INDIGENOUS TO AUSTRALIA:
THE MABO CASE AND THE NATIVE TITLE LEGISLATION - THE LEGAL ISSUES IN RECOGNISING NATIVE TITLE IN
M.A. Stephenson, BA LLB LLM
Lecturer in Law, Law Faculty, University of Queensland
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In Mabo v. Queensland the High Court of Australia ruled that native title is recognised by the common law, and that indigenous inhabitants do have rights to their traditional lands. This was the first time the High Court had the opportunity to consider the question of recognition of native title rights and for the first time since white settlement judicial recognition was given to the rights of indigenous people with regard to land. This decision has revolutionised the notion of land ownership in Australia.
The Commonwealth Government's legislative response to the High Court's 1992 decision in Mabo was to enact the Native Title Act in 1993. This legislation gives statutory effect to much of the decision in Mabo while also introducing new elements in relation to native title and providing a framework in which native title can operate.
This article will first look at an overview of the Mabo case. Here the history of the action will be examined and the facts and the actual decision in the case will be considered. Secondly, the article will examine native title after the Native Title Act 1993 (Cth) together with the main features of that legislation and its operation including: determinations of native title, proof of native title, extinguishment of native title, past and future dealings with native title, the concept of native title and its contents, and compensation issues.
THE MABO CASE
1. History of the Mabo Action
The Mabo case has had a ten year history. In May 1982 Eddie Mabo and four other Murray Islanders, who were members of the Miriam People, instituted legal proceedings in the original jurisdiction of the High Court, claiming rights to their traditional lands. Their traditional lands were the Murray Islands, in the Torres Strait off the North Queensland coast, which consisted of three islands, Mer, Dauar and Waier, having a total area of 9 square kilometres. The claim was originally made on the plaintiffs' own behalf and on behalf of their family groups according to their traditional native title, their actual possession, use and enjoyment of their lands and according to their customs. The statement of claim was amended during the trial to seek declarations relating to the communal title of the Miriam people. It was claimed that those rights survived the acquisition of sovereignty by the Crown at the time of annexation to the Queensland colony in 1879. In the statement of claim it was accepted that the Crown had sovereignty over the Islands. Thus, no issue of sovereignty arose in this case.
The Mabo case was remitted by the High Court to the Supreme Court of Queensland in 1986 for a determination of the issues of fact. This hearing was suspended while the High Court heard a demurrer on the question of the validity of the Queensland Coast Islands Declaratory Act 1985 (Qld). This legislation was enacted with the objective not only of removing any doubt about the annexation of the Murray Islands to the Australian State of Queensland but also to retrospectively extinguish all rights and interests that the Murray Islanders might have owned and enjoyed, without the payment of compensation. The High Court in a 4:3 decision in Mabo v. Queensland (No 1) declared that the Queensland Act was invalid. The High Court found the Act was inconsistent with Section 10(1) of the Racial Discrimination Act (Cth) 1975 (hereinafter referred to as RDA). Because the Act was inconsistent with a Commonwealth law it followed that the Act was invalid by reason of Section 109 of the Australian Constitution. The majority noted that the right that is referred to in Section 10(1) of the RDA was a human right, not necessarily a legal right, to own and inherit property and was referred to in the International Convention on Elimination of All Forms of Racial Discrimination. The Court also noted that the Universal Declaration of Human Rights 1948 recognised the right not to be arbitrarily deprived of that property. The Court thus found that the inconsistency with the RDA arose because the Queensland Act, by arbitrarily depriving the Murray Islanders of their rights, limited the Miriam people's enjoyment of the human right to own and inherit property. The Court found that the Queensland legislation extinguished the traditional legal rights as claimed by the plaintiffs, while it confirmed the existence of other owners' legal rights granted under Crown Lands legislation. It is also arguable that the discriminatory aspect was the taking without compensation and not just the taking itself. This was indicated by the joint judgment.
In accordance with the usual rules relating to a demurrer it was agreed by the parties for the purpose of this action, that the rights claimed by the plaintiffs were presumed to exist unless they had been validly extinguished by the Queensland Act. The demurrer was allowed and the defendant, the State of Queensland, was accordingly unable to rely on this Act as part of its defence in this action. This decision has wide ramifications in relation to extinguishment of native title.
2. The Facts
In 1990 Moynihan J of the Queensland Supreme Court completed his determination of the issues of fact. The facts were found to be as follows:
(a) The Miriam people, who were originally Melanesian, had been in continuous occupation of the islands from the time before European contact.
(b) The Miriam people lived in groups of huts and houses that were organised into villages. Life was communal and based on group membership.
(c) The Miriam people were primarily gardeners. The garden land was located in the central portion of the Islands. Garden land was identifiable by reference to a named locality and also by reference to the name of the relevant individual or family. Land was never held under a communal title, but was owned by individuals or family groups. The boundaries of the land were in reference to known land marks such as specific trees or mounds of rocks.
(d) The land was passed down from father to son for generations and a recognised system of inheritance was shown.
(e) There was no permanent immigration population on the Islands and therefore there was no question of other groups challenging the Murray Islanders' sole occupancy.
(f) A system recognising rights to the use and the produce of the area of the reef, reef flats and fish traps had been lost.
(g) The Miriam people were not nomads living by hunting and gathering of naturally occurring food. In this respect their society differed from that of mainland Australian indigenous inhabitants.
Thus it was possible to show a very close and continuous connection between the Islanders and their lands.
3. The Mabo Decision
In 1992 the High Court, ruled in a 6:1 decision, with Mason CJ, McHugh J, Brennan, Deane, Gaudron and Toohey JJ in the majority and Dawson J dissenting, that the common law of Australia recognised a form of native title, being the rights of the indigenous inhabitants in accordance with their laws and customs to their traditional land. Miriam people were entitled to the occupation, use and enjoyment of the lands of the Murray Islands (except for the operation of Crown leases and some land set aside for administrative purposes). The title of the Miriam people was stated to be subject to the Queensland Government's rights to validly extinguish that title. Any such action would to be subject to the RDA. The High Court indicated that the general principles in Mabo were applicable to mainland Australia. However, the circumstances of the Murray Islanders will differ from many mainland Aboriginals and native title may not be as easy to prove in the mainland. In determining whether the rights of native title could be recognised by the common law the Court re-examined several legal theories which were at the foundation of Australian land law.
