, notwithstanding that the Australian colonies were colonised at different times and in different circumstances. It may be that Gaudron, Gummow and Hayne JJ, particularly at [54], in referring to a single common law accept that that common law may not be wholly applicable in every Australian jurisdiction because it was not appropriate to that jurisdiction at settlement, that is, that there is a difference, albeit slight, between the single Australian common law, and the common law actually applicable in a particular Australian jurisdiction. Alternatively, at [55] they seem to suggest that the common law which was not applicable at settlement might be “picked up” and applied after settlement when the conditions of the colony had become appropriate. This would provide a mechanism by which a single common law could apply within Australia. This seems to be the approach to the reception of the common law in Canada: see R v Nickal (1996) 133 DLR (4th) 658 at 681-683, but this has not been the approach in Australia.
9 Mabo v Queensland (No 2) (1992) 175 CLR lat 32.
10 See Ritter, D, “The 'Rejection of Terra Nullius' in Mabo: A Critical Analysis” (1996) 18 Syd LR 5 at 7-9Google Scholar.
11 Castles, A C, An Australian Legal History (1982) at 14-15Google Scholar.
12 (1836) l Legge 72. The report of the decision suggests that by the time of that case it had been accepted that Aboriginal people were subject to the common law: see eg, D Ritter, above n lO at 10-11. More recent research suggests that the decision in Murrell may have been to recognise that English law was not applicable to Aborigines: see Castles, AC Gill, JP, “Canadian Supreme Court clarifies Mabo Paradox” (1997) 3(88) Aboriginal Law Bulletin (1997) at 11-12Google Scholar.
13 (1847) l Legge 312.
14 AG (NSW) v Brown (1847) 1 Legge 312, 316-318; Cooper v Stuart (1889) 14 App Cas 286 at 291-292; White v McLean (1890) 24 SALR 97 at 100; Williams v AG (NSW) (1913) 16 CLR 404 at 439; Randwick Corporation v Rutledge (1959) 102 CLR 54 at 71; New South Wales v Commonwealth (1975) 135 CLR 337 at 438-439.
15 (1971) 17 FLR 141 at 267. Blackburn J's judgment was and is criticised: see eg,. H McRae, G Nettheim and L Beacroft, Aboriginal Legal Issues (1991) ch 4; RH Bartlett, “Nativ0 Title in Australia” in P Havemann (ed), Indigenous Peoples' Rights in Australia, Canada and New Zealand (1999) at 408 ff.
16 See for example, the analysis in J Crawford, The Creation of States in International Law (1979) at 179-181. Henry Reynolds, in a series of books and articles, has gone further: see eg, The Law of the Land (1987; 2nd ed 1992); “Mabo and Pastoral Leases” (1992) 2(59) Aboriginal Law Bulletin 8-10; “The Mabo Judgment in the Light of Imperial Land Policy” (1993) 16 UNSWLJ 27; Aboriginal Sovereignty (1996) and, with J Dalziel, “Aborigines and Pastoral Leases-Imperial and Colonial Policy 1826-1855” (1996) 19 UNSWLJ 315. He suggests that th0 Imperial Crown (or, at least, some of its officers) did not, in fact, treat the Australian colonies as settled colonies, and that the courts had been in error in their categorisation of the acts of the Crown. The analysis by Reynolds fails to recognise that the Australian common law, in ignoring Aboriginal land rights, “accorded with the general approach and practice of the representatives of the Crown in the Colony after its establishment”: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 104. See also Anderson v Wilson [2000] FCA 394 at [55, 280-299]; (2000) 171 ALR 705 at 717-718, 768-772. More recent analysis by Reynolds seems better to reflect this historical reality: see eg, H Reynolds, “New Frontiers” in P Havemann (ed), above n 15 at 129-139.
17 (1971) 17 FLR 141 at 244. As we shall see below, the High Court in Mabo (No 2) ultimately agreed with this analysis.
18 G Lester, The Territorial Rights of the Inuit (if the Canadian Northwest Territories: A Legal Argument (1981, D Jur Thesis Toronto: York University). The thesis is unpublished. Copies are held at the Libraries of the High Court and of the Victorian Supreme Court. Lester trained in Australia, but did his postgraduate work in Canada whilst working with the Inuit peoples. Lester's thesis and arguments are summarised by D W Elliott, “Aboriginal Tille” in B W Morse (ed), Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (1991) at 100 and 110-111. The thesis was cited by Brennan J in Mabo (No 2) (1992) 175 CLR 1 at 39.
19 Ibid at 927-962.
20 Ibid at 75 where he refers to Marshall CJ as the “mid-wife of this area of the law” (see also at 932 and 949-950). See also GI Bennett, “Aboriginal Title in the Common Law: A Stony Path through Feudal Doctrine” (1978) 27 Buffalo LR 617 at 620-622; HR Berman, “The Concept of Aboriginal Rights in the early Legal History of the United States” (1978) 27 Buffalo LR 637; M Davies, “Aspects of Aboriginal Rights in International Law” in B W Morse (ed), above n 18 al 34-42; R Bartlett, “Native Tille: From Pragmatism lo Equality Before the Law” (1995) 20 MULR 282 at 284-286; L G Robertson, “John Marshall as Colonial Historian: Reconsidering the Origins of the Discovery Doctrine” (1997) 13 Journal of Law and Politics 759; A Lokan, above n lat 67-68 (particularly fn 11).
21 Developments of the law in Canada since Lester wrote his thesis make it clear that the law in Canada is not based primarily upon recognition theory. So, for example, although some of the earlier Canadian cases, such as Calder v AG (British Columbia) (l973) 34 DLR (3d) '145 can be explained on the basis of the two theories identified by Lester, more recent cases cannot. That is because in more recent cases the Supreme Court has relied upon the analysis of Slattery (see eg, B Slattery, “Understanding Aboriginal Rights” (1987) 66 Can Bar Rev 727). Slattery amalgamates the two theories and refers also to the history of English settlement (particularly the Royal Proclamation of 1763) together with the practice of importing English law into the English factories in India to explain why English law applied in the Canadian communities. He rejects the distinction between settled and conquered colonies. However, his theory is ultimately based upon Canadian hist01y. It is a legal description of what occurred politically (see Slattery at 732).
22 [1847] NZPCC 387.
23 [1901] AC 561 at 579. As Lester points out, later cases in New Zealand did not follow this approach, although Queen v Symonds has been more popular of late: see, eg, McRitchie v Taranaki Fish and CamE' Council [1999] 2 NZLR 139 at 158.
24 G Lester, above n 18 at 764-846 and 1067-1071.
25 Selway, B M, The Constitution of South Australia (1997) at 2-3Google Scholar.
26 Webber, J, “The Jurisprudence of Regret: The Search for Standards of Justice in Mabo” (1995) 17 Syd LR 5 at 7-9Google Scholar. See Western Australia v Ward [2000] FCA 191 at [798-800]; (2000) 170 ALR 159 at 357-358.
27 Johnson v McIntosh 21 US 543 (1823) at 591 (see also at 571) and see generally on United States history, R Strickland (ed), Cohen's Handbook of Federal Indian Law (1982 ed) at 145-206. As to Canada, see Rv Van Der Peet (1996) 137 DLR (4th) 289 at 304-310 and see Macklem, P, “Indigenous Peoples and the Canadian Constitution: Lessons for Australia?” (1994) 5 PLR 11 at 13-18Google Scholar. As to New Zealand, see Te Runanga o Munvhenue Inc v AG [1990] 2 NZLR 641 at 644-645.
28 (1979) 24 ALR 118 at 129.
29 See generally Laws of Australia vol 1 Aborigines ch 1.3 where the legislation in each jurisdiction is described in extensive detail. Alternatively, see R Bartlett, above n 15 at 410-411 for a short overview.
30 See C Fletcher, “Living Together but not Neighbours” in P Havemann (ed), above n 15 at 341-347.
31 Aboriginal Lands Trust Act 1966 (SA). See R Bradshaw and S Collett, “Aboriginal Land Rights in South Australia” (1991) 2 (52) Aboriginal Law Bulletin 20.
32 Further efforts to pass land rights legislation were defeated in the Western Australian Parliament in 1985.
33 Aborigines Act Amendment Act 1973 (NSW).
34 As to the background to the legislation, see The Hon Mr Justice Woodward, “Land Rights and Land Use: A View from the Sidelines” (1985) 59 ALJ 413 and see Report of the Aboriginal Land Commissioner, Kembi (Cox Peninsula) Land Claim (1991) at 40-45 and see Northern Land Council v Aboriginal Land Commissioner (1992) 105 ALR 539 at 549-552. However, not all aspects of Woodward's proposals were adopted. For example, Woodward also suggested that there should be a right to claim on the basis of need, as well as traditional ownership. This was not adopted in the legislation.
35 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 4 and Sch l.
36 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 50(1)(a).
37 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 3. There is no requirement to prove a continuing association with the land from the date of sovereignty—merely that there is an existing traditional affiliation.
38 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 50.
39 Aboriginal Land Rights (Northern Territory) Act ·1976 (Cth), s 4(1).
40 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 12
41 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 70.
42 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), Part IV and see Northern Territory v Northern Land Council (1992) 81 NTR 1.
43 Aboriginal Land Rights (Northern Territory) Act :1976 (Clh), s 63.
44 Pastoral Land Act 1992 (NT), Part 8.
45 As to the land available for claim, see Daruk Local Aboriginal Land Council u Minister Administering the Crown Lands Act (1993) 30 NSWLR 140; Minister v NSW Ahoriginal Land Council (1993) 31 NSWLR 106; Minister v NSW Ahoriginal Land Council [No 2] (1997) 42 NSWLR641.
