Native Title Report 2000: Chapter 2: Definition and extinguishment of native title by the common law

Chapter 2: Definition and extinguishment of native title by the common law

This year the High
Court will decide fundamental issues about the nature of native title
and the extent to which it is protected by the common law. In hearing
the appeal of the Miriuwung, Gajerrong and Balangarra peoples from the
decision of the Full Federal Court in Western Australia v Ward (1)
the court will be called upon to arbitrate an old dispute that has
never been settled; that between Indigenous and non-Indigenous people
as competing claimants for land. In this arbitration process the survival
of non-Indigenous interests is assured. It is the Indigenous interests
that are under threat.

The construction
of native title at common law is important because it determines whether
Indigenous interests in land are capable of withstanding the grant of
non-Indigenous interests created throughout the history of colonisation
in Australia. The survival of Indigenous interests in land is central
to the survival of Indigenous culture throughout Australia. If native
title is constructed as a weak title at common law it will be extinguished
by the creation of non-Indigenous interests and the culture that is sustained
by that land will end. If native title is constructed as a strong title
then it will survive the creation of these interests and Aboriginal culture
will endure.

The construction
of native title at common law will in turn affect the level of protection
provided to native title in the NTA. This is because the common law construction
of native title is imported into the statutory definition of native title
at s223, which provides;

(1) The expression native
title or native title rights and interests means the communal, group
or individual rights and interests of Aboriginal people or Torres Strait
Islanders in relation to land or waters, where:

(a) the rights and interests
are possessed under the traditional laws acknowledged, and the traditional
customs observed, by the Aboriginal peoples or Torres Strait Islanders;
and

(b) the Aboriginal peoples
or Torres Strait Islanders, by those laws and customs, have a connection
with the land or waters; and

(c) the rights and interests
are recognized by the common law of Australia.

The NTA offers little further
protection than that provided by the common law to Aboriginal people whose
interests have been affected, either impaired or extinguished by the statutory
or executive creation of non-Indigenous interests prior to 1975. Indeed,
the NTA validates post-1975 extinguishment that would otherwise have been
invalid as a result of the operation of the RDA. However, the NTA does
extend the common law protection of native title in relation to one exempted
category; where native title claims are made over vacant Crown land and
the claimants are in occupation of the land, prior extinguishment will
be disregarded.(2)

Issues in the Miriuwung
Gajerrong case

The main issue in the case
is whether native title should be characterised by the common law as a
bundle of rights in relation to land and waters or or or or or as an interest
in that land and those waters. The majority of the Full Federal Court,
their Honours Justices Beaumont and von Doussa, characterized native title
as a bundle of rights to carry out activities and traditional social and
cultural practices. Justice North, dissenting, agreed with the trial judge,
Justice Lee, that native title was a right to the land and the social
and cultural practices were pendant rights arising from the underlying
right to the land.

The outcome of this issue will
determine the level of protection extended to native title by the law
and whether it is strong enough to survive the grant of various non-Indigenous
interests in land. Where native title is constructed as a bundle of rights
in relation to land it is extinguished, right by right, whenever their
exercise is inconsistent with the enjoyment of non-Indigenous rights.
Where native title is constructed as an interest in land it is extinguished
as a result of a deeper inconsistency between this underlying right to
the land and the enjoyment of non-Indigenous rights.

Native title as a bundle of
rights

• Definition. Native title
  is a bundle of distinct severable and enumerable rights and interests
  that can be exercised on the land.(3) There
  is no overriding principle which unifies these rights and interests
  into a broader legal construct.(4) The common
  law applies to protect only the physical enjoyment of rights and interests
  that are of a kind that can be exercised on the land, and does not protect
  purely religious or spiritual relationships with land.(5)
  The right to maintain protect and prevent the misuse of cultural knowledge
  of the common law holders associated with the determination area is
  a personal right and not a right which can be the subject of a native
  title determination.(6)
• Extinguishment. Extinguishment
  may be caused by (i) laws or acts that indicate a 'clear and plain intention'
  to extinguish native title, (ii) laws or acts which create rights in
  third parties in respect of a parcel of land which are inconsistent
  with the continued right to enjoy native title; and (iii) laws or acts
  by which the Crown acquires full beneficial ownership of land previously
  subject to native title.(7) Where extinguishment
  is caused by laws or acts creating rights in third parties, native title
  is extinguished "to the extent of the inconsistency, irrespective of
  the actual intention of the executive and whether or not the legislature
  or the executive officer adverted to the existence of native title".(8)
• Partial extinguishment.
  Where the creation of rights in third parties is inconsistent with the
  exercise of only some native title rights then only those native title
  rights will be extinguished permanently.(9) A bundle
  of rights that was so extensive as to be in the nature of a proprietary
  interest may by partial extinguishments be so reduced that the rights
  which remain no longer have the character of a proprietary interest.(10)
  A succession of different grants may have a cumulative effect such that
  native title rights and interests which survive one grant that brought
  about partial extinguishment may later be extinguished by another grant.(11)

Native title as a
right to land

• Definition. Justices North
  and Lee both describe native title as a right to land based on the traditional
  connection of Aboriginal people to the land. The right to undertake
  activities on the land, such as hunting and fishing, derives from this
  underlying right to the land.(12)
• Extinguishment. Native
  title is extinguished by legislative or executive acts where the Crown
  has displayed a clear and plain intention to do so.(13)
  A clear and plain intention to extinguish native title is an intention
  to permanently and totally abrogate the right of Aboriginal people to
  the land itself.(14) Native title will
  be extinguished where there is a 'fundamental, total or absolute' inconsistency
  between the rights or interests created by a legislative or executive
  act and the underlying right of Aboriginal people to the land, reflecting
  the intention of the Crown to remove all connection of the Aboriginal
  people from the land in question.(15)
• Suspension. Where there
  is an inconsistency between the rights and interests created by a legislative
  or executive act and the exercise of rights derived from the holding
  of native title, such inconsistency not constituting an intention to
  extinguish native title, the rights created by the legislative or executive
  act will take priority over the exercise of native title rights. Inconsistent
  native title rights will be held in abeyance in order to allow the full
  enjoyment of rights and interests created by the law but will not be
  extinguished.(16) Native title holders
  can resume exercising native title rights when the inconsistent rights
  created by the law have expired.

Impact of developments in
the common law upon the human rights of Aboriginal people

From a human rights
perspective the preferred construction of native title is one which ensures
that Indigenous law and culture are protected from extinguishment. The
following human rights standards support this construction of native title

• The right to equality
• The right to protection
  of property
• The right to enjoyment
  of culture
• The right to self determination
• The principle of freedom
  of religion

The right to equality

The right to racial
equality is recognised in every major international human rights treaty,
convention and declaration.(17) These principles
govern the assessment of the level of protection required with regard
to all substantive human rights, including the rights to protection of
property and the rights of minority populations and Indigenous peoples
to maintain and develop their cultures.

1. Equality requires the
protection of a distinct cultural identity

The meaning of equality
has been informed by the recognition of how the operation of the formal
standard of equality affected minority groups and Indigenous peoples.
The standard of 'formal equality' required merely that all people be subject
to the same laws and protections, regardless of any underlying inequality
or difference in their economic and cultural circumstances. Yet it was
early accepted that minority groups and Indigenous peoples have a right
to maintain their distinctive characteristics. As was stated in the first
session of the United Nations Sub-Commission on the Prevention of Discrimination
and the Protection of Minorities in 1947:

Protection of minorities is the protection of non-dominant groups
which, while wishing in general for equality of treatment with the majority,
wish for a measure of differential treatment in order to preserve basic
characteristics they possess and which distinguish them from the majority
of the population.(18)

This was a recognition
that the strict application of formal rules of equality would not protect
the human right of minority groups to maintain their distinctiveness,
but in fact force them to 'integrate' or 'assimilate' into the majority
culture. Consequently, it was recognised that where there are fundamental
differences between a majority population and minority groups or Indigenous
peoples, mere equal treatment before the law (through the application
of general laws to their particular circumstances) will result in a failure
to protect their fundamental human rights. In order that the human rights
of Indigenous peoples be equally protected, the mechanisms to achieve
that protection must encompass differential treatment which takes account
of our cultural and historical specificity. This is the principle of substantive
equality.