The Law Pre-Mabo
Under consideration was the acquisition of sovereignty in Australia, the method of that acquisition of sovereignty and the ensuing rights that followed. It was believed that when the Crown acquired sovereignty it also acquired ownership of all land. Three ways of acquiring sovereignty have been recognised by International Law. They were by conquest, by cession or by settlement of territory that was terra nullius. Terra nullius has generally meant a land belonging to no one or in the language of Blackstone "desert and uncultivated" land. The view was taken from the earliest days of colonisation that Australia was a settled territory under this enlarged notion of terra nullius. The manner of acquiring sovereignty determined the type of law applicable in the new territory and thus determined whether the colonising country's law was to be applied or whether existing rights survived. If the colony was acquired by conquest then the existing laws of that country continued until they were altered by the conqueror. The position was similar in ceded colonies. However, if an uninhabited country was discovered and settled under terra nullius, then all the laws of the settling nation would be immediately in force. The theory here was that there was no local law in existence in the territory. Thus, the common law of England was imported into Australia as a complete body of law subject to the qualification that the colonists could introduce only so much of the English law as was applicable to their own situation. The doctrine of tenure thus became part of the common law of Australia.
Under the feudal scheme of tenure all land belonged to the Crown. No person could own land absolutely. A person merely held the land directly from the Crown, as a tenant of the Crown. The manner of holding was called tenure. It was affirmed in Attorney General v. Brown that the feudal doctrine of tenure was the basis of land law in Australia. In Milirrpum v. Nabalco the Court found that the doctrine of tenure allowed no room for the recognition of common law native title, as the Crown was the owner of all land in Australia. The common law governing colonisation was that pre-existing customary rights and interests in land were abolished upon colonisation unless those rights were expressly recognised by the new Sovereign. In Australia, no treaties were signed nor was there any constitutional or legislative protection of Aboriginal rights to land. Therefore the common law of Australia did extinguish native title.
The Mabo Interpretation
Contrary to the whole history of what was considered to be the position in Australia, the High Court in Mabo found that the Crown was not the absolute owner of all land in Australia. The Court rejected the terra nullius hypothesis as a false and unacceptable proposition in contemporary law. The Court found that the "barbarian theory" that provided the basis of terra nullius was wrong and Australia was not without settled inhabitants. Brennan J noted that the common law of this country could not be frozen in an age of racial discrimination; judged by any civilised standard terra nullius was unjust. However, he noted that the Court was not free to accept rules that accord with contemporary notions of justice and human rights, if their adoption would fracture the skeleton of principle which gives the body of our law shape and normal consistency. The Court found that recognition of native title could be incorporated into our system without fracturing that skeleton of legal principle.
By rejecting the notion of terra nullius, the Court was able to overrule existing authorities and review and reconsider legal theories based on that notion. First, the Court found that the actual acquisition of sovereignty was an Act of State and could not be challenged in an Australian court. Secondly, the Court examined the notion that sovereignty meant ownership of land. Under terra nullius, the acquisition of sovereignty could be equated with Crown ownership because there was no other proprietor of the land. However, if the land was already occupied and not terra nullius, then the Crown did not automatically acquire ownership when it acquired sovereignty. Thirdly, the Court reconsidered the theory that the common law of England became the law of Australia as this was based on the false notion of Australia being terra nullius and unoccupied. Thus the Court found that all the English common law was not necessarily applicable in Australia and it became possible to adopt a modified doctrine of tenure. Brennan J (whose judgment operates as a majority view as Mason CJ and McHugh J agreed) took a slightly different approach to the doctrine of tenure. Under this modified doctrine the Court distinguished the rule that all land is held of the Crown from the notion that all land is owned by the Crown. Thus the Crown would not be the absolute owner of land. The Crown would be the supreme lord of all tenants in the realm.
The High Court in Mabo accepted that the doctrine of tenure was an essential and basic principle of land law in Australia. However, the Court found that in Australia the title conferred on the Crown, was one adapted from feudal theory and that was a radical title, and not absolute beneficial ownership. The radical title is a bare title and enables the Crown to govern and administer the territory and to grant interests in the land to its citizens. Thus, the Court found that while the doctrine of tenure would apply to every grant of an interest in land made by the Crown this doctrine would not apply to interests that did not owe their existence to Crown grants, such as the rights and interests of the indigenous inhabitants. This view of the tenure doctrine allowed for the interpretation that someone else might have rights in the land. The Court found that the pre-existing customary rights and interests of the indigenous people could survive the Crown's acquisition of sovereignty without any need for an express act of recognition by the new sovereign.
The Court found accordingly:
1. Australia was not terra nullius or unoccupied in 1788;
2. Native title survived the acquisition of sovereignty by the British in Australia;
3. Native title was recognised by the common law and the Crown was not the owner of all land as previously thought;
4. On the acquisition of sovereignty the Crown acquired a radical title which is a bare title and not complete ownership of land;
5. Native title is recognised as a burden on the Crown's radical title;
5. A radical title is the foundation of the Crown's fundamental right to govern the country and gives the Crown the right to grant interests in the land to its citizens.
6. The doctrine of tenure continues to apply but in a limited sense. (Under the feudal scheme of tenure all land belonged to the Crown. No person could own land absolutely). Although the Crown now holds a radical title it can still become the "beneficial and absolute owner" of land but only after the exercise of its rights, for example by granting a fee simple. When such rights are exercised any native title is extinguished and then holdings become as they were under the feudal doctrine of tenure.
THE NATIVE TITLE LEGISLATION
The Native Title Act 1993 (Cth) was enacted by the Commonwealth Government to provide statutory recognition to common law native title as found to exist by the High Court in Mabo.
What alternatives to federal legislation could have been chosen? Current Canadian policy is to negotiate comprehensive land claims agreements with those Aboriginal people who are able to establish their traditional interests in lands. Compensation and specific benefits or rights in exchange for the surrender (or partial surrender) of native title interests is provided. This, too, could have been adopted as policy in Australia. In fact the Native Title Act 1993 (Cth) recognises that regional agreements can be reached with indigenous peoples and future comprehensive settlements may be achievable pursuant to section 21 of the Commonwealth Act. Another alternative model was the New Zealand Waitangi Tribunal based on the Treaty of Waitangi but for this a treaty or legislative basis would need to be established. To a limited extent the Australian National Native Title Tribunal established pursuant to the Native Title Act 1993 (Cth) has followed that model.
Why did the Commonwealth Government choose to enact federal legislation? Since the Mabo decision an important question has been what effect does the RDA have on grants of fee simple or leasehold land made after the enactment of the RDA on the 31 October, 1975? Sections 9 and 10 of the RDA provide in effect that if Aboriginal people are deprived of certain rights by discriminatory laws, then those rights are not lost. The right being denied is the right not to be arbitrarily deprived of property. What rights are being denied to Aboriginal title holders because of discriminatory laws? Two possible answers could be given: first, the right not to be deprived of the land itself, in which case all title (that is freehold or leasehold) granted by government since 1975 over land in which native title exists would be invalid; secondly, the right not to be deprived without adequate compensation, in which case title granted by government since 1975 over land in which native title exists would be valid but subject to the payment of compensation. This issue of invalidity has yet to be tested before a court.