46 Nettheim, G, “Justice or Handouts: Aborigines, Law and Policy” (1986) 58 The Australian Quarterly 60 at 68-69CrossRefGoogle Scholar.
47 In the House of Representatives on 14 February, 1986 (Hansard at 584) the Commonwealth Minister claimed that lhe policy reflected lhe South Australian legislation. This may be true to the extent that aspects of the Northern Territory scheme reflected the earlier South Australian legislation, and the later South Australian legislation built upon the Northern Territory scheme. Nevertheless, the Commonwealth policy was squarely based upon the Northern Territory scheme.
48 Prime Minister Hawke had announced on 18 October 1984 that the veto on mining activity “would have to go”: see G Nettheim, above n 46 at 70.
49 “Aboriginal Land Rights; Fed Govt Outlines Position” National Aboriginal Newsletter No 140, February 1985 al 2.
50 Roberts, “Model Federal Land Rights Under Fire” Sydney Morning Herald, 26 April 1985 at 11 reporting the comments of Ms Pat O'Shane, tl1en Secretary of the State Ministry of Aboriginal Affairs. See generally, Moon, D, “The Not So Preferred Model” (1986) 45 Chain Reaction 20Google Scholar.
51 Callaghan, M L O', “Widening Rift Over Land Rights” Sydney Morning Herald, February 14 1986 at 2Google Scholar.
52 H Reps Deb at 1473-1478.
53 Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld); Land Act (Aboriginal and Islander Land Grants) Amendment Act 1984 (Qld); Land Act Amendment Act (No 2) 1986 (Qld); Land Act Amendment Act 1987 (Qld); Land Act and Another Act Amendment Act 1988 (Qld).
54 See, eg, Aboriginal Land Act 1991 (Qld), Part 4.
55 Aboriginal Land Act 1991 (Qld), Part 7.
56 In South Australia, Western Australia and the Northern Territory, Aborigines had rights to cross over, hunt and camp on pastoral properties for b·aditional purposes by virtue of reservations within the pastoral leases, or statutory provisions. It would appear that the rights were largely ignored in all of those jurisdictions for over a century. Instead, any rights of the Aborigines to be on pastoral lands were usually treated by pastoralists and by Governments in the same manner as in those jurisdictions which did not have a reserv"ltion ie, any Aboriginal occupation of pastoral lands was thought to be with the licence, usually implied, of the pastoralist. Whatever may have been the position in the past, the nature of those rights is now of considerable importance in relation to native title: see, eg, Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159 and Dalziel, J, “Pastoral Leases in the Northern Territory and the Reservation of Aboriginal Rights, 1863-1931” (1999) 22 UNSWLJ 462Google Scholar.
57 See Bartlett, R, “Racism and the Constitutional Protection of Native Title in Australia: the 1995 High Court Decision” (1995) 25 UNSWLJ 127 at 130-131Google Scholar.
58 The phrase “common law native title” is convenient, but may be misleading. For the reasons discussed later in the paper, I use the phrase to mean those interests and rights in the land possessed under the traditional laws of the indigenous inhabitants which interests and rights are recognised by the common law. The phrase should not be understood as suggesting that the title is created by the common law.
59 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 73-74. See at 17-18 for a description of the rights of the Meriam people in accordance witl1 their customs.
60 It is clear that the High Court changed the common law in Australia: Malia v Queensland (No 2) (1992) 175 CLR 1 at 25-30, 40-43, 57-58 and 109; Mason u Tritton (1994) 34 NSWLR 572 at 597; Western Australia v Commonwealth (1995) 183 CLR 373 at 427 and 431-433; Wik v Queensland (1996) 187 CLR 1 at 177-184 and 205-207. However, the Court only outlined the extent of the change. As David Jackson QC has commented, “the court has constructed, from really nothing, a completely new doctrine. It is…a case where in form the Court has written a book, but in reality has given only the chapter headings”: “The Lawmaking Role of the High Court” (1994) l1 Aus Bar Rev 197 at 211.
61 Mabo v Queensland (No 2 (1992) 175 CLR 1 at 58 per Brennan J. See also Deane and Gaudron JJ at 103-109.
62 [1847] NZPCC 387 at 391-392.
63 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 81-83, 86-88, 184 and 208-214.
64 Ibid at 90-92 and 193. Toohey J went further (at 199-205) and suggested that there was a fiducia1y duty upon the Crown.
65 (1995) 183 CLR 373 at 422, 452, 492 and 493-494.
66 (1996) 187 CLR 1 at 84-85, 100, 129, 135, 175-176 and 213.
67 See Commonwealth v Yarmirr (1999) 168 ALR 426 at 434-439.
68 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 43-45.
69 Ibid at 63; BA Keon-Cohen, “Mabo, Native Title and Compensation: Or How to Enjoy Your Porridge” (1995) 21 Monash ULR 84 at 87-88 says that the result of Mabo (No 2) (and, indeed, the recognition of native title in other common law jurisdictions) was based upon the approach of Marshall CJ, ie, the “recognition approach”. This is only partially true. In particular, there is nothing in any of the judgments of Mabo (No 2) which recognises continuing Aboriginal sovereignty.
70 As to Brennan J's reasoning, see P O'Connor, “Aboriginal Land Rights at Common Law: Mabo v Queensland” (1992) 18 Monash ULR 251 at 252-257; G Simpson, “Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence” (1993) 19 MULR 195 at 200 and 205-206; D Ritter, above n 10 at 26-33. Apart from justifying the change to the common law, the “rejection” of terra nullius did not have the result that the Australian colonies had been conquered rather than settled. Nor did it affect the Crown's sovereignty: see F Wheeler, “Common Law Native Title in Australia—An Analysis of Mabo v Queensland (No 2)” (1993) 21 FL Rev 271 at 272-274; G Nettheim, “Wik: On Invasions, Legal Fictions, Myths and Rational Responses” (1997) 20 UNSWLJ 495. Contrast M Brabazon, “Mabo, The Constitution and the republic” (1994) 11 Aus Bar Rev 229 at 230- 237.
71 It was with some reluctance that the Court applied the doctrine of tenures in this way. Based as it is upon feudal notions of land ownership there was no obvious reason why the doctrine should have been received in Australia: see Mabo v Queensland (No 2) (1992) 175 CLR 1 at 47 and 81; Wik Peoples o Queensland (1996) 187 CLR 1 at 177-184 and 205-207; cf at 89-90. However, in Mabo (No 2) the Court accepted that “it is far too late in the day” to reconsider the doctrine of tenures. Whatever doubt there may have been about the applicability of the doctrine of tenures (see B Edgeworth, “Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared After Mabo v Queensland” (1994) 23 Anglo-American LR 397; N Bhuta, “Mabo, Wik and the Art of Paradigm Management” (1998) 22 MULR 24 at 32-37; and PM McDermott, “Wik and Doctrine of Tenures: A Synopsis” in G Hiley (ed), Thr Wik Case: Issues and Implications (1997) at 37-39) has been laid to rest by the joint judgment in Fejo v Northern Territory (1998) 195 CLR 96 at 126-129 (per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) where the doctrine is clearly applied.
72 Mabo v Queensland (No 2) (1992) 175 CLR lat 52.
73 Ibid at 63-64.
74 On the other hand, under the “presumptive title” theory applied by Deane, Gaudron and Toohey JJ, native title is a real burden on the Crown's title because the Crown cannot deal with the land pursuant to the prerogative witl1out the consent of the native title holders.
75 See, eg, G Simpson, above n 70 at 196-198 and 210; M Stuckey, “Feudalism and Australian Land Law: A Shadowy, Ghostlike Survival” (1994) 13 U Tas LR 102; D Ritter, above n 10; N Bhuta, above n 71 at 37-38; R Bartlett, “Is Equalily Too Hard for Auslralia?” (1997) 20 UNSWLJ 492; R Bartlett, above n 15 at 412-414.
76 Of course, the judgment can also be criticised on that basis, eg, that it did not go far enough or that it confirmed the “colonialism” of the common law: see eg, K Tranter, “Waltzing Matilda: A Semiotic Reading of Wik” (1998) 16(2) Law in Context 49 at 59-67; or that it confirmed the unlawful claim to sovereignty of the British Crown in 1788: see S Gray, “Planting the Flag or Burying the Hatchet: Sovereignty and the High Court Decision in Mabo v Queensland” (1993) 2 GLR 39. However, these are fundamentally criticisms of the High Court as an institution of government, or of the judicial method, rather than the reasoning itself.
77 Fejo v Northern Territory (1998) 195 CLR 96 at 150 and cf at 130. See also Wik v Queensland (1996) 187 CLR 1 at 182-184 and 214; Yanner v Eaton (1999) 166 ALR 258 at 294 fn 139; Western Australia v Ward [2000] FCA 191 at [93]; (2000) 170 ALR 159 at 185-186.
78 21 US 543 (1823).
79 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 30 and 43. Contrast the use of the principle in Commonwealth v Yarmirr (1999) 168 ALR 426 at 442, 443, 477 and 549. This is discussed later in the paper.
80 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 47. See also G Brem1an, “Reconciliation” (1999) 22 UNSWLJ 595 at 596-597. Contrast North J in Western Australia v Ward [2000] FCA 191 at (804]; (2000) 170 ALR 159 at 358 who urges that the doctrine of tenures should be rejected.
81 (l992) 175 CLR 1 at 31. See also Coe u Commonwealth (1979) 24 ALR 118.
82 (1992) 175 CLR lat 52-53. See also Western Australia v Commonwealth (1995) 183 CLR 373 at 431-432.