What is required
by 'differential treatment' was discussed by the Permanent Court of International
Justice in Minority Schools in Albania, when the Court stated that protection
of a minority group required:

To ensure for the minority elements suitable means for the preservation
of their racial peculiarities, their traditions and their national characteristics.(19)

This formulation
recognises that to protect a right to enjoy culture necessitates a substantive
equality approach. It is explicitly stated by the Court that equality
requires protection of the special circumstances that enable the continuation
of the culture:

...there would be no true equality between majority and minority
if the latter were deprived of its institutions, and were consequently
compelled to renounce that which constitutes the very essence of its being
as a minority.(20)

The principle of
substantive equality and its corresponding protection of difference, is
a requirement of the basic equality standard, not just an additional 'special
measure' tacked onto formal equality - as Dr Sarah Pritchard has stated:

... an understanding of equality that is elaborated in international
practice regards measures to protect the distinct identities of Indigenous
Australians as required by the concept of equality rather than as an exception
to it.(21)

The Committee on
the Elimination of Racial Discrimination (the CERD Committee) has confirmed
that in their application to Indigenous peoples, the Convention requires
States to comply with a substantive equality standard. General Recommendation
XXIII on Indigenous Peoples requires States inter alia to:

(a) recognise and respect
indigenous distinct culture, history and language and way of life as
an enrichment of the State's cultural identity and to promote its preservation;

(b) ensure that members of
indigenous peoples are free and equal in dignity and rights and free
from any discrimination, in particular that based on indigenous origin
or identity;

(c) provide indigenous peoples
with conditions allowing for a sustainable economic and social development
compatible with their cultural characteristics;

(d) ensure that no decisions
directly relating to the rights and interests of indigenous peoples
are taken without their informed consent;

(e) ensure that indigenous
communities can exercise their rights to practise and revitalise their
cultural traditions and customs, to preserve and practise their languages;
and

(f) recognise and protect
the rights of indigenous peoples to own, develop, control and use their
communal lands and territories and resources and, where they have been
deprived of their lands and territories traditionally used or otherwise
inhabited or used without their free and informed consent, to take steps
to return these land and territories. Only where this is for factual
reasons not possible, the right to restitution should be substituted
by the right to just, fair and prompt compensation. Such compensation
should as far as possible take the form of lands and territories.(22)

It is now also accepted
by the Australian Government that substantive equality is the standard
now required at international law. The Government's arguments before the
CERD Committee conceded that the standard of equality has broadened under
international law to include 'substantive equality'.(23)
This is reflected also in the Attorney General's submission to the Parliamentary
Joint Committee on Native Title Inquiry into the CERD decision in February
2000, which stated:

At the time the CERD Convention
was drafted, equality was conceptualised as sameness or identical treatment.
Under this approach any distinctions in treatment are considered discriminatory.

However, in international
law, as recognition of the existence of legitimate differences between
racial groups has developed, there has been a broadening of the interpretation
of the equal treatment obligation to approve the taking into account
of 'genuine difference'. This understanding of what differences in treatment
are permissible has been termed 'substantive equality'. It allows like
treatment of things that are alike and appropriately different treatment
of things that are different.(24)

International human
rights standards require that cultural differences are not only taken
into account in providing equality between racial groups but that those
differences are positively protected.

The most recent
guidance in relation to the international law standards of equality that
apply to the recognition of Indigenous peoples' lands comes from the CERD
Committee in its consideration of the amendments to the NTA and their
consistency with the requirements of their Convention.

The Committee's finding,
that many of the amendments to the NTA discriminate against Indigenous
people, is based on an understanding of equality that the unique relationship
between land and the culture of Indigenous people be protected.

The Committee recognises further that the land rights of indigenous
peoples are unique and encompass a traditional and cultural identification
of the indigenous people with their land that has generally been recognised.(25)

A number of informative
and educative United Nations reports on the relationship of Indigenous
people to their land have been submitted through the Sub-Commission on
the Prevention of Discrimination and Protection of Minorities. While these
reports are not a source of international law they inform and influence
the standards which are emerging through the UN system. The one point
on which they are all consistent is their recognition of the unique and
fundamental relationship that Indigenous people have with their land.
Mrs Erica-Irene Daes tabled her second progress report of the study entitled
Indigenous people and their relationship to land in June 1999. The final
report has been tabled at a recent meeting of the Working Group on Indigenous
Populations. Mrs Daes notes;

Throughout the life of the Working Group, indigenous peoples
have emphasised the fundamental issue of their relationship to their homelands.
They have done so in the context of the urgent need for understanding
by non-Indigenous societies of the spiritual, social, cultural, economic
and political significance to indigenous societies of their land, territories
and resources for their continued survival and vitality. Indigenous people
have explained that, because of the profound relationship that indgigenous
peoples have to their lands, territories and resources, there is a need
for a different conceptual framework to understand this relationship and
a need for recognition of the cultural differences that exist. Indigenous
peoples have urged the world community to attach positive value to this
distinct relationship.(26)

The report of Mrs
Daes follows from and is consistent with the conclusions proposals and
recommendations of Special Rapporteur Jose R. Martinez Cobo, in Study
of the Problem of Discrimination Against Indigenous Populations 1986.
Mr Martinez Cobo states:

It is essential to know and understand the deeply spiritual
special relationship between indigenous peoples and their land as basic
to their existence as such and to all their beliefs, customs, traditions
and culture.(27)

The unique and fundamental
relationship that Indigenous people have with their land is confirmed
again in the Final Report by Miguel Alfonso Martinez in his Study on treaties,
agreements and other constructive arrangements between States and indigenous
populations.(28) The Final Report recommends;

The first general conclusion concerns the issue of recognition
of indigenous peoples' right to their land and their resources, and to
continue engaging, unmolested, in their traditional economic activities
on those lands. This is the paramount problem to be addressed in any effort
to establish a more solid, equitable and durable relationship between
the indigenous and non-indigenous sectors in multi-national societies.
Owing to their special relationship, spiritual and material, with their
lands, the Special Rapporteur believes that very little or no progress
can be made in this regard without tackling, solving and redressing -
in a way acceptable to the indigenous peoples concerned - the question
of their uninterrupted dispossession of this unique resource, vital to
their lives and survival.(29)

The underlying message
of these reports is that unless the dispossession of Indigenous people
from their land is addressed then Indigenous people will continue to be
disadvantaged.

2. Substantive equality
requires the effect of past discrimination be addressed

The Committee's finding,
that many of the amendments discriminate against Indigenous people, is
based on an understanding of equality that requires that the history of
dispossession of Indigenous people be acknowledged and addressed.