After the Mabo decision the Commonwealth Government was under pressure from several groups, particularly the mining interests, to resolve the invalidity issue and ensure security of title. If the Commonwealth Government had failed to legislate then the courts would have had to determine the effects of dealings with lands by governments after 31 October 1975 and the jurisprudence of native title would have developed on a case by case basis. Had the RDA not existed this may have been the preferred option. The Commonwealth Government could have taken legislative action by repealing the RDA (which was never a serious consideration) or by amending the RDA to enable the validation of interests granted after 1975 over native title land. The legislative option chosen was not to affect the operation of the RDA but to validate interests granted after 1975 with the minimal possible extinguishment or impairment of native title.
Although the primary objective of the native title legislation was to resolve uncertainty surrounding the validation question the Native Title Act 1993 (Cth) was in fact designed to achieve four main objectives:
1. the recognition and protection of native title;
2. the regulation of future dealings affecting native title;
3. determinations of native title - the establishment of a means to deal with native title claims, for example the Tribunal and the court processes;
4. the validation of past acts if they had been invalidated because of the existence of native title.
In addition the Native Title Act 1993 (Cth) included a National Aboriginal and Torres Strait Islander Land Fund as part of a "social justice package" to benefit indigenous Australians unable to meet the strict guidelines to assert native title under the Mabo test. The Land Fund provisions were originally contained in Part 10 of the Commonwealth Act but have subsequently been enacted as separate legislation - The Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth).
Federalism in Australia
The Native Title Act 1993 (Cth) binds the States and Territories (some reluctant to legislate in relation to Aboriginal land rights in the past) as well as the Commonwealth and avoids a series of different State laws on native title. In Australia the Commonwealth Government has the power to make laws in relation to the specific powers listed in the Constitution. Certain powers are exclusively within the province of the Commonwealth while others are concurrent and shared with the States. Under the Australian Constitution the States are given the residuary power and this includes power to legislate in relation to land. The constitutional validity of the Commonwealth Native Title Act 1993 has now been upheld by the High Court in Western Australia v. The Commonwealth.
Why does the Native Title Act 1993 (Cth) contemplate complementary State Legislation? The Commonwealth native title legislation is designed to establish a national scheme of native title which requires the States to comply with it in relation to both the validation of "past acts" and in the regulation of future dealings with land. The Commonwealth Native Title Act 1993 validates titles and acts which might have been invalid because of the existence of native title and which were granted or undertaken by the Commonwealth Government. The Commonwealth Act permits titles granted, and acts undertaken by State Governments to be validated by States. The Act does not validate State granted titles or acts. Complementary legislation by States is therefore necessary for validation of State granted titles and acts. The Commonwealth Native Title Act 1993 further provides that a State may confirm existing rights of ownership of natural resources and existing rights of public access, for example beaches, and provides that States may establish State based mechanisms for deciding claims to native title that comply with the criteria in the Commonwealth Act and are consistent with the mechanisms established by the Commonwealth Act. Extinguishment of native title cannot be contrary to the Native Title Act 1993 (Cth) and thus States must ensure that any extinguishment of native title in the validation of past dealings or in the conduct of future dealings is in accordance with the Commonwealth legislation. Complementary legislation by States is again required. Where the particular State legislation is silent on any aspect concerning native title then reference to the Commonwealth Act is necessary. If any inconsistency were found between the Commonwealth and State Native Title Acts then by virtue of section 109 of the Constitution the Commonwealth legislation would prevail.
1. Determinations of Native Title
The Native Title Act 1993 (Cth) provides a process by which application can be made for a determination whether native title exists. Under the Native Title Act 1993 (Cth) an "approved determination" of native title formally acknowledges common law native title as recognised under Mabo. Since the Mabo decision native title exists independently of any statute and does not depend on any claims process for its existence. However, it is preferable to obtain an approved determination of native title under either the State or Federal native title Acts, particularly in relation to future dealings affecting land and also for compensation claims.
The Native Title Act 1993 (Cth) provides for an "arbitral body", either the National Native Title Tribunal (hereinafter referred to as the NNTT) or a corresponding State body, to deal with a variety of applications by the native title claimants, non-claimants, and governments. A State body will correspond to the NNTT only if the Commonwealth Minister determines that the State body meets Commonwealth criteria.
The NNTT has several functions. It will handle claims involving the existence of native title; it will determine applications in relation to carrying out permissible future acts, for example whether a government may grant an interest in land held under, or claimed for native title and it will deal with issues involving the right to negotiate process and the expedited procedure process. The NNTT will also deal with compensation questions and applications for the revocation or variation of approved determinations of native title, and has power to conduct special inquiries and undertake determinations in relations to matters arising under the Commonwealth Native Title Act 1993. A significant limitation on the NNTT is that it is able to make determinations only where the application is unopposed or if the parties agree. If the application is opposed and the parties disagree the NNTT is required to order a mediation conference and if agreement is reached at the conference an order is then made by the NNTT. All determinations of the NNTT must be registered with the Federal Court and have the effect of an order of the Court. Opposed applications, including applications where no agreement is reached, and contested claims for compensation are heard by the Federal Court. If the determinations of the NNTT are challenged then these will be reviewed by the Federal Court. The Federal Court will hear appeals on questions of law in relation to the right to negotiate applications and the NNTT may refer questions of law to the Federal Court.
Choice of Forum
What forum would be most appropriate in which to bring the claim? Existing courts are not deprived of jurisdiction to deal with native title matters; but only the NNTT, a recognised State or Territory body or the Federal Court or High Court can make an "approved determination" of native title. Various factors have been identified to be taken into consideration when deciding where to commence an action. These include the cost of proceedings, applicable procedures and rules of evidence, membership of the Tribunal or court, the likely speed of the hearing, the possible avenue of appeals and the form of relief or order being sought. Although an action is commenced before one court it is possible that the court will remit the matter to another court for trial or that proceedings will be adjourned awaiting the determination of the Tribunal. Commencing an action before a Tribunal has the advantage that the NNTT is capable of determining procedures which are generally informal, and that legal forms and strict rules of evidence are not binding. In relation to applications involving native title lodged by the Registrar of the NNTT with the Federal Court, virtually identical provisions apply. Finally, it should be remembered that the government's power to override the determination of an arbitral body in the State or national interest depends on which body made the determination. Thus a State Government would have the power to overrule the State arbitral body's decisions.
Registration of Native Title
The Native Title Act 1993 (Cth) establishes two registers, one for recording native title claims, the Register of Native Title Claims, and another for recording determinations of native title, the National Native Title Register. Public inspection is available of both registers except where the Registrar considers that it is not in the public interest. The cultural and customary concerns of the indigenous community will be relevant. Upon a determination of native title the Registrar is to notify the Land Titles Office of the relevant State.