83 (1992) 175 CLR 1 at 58 and 68-69. See also Western Australia v Commonwealth (1995) 183 CLR 373 at 433.
84 See, for example, G Nettheim, “Judicial Revolution or Cautious Correction” (1993) 16 UNSWL] l at 21-25; F Wheeler, above n 70 at 277-278.
85 Mabo v Queensland (No 2) (1992) 175 CLR '] at 68-69; Anderson v Wilson [2000] FCA 394 at [25]; (2000) 171 ALR 705 at 711-712.
86 In order for such a comparison to be meaningful it is necessary to discuss concepts with some generality. Otherwise, there is a risk that one ends up debating the meaning and effect of particular foreign decisions when the real point is that the decision is not relevant to the Australian common law, whatever it might mean. As an example of such a debate, see Western AuBtralia v Ward [2000] FCA 191 at [78]; (2000) 170 ALR 159 at 182-183 and contrast at [785]; 353 as to the meaning and applicability of certain comments by Lamer CJ in Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 252 as to whether there is a 110ed under Canadian law for adverse use in order to extinguish native title rights. However, there is simply no reason why it should be thought that these comments have any application to the common law of Australia.
87 Mabo v Queensland (No 2) (1992) 175 CLR 1 al 37-38 and 61; Walker v NSW (1994) 182 CLR 45 at 48-50; Mason u Tritton (1994) 34 NSWLR 572 at 594; Coe v Commonwealth (1993) 113 ALR 193 at 200.
88 Berkelt v Taurunga District Court [1992] 3 NZLR 206 al 212-2:13; NZ Maori Council v AG [1987] 1 NZLR 641 at 670. However, the issue is not altogether clear. For example, in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285 at 343 Thomas J in the Court of Appeal referred to the Treaty of Waitangi as “this country's 'fundamental constitutional document'” which suggests that Maori sovereignty continued at least until the execution of the Treaty.
89 R Strickland (ed), abov0 n 27 at 1-42; HR Berman, abov0 n 20; Monette, R A, “Sovereignty and Survival” (2000) 86 ABA Jo 64Google Scholar.
90 Exp Crow Dog 109 US 556 (1883); United States v Wheeler 435 US 313 at 322-330 (1978).
91 National Farmers Union Ins Co v Crow Tribe 471 US 845 (1985). As lo the respective constitutional roles of Indian courts and Federal courts, see F Pornrnersheim, “Tribal Courts and the Federal Judicimy: Opportunities and Challenges for a Constitutional Democracy” (1997) 58 Montana LR 313; Royster, J V, “Stature and Scrutiny: Post Exhaustion Review of Tribal Court Decisions” (1998) 46 Kansas LR 241Google Scholar.
92 United States v McBratney 104 US 62'1 (1881); Williams v Lee 358 US 217 at 2'19-220 (1959); Oliphant v Squamish Indian Tribe 435 US 191 (1978).
93 Merrion v Jicarilla Apache Tribe 455 US 130 at 148-149 (1982).
94 Talton v Mayes 163 US 376 at 382-384 (1896).
95 Elk v Wilkins 112 US 94 (1884); United States v Wong Kim Ark 169 US 649 at 693-694 (1898).
96 Santa Clara Pueblo v Martinez 436 US 49 at 58 (1978).
97 Cherokee Nation v Georgia 30 US 1 (1831); Worcester v Georgia 31 US 515 (1832); National Farmers Union Ins Co v Crow Tribe 471 US 845 at 852-853 (1985); R Strickland (ed), above n 27 at 229-257.
98 Worcester v Georgia 31 US 515 (1832); Lone Wolf v Hitchcock 187 US 553 at 565-566 (1903).
99 Kennedy v Becker 241 US 556 at 561-564 (1916); R Strickland (ed), above n 27 at 441-470.
100 Cherokee Nation v Georgia 30 US 1 at 17 (1831); United States v Kagama 118 US 375 at 383-385 (l886); Lane v Pueblo of Santa Rosa (1919) 249 US 110 at 113 (1919); see C Hughes, “The Fiduciary Obligations of the Crown to Aborigines: Lessons from the United States and Canada” (1993) 16 UNSWLJ 70 at 76-87.
101 R v White and Bob (1964) 50 DLR (2d) 613 at 617-618; Francis v R (1956) 3 DLR (2d) 641 at 647 and 652; J Woodward, Native Title (1994, Update Service) at 143-150.6.
102 J Woodward, ibid at 133-142.5.
103 R v Badger (1996) 133 DLR (4th) 324 at 340-341, 343-344 and 351-356; Simon v R (1986) 24 DLR (4th) 390 at 401,404 and 409; R v Sioui (1990) 70 DLR (4th) 427 at 441 and 442. As to the Canadian Constitutional position, see PW Hogg, Constitutional Law of Canada (4th Ed, 1997) at 671-703; Macklem, P, “Indigenous Peoples and the Canadian Constitution: Lessons for Australia?” (1994) 5 PLR 11 at 17-32Google Scholar.
104 See, for example, R v Badger (1996) 133 DLR (4th) 324 at 348-351.
105 Mabo v Queensland (No 2) (1992) 175 CLR lat 57. On this basis the theory of tenures is the means by which native title is recognised in Australian law: see Coe v Commonwealth (1993) 118 ALR 193 at 200; Western Australia v Commonwealth (1995) 183 CLR 373 at 432-434; Wik v Queensland (1996) 187 CLR lat 88-94, 122-129, 177-184, 206,213 and 233-235; Feio v Northern Territory (1998) 195 CLR 96 at 127-129 and 144-H5; Mason v Tritton Cl994) 34 NSWLR 572 at 577; R v Walker (1989) 2 Qd R 79 at 83-84; R v Wedge [1976] 1 NSWLR 581; Ward v Western Australia (1998) 159 ALR 483 at 499. Some have argued that the theory of tenure as a basis for the recognition of native title was rejected by the Court in Wik. They have referred to Wik v Queensland (1996) 187 CLR 1 at 177-184 per Gummow J, 205-207 per Toohey J and cf at 89-91 per Brennan J. See N Bhuta, above n 71at 32-37; PM McDermott, above n 7l at 37-39. However, as was expressly acknowledged by Kirby J in Fejo v Northern Territory (1998) 195 CLR 96 at 154-156, when read in context the decision in Wik is consistent with the approach of Brennan J in Mabo (No 2). Properly understood, Wik did not involve the rejection of the theory of tenures in Australian law, but was simply an exercise in determining the meaning and effect upon native title of grants made under various statutes. The reasoning of the majority goes no further than to say that the pastoral leases there being considered were not “common law” leases and did not attract some of the attributes of a common law lease in accordance with the common law of tenures. In any event, the theory of tenures clearly formed the basis for the unanimous decision of the Court in Fejo.
106 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 57; Western Australia v Ward [2000] FCA 191 at [55]; (2000) 170 ALR 159 at 178.
107 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 48-52 and 86-88; Wik v Queensland (1996) 187 CLR l at 128, 186-187 and 235; Rogers, N, “The Emerging Concept of Radical Title in Australia: Implications for Environmental Management” (1995) 12 Environmental fr Planning LJ 183Google Scholar; N Bhuta, above n 71 at 35.
108 [1921] 2 AC 399.
109 ldewa fnasa v Sakariyawo Oshodi [1934] AC 99 at 105; Oshodi v Balogun [1936] 2 All ER 1632 at 1633.
110 Sunmonu v Disu Raphael [1927] AC 881 at 884-885; Sakariyawo Oshadi u Dakalo [1930] AC 667 at 670; ldewa Inasa v Sakariyawa Oshodi [1934] AC 99 at 101; Oyekan v Adele [1957] 1 WLR 876 at 882-883.
111 Ollennu, N A, “The Changing Law and Law Reform in Ghana” (1971) 15 JAL 132 at 135-139 and 162-165CrossRefGoogle Scholar.
112 AG (Southern Nigeria) v Holt [1915] AC 599 at 608-609; Amodu Tijani u Secretary, Southern Nigeria [1921] 2 AC 399 at 403-404; Sunmonu v Disu Raphael [1927] AC 881 at 883-884; Sakariyawo Oshadi v Dakalo [1930] AC 667 at 668-669; Oshodi v Balogun [1936] 2 All ER 1632 at 1633 and 1638; Oyekan v Adele [1957] 1 WLR 876 at 883; Nii Amon Kotei v Asere Stool [1961] GLR 492 at 495; N A Ollennu, ibid at 137.
113 SK B Asante, Property Law and Social Goals in Ghana, 1844-1966 (1975) at 29-81 especially at 60-61 and 67; Amankwah, H A, “Post-Mabo: The Prospect of the Recognition of a Regime of Customa1y (Indigenous) Law in Australia” (1995) 18 UQLJ 15Google Scholar; Fejo u Northern Territory (1998) 195 CLR 96 at 149-150.
114 Western Australia v Ward [2000] FCA 191 at [61]; (2000) 170 ALR 159 at 179. As native title is recognised by the common law of Australia through the theory of tenures as a limitation upon the radical title of the Crown, it would seem that native title must be related to the use of land. Beyond this it is unclear just what aspects of Aboriginal life can give rise to property rights and what aspects do not. For example, the Canadian Supreme Court has held that the common law will protect those aboriginal customary rights which are the result of an activity which is “integral to the distinctive culture of the aboriginal group”: see R v Van Der Peet (1996) 137 DLR (4th) 289 at 3-iG. The Canadian Supreme Court has also held that “native title” is a distinct species of such customary rights, although it is not necessary to show that it is distinctive because of the requirement that there be continuous occupation of the land: Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 230,231, 243, 244, 246, 247, 252-260 and 272-273. Although the Canadian approach would not seem to be applicable in Australia (see Fejo v Northern Territory (1998) 195 CLR 96; cf Dillon v Davies (1998) 156 ALR 142 at 147-149; Ward v Western Australia (1999) 159 ALR 483 at 498- 504; A Lokan, above n 1), at least it does identify some of the issues needing to be addressed.