The Committee recognises that within the broad range of discriminatory
practices that have long been directed against Australia's Aboriginal
and Torres Strait Islander people, the effects of Australia's racially
discriminatory land practices have endured as an acute impairment of the
rights of Australia's indigenous communities.(30)

When the right to
enjoyment of culture is governed by a principle of substantive equality,
the protection of that right may also require assessing the right in the
light of past discriminatory treatment and redressing the effects of that
past discriminatory treatment. The CERD Committee recommended that States:

... ensure that Indigenous communities can exercise their rights
to practice and revitalize their cultural traditions and customs, to preserve
and to practice their languages.(31) [emphasis
added]

Further, in a case
regarding the impact of non-Indigenous activities on the Indigenous economic
activities which sustain the way of life and culture of the minority group
the Human Rights Committee stated:

In considering whether the economic activities of the minority
group are being interfered with in such a way as to threaten the way of
life and culture of the community, the Committee will take into account
historical inequities in treatment.(32)

These commentaries
reveal that partial destruction of Indigenous culture because of past
discriminatory treatment should not justify further destruction of that
culture. In fact the impact of past dispossession on the capacity of current
Indigenous communities to sustain their culture must be taken into account
when considering what is required to ensure equal protection for the future
economic sustainability of that culture.

3. The extinguishment of
Indigenous interests in land for the benefit of non-Indigenous interests
is discriminatory

The CERD Committee's
observations in relation to the amendments to the NTA also offer some
guidance on the international law standard of discrimination and its application
to Indigenous relationships to land. The amendments to the NTA that the
CERD Committee found discriminatory were those amendments which preferred
non-Indigenous interests over Indigenous interests.

While the original Native
Title Act was delicately balanced between the rights of indigenous and
non-indigenous titleholders, the amended Act appears to create legal
certainty for government and third parties at the expense of indigenous
title.(33)

The Committee notes in particular,
four specific provisions that discriminate against indigenous title-holders
under the newly amended Act. These include: the Act's "validation" provisions;
the "confirmation of extinguishment provisions; the primary production
upgrade provisions; and restrictions concerning the right of indigenous
title-holders to negotiate non-indigenous land uses.(34)

The first three
sets of provisions referred to by the committee as discriminatory are
provisions which protect non-Indigenous land uses or titles at the expense
of native title. The Committee found these provisions to be discriminatory
even though compensation is available to native title holders for the
impairment or extinguishment of native title as a result of these provisions.
The Committee's discussion of the confirmation provisions is particularly
relevant to the question of how the common law may have a discriminatory
impact on Indigenous people. The following comments of Ms McDougall, special
rapporteur on Australia, are in response to the government's argument
that the amendments to the NTA, in particular the confirmation provisions,
are not discriminatory because they cause no further extinguishment of
native title than the common law;

Since. European settlement.
the native land rights of Aboriginal peoples have been systematically
undermined. (terra nullius) completely discounted the cultural value
of Aborigines traditional and complex land distribution system.

Because much of the government's
argument is that its actions have been justified because they meet the
standard of the common law, it is important to note that the common
law itself is racially discriminatory.

As defined by the High Court
in the Mabo decision, under common law, native title is a vulnerable
property right, it is inferior to sovereign title which has the power
to extinguish native title without notice, consent or compensation.(35)

The Committee rejected
the argument that the common law is the standard against which legislative
actions should be judged as non-discriminatory. Where native title is
constructed by the common law as a vulnerable property right, extinguished
by 'sovereign title' then the common law itself is discriminatory. The
High Court has an opportunity in the Mirriuwung Gajerrong case to construct
native title as a strong title reflecting the underlying values of Indigenous
culture and its relationship to the land. Rather than permitting this
culture to be extinguished, the Court can provide a level of protection
that will ensure its continuation, while at the same time allowing the
non-Indigenous title to be enjoyed to the full.

The right to protection of
property

The right to protection
of property is one of the fundamental human rights at international law.
The Universal Declaration of Human Rights, which is considered to be customary
law, the highest form of international law from which no derogation is
permissible,(36) protects the right under
Article 17:

1. Everyone has the right
   to own property alone, as well as in association with others.
2. No one shall be arbitrarily
   deprived of his property.

The right to protection
of property is further protected under the International Convention on
the Elimination of all Forms of Racial Discrimination (ICERD). Article
5 requires State parties to ensure 'equality before the law without distinction
as to race, colour or national or ethnic origin' in the enjoyment of (among
other things) 'the right to own property alone and in association with
others, and the right to inherit'. The meaning of this protection in relation
to Indigenous Peoples is further explained by the CERD Committee's General
Recommendation on Indigenous Peoples. The recommendation calls upon state
parties to:

Recognise and protect the rights of Indigenous peoples to own,
develop, control and use their communal land, territories and resources
and, where they have been deprived of their lands and territories traditionally
owned or otherwise inhabited or used without their free and informed consent,
to take steps to return these lands and territories. Only when this is
for factual reasons not possible, the right to restitution should be substituted
by the right to just, fair and prompt compensation. Such compensation
should as far as possible take the form of lands and territories.(37)
[emphasis added]

This is an expansive
protection of rights to property. It protects communal ownership of territories,
and anticipates that where traditional lands have been confiscated without
the free and informed consent of the Indigenous owners that such lands
will be returned or where return is not possible, give rise to a right
to compensation.

The obligation to
'return' lands and territories, means that the domestic legality of past
acts of confiscation of traditional Indigenous lands and territories will
not be sufficient to prevent a breach of international law. Consequently,
the application of the substantive equality principle to protection of
Indigenous rights to property in the present will require that the history
of past discrimination be taken into account.

The right to enjoyment of
culture

At international
law minority groups and Indigenous peoples have a collective right to
the enjoyment of their own distinctive culture. This is expressed in Article
27 of the International Covenant on Civil and Political rights (ICCPR):

Members in ethnic, religious or linguistic minorities shall
not be denied the right, in community with the members of their group,
to enjoy their own culture, to profess and practise their own religion,
or to use their own language.

Protection of culture
is also provided by Article 5 (e)(vi) of CERD, which requires states to
guarantee equality before the law in relation to:

economic, social and cultural rights, in particular. the right
to equal participation in cultural activities.

Ensuring the survival
of minority or Indigenous cultures thus requires two things:

• the provision of 'conditions
  for sustainable economic and social development', and
• that these conditions be
  'compatible' with the 'cultural characteristics' of the Indigenous people.(38)

The first requirement
above incorporates the recognition that the right to enjoyment of culture
includes a right to social and economic development. The right to enjoy
a culture is not 'frozen' at some point in time when the culture was supposedly
'pure' or 'traditional'. The enjoyment of culture should not be falsely
restricted as a result of anachronistic notions of the 'authenticity'
of the culture.

The second requirement
above suggests that this right includes the right to equal protection
of the circumstances required to maintain and develop that culture. Where
land is of central significance to the sustenance of a culture, as it
is with Indigenous culture, then the right to enjoyment of culture requires
the protection of the land.

The right to self-determination

The right to self-determination
is guaranteed by Article 1 of the International Covenant on Civil and
Political Rights and Article 1 of the International Covenant on Economic
Social and Cultural Rights. The applicability of this right to Indigenous
peoples was made clear by the Human Rights Committee in its concluding
observations concerning Canada.(39)

The Committee notes that, as the State party acknowledged, the
situation of the aboriginal peoples remains "the most pressing human rights
issue facing Canadians". In this connection, the Committee is particularly
concerned that the State party has not yet implemented the recommendations
of the Royal Commission on Aboriginal Peoples (RCAP). With reference to
the conclusion by RCAP that without a greater share of lands and resources
institutions of aboriginal self-government will fail, the Committee emphasises
that the right to self-determination requires, inter alia, that all peoples
must be able to freely dispose of their natural wealth and resources and
that they may not be deprived of their own means of subsistence (art.
1, para. 2). The Committee recommends that decisive and urgent action
be taken towards the full implementation of the RCAP recommendations on
land and resource allocation. The Committee also recommends that the practice
of extinguishing inherent aboriginal rights be abandoned as incompatible
with Article 1 of the Covenant.