Holders of Native Title
Under the Native Title Act the relevant Tribunal or the Federal Court must make a determination as to who holds native title at the same time as a determination as to the existence of native title is made. Native title holders have a choice under the Native Title legislation between vesting title in the common law holders themselves, that is a prescribed body corporate (non-trustee), or vesting native title in a prescribed body corporate acting as trustee for the common law holders. A body corporate holding land as trustee will come within the definition of "native title holder" and thus will hold native title for the purposes of the Native Title legislation and will have legal management of native title. The body corporate trustee would be subject to the normal obligations of a trustee to account to, and act in accordance with the wishes of the beneficiaries (here, the Aboriginal common law holders of native title). Where a non-trustee body corporate is appointed the common law native title holders themselves will hold native title and the non-trustee body corporate will act as a representative or agent and will be able to deal with the native title interest only where specific instructions from, and authorisation of the common law holders of native title are obtained. Equitable duties of trustees and the remedies afforded in relation to trusts appear to offer greater protection and accountability to the common law holder where the body corporate is constituted as a trustee. The role of the body corporate is to represent the native title holders in dealings with native title under the Native Title legislation, for example to take part in negotiations and compensation claims but not to be involved in the management of the land itself. The Commonwealth Act designates certain Aboriginal and Torres Strait Islander organisations to act as representatives to advise native title claimants in relation to the processes under the Act.
2. Proof of Native Title
Under the Native Title Act 1993 (Cth) the basis of a claim for the recognition of native title is proof of a connection with the traditional land or waters in accordance with the laws and customs of the Aboriginal group. On the issue of proof the Native Title legislation does not change the common law as established in Mabo. It is not exactly clear what connection with the land will have to be shown. Is a spiritual relationship enough? The Native Title Act 1993 (Cth) does not exclude the possibility. Proving a spiritual relationship would not be easy. In Coe v. Commonwealth Mason CJ referred to native title holders maintaining a physical connection with the land in order to prove native title but did not clarify the extent of this connection. This suggests that native title holders will have a better chance of success if a physical connection to the land is maintained. There must also be a substantial maintenance of that connection. Neither the Native Title legislation nor the High Court in Mabo has specified a time frame for maintaining such connection. Certainly the implication is that recent occupation or modern usage will not qualify. In addition this traditional connection must be maintained in accordance with the laws and customs of the community. The High Court in Mabo, however, accepted that laws and customs can be those as currently observed providing that there is continuity in the use of the land or resources. Native title as a communal title requires the existence of an identifiable group or community. Applicants must prove membership of the group and this requires recognition of a person's membership by the elders in authority. Whilst communal groups may change over time native title can be held only by indigenous groups and their biological descendants. These requirements remain unchanged by the Native Title legislation. No restrictions relating to the time in which a claim must be brought have been imposed by the Native Title Act 1993 (Cth).
Who can claim?
Applications under the Native Title Act 1993 (Cth) for a determination of native title can be brought by a person alone or by a group of people claiming to hold native title and also by non-claimants, either the holder of an interest in the entire area or a government. Applications for a revised determination of native title can be commenced by the registered native title body corporate, the government or the Native Title Registrar. Persons whose interests are affected are entitled to notification of the application and can chose to oppose the application.
Onus of proof
For native title claims under the Native Title Act 1993 (Cth) the requirements are listed in section 62 of the Commonwealth Act. Where the requirements in the above mentioned sections are met then the Registrar must accept the application unless it is frivolous or vexatious or where a prima facie case has not been made out. A presidential member of the Tribunal can override the Registrar's rejection but not the Registrar's acceptance. In Coe v. Commonwealth Mason CJ found that the onus of proving native title rests with the native title claimants. Aboriginal people seeking a determination of native title must establish that their connection with the land has been maintained and must conduct tenure searches to prove non-extinguishment of that title. The current expectations of the Tribunal in relation to placing the onus of proof on Aboriginal litigants in the conduct of such tenure searches prior to initiating a native title claim is proving costly and time consuming and is delaying the commencing of actions by many Aboriginal communities.
3. Claimable Land
Under the Native Title Act 1993 (Cth) applications for a determination of native title can be made over vacant unallocated Crown lands but only where the native title holders have maintained the requisite connection with the land and where native title has not been extinguished by prior inconsistent dealings with the land. Thus it is first necessary to undertake a tenure history search of any land proposed to be claimed to determine how the land has been dealt with in the past and if any prior grants or acts had the effect of extinguishing native title.
4. Extinguishment and Validation of Native Title
The extinguishment of native title becomes complex because it is necessary to consider extinguishment of native title under three general time frames as the law applies differently depending on when the grant of title was first made by government. Extinguishment will occur in the following time frames:
(1) Past extinguishment prior to 1975: Past extinguishment prior to 1975 will be governed by the common law under Mabo. The High Court in Mabo found that the government's power to extinguish native title was subject only to the Commonwealth Racial Discrimination Act 1975 (hereinafter referred to as the RDA) which commenced on 31 October 1975. Therefore acts and grants made by the government prior to the passing of the RDA in 1975 would not be invalid simply because of the existence of native title and would not come within the definition of "past acts" in the Native Title Act 1993 (Cth). The High Court in Mabo found that native title could be extinguished by government action. All of the majority Judges found that this would occur by legislation (and grants made under legislative action) which showed a clear and plain intent to extinguish native title. Thus native title will be extinguished by a grant of freehold title that is an estate in fee simple, a grant of a lease and a grant of an interest in land that is inconsistent with native title. The majority in the High Court agreed that if the Crown had granted an interest that was inconsistent with native title then native title would be extinguished to the extent of the inconsistency. Native title is a bundle of rights and not all rights of native title are necessarily lost. The extent of extinguishment must be determined in accordance with the facts of each case. Native title would not continue where the Crown had appropriated land to itself and dedicated the land as road, or used the land for other permanent works. All native title rights would not necessarily be extinguished by declarations of land as State Forests, Timber Reserves or National Parks. If the Crown has reserved land or set aside land for future use as roads or for schools, railways or post offices then native title may continue as both interests could exist concurrently. Conduct by the native title holders themselves may also extinguish native title where, for example, native title was surrendered to the Crown voluntarily or the native title holders ceased to acknowledge their laws and customs or lost their connection with the land, or on the death of the last member of the group or clan. Once native title has been extinguished or lost in the period prior to 1975 it cannot be revived.