115 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 37-38 and 61; Walker v NSW (1994) 182 CLR 45; Mason v Triton (1994) 34 NSWLR 572 at 594; Coe v Commonwealth (1993) 118 ALR 193 at 200; R v ivalker [1989] 2 Qd R 79 at 83-84; Coe v Commonwealth (1979) 24 ALR 118 at 128-129; R v Wedge [1976] 1 NSWLR 581; DPP Reference (No 1 of 1999) (1999) 149 FLR 465. But contrast Sutton v Derschaw (1995) 82 A Crim R 318 at 323-324; Dillon v Davies (1998) ·156 ALR 142 at 147-149; Bulun Bulun v R & T Textiles (1998) 157 ALR 193 at 197.
116 Mabo v Queensland (No 2) (1992) 175 CLR 1 al 62 and 70 and see comments in Delgamuukw v British Columbia (1993) 104 DLR (41h) 470 at 727.
117 R v Van Der Peet (1996) 137 DLR (4th) 289 at 310; R v Adams (1996) 138 DLR (4th) 657 at 666; Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 201-202 and 25-1-252; J Woodward, Native Title (1994, Update Service) at 133-142.5; Dick, D, “Comprehending 'the Genius of the Common Law': Native Title in Australia and Canada Compared Post-Delgamuukw” (1999) 5 Aus Jo of Human Rights 79 at 88-92CrossRefGoogle Scholar; A Lokan, above n lat 94-103. For a similar approach in Australia, see also Sutton v Dcrschaw (1995) 82 A Crim R 318 at 323-324. It is suggested that this dicta is contrary to principle, being inconsistent with the reasoning thal Aboriginal native title applies only under the doctrine of tenures: contrast Bulun Bulun v R & T Textiles (1998) 157 ALR 193 at 196-205.
118 Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 230, 231, 243, 244, 246, 252-260 and 270-273.
119 See Hineiti Rirerire Arani v Public Trustee of NZ [1920] AC 198 at 204-205.
120 Te Weehi v ehi Regional Fisheries Officer [1986] 1 NZLR 680 at 690-691; Te Rumanga o Muriwhenua v AG [1990] 2 NZLR 641 at 654-655; Te Waka Hi lka o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285 at 353; cf Waipapakura v Hempton [1914] 33 NZLR 1065. Fisheri0s rights ar0 expressly preserved by the Treaty of Waitangi.
121 See, eg, Maori Fisheries Act 1989; Treaty of Waitangi (Fisheries Claims) Settlement Act, 1992; and see Te Runanga o Wharakauri Rekohu Inc u AG [1993] 2 NZLR 301.
122 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 59-60 and 88; Western Australia v Ward [2000] FCA 191 at [60] and [62]; (2000) 170 ALR 159 at 179. The current cases do not reveal which Aboriginal group's customary laws are relevant for this purpose. ln the absence of some “choice of law” rule the issue would seem to be one of a Lransfer of sovereignly, but sovereignty is not recognised by the Australian common law. The same problems arises in respect of “succession” within a changing group or groups: see Western Australia v Ward [2000] FCA WI at [223]; (2000) 170 ALR 159 at 216.
123 Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 247-249.
124 Gilling, B D, “The Queen's Sovereignty Must be Vindicated: The 1840 Rule in the Maori Land Court” (1994) 16 NZULR 136Google Scholar.
125 In referring to the “extinction of native title” what is meant is the extinction of the recognition of native title rights by tl1e common law. Those “right” may still be exercised in fact by the former holders of Lhe rights, but their entitlement to continue to do so will not be recognised or enforced by the common law: Fejo v Northern Territory (1998) 195 CLR 96 at 155-156.
126 See Western Australia v Ward [2000] FCA 191 at [104]; (2000) 170 ALR 159 at 188, but contrast at [242-253]; 221-224. Contrast also Yanner v Eaton (1999) 166 ALR 258 at 269-270 where the majority comment that “an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social co1mection with the land”. Accepting that this is so, the question still remains whether a spiritual or cultural connection is sufficient by itself or whether some physical c01mection is also required. Further, if something less than a physical connection is sufficient, how is the common law to protect and enforce lhe relevant rights? In any event, if physical occupation is not required, it is not obvious why a grant of a fee simple interest necessarily extinguished native title. See G Neate, “Proof of Native Title” in Horrigan, B and Young, S (eds), Commercial Implications of Native Title (1997) at 246-254Google Scholar. However, it is possible that “physical occupancy” may be construed broadly: see I-Jayes v Northern Territory [1999) FCA '1248 at [124-'127); Meyers, G D, “Implementing Native Title in Australia: The Implications for Living Resources Management” (1995) 14 U Tas LR 1 at 17-18Google Scholar. The suggestion by Sweeney, D, “Fishing, Hunting and Gathering Rights of Aboriginal Peoples in Australia” (1993) 16 UNSWLJ 97 at 103Google Scholar that traditional rights might be recognised even if not related to occupation of land, would seem to be contrary lo lhe doctrine of tenures. This is discussed later in paper.
127 Western Australia v Ward [2000] FCA 191 at [63]; (2000) 170 ALR 159 at 179.
128 Mabo 11 Queensland (No 2) (1992) 175 CLR 1 at 64-65.
129 Ibid; Fejo v Northern Territory (1998) 195 CLR 96 at 130; Western Australia v Ward [2000] FCA 191 at [106]; (2000) 170 ALR 159 at 189; Anderson v Wilson [2000] FCA 394 at [41); (2000) 171 ALR 705 at 714.
130 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 50-51, 69, 75-76, 89-94, 100 and 110. It should be noted that the relevant prerogative never applied in South Australia: Fejo u Northern Territory (1998) 195 CLR 96 at 144-145 and that it has not applied elsewhere in Australia since at least 1842: see Wik v Queensland (1996) 187 CLR 1 at 108-111, 139-143, 171-174, 227-228 and 243. It is unlikely that the effect of prerogative powers is of any practical significance.
131 Cudgen Rutile (No 2) Pty Ltd v Chalk (1975) AC 520 at 533; Wik v Queensland (1996) 187 CLR 1 108-111, 139-143, 171-174, 227-228 and 243.
132 Mabo v Queensland (No 2) (1992) 175 CLR l at 64-65, 11"1 and 196; Western Australia v Commonwealth (1995) 183 CLR 373 at 431-433; Fejo v Northern Territory (1998) 195 CLR 96.
133 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 63-64 and 110-111; Pareroultja v Tickner (1993) 117 ALR 206 at 218-219; Western Australia v Ward [2000] FCA 191 at [68]-[69]; (2000) 170 ALR 159 at 180-181. This is to be contrasted with the usual rule that a statutory power would not be construed as authorising an interference with property rights, unless expressly or by necessary implication: see Deane, Gaudron and Toohey JJ in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 111 and 196 who took the view that the Crown lands legislation did not authorise grants which extinguished native title and that consequently such grants would be invalid. See also Reynolds, H and Dalziel, J, “Aborigines and Pastoral Leases” (1996) 19 UNSWLJ 315 at 320Google Scholar. It is likely that this would be the position in Canada: see Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 521-525, 595 and 661-669; (appeal) (1997) 153 DLR (4th) 193 at 270-271. On the other hand, the “usual” rule is applied in Australia to the actual grant ie, unless it is a clear and necessary consequence of the grant that native title interests will be extinguished, then “coexistence” will be presumed: Wik v Queensland (1996) 187 CLR l; Western Australia v Ward [2000] FCA 191 at [69]; (2000) 170 ALR 159 at 180-181.
134 Mabo v Queensland (No 1) (1988) 166 CLR 186; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 67, 74,112, 172-173 and 2H-216; see McIntyre, G, “Aboriginal Title: Equal Rights and Racial Discrimination” (1993) 16 UNSWLJ 57Google Scholar.
135 Mabo v Queensland (No 2) (1992) 175 CLR I at 11l.
136 Mabo v Queensland (No 2) (1992) 175 CLR l at 68; Western Australia v Commonwealth (1995) 183 CLR 373 at 422; Mason v Tritton (1994) 34 NSWLR 572 at 591; Re Wadi Wadi People's Application (1995) 129 ALR 167 at 178; Wik v Queensland (1996) 187 CLR 1 at 71, 85-86, 133 and 233-238; Feio v Northern Territory (1998) 195 CLR 96 al 126-128 and 154-156; Western Australia v Ward [2000] FCA 191 at [68]; (2000) 170 ALR 159 at 180. This is to be contrasted with the early view of some commentators that the Canadian position should apply in Australia: see, eg, Bartlett, R, “The Aboriginal Land which may be Claimed at Common Law: Implications of Mabo” (1992) UWALR 272Google Scholar. Those views did not take account of the policy aspects of the decision in Mabo (No 2) discussed above. In any event, it is now clear that the High Court will not simply apply Canadian law. ln Ward v Western Australia (1999) 159 ALR 483 at 509-510 and 557, Lee J held that it was necessary that there be an intention to extinguish all native title. Otherwise all that occurred was the suppression of the particular incidents of the title for tl1e period of the tenure. At tl,e conclusion of the tenure the full title is resurrected. This is discussed further below.