The Human Rights
Committee considered Australian Indigenous policy and legislation under
Article 1 of ICCPR in July 2000. In relation to Indigenous control over
traditional lands the Committee said;

With respect to Article 1
of the Covenant, the Committee takes note of the explanation given by
the delegation that rather than the term 'self-determination' the Government
of the State party prefers terms such as 'self-management' and 'self-empowerment'
to express domestically the principle of indigenous peoples exercising
meaningful control over their affairs. The Committee is concerned that
sufficient action has not been taken in that regard.

The State party should take
the necessary steps in order to secure for the indigenous inhabitants
a stronger role in decision-making over their traditional lands and
natural resources.(40)

The bundle of rights
approach to native title restricts the control that Indigenous title holders
can exercise over their land. Native title is a right to perform specific
enumerated practices, not a right to make decisions regarding what practices
can be carried out on the land. In contrast, the title to land approach
applies a more general definition of native title that leaves a space
within which traditional laws and customs can determine the meaning and
content of the pendant rights.

In its decision
of 18 March 1999 in relation to the amendments to the Native Title Act
the CERD Committee confirmed the right of Indigenous people to effective
participation under Article 5(c) of CERD as interpreted by General Recommendation
XXIII (51) Concerning Indigenous Peoples:(41)

The lack of effective participation by indigenous communities
in the formulation of the amendments also raises concerns with respect
to the State Party's compliance with its obligations under Article 5(c)
of the Convention. Calling upon States Parties to "recognise and protect
the rights of indigenous peoples to own, develop, control and use their
common lands, territories and resources," the Committee, in its General
Recommendation XXIII, stressed the importance of ensuring "that members
of indigenous peoples have equal rights in respect of effective participation
in public life, and that no decisions directly relating to their rights
and interests are taken without their informed consent".(42)

The bundle of rights
approach is contrary to the principles of self-determination and effective
participation that put Indigenous people in control of the decisions concerning
their land, their territories and their resources.

Freedom of Religion

Article 18 of the
ICCPR contains a guarantee of thought, conscience and religion. In its
General Comment on Article 18, the UN Human Rights Committee has adopted
a broad interpretation of freedom of thought, conscience or religion,
encompassing freedom of theistic, non-theistic and atheistic beliefs and
freedom not to subscribe to any of these beliefs. The Committee has made
clear that the protection of Article 18 is not confined to traditional
religions or to religions and beliefs with institutional characteristics
or practices analogous to those of traditional religions.(43)
A UN Special Rapporteur on Religious Intolerance has described religion
as "an explanation of the meaning of life and how to live accordingly".(44)
Pursuant to State reporting procedures, both the Committee on the Elimination
of Racial Discrimination and the Human Rights Committee seek information
concerning the protection of the religions of Indigenous peoples.(45)

Application of these principles
to native title

There is no doubt
that the outcome of the issues before the court in the Miriuwung Gajerrong
case will affect the human rights of Indigenous people throughout Australia.

The extinguishment
test is the test that ultimately determines the level of protection granted
to Indigenous interests in land. The principle of equality requires that
the law accord native title holders the same level of protection and security
in the enjoyment of title as that enjoyed by non-Indigenous title holders.
The extinguishment of Indigenous interests in land for the benefit of
non-Indigenous interests in land is racially discriminatory.

The Mabo decision
makes it clear that from 1975 the Racial Discrimination Act, 1975 (Cth)
(the RDA) rendered invalid Crown grants which had the effect of extinguishing
Indigenous interests in land for the benefit of non-Indigenous interests.
However, prior to the enactment of the RDA in 1975 racial discrimination
was not illegal in Australia.

Many of the Crown
grants that are before the court in the Miriuwung Gajerrong case were
authorised by statutes that were enacted before 1975. These enactments
have not been rendered invalid by the operation of the RDA. The difficulty
in determining whether Crown grants authorised by these statutes had the
effect of extinguishing native title is that the purpose of these statutes
was not to extinguish native title but to create interests in land over
which it was assumed there was no prior owner. To add to this conundrum,
when native title was recognised in 1992 it was constructed as a pre-existing
title; a burden on the Crown since the acquisition of sovereignty.(46)
It is in these circumstances that the construction of native title by
the court, as either a bundle of rights or as a title to land, is instrumental
in determining whether native title survives the grant of various non-Indigenous
interests in the same land. It is also the reason why the courts cannot
characterise their role in the extinguishment of native title as simply
giving effect to past discriminatory legislation. The form in which the
courts recognise native title today is determinative of whether native
title is extinguished by our summary past dealings on Indigenous land.

Extinguishment and co-existence;

Where constructed
as a bundle of rights native title is liable to extinguishment, right
by right, whenever the exercise of a particular right is inconsistent
with the enjoyment of non-Indigenous rights. Where native title is constructed
as an interest in land it is extinguished only as a result of a deeper
inconsistency between this underlying right to the land and the enjoyment
of non-Indigenous rights. The 'bundle of rights' approach to the characterisation
of native title facilitates the finding of 'inconsistency' (and therefore
facilitates the finding of extinguishment) through:

• restricting the rights
  that may be 'recognised' as native title as rights to 'physical use',
• atomising the rights recognised
  into discrete minor rights, and
• abandoning the attempt
  to maintain the Indigenous character of the right recognised at common
  law.

The construction
of native title as bundle of rights makes possible its partial and progressive
extinguishment. It is only when native title rights are understood as
entirely independent of each other, that the possibility of extinguishing
them progressively one by one arises:

... if particular rights and interests of indigenous people
in or in relation to land are inconsistent with rights conferred under
a statutory grant, the inconsistent rights and interests are extinguished,
and the bundle of rights which is conveniently described as "native title"
is reduced accordingly.(47)

The result is that
native title can be progressively weakened, but cannot ever regain its
initial strength.

In a particular case a bundle of rights that was so extensive
as to be in the nature of a proprietary interest, by partial extinguishment
may be so reduced that the rights which remain no longer have that character.(48)

This construction
of native title makes native title inherently weaker than non-Indigenous
forms of property. Treating a mere impairment of native title as partial
extinguishment favours property rights of kinds held by non-Indigenous
people over those held only by Indigenous people and is inconsistent with
Australia's obligations in relation to equality. These obligations require
that the common law presumption against extinguishment of a proprietary
interest be extended to the recognition and protection of native title
which has been proven to exist in accordance with Indigenous law and customs.

The effect of the
progressive extinguishment of native title through the bundle of rights
approach is illustrated by the application of the majority's approach
to extinguishment of pastoral leases and mining leases in Western Australia.
On the majority's approach the enclosure or improvement of pastoral leases
had the effect of permanently extinguishing 'the rights of Aboriginal
people to enter to seek their sustenance in their accustomed manner'.(49)
Having regard to the magnitude of the areas which can be treated as enclosed
or which have been enclosed in the past and the comparatively inconsequential
character of the works which can constitute enclosure, this has a "potentially
dramatic impact".(50) It falls for the High
Court to consider whether the particular outcomes of the principles applied
by the majority in the Full Court 'weigh in favour of a somewhat less
draconian limitation on the ability of the common law to recognise and
protect native title rights and interests'.(51)
Where the choice is open, the High Court must prefer interpretations of
the relevant Western Australian statutes and regulations that are consistent
with the guarantee of equality and the rights of minorities, and hence
a less draconian approach to the recognition and protection of native
title in land subject to pastoral leases.