(2) Past extinguishment between 1975-1994: The Native Title Act 1993 (Cth) validates "past acts" which are attributable to the Commonwealth. "Past acts" are grouped into four different categories of grants for the purposes of validation and extinguishment of native title. In the validation of past grants native title will be extinguished in some cases and in other cases native title is merely suspended for the term of the grant and revives at the end of that particular grant. Category A includes freehold estates, certain leases such as commercial, agricultural, pastoral or residential and that part of a mining lease which forms part of a permanent city, town or private residence together with associated infrastructure, and certain public works on Crown lands. Category A "past acts" when validated totally extinguish native title provided that the grants or leases were in force on 1 January 1994 or, if occurring after that date, are done pursuant to a pre-existing option or legal right, and in the case of public works provided they were constructed prior to 1 January 1994 and still exist on that date, or were commenced before 1 January 1994, or were public works undertaken pursuant to an authority given during this period but commenced after 1 January 1994. Category B "past acts" are leases that are not in Category A or C, that is all other leases except mining leases. Category B leases would, for example, include leases for community groups that are non-commercial, such as for Girl Guide groups. Category B "past acts" when validated extinguish native title to the "extent of inconsistency". Exactly what this means will depend on the interpretation given to Brennan J's words in Mabo. Arguably this could mean total extinguishment where there is complete inconsistency. Category C "past acts" are the grant of a mining lease or licence. Category D includes any "past act" not in the prior categories and includes other governmental acts such as the issuing of licences for fishing and pearling, tourism and transport, and for the construction of pipelines and power lines. Categories C and D "past acts" do not extinguish native title. Native title rights and interests have full effect after the Category C or D interest has come to an end. Thus native title is suspended and revives on the expiry of the mining lease or other interest.
(3) Future Extinguishment after 1994: Future extinguishment concerns titles granted after 1 January 1994 and legislation after 1 July 1993. Here the Native Title Act 1993 (Cth) applies. The general rule for future dealings with land is described as the non-extinguishment principle. Even if an act is totally or partially inconsistent with native title, native title will continue to exist and is merely suspended for the term of the interest. Once the interest expires native title will revive and again have full effect. In the future dealings regime native title will be able to be extinguished only by:
1. Agreement with the native title holders, or
2. Action under compulsory acquisition Acts together with the subsequent grant of an interest in the land. Acquisition under a compulsory acquisition Act alone will not extinguish native title, but any act done to give effect to the purpose of the acquisition may do so.
3. Action taken after an unopposed non-claimant application has been made (that is where no objection to the application is received within two months of the notice). This will be valid if it is undertaken prior to a determination of native title. Any native title rights will effectively be extinguished or impaired, and rights will be converted to a claim for compensation.
4. Action by the native title holders themselves such as by surrender of native title, or loss of connection with the land; or on the death of the last member of the group.
The purpose of these provisions in the future dealings regime is to protect and maintain existing native title interests in land. If a determination of native title is sought all acts or grants undertaken in relation to the land must be closely examined in each time frame to ascertain if native title is extinguished.
5. Dealings with Native Title Land
Transferability of Title
While recognition has been given to native title rights in the Native Title Act 1993 (Cth) a significant issue is whether a determination of native title under the Act gives the native title holders the right to transfer or grant interests in the land. The transfer of rights is subject to the customs and traditions of the community and tradition may not permit the community land to be sold or leased. Leasing by native title holders could be achieved under the Commonwealth Act by surrendering native title to the government and the native title holders being granted a freehold or leasehold title in exchange. Here native title and the rights associated with it under the legislation would be lost. A possible alternative may be for the native title holders to enter into an agreement with the government for the granting of a Crown lease, for example to either a commercial developer or a corporate entity comprising the native title holders. It would be important for any such agreement to specify that on the reversion of the lease native title rights would fully revive and that the Crown would not become the absolute and beneficial owner of the land. However, where commercial development or exploitation of native title land is the objective then the better solution may be to surrender the land in exchange for a grant in fee simple. Regulations made under section 56(4)(c) of the Native Title Act 1993 (Cth) may provide the circumstances in which the holding in trust of native title rights and interests may be surrendered, transferred, or otherwise dealt with; however, the transfers appear to be in relation to a transfer from one body corporate to another or to a trustee.
Mortgaging Native Title Land
Further restrictions are imposed by section 56 of the Native Title Act 1993 (Cth) which provides that native title rights and interests held by the body corporate are not able to be assigned, seized or sold or made subject to any charge or interest as a result of any debt or liability of, or any act done by the body corporate unless that debt was incurred in connection with dealings authorised by the Commonwealth Act or Regulations. Thus if native title land is pledged as security it cannot be forfeited for debts and cannot be seized under bankruptcy. Where rights to mortgage native title land as security for a loan are restricted (either because of the customs of the community or because of the terms of the Act) then the commercial development potential of native title land may also be limited.
Surrender of Native Title
Under Section 21(1) of the Native Title Act 1993 (Cth) native title holders can also surrender native title to the Government - Commonwealth, State or Territory - for a consideration which includes the grant of a freehold estate in any land or any other interest in relation to land. Therefore it is possible to exchange traditional native title land for a freehold or a leasehold interest or to acquire land that would be more commercially viable. No machinery is provided in the legislation to ensure comparability of the value of the land exchanged. This has been left to the Executive's discretion.
Resumption of Native Title Land
In accordance with the Native Title legislation native title will be able to be resumed by action under compulsory acquisition Acts. Compensation will be assessed on the basis of "just terms" in accordance with Division 5 of the Native Title Act 1993 (Cth).
6. Future Dealings Regime for Native Title Land
A completely new regime governs future dealings with native title land under the Commonwealth Native Title legislation. One feature of the future dealings regime for native title is the freehold equivalent status of native title.
Under the Commonwealth Native Title legislation "acts" affecting native title are divided into two categories: "past acts" and "future acts". New titles granted after 1 January 1994 and legislation made after 1 July 1993 are designated as "future acts". An essential characteristic of a "future act" is that it must impact on native title to some extent. Acts are further categorised as onshore or offshore, a distinction based on States' boundaries. Different treatment is accorded to acts occurring in different places.
In the new future dealings regime the effect of the Commonwealth legislation is first that native title is to be treated as equivalent to freehold for the purposes of determining if a State can take action relating to the land. The Crown can deal with native title land only in the same way that it can deal with "ordinary title", which is freehold or leasehold land, and that is by formal acquisition procedures. Consequently land over which native title exists will now have to be formally acquired before a government can grant an interest in that land, such as a pastoral lease or a freehold grant of title, and native title holders will be entitled to the same procedural rights (that is the same notifications and the same rights of objection) as holders of "ordinary title". The common law right to extinguish native title recognised by the High Court in Mabo does not apply to "future acts".