137 Wik v Queensland (1996) 187 CLR 1 at 91, 112, 150-155, 197-198 and 243-244.
138 Wik v Queensland (1996) 187 CLR 1 al 133, 166, 203 and 249; Commonwealth v Yarmirr (1999) 168 ALR 426 at 437-439; Western Australia v Ward [2000] FCA 191 at [71-73]; (2000) 170 ALR 159 at 181; Anderson v Wilson [2000] FCA 394 at [84-93]; (2000) 171 ALR 705 at 723-724. Examples of the application of the principle can be seen in Western Australia v Ward at [575- 657]; 300-319, although not all of those examples will necessarily survive any appeal.
139 Mabo v Queensland (No 2) (1992) 175 CLR I at 64.
140 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 68-69, 89, 110 and 196; Wik v Queensland (1996) l at 71,155,176, 236-237 and 250; Fejo v Northern Territory (1998) 195 CLR 96. In Anderson v Wilson [2000] FCA 394 at [44] and [83]; (2000) 171 ALR 705 at 715 and 722-723, the majority of Black CJ and Sackville J suggested that the relevant question is not whether there is a right to exclusive possession, but whether the statute evinces an intention to wholly extinguish (cf Beaumont J at [257-259]). This is strictly correct, although the characterisation of the statutory right as a right of exclusive possession may well be the answer to that question. Indeed, the analysis by the majority of the lease under consideration in that case seems to have led them to the conclusion that it may not grant rights to exclusive possession.
141 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 68; Wik v Queensland (1996) 187 CLR 1 at 225-226 and 233-234; Fourmile v Selpam (1998) 152 ALR 294; Western Australia v Ward [2000] FCA 191 at [70]; (2000) 170 ALR 159 at 181.
142 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; Mason v Tritton (1994) 34 NSWLR 572; Larrakia People v Northern Territory (1998) 152 ALR 477 at 484-487 (on appeal at time of writing); Fejo v Northern Territory (1998) 195 CLR 96; Western Australia v Ward [2000] FCA 191 at [77]; (2000) 170 ALR 159 at 182. For example, fisheries and mining legislation may have extinguished Aboriginal rights to fish and to mine: Commonwealth v Yarmirr (1999) 168 ALR 426 at 446-448, 472-473, 477 and 479-480; Yarmirr v Northern Territory (1998) 156 ALR 370 at 431-438. This is to be contrasted with the approach in Ward v Western Australia (1999) 159 ALR 483 at 508-509, 557 and 580 that, unless all native title rights are extinguished, none are. They are merely suppressed during the term of any interest granted and, for this reason, traditional mining rights can continue to exist even if they are suppressed.
143 Johnson v McIntosh 21 US 543 at 587 (1823). Compare United States v Santa Fe Pacific Railway Co 314 US 339 at 347 (1941) where it was suggested that “the exercise of complete dominion adverse to the right of occupancy” may also extinguish native title.
144 United States v Santa fe Pacific Rly Co 314 US 339 at 347 (1941).
145 County of Oneida v Oneida Indian Nation 470 US 226 at 247-248 (1985). The same principle is applicable to the extinguishment of treaty rights: see also Part IV of judgment of O'Connor Jin Minnesota v Mille Lacs Band of Chippewa Indians 143 L Ed 2d 270 (1999).
146 Buttz u Northern Pacific Railroad 119 US 55 (1886); Missouri, Kansas and Texas Railway Co u Roberts 152 US 114 (1894).
147 Tee-Hit-Ton Indians u United States 348 US 272 at 279-285 (1954).
148 Calder v AG (BC) (1973) 34 DLR (3d) 145 at 208; Guerin v R (1984) 13 DLR (4th) 321 at 357 and 359; Blueberry River Indian Band v Canada (1995) 130 DLR (4th) 193 at 219; Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 241-244; B Slattery, above n 21 at 748-749.
149 Blueberry River Indian Band v Canada (1995) 130 DLR (4th) 193 at 199-200.
150 Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 525, 532-533, 670-672 and 711; B Slattery, above n 21 at 767.
151 R v Sparrow (1990) 70 DLR (4th) 385 al 401-404; Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 267-269.
152 Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 270-271.
153 R v Sparrow (l990) 70 DLR (4th) 385; Delgamuuhu v British Columbia (1997) 153 DLR (4th) 193 at 260-266; R v Nikal (1996) 133 DLR (4th) 658 at 689-692; Marshall v Her Maiesty the Queen (1999) 177 DLR (41h) 513.
154 R v Lewis (1996) 133 DLR (4th) 700 at 719-720; Blueberry River Indian Band v Canada (1995) 130 DLR (4th) 193 at 208-209; Guerin v R (1984) 13 DLR (4th) 321 at 334 and 357-361; R v Sparrow (1990) 70 DLR 385 at 408, 413 and 416-417; Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 261-263; B Slattery, above n 21 at 736 and 753-755; C Hughes, above n 100 at 87-95; A Lokan, above n 1 at 104-112.
155 R v Symonds (1847) NZPCC 387 at 390; Nireaha Tamaki v Baker [1901] AC 561 at 574 and 578- 579; Te Runanganui o Te Ika Whenua Inc Soc v AG [1994] 2 NZLR 20 at 23-24.
156 McRitchic v Taranaki Fish and Game Council [1999] 2 NZLR 139 at 146 and 153-154.
157 Faulkner v Tauranga DC [1996] 1 NZLR 357 at 363 at 365.
158 Native Land Act 1909 (NZ), Part IV; Maori Affairs Act 1953 (NZ), s 155.
159 Te Runanganui o Te lka TMienua inc Soc v AG [1994] 2 NZLR 20 at 24.
160 Te Runanga o Wharakauri Rekohu v AG [1993] 2 NZLR 301 at 306; Ngai Tahu Maori Trust Board u D-G Conservation [1995] 3 NZLR 553 at 559; NZ Maori Council v AG [1996] 3 NZLR 140 at 168.
161 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 30 and 109. This included notions derived from international law: see Scott, S, “The Australian High Court's Use of the Western Sahara Case in Mabo” (1996) 45 Int and Comp LQ 923CrossRefGoogle Scholar.
162 See The Hon JusticeMcHugh, M H, “The Law Making Function of the Judicial Process” (1988) 62 ALJ 15 at 116Google Scholar. Even strict legalism does not deny this role, it merely results in a lower willingness to exercise it: see SirDawson, Daryl and Nicholls, M, “Sir Owen Dixon and Judicial Method” (1996) 15 MULR 543 at 552Google Scholar.
163 Cardozo, B N, 71te Nature of the Tudicial Process (1921) at 129Google Scholar.
164 >R v Swajfield (1998) 192 CLR 159 at 194-195, 202 and 208-209; Boys Market v Retail Clerks Union 398 US 235 at 241 (1970).
165 Griswold, E N, “The Judicial Process” 31 Fed BJ 309Google Scholar, extracted in Aldisert, R J, The Judicial Process (2nd ed 1996) at 157Google Scholar.
166 Chief JusticeDoyle, J J, “Judicial Law Making—Is Honesty the Best Policy?” (1995) 17 Adel LR 161 at 178Google Scholar.
167 See generally the discussion in McAdam, A and Pyke, J, Judicial Reasoning and the Doctrine of Precedent in Australia (1998) at 317-370Google Scholar.
168 B N Cardozo, above n 163 at 104-106.
169 Dietrich v R (1992) 177 CLR 292 at 319; JusticeDavies, G L, “The Judiciary—Maintaining the Balance” in PD Finn (ed), Essays on Law and Government Vol 1 (1995) at 276-277Google Scholar.
170 Newcrest Mining (Western Australia) Ltd v Commonwealth (1997) 190 CLR 513 at 657-658; JusticeKirby, M, “The Australian Use of International Human Rights Norms from Bangalore to Balliol—A View From the Antipodes” (1993) 16 UNSWLJ 363Google Scholar; Donoghue, S, “Balancing Sovereignty and International Law: The Domestic Impact of International Law in Australia” (1995) 17 Adel LR 213 at 244-250Google Scholar.
171 Breen v Williams (1996) 186 CLR 71 at 115; JusticeMcHugh, M H, “The Judicial Method” (1999) 73ALJ 37 at 44 and 47Google Scholar; Chief Justice J J Doyle, above n 166 at 180-181.
172 Wachtler, S, “Justification for Judicial Lawmaking” (1990) 65 NYULR lGoogle Scholar, quoted in R J Aldisert, above n 165 at 155.
173 Justice M H McHugh, above n 171 at 43; JusticeKirby, M D, “Judicial Activism” (1997) 27 UWALR 1 at 14Google Scholar; DoyleJ J Chief Justice, above n 166 at 181; Breital, C D, “The Lawmakers” (1965) 65 Colum LR 749CrossRefGoogle Scholar, quoted in R J Aldisert, above n 165 at 137.
174 See Breen u Williams (1996) 186 CLR 71 at 99 and 115; Saxbe v Bustos 419 US 65 at 79-80 (1974); Chief Justice J J Doyle, above n 166 at 191 and 204-205; Lane, P H, “Neutral Principles on the High Court” (1981) 55 ALJ 737 at 739Google Scholar; Judge HJ Friendly, “The Courts and Social Policy: Substance and Procedure” in O'Brien, D M, Judges on Judging (1997) at 289Google Scholarff.
175 See, for example, Ha v New South Wales (1997) 189 CLR 465 at 503-504; R v Glmernor of Brockhill Prison; Ex p Evans (No 2) [1999] QB 1043 at 1074-1077; Kleinwort Benson Ltd v Lincoln CC [1999] 2 AC 349 at 377-379 and 398-399; cf at 358-359 and 393-394.