The effect of the
increased extinguishment introduced by the bundle of rights approach is
further illustrated by the majority's conclusion that statutory provisions
vesting ownership of minerals and petroleum in the Crown and certain mining
leases extinguish native title. This too has considerable impact on the
level of protection accorded to native title.(52)
However, as the decisions of Justice Lee at first instance and Justice
North in the Full Court show, there is room for argument that the mining
leases granted pursuant to the scheme of the Mining Act 1978 (WA) and
Mining Regulations 1981 (WA) did not extinguish native title. Similarly,
there is room for argument that the non-exclusive vesting of minerals
and petroleum in the Crown pursuant to s 3 of the Constitution Act (WA),
s 117 of the Mining Act 1904 (WA), s 9 of the Petroleum Act 1936 (WA)
and s 3 of the Minerals Acquisition Ordinance 1953 (NT) did not extinguish
native title. That such grants should not be held to extinguish native
title is supported by the High Court's decision in Yanner v Eaton in relation
to non-exclusive governmental rights of control over fauna,(53)
the acceptance by the majority in the Full Court of non-exclusive governmental
rights over water, and in the approach of Justices Lee and North.

Where there is any
doubt, the Court should strive to reach a finding that the rights of native
title holders and the rights of holders of mining leases can be exercised
concurrently. Where such a finding is unavailable, the Court should construe
the grant of a right to mine as equivalent to a regime of strict regulation
which, to the extent of any inconsistency, impairs or suspends native
title for the duration of the mining operation.(54)

The 'bundle of rights'
characterisation of native title is a construction of the right that directly
entrenches every small incursion into the right so as to ensure that the
accumulation of small incursions finally results in the complete erosion
of the substantial right. There is no notion of sovereign power being
exercised so as to regulate or curtail Indigenous interests in land. Only
extinguishment will result from the creation by the Crown of inconsistent
rights. In this way Indigenous culture is inexorably removed, parcel by
parcel, to give way to new interests in land as they are created.

Under the right to
land approach, adopted by Justices Lee and North, non-Indigenous rights
are given priority but not so as to extinguish native title whenever there
is an inconsistency. Because this latter approach enables native title
to survive the grant and enjoyment of non-Indigenous rights, there is
an incentive to both parties to reach an agreement as to how their interests
can co-exist. In this way the law assists in the conciliation of interests
rather than their arbitration.

This holistic approach
to the construction of native title allows room for regulation or suspension
of native title, rather than its extinguishment. This is consistent with
human rights norms, which require the conceptualisation of native title
in a manner which promotes its resilience, rather than its fragility and
susceptibility to extinction forever in the eyes of the law.(55)

• Recognition of Aboriginal
  law and culture; The bundle of rights approach constructs native
  title as a defined and finite series of discrete rights. Each right,
  whether it be a right to control access to the land or a right to hunt
  on the land, is extinguished severally or jointly by the Crown's creation
  of inconsistent rights. There is no recognition of an underlying relationship
  with the land which unifies these individual rights into a system of
  rights. In particular there is no recognition of an abstract or conceptual
  level within Indigenous culture which orders physical activities or
  presence on the land into a system of laws. For Indigenous culture the
  abstract level which has this ordering effect is the spiritual relationship
  between the land and the people. The failure in the bundle of rights
  approach to recognise and protect this aspect of Indigenous culture
  is a denial of its unique and essential identity.

While the relationship of
indigenous people with their traditional home land is "primarily a spiritual
affair" or as Blackburn J. described it in Milirrpum v Nabalco Pty Ltd
(1971) 17 FLR at 167, a "religious relationship", the common law applies
to protect only the physical enjoyment of rights and interests that
are of a kind that can be exercised on the land, and does not protect
purely religious or spiritual relationships with land.(56)

The result of the
approach of the majority in the Miriuwung Gajerrong case is that even
though Aboriginal people may continue to maintain a spiritual connection
with the land, the common law will consider their native title rights
to be extinguished where an inconsistency occurs. This disjuncture between
Aboriginal law and culture and common law recognition and protection was
acknowledged by their Honours to be a result of their limited construction
of native title.

That the common law does not provide for the protection or enforcement
of purely religious or spiritual affiliation with land, divorced from
actual physical use and enjoyment of the land, has the consequence that
the continued recognition of traditional laws and observance of traditional
customs may substantially maintain a connection between the indigenous
people and the land even after native title rights and interest have under
Australian law been totally extinguished, for example by a grant of freehold.(57)

What their Honours
did not acknowledge was that the failure of the common law to recognise
and protect Indigenous culture, especially that aspect which identifies
its essential characteristic, is a breach of the human rights of Indigenous
people.

In contrast to the
bundle of rights approach, the right to land approach does recognise the
systemic and spiritual basis of Indigenous traditional law and custom.
This approach gives effect to the recognition of the interconnectedness
of Indigenous connection to land and Indigenous culture. It does not restrict
the right afforded by native title to limited physical usage rights which
are disconnected from any of the cultural meanings that give them purpose.
Instead, the 'title to land' characterisation of native title recognises
that the activities on the land flow from and take their meaning from
this more fundamental connection. As Justice North stated in his dissenting
judgment in Full Federal Court Decision in Miriuwung Gajerrong:

Native title is a right to
the land itself. That conclusion reflects the traditional law of the
aboriginal people.(58)

. aboriginal traditional
law does not treat the "rights" as stand-alone rights. The incidents
of native title depend upon the connection of the aboriginal people
with the land. The underlying connection is the foundation for the exercise
of various rights. The land is not just the place to hunt. Rather the
right to hunt follows as a result of the significance of the land as
the centrepiece in aboriginal law and culture.(59)

In order to extinguish
native title under a 'title to land' approach, the rights created by a
legislative or executive act must be inconsistent with the fundamental
relationship of Indigenous people to the land. Inconsistency at the level
of contingent or incidental rights will not extinguish native title, but
hold it in abeyance for the duration of the inconsistency. This construction
of native title precludes the possiblity of 'partial' and progressive
extinguishment - and so accords protection to the entirety of the right
(just as other common law rights are protected).

The 'title to land'
characterisation of native title thus satisfies the substantive equality
standard for the protection of the right to enjoy and develop culture
in that it legally protects the circumstances required to maintain Indigenous
cultures that are reliant upon their connection to their lands.

The common law recognition
of native title within a human rights framework

The above discussion
shows how the common law construction of native title affects the human
rights of Aboriginal people. What is now argued is that native title is
an issue that the common law itself recognises should be determined under
the guidance of international human rights standards. The basis of this
argument is fivefold;

1. The principles of equality
   and respect for cultural difference underlie the recognition of native
   title in the Australian common law.
2. The recognition of native
   title by the common law was influenced by changes in international law
   and developments in the common law of native title should be guided
   by developments in international law.
3. In the development of the
   common law, international law is a legitimate and important influence.
4. Human rights principles
   provide the common law with a set of guidelines for the recognition
   of a system of law and culture whose origins lie outside of the common
   law.
5. The interpretation of statutes
   that create non-Indigenous property rights over native title land should
   be guided by human rights principles.

1. The principles of equality
and respect for cultural difference underlie the recognition of native
title in the Australian common law

The Mabo decision
represented a fundamental break with the previous common law doctrine
regarding the status of Indigenous rights to land. Prior to the Mabo decision,
the doctrinal explanation of the acquisition of sovereignty in Australia
was that the British had settled territories that although already inhabited
could be considered uninhabited or 'terra nullius'. The acquisition of
territory that was terra nullius allowed the Crown to take absolute beneficial
ownership of all the land. As Brennan C.J. stated in Mabo:

It was only by fastening
on the notion that a settled colony was terra nullius that it was possible
to predicate of the Crown the acquisition of ownership of land in a
colony already occupied by indigenous inhabitants.