Sections 23 and 235(2) of the Native Title Act 1993 (Cth) detail the conditions for permissible future acts. Permissible future acts are defined in section 235 to include:
1. Legislation that applies in the same way to native title holders as it does to the holders of ordinary title, for example Building Laws or Environmental Protection legislation. The legislation must not place the native title holders in a more disadvantageous position at law than if they had held ordinary title.
2. Acts which can be done over ordinary freehold title land, for example the grant of a mining lease.
3. The future renewal, regrant or extension of the term of a commercial, agricultural, pastoral or residential lease. Where a legally enforceable right (that is, a right contained in the lease itself or in the legislation guaranteeing renewal) exists and was created before 1 January 1994, then renewal rights are protected.
4. Acts defined in section 234 as low impact future acts, such as minor licences and permits for activities such as bee keeping or stock grazing, are permitted prior to a determination of native title being made. Such "acts" could not be carried on after a determination of native title as they would not be able to be granted over freehold land without the owner's permission.
5. Acts pursuant to an agreement between the native title holders and the Government under section 21.
6. Future acts in relation to an offshore place even if the offshore place is subject to native title.
7. Future acts where there has been a determination on an unopposed non-claimant application by a non-native title holder that no native title exists. Here, any future act will be valid even if native title is later found to exist and rights of native title are converted to rights to compensation.
The second new right in the Native Title Act 1993 (Cth) is that native title holders (where native title has been determined) and registered claimants (where native title has been applied for but not determined) have the right to negotiate with government (and the proposed grantee party) prior to the government carrying out certain permissible future acts. While this right is not a veto it does allow native title holders and claimants to have some influence and control over future developments of their lands. The right is restricted to native title in onshore places. The right to negotiate could arise in the following circumstances:
1. Prior to the compulsory acquisition by governments of native title interests. Thus if governments propose to grant interests which confer rights on third parties over native title which could not be granted over freehold land (for example a pastoral or tourism lease) the native title interest would have to be compulsorily acquired and this would invoke the negotiation process.
2. Prior to the granting of an interest over native title land by governments, such as a mining interest or an exploration permit. No right exists for ordinary freeholders in Australia to prevent the mining proceeding.
3. Where no legally enforceable right to renew or vary an existing mining interest in native title land exists, then renewal can occur only where the negotiation process has been complied with.
The negotiation process is not required in certain cases:
1. Before governments acquire native title land for public purposes such as infrastructure development no negotiation is necessary. If governments wish to use land for public buildings, roads and schools, then any native title interests must still be acquired in accordance with the relevant compulsory acquisition procedures and notifications. Where it is unclear whether native title exists over any Crown land in question, for example where no past inconsistent dealings have taken place with the land, then a non-claimant application should be made. (If it is clear that native title has been extinguished by past inconsistent dealings, such as the grant of a fee simple, then there will be no right to negotiate.)
2. Where licences are issued by governments for activities in offshore waters (such as fishing) no right to negotiate exists although native title holders have an interest in these areas.
3. Where the expedited procedure is applicable the right to negotiate is not relevant. This procedure is available when a government gives notice under section 29(4) of the Native Title Act 1993 (Cth) that it intends to do a certain future act and where no objection is received within two months of the notice being given. This process relates only to actions by governments and is available only if the future permissible act does not directly interfere with the community life of the native title holders, or interfere with areas or sites of particular significance, or involve any major disturbance to any land or waters concerned. Native title holders can object to the use of the expedited procedure and a decision will be made by the Tribunal or arbitral body as to whether the act attracts that procedure.
4. Where the government gives notice (under section 29) of its intention to carry out a future act and no objection is made within two months after that notice has been given then any interest granted by the government will remain valid. On a non-claimant application for the determination of native title if no native title is claimed within two months in response to such an application there will be no right to negotiate. Any future act will be valid and native title rights will be compensated. If a government has initiated a non-claimant application it may withdraw the application only in certain circumstances. The Tribunal has a discretion to refuse the withdrawal of applications and therefore the application may be forced to proceed.
5. The negotiation process is not applicable in relation to future renewals where the renewal is undertaken pursuant to a legally enforceable right that was created before 1 January 1994.
6. No right to negotiate is given in relation to low impact future acts because of the nature of such activities.
7. Acts may be excluded by the Commonwealth Minister from the right to negotiate regime.
To ensure that any proposed future act will be valid the right to negotiate process must be complied with. This involves the following:
1. Notice: The government must give notice to the registered title holders or registered claimants, to any representative of an Aboriginal body in the area, to the person who requested the act and to the public of its intention to undertake the future act.
2. Agreement: Native title holders, the government and the grantees must reach agreement within a compulsory negotiation period of six months, or four months in relation to a prospecting or exploration permit.
3. Mediation: If a negotiating party so requests then the arbitral body or the Tribunal must mediate among the parties to assist in obtaining an agreement.
4. Tribunal: If no agreement is reached within the above mentioned time frames then the party wishing the matter to proceed can bring the matter before the Tribunal (or the State arbitral body) which determines whether the permissible future act may be done. However, if an agreement is reached before the arbitral body or the Tribunal makes a determination then no determination must be made. In addition to the right to negotiate, the native title holders are entitled to request the Tribunal to make a determination in relation to the act. The Tribunal must take into account the effect of the grant on certain stipulated criteria which include the effect on native title rights and interests, the way of life of native title holders, the culture and traditions of native title holders, significant areas and sites, the natural environment, the wishes of the native title holders and the economic or other significance of the proposed act to the national interest.
5. The Order: The determination of the Tribunal or the agreement when given to the arbitral body will have effect as a contract between the parties. Agreements may cover royalty payments, income or profit sharing. However, the Tribunal cannot make orders regarding profit sharing.
6. Ministerial Override: The Federal or State Minister can override the determination of the Tribunal in the State or Territory interest, or in the national interest, within two months of the decision.
7. Appeal: On a right to negotiate application before a Tribunal a party may appeal to the Federal Court on a question of law, from any decision or determination of the Tribunal. No other rights of appeal are given here.
7. The Concept of Native Title
Native title rights are defined in section 223 of the Commonwealth Act which legislatively adopts the Mabo decision but without codifying or specifying exactly what native title involves. This section provides that native title means the rights and interests of Aboriginal peoples in relation to land and waters where the rights and interests are possessed under traditional laws and customs. The section also requires that the rights and interests are recognised by the common law of Australia. As the common law changes so will the definition of native title and it therefore remains necessary to refer to the common law concept of native title in Mabo and subsequent decisions. The rights or content of native title, that is the rights which relate to the use of the land and its resources, are to be found in the traditional customs and practices of the native community. Although Mabo did not deal with rights in the seas, in Mason v Tritton it was found that a right to fish could be a right of native title. The actual content of native title is a bundle of rights which will vary from group to group depending on the traditional customs of the group. These rights would include traditional rights such as hunting, gathering and fishing rights; and as part of the continuing evolution and development of customs this could possibly include rights to commercially develop land and resources.