176 Justice G L Davies, above n 169 at 279 and 282-283; B N Cardozo, above n 163 at 146-147.
177 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 381-386; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481; Justice MH McHugh, above n 162 at 20 and 124; SchaeferW V Chief Justice, “Precedent and Policy: Judicial Opinions and Decision Making” in D M O'Brien, above n 174 at 108; Chief JusticeKing, L, “The Separation of Powers” in AIJA, Courts in a Represrntative Democracy (1995) 1 at 22Google Scholar.
178 See Selway, B M, “The Rule of Law, Invalidity and the Executive” (1998) 9 PLR 196 fn 49Google Scholar.
179 See Justice M H McHugh, above n 162 at 117-120; Sackville, R, “Continuity and Judicial Creativity—Some Observations” (1997) 20 UNSWLJ 145 at 157Google Scholar.
180 See generally, Justice M H McHugh, above n 'I71 where the nature of judicial law m"lking, and its limitations, are discussed.
181 See, for example, Wik Peoples v Queensland (1996) “187 CLR I at 179-184 per Gummow J and at 205-207 per Kirby J.
182 See Chief Justice J J Doyle, above n 166 at 172 and 204.
183 See, for example, Dworkin, R, “Hard Cases” (1975) 88 Harv LR 1057 at 1058-1062CrossRefGoogle Scholar.
184 Justice M H McHugh, above n 171 at 48.
185 As to the political and administrative background to the development of the 1993 Act, see Bartlett, R, “Political and Legislative Responses to Mabo” (1993) 23 UWALR 352 at 355-361Google Scholar.
186 Wik v Queensland (1996) 187 CLR l. The decision in Wik is more properly characterised as a case involving the statutory interpretation of Crown leases than a case on native title: P Hunter, “Judicial Activism? The High Court and the Wik Decision” (1997) 4(2) Indixrnous Law Bullrtin 6; Gal, D, “An Overview of the Wik Decision” (1997) 20 UNSWLJ 488 at 490Google Scholar. And see, in a similar context, Anderson v Wilson [2000] FCA 394 at [98-148]; (2000) 171 ALR 705 at 725-735; cf at [210-244]; 749-763.
187 See generally as to the effect of the NTA prior to the 1998 amendments: Western Australia v Commonwealth (1995) 183 CLR 373 at 453-459.
188 The NTA is a very long, complex and detailed statute. The following discussion is only intended to outline the issues dealt with by the Act in the broadest terms. The discussion is not comprehensive. It is not intended as a detailed analysis of the operation of the NTA.
189 NTA, s 223. That definition requires a “connection”. The rights include hunting, gathering and fishing. They also include statuto1y rights granted in replacement of native title rights.
190 NTA, ss 10, 11, 211.
191 For example, NTA, ss 47, 47A, 478. See Hayes v Northern Territory [1999] FCA 1248 at [118]. In addition the NTA expressly provides for statutory access rights to cross over and hunt on pastoral lands once a claim respecting those lands has been registered: ss 44A, 448. It also provides that Aborigines can continue to perform certain activities (such as hunting and fishing) in exercise of their native title rights if the activities would otherwise be subject to a licence or an approval: s 211. See Yanncr v Eaton (1999) 166 ALR 258. ln Yarmirr v Commonwealth (1998) 156 ALR 370 (appeal) the Federal Court has also held that the definition of native title in NTA, s 223 has the effect that native title for the purposes of that Act is a significantly wider concept than common law native title. This is discussed below.
192 Where the grant was of an “exclusive possession act” (some of which are prescribed) then native title is absolutely extinguished: NTA, s 23B. If the grant was of a “non exclusive act” (eg, a pastoral lease) then the rights granted prevail over any native title rights: NTA, ss 23G, 231, 44H and tl,ose rights are extinguished to tl,e extent of any inconsistency: NTA, s 23F. But see the notification requirements in s 23HA. Compensation is payable where native title has been extinguished by reason of these provisions: 23J.
193 NTA, s 212.
194 NTA, ss 14-20. There is a difference in dates between legislative and administrative acts. The States and Territories are permitted to enact legislation tl1at validates all “past acts” which otherwise would have been invalid due lo the existence of native title providing that such legislation complies with the NTA scheme.
195 NTA, ss 21, 232A. In some circumstances there are obligations to notify etc: see s 22H. These are acts which would otherwise be invalid and which are done pursuant to or under a valid grant of a freehold or of a lease (other than a mining lease) or which comprise a public work over certain areas including areas where a pastoral lease had previously been granted. Again there are four c,1tegories. Where the relevant past act or intermediate ,1ct is validated, compensation is payable by the Commonwealth or State (as the case may be): NTA, ss17, 20, 22D and 22G. It should be noted that compensation under the NTA is “capped” at the amount payable for the compulsory acquisition of freehold, although that amount can be exceeded if it would not result in “just terms” for the purposes of the Commonwealth Constitution: NTA, ss 51A and 53.
196 NTA, ss 13(1) and 61. Persons asserting a native title interest can apply to the Federal Court for a determination that native title exists. The Federal Court has broad powers to deal with the claim, including by referring the claim to the National Native Title Tribunal for mediation: NTA, s 86B. Ultimately, the Federal Court has power to determine whether native title exists and, if it does, its nature and extent: ss 79A, 81, 94A, 225. As to the degree of specificity required in the determination, see Western Australia v Ward [2000] FCA 191 at [205]ff; (2000) 170 ALR 159 at 21 lff. It is likely that the determination of the Federal Court would be an in rem decision which would bind third parties: Wik Peoples v Queensland (1994) 49 FCR 1; Western Australia v Ward [2000] FCA 191 at [190]; (2000) 170 ALR 159 at 208. The Wik “in rem” decision may not have been correct at the time it was given, but in light of the broader jurisdiction now given to the Federal Court, the reasoning would now seem correct. Nevertheless, the jurisdiction is not exclusive and common law proceedings could still be instituted in State courts eg, for trespass or for injunctions to restrain threatened interferences with native title: see Lardil Peoples v Queensland [1999] FCA 1633.
197 It should be noted that the NTA is basically concerned with the actions of governments. Private acts that unlawfully interfere with existing native title are unlawful. They are subject to the usual remedies for the interference with property rights eg, actions for trespass or nuisance.
198 NTA, ss 24AA, 28. Contrast the approach of the High Court in North Ganalanja Corp v Queensland (1996) 185 CLR 595 where it was held that the “right to negotiate” applied even if there was no native title that could be affected. The 1998 Amendments make it dear that there is no limitation upon future acts if native title does not exist: Lardil Peoples & Ors v Queensland (umeported) [1999] FCA 1633.
199 NTA, ss 10, 11, 24AA, 24OA. Acts which are authorised under the Act include:
- certain acts which are consented to in an Indigenous Land Use Agreement: ss 24EA, 24EB, 24EC and 24DM;
- certain acts following a “non claimant application”: ss 24FA, 66(10);
- certain acts relating to a lease permitting primary production activity: ss 24GB, 24GC and 24GE;
- certain acts relating to water or airspace: s 24HA;
- certain acts relating to acts occurring before 23 December 1996 or the renewal or extension of specified leases: s 24IA;
- the use of land for a purpose for which the land was dedicated or reserved prior to 23 December 1996: s 24JB;
- acts by a State involving the construction, use or maintenance of public facilities: s 24KA;
- certain acts which are “low impact future acts”: s 24LA;
- certain acts which are “off-shore”: s 24NA.
- certain acts where the “right to negotiate” procedure has been complied wit: ss 24MA, 24MB(2), 24MD, 26.
200 See, for example, National Indigenous Working Group, “Critique of the 10 Point Plan” (1997) 4(3) Indigenous Law Bulletin 10-12; Nettheim, G, “Nailing Down Native Title” (1997) 4(3) indigenous Law Bulletin 13-16Google Scholar; Bartlett, R, “A Return to Dispossession and Discrimination: The Ten Point Plan” (1997) 27 UWALR 44Google Scholar; Burke, P, “The Native Title Amendment Bill: What Happened in the Senate” (1998) 4(9) Indigenous Law Bulletin 4-7Google Scholar; Nettheim, G, “The International Implications of the Native Title Act Amendments” (1998) 4(9) lndigmous Law Bulletin 12-HGoogle Scholar; Triggs, G, “Australia's Indigenous Peoples and International Law: Validity of tl1e Native Title Amendment Act 1998” (1999) 23 MULR 372Google Scholar.
201 See, for example, the submission by South Australia to the Joint Commitlee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on 16 October, 1997, Hansard Northern Territory 1766-1767, 1785. See also Tenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, The Native Title Amendment Bill, 1997 (1997) at 36-37 and 77.
202 See the discussion by French J as to the “moral shortcoming” of the current common law native title: Re Waanyi Pmple's Native Title Application (1995) 129 ALR 118 at 165-166. This is a shortcoming that is not attributable to any of the statutory land right schemes.
203 See, for example, Ward v Western Australia (1998) 159 ALR 483 at 639 where Lee J, having found tllat concurrent rights existed, said: “How concurrent rights are lo be exercised in a practical way in respect of the determination area must be resolved by negotiation between the parties concerned.” Given the history and background to tl1e litigation, that does not seem a particularly satisfactory resolution of the issues. However, for my part, I doubt that a court has any other option.