It was only on the hypothesis
that there was nobody in occupation that it could be said that the Crown
was the owner because there was no other. If that hypothesis be rejected,
the notion that sovereignty carried ownership in its wake must be rejected
too.(60)

The consequence of
the High Court discarding the distinction between inhabited colonies that
were terra nullius and those that were not was that the rights and interests
of Indigenous inhabitants in land survived the acquisition of sovereignty
by the British Crown.

The High Court has
stated that the overturning of the terra nullius doctrine in the Mabo
decision was based upon and made necessary by a new understanding of historical
'fact'.

... the gist of Mabo [No 2] lay in the holding that the long
understood refusal in Australia to accommodate within the common law concepts
of native title rested upon past assumptions of historical fact, now shown
then to have been false.(61)

This false assumption
of 'historical fact' was really a set of values or assumptions that interpreted
Indigenous societies as lower on the 'social scale' than British society
and consequently not worthy of legal protection. It was the assumption
that the difficulty of explaining Indigenous connection to land within
the conceptual categories already known to the common law legitimated
ignoring it altogether.

The estimation of the rights of aboriginal tribes is always
inherently difficult. Some tribes are so low in the scale of social organization
that their usages and conceptions of rights and duties are not to be reconciled
with the institutions or the legal ideas of civilized society. Such a
gulf cannot be bridged. It would be idle to impute to such people some
shadow of the rights known to our law and then to transmute it into the
substance of transferable rights of property as we know them".(62)
[emphasis added]

The new 'fact' accepted
in the Mabo decision was the re-evaluation of these values or assumptions.
It was a re-evaluation, based on contemporary values of equality and social
justice, of the status of Aboriginal 'social organization and customs',
specifically in relation to the status of their connection to land.

The theory that the indigenous inhabitants of a "settled" colony
had no proprietary interest in the land thus depended on a discriminatory
denigration of indigenous inhabitants, their social organization and customs.(63)

The re-evaluation
of the relationship between Indigenous law and custom and the common law
in Mabo was not understood as equating Indigenous connections to land
into common law property right categories. Rather, the relationship was
understood as a question of how a connection to land established by customary
Indigenous social organization and external to the common law could nevertheless
be recognised by the common law. Consequently, the decision recognised
a right to land that had its source in Indigenous law.

The basis of this
re-evaluation was an understanding of equality, not as applying the same
standards regardless of culture, but as recognising cultural difference.
This understanding of equality requires that fundamentally different forms
of social organization be recognised as having equal validity and respect.
It implies a standard of equality based on equality of cultures. The assumption
of cultural equality is determinative of the Court's decision in Mabo
to develop principles that apply to all Indigenous societies in Australia
and not just the society of the Meriam people.

The theory that the indigenous inhabitants of a 'settled' colony
had no proprietary interest in the land thus depended on a discriminatory
denigration of indigenous inhabitants, their social organization and customs.
As the basis of the theory is false in fact and unacceptable in our society,
there is a choice of legal principle to be made in the present case. This
Court can either apply the existing authorities and proceed to inquire
whether the Meriam people are higher 'in the social organization' than
the Australian Aborigines whose claims were 'utterly disregarded' by the
existing authorities or the Court can overrule the existing authorities,
discarding the distinction between inhabited colonies that were terra
nullius and those which were not.(64)

The court's decision
to overrule the existing authorities was a decision not to distinguish
between cultures based on their values and way of life, but to accept
that cultures are entitled to equal respect regardless of their social
organisation.

Discontinuity within native
title

Mabo created a discontinuity
between what was regarded before and after Mabo as an acceptable basis
for the common law treatment of Indigenous rights to land. However the
common law has not shrugged off its discriminatory past. The discontinuity
between equality and discrimination still sits within the logic of native
title as a distinction between the process of recognition and extinguishment.
Recognition is understood as overturning terra nullius by giving legal
status to, and so protecting Indigenous rights to land. Extinguishment,
on the other hand, preserves non-Indigenous interests in land at the expense
of Indigenous interests. It occurs because interests created by the Crown
are granted greater protection than Indigenous interests in land.

The tension that
exists between the recognition of native title with its origin in cultural
equality, and extinguishment with its origin in discrimination, needs
to be resolved. To date the High Court has not been required to resolve
these contradictory processes within the common law partly because they
have not been presented to the Court as interrelated issues. In Wik the
issue of whether native title is extinguished by the grant of a pastoral
lease was dealt with hypothetically in the absence of a determination
of the native title claim. In Fejo v Northern Territory,(65)
the High Court's decision that the grant of fee simple extinguished
native title was also made in the absence of a native title determination
and was based on the nature of the fee simple grant. In Yanner v Eaton
(66) the proceedings were commenced as a
criminal action in which the protection of s 211 of the NTA was invoked
as a defence. The Miriuwung Gajerrong appeal is the first native title
case to be heard by the High Court in which the question of extinguishment
arises in the context of a claim where traditional laws and customs have
been clearly established and the traditional connection to the land is
ongoing. The way in which the issues are presented to the court is not
the only reason why the fundamental inconsistency in the common law has
not been addressed.

The issues of recognition
and extinguishment of native title have been kept separate in the development
of the common law doctrine of native title. There are two structural bases
for their separation.

• The temporal separation
  of recognition and extinguishment. Native title is a retrospective
  doctrine. It does not say that Indigenous rights to land should have
  been a legal right. It says that native title was always a legal right,
  but simply wasn't 'recognised' as such.(67) The
  doctrine of native title not only reformulates legal relationships to
  land. Native title reformulates legal history.

In this new construction
of legal history, the existence of native title is inserted into the
past. Native title is said to have existed since the time of the change
in sovereignty and the reception of the common law in Australia.

Yet, while the legal category
of native title is inserted into this history, the process of 'recognition'
is not. The legal requirement for recognition of native title is the
maintenance of a 'continued connection'.(68)
While there is an 'historical' component to this requirement, the critical
date for proof is the present; the contemporary connection. The date
of 'recognition', if it occurs at all, is in the present, at the determination
of the native title claim.

The result of this reformulation
of history is that, despite the fact that native title was not recognised
in any individual instance between the British settlement of Australia
and Mabo, it nevertheless did have legality.

This re-formulation of history
also has the effect of inserting extinguishment into the past, at the
time that the Crown acts granting interests in land were enacted. The
reformulation of legal history to insert a fictional legal right to
native title at the time of such Crown grants thus creates a legal relationship
between the Indigenous right to land and the Crown grant at the time
of the grant. What was simply non-recognition at the time of the grant,
becomes legal extinguishment at the time of the grant. Because the conflict
was between legal rights at the time of the Crown grant (not just the
creation of interests in land in which there is no recognised prior
owner), it could be resolved within the legal framework of that time.
Thus, whether the test for extinguishment is 'intention' or 'inconsistency',
the relevant date of that 'intention' or 'inconsistency' is the date
of the act causing extinguishment, not the effect of that act on the
contemporary connection of Indigenous people to their lands.

The consequence of this temporal
separation of recognition and extinguishment is that native title could
be legally extinguished at the time of the grant, even though at that
time its existence was not recognised. It could be extinguished, because
native title was a legal right, and extinguishment was an act with legal
effect. The legal effect of this retrospective 'extinguishment' is to
entrench the effects of the 204- year operation of the doctrine of terra
nullius into the doctrine of native title.

• The separation of responsibility
  for the processes of recognition and extinguishment between the judiciary
  and the executive/legislative government. Just as the processes
  of recognition and extinguishment are separated in time, the responsibility
  for each is also divided between the judiciary and the executive government.
  'Recognition' is posited as a process of the common law, while 'extinguishment'
  is posited as a process of the executive or legislature.