The precise content of native title rights will depend on the interpretation given to legislation purporting to vest ownership of resources in the Crown. Such legislation may have the effect of impairing or extinguishing native title rights. The Commonwealth Native Title Act 1993 (Cth) provides that a State may confirm ownership of natural resources such as State ownership of minerals, petroleum, quarry materials and fauna, together with the State's rights to use, control and regulate water. Existing fishing access rights are stated to prevail over private and public fishing rights and public access has been preserved to beaches, coastal waters, waterways and other public places. It is stated in the legislation that confirmation of ownership of resources will not of itself extinguish or impair native title rights and interests. Legislation should therefore be examined for indications of a clear and plain intention to extinguish native title in accordance with the remarks of Brennan J in Mabo. The date of the original appropriation will be significant as any purported appropriation of resources after 1975 would have to treat native title land in the same way as freehold land to avoid infringement of the RDA. In examining possible legislative impairment or extinguishment of native title it should be noted that State legislative power extends over the coastal waters three nautical miles seaward and Commonwealth jurisdiction extends beyond that. A detailed examination of native title rights in relation to natural resources, minerals, timber, wildlife, fishing and water rights requires an examination of laws in each State in Australia and is beyond the scope of this paper.
Status of Native Title
Native title is not easily categorised. Native title may approach full "ownership" of land where the community has, for example, exclusive possession and control of the land but in other cases native title may simply be a right to hunt or food gather on the land. Here native title may be similar to an easement or a profit a prendre. Native title appears to be a usufructuary right of user of the land with some of the characteristics of a proprietary title. The High Court in Mabo did recognise that native title rights were legal rights. The best approach is to note that native title is outside the known system of land law in Australia. It is sui generis (the only one of its kind or peculiar to itself). The classification of native title may now be irrelevant for many legal issues due to the new rights recognised for native title holders in the Native Title legislation. These are the right to negotiate and the treating of native title as having freehold status. These new rights, brought about by the way the legislation deals with "future acts", have been detailed above.
Regulation of Rights
Traditional Aboriginal rights such as hunting and fishing are regulated by a series of laws. To assess the impact of regulatory legislation reference should be made to Mabo where the High Court approved Canadian authority to the effect that the mere regulation of native title rights would not extinguish traditional rights and section 8 of the Native Title Act 1993 (Cth) which provides that "this Act is not intended to affect the operation of any law of a State or a Territory that is capable of operating concurrently with this Act". Laws merely regulating native title rights would be capable of operating concurrently with native title; however, laws prohibiting the exercise of any native title rights may not on one interpretation apply to native title.
Section 211 of the Native Title Act 1993 (Cth) allows native title holders under that Act to continue the pursuit of their traditional rights despite regulatory laws prohibiting or restricting such activities, except where a law confers rights and interests only on, or for the benefit of the Aboriginal community. Three elements of any regulatory law require examination here. First, the Aboriginal activity must come within those listed in section 211, hunting, fishing, food gathering or cultural or spiritual activity. Secondly, the exercise of native title rights must be for domestic needs as such protection does not extend to commercial undertakings. Thirdly, the activity must be restricted except by licence or permit. Section 211 may not be relevant if a total prohibition is proclaimed. It then becomes necessary to determine if the prohibitory law is capable of operating concurrently with the Native Title Act 1993 (Cth) and thus applying to native title. Should Aboriginal communities be prevented from exercising traditional rights to light fires if a total fire ban is proclaimed at a time of high fire danger? How far will recognition of a right give protection to preliminary activities? If, for example, hunting is recognised as a right of native title of a community whose traditional hunting practice includes a right to follow the game will this right be protected to allow access over Crown land or private property where native title does not exist?
8. The Relationship of Native Title with other Land Holdings
In Australia the system of Crown leasehold (not freehold) is the basic tenure of many pastoral properties. Grants of pastoral leases are generally considered as extinguishing native title thus no claims can be made over land that was once subject to a pastoral lease no matter for how brief a period of time. However, the question of leases extinguishing native title is currently the subject of argument in the Wik appeal to the High Court. One issue that remains unclear is the question of whether a pastoral lease reserving traditional Aboriginal rights preserves native title itself.
The Native Title Act 1993 (Cth) creates an exception to the extinguishment of native title by pastoral leases. Section 47 enables Aboriginal people who hold a pastoral lease to claim native title and receive the benefits of native title under the legislation. It remains necessary to prove the traditional connection with the land to establish native title rights and this may be a difficulty where a prior pastoral lease has been held by non-Aboriginal tenants. Recognition of native title on pastoral leased land may have implications for mining. For example, where a mining interest is currently undertaken on that pastoral lease any renewal or variation could become subject to a right to negotiate.
Native title, under the Native Title Act, could also be claimed in National Parks except where that title has been extinguished by a prior grant of freehold or leasehold before the area became a National Park. The full extent of native title rights in National Parks is not clear. In accordance with section 211 of the Native Title Act 1993 (Cth) native title rights of fishing and hunting for non-commercial purposes may be carried out except where a law controls or regulates hunting and fishing solely in relation to the Aboriginal community. Arguably native title rights may not be restricted by conservation or management plans in National Parks unless regulations governing such plans were directed specifically for the benefit of Aboriginal people. Camping and lighting of fires are generally restricted in National Parks in Australia. Aboriginal burning off, for example burning land to flush out small animals, could be part of the traditional hunting methods of some groups. Aboriginal fires and occupation of native title land in National Parks may arguably be covered by one of the categories of activities (hunting, gathering, cultural or spiritual) in section 211 of the Native Title Act 1993 (Cth) that attract exemption from compliance with permit or licence requirements.
Under the Native Title Act 1993 (Cth) the creation, variation, renewal and extension of rights to mine and explore on native title lands are subject to the native title holder's right to negotiate. This is not a right that freeholders enjoy in Australia. While the right to negotiate does not necessarily mean a right to a percentage of the royalties, it may allow native title holders to negotiate for joint ventures with a mining company or it could facilitate agreements for the building of facilities that would benefit the whole community, such as hospitals, clinics, schools or housing. It could also encourage agreements for job training or employment of local people. Confirmation of the ownership of minerals by the Crown would be expected to occur in most States.
9. Native Title and Statutory Title
Some Australian States had passed land rights legislation prior to the Mabo decision on the basis of then current law that indigenous rights to land were not recognised at common 11law. While some legislation was designed to recognise traditional Aboriginal rights other legislation granted land title to indigenous people without necessarily any traditional connection with the land. The question now is do grants under such legislation extinguish native title or are they consistent with native title rights. Native title in the Native Title Act 1993 (Cth) includes those interests which have been compulsorily converted or replaced by statutory rights and interests held by Aboriginal or Islander people. The effect is that native title interests would not necessarily be lost by statutory title.