204 Some have suggested that there are significant constitutional objections to a legislative solution, for example the requirement for just terms together with the implied separation of judicial power: see Hanks, P, “A National Aboriginal Policy?” (1993) 16 UNSWLJ 45Google Scholar. There may also be some debate whether the “race” power is sufficient to support land rights legislation, particularly if some aspects of that legislation are viewed as detrimental to some Aborigines: see Williams, J and Bradsen, J, “The Perils of Inclusion: tl1e Constitution and the Race Power” (1997) 19 Adel LR 95Google Scholar; Detmold, M J, “Original Intentions and the Race Power” (1997) 8 PLR 244Google Scholar. Certainly the “just terms” requirement means that the Commonwealth Parliament would have had to have developed a “fair” native title regime. Beyond that, it seems to me that the constitutional issues were manageable, certainly if the Commonwealth and the States had acted jointly Lo achieve a solution. The real reason why such a solution was not attempted was the lack of any political consensus: see McIntyre, G, “Aboriginal Title: Equal Rights and Racial Discrimination” (1993) 16 UNSWLJ 57 at 57-58Google Scholar; McGann, D and Yarrow, D, “Implications for Government Decision Making: Policy, Legislation and Grants of Title” in B Horrigan and S Young (eds), above n 126 at 620-621Google Scholar.
205 See ss 6, 233, 253.
206 Yarmirr v Northern Territory (1998) 156 ALR 370 at 385-389.
207 Ibid at 388.
208 Commonwealth v Yarmirr (1999) 168 ALR 426 at 439-445. At the time of writing applications for special leave to appeal to the High Court have been filed but not yet heard.
209 Ibid at 443, 444 and 445.
210 Ibid at 443. Later in this paper I discuss this use of the “skeletal principle of the common law” analvsis which I think is in error.
211 Ibid at 443-444.
212 Save for His Honour's apparent acceptance, at 531-532, of the position of Olney J, which seems to me to be inconsistent with the rest of his analysis.
213 (1999) 168 ALR 426 at 500 and 504-505. Native title can change over time, but it cannot limit the title of the Crown bevond what it was at the date of settlement.
214 Ibid at 500-502 and 504-505.
215 Ibid at 514.
216 Ibid at 508-5'15; R Cullen, “Rights to Offshore Resources After Mabo 1992 and the Native Title Act, 1993 (Commonwealtl1)” (1996) 18 Syd LR 125 at 144-148 reaches the same conclusion. This seems to be the general view of those commentators that have considered the matter: see, eg, Butt, P, “The Native Title Act: A Property Law Perspective” (1994) 68 ALJ 285Google Scholar; Berry, M, “Indigenous Hunting and Fishing in Queensland: A Legislative Overview” (1995) 18 UQLT 326 at 327Google Scholar.
217 See also Western Australia v Commonwealth (1995) 183 CLR 373 at 452.
218 See, for example, the discussion of the topic in the Tenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, The Native Title Amendment Bill, 1997 (1997): majority report at 74-75; minority report at 73-76.
219 Mabo v Queensland (1992) 175 CLR 1 at 57 and 182-184.
220 As has occurred in Canada: R v Van Der Peet (1996) 137 DLR (4th) 289 at 310; Delgamuukw u British Columbia (1997) 153 DLR (4th) 193. See the discussion in A Lokan, above n 1 where it is argued that the Australian courts should adopt a different rationale for recognition of native title from tl,e ilieory of tenure. The different rationales suggested include “substantive equality” and Aboriginal self-government and/ or fiduciary duty in each case based upon analogies with Canadian cases. Lokan accepts that this would involve the courts in making political choices. These other rationales would justify a broader recognition of Aboriginal customary law.
221 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 37-38.
222 For example, in Canada by the Indian Act, RSC 1985 c 1-5; in the United States by the Indians Act 25 USCA etc.
223 This may be somewhat unfair, particularly to the Northern Territory which has legislated to recognise various aspects of native title: eg, Aboriginal marriage in the Administration and Probate Act 1969 (NT), s 6; Compensation (Fatal Injuries) Act 1974 (NT), s 4; Criminal Code (NT), s 1; Family Provision Act 1970 (NT), s 7; Status of Children Act 1979 (NT), s 3 etc. Even so, tl,ere has been no recognition of Aboriginal “criminal” law by tl1e Australian criminal justice system.
224 Wik u Queensland (1996) 187 CLR I at 184.
225 See discussion by Brennan, F, “Self Determination: The Limits of Allowing Aboriginal Communities to be a Law Unto Themselves” (1993) 16 UNSWLJ 245Google Scholar and by Webber, J, “Native Title as Self Govermnent” (1999) 22 UNSWLJ 600Google Scholar.
226 As to the policy issues that may arise, see, eg, Australian Law Reform Commission, The Recognition of Aboriginal Customary Law Vol 1 (ALRC 31, 1986) paras 206-209. See also Yeo, S, “Native Criminal Jurisdiction After Mabo” (1994) 6 Current Issues in Criminal Justice 6CrossRefGoogle Scholar.
227 Milirrpum u Nabalco Pty Ltd (1971) 17 FLR 141 at 266-267.
228 Wik v Queensland (1996) 187 CLR 1 at 177.
229 For example, in Bulun Bulun v R & T Textiles Pty Ltd (1998) 157 ALR 193 at 196-205 the Court accepted that equity would enforce personal duties upon members of the Aboriginal community where those duties arose out of Aboriginal tradition. In that case the relevant member agreed that he was bound. How is the court lo deal with the issue if it is contentious, given the refusal of the common law generally to enforce personal duties no matter how they arise? Cf De Francesco v Barnum (1890) 45 Ch D 430 at 438.
230 See, for example, Ward v Western Australia (1999) 159 ALR 483 where, after holding that the native title interests and other interests such as pastoral and mining interests were concurrent interests, Lee J said (at 639): “How [the] rights are to be exercised in a practical way… must be resolved by negotiation between the parties concerned.” The Canadian courts seem to have had the same difficulty: see, eg, Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 273; Marshall v Her Majesty the Queen (Canadian Supreme Court, November 17 1999, unreported) al para 22.
231 Mabo v Queensland (No 2) (1992) 175 CLR I at 61; Delgamuukw u British Columbia (1993) 104 DLR (4th) 470 at 727.
232 See N Peterson and B Rigsby (eds), Customary Marine Tenure in Australia (1998). Various commentators have discussed native title in off shore waters. See, eg, D Sweeney, above n 126; MeyersG D, above n 126; Behrendt, J, “So Long, and Thanks for All the Fish…” (1995) 20(1) Aboriginal Law Bulletin 11Google Scholar; R Cullen, above n 216; Storey, M, “The Black Sea” (1996) 3(79) Aboriginal Law Bulletin 4Google Scholar; Kilduff, P Lofgren, N, “Native Title Fishing Rights in Coastal Waters and Territorial Seas” (1996) 3(81) Aboriginal Law Bulletin 16Google Scholar; Jeffrey, P, “Escaping the Net: Native Title as a Defence to Breaches of Australia's Fishing Laws” (1997) 20 UNSTWLJ 352Google Scholar.
233 Commonwealth v Yarmirr (1999) 168 ALR 426 at 516-527 per Merkel J.
234 In Yarmirr the Commonwealth, apparently argued that where legislation having extra-territorial force was enacted prior to the act of sovereignty, then the common law would not thereafter recognise tl1at native title. This argument was rejected by Merkel J at (1999) 168 ALR 426 at 575-576. Merkel J reasoned that the only issue for tl-le recognition of native title is that it exists as at the date of sovereignty and that it burdens the Crown's rights. This reasoning could only be correct where the relevant legislation had been repealed prior to the date of sovereignty. Otherwise, how could the common law recognise a native title right at the date of sovereignty if a statute then applying provided tl1at the right is unlawful?
235 Commonwealth v Yannirr (1999) 168 ALR 426 at 530-53'1. See also Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 18-20; Arnhemland Aboriginal Land Trust v Director of Fisheries (Northern Territory) [2000] FCA 165 at [26] and [39]; (2000) 170 ALR 1 at 8-9 and 12; R Cullen, above n 216 at 142-143. On the other hand, some have argued that native title is applicable in coastal waters by virtue of the Coastal Waters (State Titles) Act 1990 (Cth): see P Kilduff and N Lofgren, above n 232. However, tl1at Act has the effect of extending the jurisdiction of the State: see, eg, Jones v Queensland [1998] 2 Qd R 385. lt does not have the effect of turning land covered by water into land not covered by water.
236 Commonwealth v Yarmirr (1999) 168 ALR 426 at 531-532. This seems to me to be inconsistent with his Honour's analysis at 5Tl-5l5.
237 Ibid at 531, 532 and 559-560.
238 Ibid at 471-480 particularly at 477. See also Arnhemland Aboriginal Land Trust -o Director (f Fisheries (Northern Territory) [2000] FCA 165 at [48-52]; (2000) 170 ALR lat 14-15. It is noted that in Munday v Australian Capital Territory (1998) 146 FLR 17 at 23-24 it was held that the public have a right to cross over Crown land subject to radical title. If this were correct then Aboriginal native title would not include the right to exclude third parties exercising their common law right to cross over Crown land. How0ver, in my vi0w it is not correct. Members of the public have never had an enforceable right to remain on Crown land, including wasteland.
239 (1999) 168 ALR 426 al 546-549.
240 Ibid. See particularly at 549. His Honour does refer to authorities from other jurisdictions where the right to fish has been recognised, but the basis for the recognition of Aboriginal rights in those other jurisdictions differs from the basis in Australia. Of course, his Honour is not alone is drawing distinctions without any obvious basis for doing so. For example, in relation to the Aboriginal Land Rights (Northern Territory) Act 1976, see the distinction drawn between the continuation of public right to fish in waters to the seaward of the high water mark and in tidal rivers and streams in Arnhemland Aboriginal Land Trust v Director of Fisheries (Northern Territory) [2000] FCA 165; (2000) 170 ALR 1.