According to current native
title doctrine, extinguishment is the termination of a legal native
title right, caused as a direct result of, and at the time of, a Crown
act creating a non-Indigenous interest in land which is inconsistent
with the native title right. By finding the source and resolution of
the legal conflict entirely within the Crown grant, native title doctrine
limits the powers of the court to intervene in the conflict between
Indigenous and non-Indigenous interests in land. The court's capacity
to deal with the conflict is delimited by the doctrine of the separation
of powers and the rules of statutory interpretation that flow from that
doctrine.

The separation of powers
doctrine places limitations on the capacity of the judiciary to review
executive and legislative acts. The doctrine is based on the principle
that each arm of government has absolute authority within its constitutionally
defined powers. The court may review executive or legislative acts only
if they are illegal; that is, if the act does not fall within one of
the constitutionally defined powers. The court may not review executive
or legislative acts according to a measure of merit (such as whether
or not the act is discriminatory).

The courts cannot
review the merits as distinct from the legality, of the exercise of
sovereign power.(69)

Nevertheless, general rules
of statutory construction dictate that the courts must ensure that statutes
are implemented in accordance with the 'intent' of the legislature at
the time they were enacted. In the context of native title doctrine,
this general rule has been interpreted as a requirement that the legislature
manifest a 'clear and plain intention to extinguish' before native title
is held to have been so extinguished.(70)
The only question that thus arises for the court in the context
of native title is whether at the time of the grant 'extinguishment'
of native title was the 'intent' of the executive or legislature in
creating statutes allowing the grant of non-Indigenous rights to land.
This construction of the problem leaves the court with only a limited
capacity to decide the question of extinguishment and gives responsibility
for 'extinguishment' principally to the executive and legislature.

While this construction of
the problem appears to absolve the court of responsibility for extinguishment,
the conclusion that 'extinguishment' is a direct result of past Crown
grants of non-Indigenous rights to land is not a necessary conclusion.
While it is undeniable that past Crown grants created interests potentially
incompatible with the pre-existing Indigenous interests, what has created
the legal conflict between the Indigenous and non-Indigenous rights
to land is the legality accorded to the Indigenous title since the decision
in Mabo. Were this recognised, the court would retain the power and
the responsibility for the resolution of the conflict of interests that
arise when native title is granted legal status for the first time.
The court would then be responsible for the construction of a contemporary
legal explanation for the relationship between those interests.

The Miriuwung
Gajerrong case presents the High Court with a factual context in which
the recognition and the extinguishment of native title are interrelated
issues. The court is poised to determine at a level of principle the nature
of native title and its capacity to withstand past discrimination. Once
it is recognised that the court's capacity to protect native title is
a result of the court's construction of the doctrine, then it is possible
to understand the processes of 'recognition' and 'extinguishment' as contemporary
processes of judicial interpretation. A bundle of rights approach to recognition
creates an inherently weak title that is able to be eroded, piece by piece
so as to accommodate non-Indigenous interests. Its construction ensures
its disintegration. Faced with two alternative constructions of native
title, one resulting in the inevitable extinguishment of native title
in a piecemeal fashion, the other resulting in the suspension of native
title rights for the duration of the conflicting interest in land, the
court should be guided in its choice by contemporary international human
rights principles of equality and non-discrimination.

2. The recognition of native
title was influenced by changes in international law and its development
should continue to be guided by international law

As indicated above
the Mabo decision represents a fundamental break from the past denial
of Indigenous interests in land.(71)

The status accorded
Indigenous rights to land by the common law was inextricably linked to
the doctrine which justified the British acquisition of sovereignty over
the various Australian territories; terra nullius.

The international
legal doctrine of terra nullius originally applied only to territories
which were in fact uninhabited by any people. However, the doctrine was
extended to apply to some territories occupied by Indigenous people, on
the basis that a territory could be considered uninhabited if the inhabitants
were without laws, without a sovereign and primitive in their social organisation.(72)
The international doctrine of 'terra nullius' was applied to the
British acquisition of sovereignty over Australian territories on this
basis.

The legal consequences
of acquiring sovereignty in a territory that was 'terra nullius' had similar
legal consequences to acquiring sovereignty in other ways such as conquest
or cession, in that all three carried with them the consequences that:

• the common law became the
  law of the colony;
• Indigenous peoples became
  subjects of the Crown; and
• Indigenous people became
  subject to and entitled to the protection of the common law.

However, the legal
consequences of settlement of a territory that was 'terra nullius' differed
from the legal consequences of other ways of acquiring sovereignty in
that it allowed the Crown to take absolute beneficial ownership of all
the land. As Brennan C.J. stated in Mabo:

t was only by fastening on the notion that a settled colony
was terra nullius that it was possible to predicate of the Crown the acquisition
of ownership of land in a colony already occupied by indigenous inhabitants.
It was only on the hypothesis that there was nobody in occupation that
it could be said that the Crown was the owner because there was no other.
If that hypothesis be rejected, the notion that sovereignty carried ownership
in its wake must be rejected too.(73)

The doctrine of
terra nullius was overturned in the Mabo decision, or as Brennan CJ put
it, the Court 'discarded':

...the distinction between inhabited colonies that were terra
nullius and those which were not.(74)

This left the consequences
that:

• sovereignty was still vested
  in the Crown from the date of settlement;
• the common law still became
  the law of the colony from date of acquisition of sovereignty; and
• Indigenous people still
  became subjects of the crown, entitled to the protection of the common
  law.

The overturning of
the doctrine of terra nullius also had the consequence that, because the
territory could no longer be thought of as having been uninhabited, the
acquisition of sovereignty did not have the effect of vesting absolute
beneficial ownership of land in the Crown.(75)
Consequently, the rights and interests of indigenous inhabitants in
land survived the acquisition of sovereignty by the British Crown and
the importation of the common law as the law of the territory.

The re-evaluation
of the doctrine of terra nullius is discussed above as a consequence of
changes in contemporary values and particularly in the principle of equality.(76)
What is argued in this section is that, even though terra nullius has
been discarded as an international law doctrine, the recognition of native
title does not require that the nexus between international law and the
common law treatment of Indigenous people within the legal system of a
sovereign state be discarded. In fact, the Mabo decision confirms that
the domestic recognition of Indigenous people's relationship to land continues
to be strongly influenced by international law standards. It also confirms
that where international law standards change, the common law approach
to Indigenous people should, where possible, change to reflect this. Thus,
in Mabo, the influence of terra nullius on the common law's denial of
Indigenous rights to land is replaced by the influence of international
human rights standards on the recognition of Indigenous rights to land.

This exchange takes
place in Justice Brennan's judgment (with which the majority agreed);

If the international law
notion that inhabited land may be classified as terra nullius no longer
commands general support, the doctrines of the common law which depends
on the notion.can hardly be retained. If it were permissible in past
centuries to keep the common law in step with international law, it
is imperative in today's world that the common law should neither be
nor be seen to be frozen in an age of racial discrimination.

The fiction [terra nullius]
by which the rights and interests of indigenous inhabitants in land
were treated as non-existent was justified by a policy which has no
place in the contemporary law of this country. The policy appears explicitly
in the judgment of the Privy Council in In Southern Rhodesia in rejecting
an argument that the native people "were the owners of the unalienated
lands long before either the Company or the Crown became concerned with
them and from time immemorial . and that the unalienated lands belonged
to them still".