The High Court in Mabo was divided on the question of payment of compensation for extinguishment or impairment of native title. A majority considered that no compensation claim would be available on the extinguishment of native title. Deane and Gaudron JJ found that compensatory damages would be payable where native title was extinguished without legislative authority where the intention to extinguish native title was not illustrated in clear and unambiguous words.
Compensation under the Native Title Act 1993 (Cth) in accordance with Division 5 provisions. Compensation is available for past acts. Compensation for extinguishment of native title must be on just terms to allow for the "loss, diminution or impairment or other effect of the act" on native title. Where the past act affects native title, that is impairs but does not actually extinguish the native title, compensation will be on just terms if that act or grant could not have been done over ordinary title, or if the act was in relation to an offshore place (the area below the low water mark). Compensation for impairment of native title will be assessed on the basis of the similar compensable interest test if the native title is in relation to an onshore place and the grant or act could have been made over ordinary title land. Under the similar compensable test, compensation will be paid in the same circumstances and assessed on the same grounds as it is for the holders of ordinary title, that is freeholders. Who is labile to pay compensation here? If the title being validated was issued by the Commonwealth, then compensation is payable by the Commonwealth. States are liable for compensation where the State issued the past title or where the State validates its past acts. No time periods or cut off date has been specified in the legislation which restricts the period during which compensation may be claimed for acts or grants. Arguably compensation will be paid only for extinguishment or impairment of native title after the enactment of the RDA in 1975. Usually compensation will be calculated as a monetary payment However, compensation may also be assessed to comprise the transfer of property or the provision of goods or services if requested by the native title holders.
Compensation for future dealings that extinguish native title is also available under the Act. Here compensation must be assessed on just terms although the State legislation may not provide for just terms. However, the criteria in the relevant State or Territory compulsory acquisition Act for determining compensation must also be considered. Thus just terms will be a top up measure where the compensation under State or Territory legislation is less than just terms. Compensation for impairment of native title by future dealings is available on the basis of the similar compensable interest test, that is on the same basis as for ordinary title holders. Compensation for impairment is on the basis of just terms for the impairment of offshore native title by acts (other than low impact acts). Compensation is recoverable from the government to which the act is attributable. However, the Commonwealth, States or Territories may pass laws imposing a liability to pay compensation on the person who requested that the future act be done.
A claim for compensation requires that the value of the interest in the land be assessed. The main criteria for assessing compensation under the Native Title Act 1993 (Cth) are by just terms, or the similar compensable interest test - that is in accordance with the law relating to compensation in respect of ordinary title. The valuation of native title and the assessment of the quantum of compensation on the basis of just terms is not precisely defined or determined under the legislation and will be left to the courts to determine. Just compensation generally refers to the full monetary equivalent of the land to the appropriated owner: however, just terms focuses on what is fair and reasonable in the particular circumstances. Just terms should refer inter alia to the market value of land acquired and also to compensation that is fair giving due consideration to the interests of the acquiree and also consideration to general community interests.
In determining just terms the different cultural response and the different relationship that Aboriginal people have to their land should be taken into account and the special attachment that Aboriginal people have in relation to the land should be valued. Assessment of compensation to recompense for spiritual loss may require innovative solutions. For example, it may be that an Aboriginal community would prefer to acquire items of spiritual or cultural significance previously lost to the community. Perhaps a research fund could be set up to preserve ancient language and customs or a buy back arrangement established to acquire elements of Aboriginal art that have been lost. Valuation of native title land will depend on what native title rights are and what special sites of significance are to be found on that native title parcel. Unlike freehold land native title land may not necessarily have a uniform value as sacred sites would require a different basis for assessment. New strategies in valuation may need to be introduced, for example, consultation with the native title holders may become part of the standard valuation process of determining the value of native title.
The Commonwealth Native Title Act 1993 achieves the objective of obtaining certainty of title and security of tenure albeit at the expense of restricting the States in the management of land and resources and in the capacity to grant interests in Crown lands in the future. While the new regime for native title in Australia provides a basis for future dealings with, and protection of indigenous rights to land as recognised by the High Court in Mabo certain issues remain unresolved by the legislation. These include valuation of native title land and the nature of the traditional connection that needs to be proved to establish native title: and the precise content and nature of Aboriginal title will need to be defined. Questions as to transferability of title and whether the commercial development of traditional lands are permitted by customary Aboriginal law also need to be addressed.
A Parliamentary Joint Committee on native title has been established under the Commonwealth Native Title Act 1993 to monitor and report on the operation and implementation of the legislation with provision for review after two years. This at least provides a forum for any concerns.
The rights granted under the Native Title Act 1993 (Cth) are protective rights, especially the right to negotiate. However, proof of native title is onerous and if the criteria cannot be met, that is if native title has been extinguished in the past or if the connection with the land is lost, then native title will not revive and the only option available for many groups is to seek financial assistance to acquire land by purchase or seek to claim statutory title. The Native Title legislation protects non-extinguished native title rights and provides a regime in which native title can operate but offers little to those whose traditional rights and interests in relation to land have been lost, and that could possibly be the majority of Australia's traditional inhabitants. The Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth) is designed to provide financial assistance for the indigenous dispossessed to acquire land. Its resources, comprising annual grants from consolidated revenue, will not be infinite and it is unlikely to assist in the acquisition of land for all in the foreseeable future.
The Mabo case and the Native Title legislation deal with land and rights to land. Considering the High Court's views on extinguishment of native title rights the Mabo case has to be described as "conservative" although at the same time it revolutionised the notion of land tenure in Australia. The issue of extinguishment of indigenous rights by pastoral leases is currently under challenge in the High Court in the Wannyi claim and a ruling allowing native title to co-exist with pastoral leases would alter the Australian landscape with regard to ownership of land in fact as well as in law.
Apart from issues related to the native title legislation future challenges for indigenous native title holders exist and include achieving the negotiation of regional agreements possibly with rights of self-management or self-determination, devising strategies for investment in native title lands and enterprises (assuming the commercial development of native title land is part of evolving customs of the community), facilitating negotiation of agreements with the mining industry on native title land, ensuring protection for cultural heritage and consideration to constitutional protection of native title rights.
Australia recently recognised indigenous rights to land after
two hundred years of white settlement but it has with the enactment
of the Native Title legislation acted swiftly to protect those
recognised rights. The Native Title legislation which is primarily
focussed on land rights may be only the beginning of this recognition
process and it is anticipated that in the future Australia will
take steps to continue to address indigenous issues.*