241 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 30 and 43. See also Dietrich v R (1992) 177 CLR 292 at 319-320 where Bre1man J applied the same test in the context of developing the criminal law. To that extent the argument that the recognition of native title over waters would fracture a skeletal principle provides a good justification for retaining the theory of tenures as the basis for native title and for refusing to recognise native title in off shore waters. However, if native title is to be recognised in off shore waters on some basis other than the theory of tenures, the fact that the right would be inconsistent with the common law would seem to be neither here nor there.
242 (1992) 175 CLR 1 at 59.
243 Ibid at 61.
244 See Sharp, N, “Australian Native Title and Irish Marine Rights: An Inquiry on the West Coast of Ireland” (1998) 16(2) Law in Context 34 at 34-47Google Scholar.
245 This issue is discussed in the judgments in Yannirr u Commonwealth [1999] FCA 1668 at [255] and [701-736]. See also D Sweeney, above n 126 at 121-134; P Jeffrey, above n 232.
246 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 58, 60 and 70; Western Australia v Ward [2000] FCA 191 at [58]; (2000) 170 ALR 159 at -178.
247 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 64-65.
248 Ibid at 68; Western Australia v Commonwealth (1995) 183 CLR 373 at 422; Mason v Tritton (1994) 34 NSWLR 572 at 591; Re Wadi Wadi People's Native Title Application (1995) 129 ALR 167 at 178; Wik v Queensland (1996) 187 CLR 1 at 85-86 and 133; Fejo u Northern Territory (1998) 195 CLR 96 at 126-128 and 154-156. In Ward D Western Australia (1999) 159 ALR 483 Lee J held that it was necessary that there be an intention to extinguish all native title. Otherwise all that occurred was the suppression of the particular incidents of the title for the period of the tenure. At the conclusion of the tenure the full title is resurrected: see at 509-510 and 557.
249 Wik v Queensland (1996) 187 CLR 1 at 91, 112, 150-155, 197-198 and 243-244.
250 Ibid at 133, 166, 203 and 249; Commonwealth v Yarrnirr (1999) 168 ALR 426 at 437-439; Yanner v Eaton (1999) 166 ALR 258 at 288-289.
251 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 64.
252 Fejo v Northern Territory (1998) 195 CLR 96.
253 Wik v Queensland (1996) 187 CLR 1.
254 Yanner v Eaton (1999) 166 ALR 258. See also the similar approach of the Westem Australian Full Court in Wilkes D Tolmsen (1999) 21 WAR 269.
255 (1998) 159 ALR 483; Western Australia v Ward (2000] FCA 191; (2000) 170 ALR 159.
256 (1998) 159 ALR 483 at 507. Lee J relied upon R u Van Der Peet (1996) 137 DLR (4th) 289 and Delgamuukw v British Columbia (1997) 153 DLR (4th) 193. If foreign authority was to be relied upon at all it may be wondered why United States authority was not thought more apt, given that the approach of Brennan J to extinguishment was based upon the United States approach. As to relevant United Stales authority, see United States v Santa Fe Pacific Railway Co 314 US 339 (1941).
257 (1998) 159 ALR 483 at 508. The approach of Gummow Jin Yanncr v Eaton (1999) 166 ALR 258 at 278-279 would seem to be to the same effect, although his approach on the question of inconsistency is quite different.
258 Ibid at 510.
259 Ibid at 508-510. Lee J took a similar approach in North Ganalanja Aboriginal Corp v Queensland (1995) 132 ALR 565 at 590-591. The approach of Olney Jin Yannirr u Northern Territory (1998) 156 ALR 370 at 405-406 is similar. Like Lee J, he held that the relevant rights could exist independently of rights in land: at 406-407 and 427-428; but, unlike Lee J, he held that the independent rights could be separately extinguished: at 431-438.
260 Western Australia v Ward [2000] FCA 191 particularly at [782-792]; (2000) 170 ALR 159 at 352-356.
261 Walden u Hensler (1987) 163 CLR 561 at 566, 567 and 569; Western Australia v Commonwealth (1995) 183 CLR 373 at 474; North Ganalanja Aboriginal Corp v Queensland (1996) 185 CLR 595 at 616; Fejo v Northern Territory (1998) 195 C:LR 96 at 126-127, 128, 131 and 152.
262 In Yanner v Eaton (1999) 166 ALR 258 at 269 Gleeson CJ with Gaudron, Kirby and Hayne JJ commented that native title rights and interests “reflect connection with land”. As pointed out above, it would seem that the relevant connection probably should be physical occupation. In any event, if the connection with the land is extinguished, presumably so are the relevant rights. The question raised by the judgment of Lee and North JJ in Ward is whether native title rights can be extinguished other than by extinguishing the whole connection with the land.
263 It is conceivable, for example, that a right to protect the land could be a native title right: see Neate, G, “Looking After Country: Legal Recognition of Traditional Rights and Responsibilities for Land” (1993) UNSWLJ 161Google Scholar.
264 As North J pointed out in Western Australia o Ward [2000] FCA 191 at [688]; (2000) 170 ALR 159 at 329 the extingnishmenl of the recognition of native title may have no practical consequences at all. The relevant traditional owners may remain on the land in accordance with their rights and traditions. Extingnishment does not mean that the traditional rights have disappeared in fact; it merely means that the common law will no longer recognise or enforce those rights.
265 To this extent much of the discussion in the cases relating to the prerogative is unhelpful in a practical sense. The prerogative powers of the Crown did not enjoy the same paramountcy.
266 Walden v Hensler (1987) 163 CLR 561; Mason u Tritton (1994) 34 NSWLR 572; Yanner u Eaton (1999) 166 ALR 258 at 288-289; cf Yarmirr v Northern Territory (1998) 156 ALR 370 at 405-406 and 427-428; and cf Ward v Western Australia (1998) 159 ALR 483 at 508-510.
267 Western Australia v Ward [2000] FCA 191 at [96-97]; (2000) 170 ALR 159 at 186-187 and cf [707]; 335-336, [805-820]; 359-362 and [852]ff; 372ff.
268 It is probably misleading to refer to Parliamentary intent in circumstances where the accepted understanding was that native title did not exist: see above n 132. The “intention of the Parliament” is derived from the extent to which its legislation is inconsistent with common law native title rights, together witl1 the presumption that it is not inconsistent.
269 This assumes that there is an Interpretation Act in usual form which has the effect that the repeal of an Act does not revive the previous common law: see D C Pearce and RS Geddes, Statutory Interpretation in Australia (41h ed 1996) al 153-158. As to the situation otherwise, see the discussion between Gaudron J and Mr Meadows, QC, Solicitor-General for Western Australia during argument in Yanner:
GAUDRON J: I also have a question in this area, and that is this: let us assume a statute—that is all you can really base your argument on in this case—-and let us assume two layers of rights, the rights under traditional law which the common law recognises, and the rights under the common law. What if that statute is repealed?
MR MEADOWS: If that statute is repealed, the rights under the common law would be able to be exercised.
GAUDRON J: Would revive would they not?
MR MEADOWS: They would not revive because they never went away, whereas… GAUDRON J: That is right, so even to use the word “extinguish” in relation to either of those rights simply means that they are suspended whilst this Act is in force. Is that right?
MR MEADOWS: That is true of the common law right, but in regard to the native title right that has been extinguished by the inconsistency.
GAUDRON J: Whv should it be different? I mean, I can understand interests and the theoretical basis fo the three categories of examples—well, the three examples you have given for extinguishing interests in relation to land are clear. But why should a right given by Aboriginal law recognised by the common law be differently impacted by a statute from the way in which that statute impacts the common law right?
270 Yanner v Eaton (1999) 166 ALR 258 at 269 and 278-279.
271 Ibid at 269-270.
272 In Westen Australia u Ward [2000] FCA 191 at [759]ff; (2000) 170 ALR 159 at 347ff, North J discussed this as a “suspension” of native title. However, as I understand botl1 his and Lee J's reasons this is not an accurate description. On their approach the native title is not affected, but the rights comprising that native title are suspended.
273 Notwithstanding his comments during the argument, this approach seems to have been ultimately adopted by McHugh Jin his judgment in Yanner v Eaton (1999) 166 ALR 258 at 271. Callinan J, at 298-300, seems to be to the same effect.
274 See Western Australia v Ward [2000] FCA 191at [525-526] and [541]; (2000) 170 ALR 159 at 290 and 292-293. On the other hand, the conclusion of the majority in Western Australia v Ward that the grant of a mining lease extinguishes all native title over the whole area of the mining lease, at [581]; 301, may be the result of the particular legislative scheme there under consideration. It may not have application in other jurisdictions where a mining lease does not confer a right of exclusive possession.
275 Yanner v Eaton (1999) 166 ALR 258 at 289. The majority in T!\li,stern Australia u Ward [2000] FCA 191 at [312-329]; (2000) 170 ALR 159 at 238-242 held that under the Western Australia pastoral leases under consideration in that case the rights of pastoralists and of native title holders were each subject to limitations in respect of the “reasonable use” of the land by the other. Consideration will need to be given lo tI-tat limitation in determining tI-te extent of any inconsistency.
276 “[N)ative title is extinguished to the extent of the inconsistency”: Mabo v Queensland (No 2) (1992) 175 CLR 'I at 70. See also Western Australia 'I' Ward [2000] FCA 191 at [88-l12]; (2000) 170 ALR 159 at 184-190.
277 Western Australia v Ward [2000] FCA 191 at [800-804]; (2000) 170 ALR 159 at 358.