Whatever the justification
advanced in earlier days for refusing to recognise the rights and interests
in land of the indigenous inhabitants of settled colonies, an unjust
and discriminatory doctrine of that kind can no longer be accepted.
The expectations of the international community accord in this respect
with the contemporary values of the Australian people. The opening up
of international remedies pursuant to Australia's accession to the Optional
Protocol to the International Covenant on Civil and Political Rights
brings to bear on the common law the powerful influence of the Covenant
and the international standards it imports. The common law does not
necessarily conform with international law, but international law is
a legitimate and important influence on the development of the common
law, especially when international law declares the existence of universal
human rights. A common law doctrine founded on unjust discrimination
in the enjoyment of civil and political rights demands reconsideration.
It is contrary both to international standards and to fundamental values
of our common law to entrench a discriminatory rule which, because of
the supposed position on the scale of social organisation of the indigenous
inhabitants of a settled colony, denies them a right to occupy their
traditional lands.

However recognition by our
common law of the rights and interests in land of the indigenous inhabitants
of a settled colony would be precluded if the recognition were to fracture
a skeletal principle of our legal system.(77)

The court's receptivity
to changes in international law standards contributed to its recognition
of native title. In developing principles that will determine the nature
of native title and its protection within the common law, the court should
continue to take into account the evolution and elaboration of international
law as it affects Indigenous people.

3. In the development of
the common law international law is an important influence

In Mabo Brennan
J. held that an unjust and discriminatory doctrine which refused to recognise
the rights and interests in land of the Indigenous inhabitants could have
no place in the contemporary law of this country. Justice Brennan confirmed
that while 'the common law does not necessarily conform with international
law, international law is a legitimate and important influence on the
development of the common law, especially when international law declares
the existence of universal human rights'.(78) Thus
Brennan J. confirmed that the expectations of the international community
in this regard accord with the contemporary values of the Australian people.
His Honour held that it would be contrary both to international standards
and to fundamental values of the common law to entrench a discriminatory
rule, which because of the supposed position on the scale of social organisation
of the indigenous inhabitants of a settled colony, denied them a right
to occupy their traditional lands.(79)

The singularity
of the common law lies in the ability of the courts to mould the law to
correspond with the contemporary values of society. This is not to say
that responsibility for keeping the common law consonant with contemporary
values means that changes in the common law are made whenever a judge
thinks change desirable. Clearly, the law must be kept in logical order
and form, for an aspect of justice is consistency in decisions affecting
like cases and discrimination between unlike cases on bases that can be
logically explained.(80) The development
of the common law of native title in conformity with Australia's international
human rights obligations would both achieve the objective of keeping the
law in logical order and form, and accord with the contemporary values
of the Australian people.

There is no doubt
that the common law of native title is in a developing stage. As discussed
previously, in the Miriuwung Gagerrong case the issue of extinguishment
is, for the first time presented to the court with the claimants' connection
fully argued and accepted. The interrelationship of the Court's construction
of native title and the consequent extinguishment or survival of native
title is, for the first time, laid bare.

The basis of the
majority's finding that the common law does not recognise a traditional
spiritual relationship with the land reflects the lack of authoritative
precedent available to it.

In Fejo six members of the
High Court in their joint judgment at CLR 126 say that a grant of fee
simple 'simply does not permit of the enjoyment by anyone else of any
right or interest in respect of the land' and at CLR 128; 'the rights
of native title are rights and interests that relate to the use of the
land by the holders of the native title'.

In our opinion
references to enjoyment of rights and interests in respect of the land
in these passages, confirm that the native title rights and interests
that are recognised and protected by the common law are those which
involve physical presence on the land, and activities on the land associated
with traditional social and cultural practices.(81)

The link between
finding that the common law does not protect spiritual connections to
authority is very tenuous. Similarly the determination that native title
is a bundle of rights is not based on clear authority to this effect.
The authority for this construction comes from decisions where the court
has referred to native title rights as a pluralistic concept. These authorities
are not conclusive of a bundle of rights approach because they could also
be read as consistent with the title to land approach. The title to land
construction of native title also contains a plurality of rights. However
these rights are dependant on and tied together by an underlying relationship
to the land. None of these authorities relied on by the majority say that
native title is nothing more than a multiplicity of rights and interests.

In view of the lack
of direct authority on the nature of native title the court should be
guided by international law governing the relationship of Indigenous people
to their land. On this basis the courts would seek to maintain the integrity
of both the grant of non-Indigenous interests and native title as much
as possible. Inconsistency can be dealt with through suspension or regulation
and extinguishment would be the last option.

4. Human rights principles
provide the common law with a set of guidelines for the recognition of
a system of law and culture whose origins lie outside of the common law

Native title is characterised
as an interest in land based on something entirely outside the common
law (Indigenous law and custom), but nevertheless 'recognisable' by the
common law.

Native title has its origin in and is given its content by the
traditional laws acknowledged by and the traditional customs observed
by the indigenous inhabitants of a territory. The nature and incidents
of native title must be ascertained as a matter of fact by reference to
those laws and customs.(82)

The existence of
the Indigenous law and custom is defined in the above paragraph as a matter
of fact.(83) Yet of itself, the fact of Indigenous
connection to land has no legal consequences within the common law system.
Between the proof of the fact of Indigenous connection and the grant of
common law protection is a further process of 'recognition'.

This is a critical
ambiguity in native title doctrine. Indigenous law and custom is understood
as the origin of the right, but is legally unenforceable until it is recognised
by the common law. Legal protection is thus dependant on a process of
translation, and only that which is 'translated' will be protected by
the common law. (84)

Like any translation
process, the recognition of Indigenous interests in land within the non-Indigenous
legal system seeks to find equivalence between that which is the subject
of the translation and that which is the product of translation. The construction
of native title as a product of translation should find equivalence with
the traditional law and customs of Indigenous people as the subject of
the translation process. At the same time there is implicit in the translation
process a recognition that exact equivalence between the Indigenous relationship
to land and a common law interest in land can never be found. If an exact
equivalence could be found then there would be no need to differentiate
between the common law recognition of native title and its origins and
content.

The impossibility of constructing an exact equivalence between
these two systems of meaning, of constructing an equivalent notion of
Indigenous relationships to land within the common law, should not be
a basis for abandoning the recognition process. To do so would mean a
return to the terra nullius approach of Lord Sumner in In re Southern
Rhodesia: The estimation of the rights of aboriginal tribes is always
inherently difficult. Some tribes are so low in the scale of social organisation
that their usages and conceptions of rights and duties are not to be reconciled
with the institutions or the legal ideas of civilized society. Such a
gulf cannot be bridged. It would be idle to impute to such people some
shadow of the rights known to our law and then to transmute it into the
substance of transferable rights of property as we know them.(85)

The High Court rejected
this approach of not recognising Indigenous interests in land because
their 'usage and conceptions of rights and duties' were irreconcilable
with 'rights of property as we know them'. Justice and equality require
that the common law recognise Indigenous 'social organisation' and 'transmute
it into the substance of [transferable] rights of property as we know
them'.

Requiring the court
to recognise Indigenous law and culture still leaves it with a discretion
as to what meaning to give it. How the 'translation' process is constructed
will influence the extent to which the meaning and content of Indigenous
connection to land is expressed through or diminished by the native title
recognised. Translating Indigenous law so as to render it comprehensible
within the common law will always involve to some degree an imposition
of concepts and assumptions of the common law onto the understanding of
the Indigenous law system. Yet if the recognition of native title is to
be ascertained by reference to Indigenous laws and culture then direct
analogy to common law titles may efface the Indigenous character of the
interest almost entirely.

What is argued in
this section is that the impossibility of finding a perfect equivalence
between an Indigenous relationship to land and common law recognition
of native title should not signal to the courts that the search for equivalence
in its translation of Indigenous law and culture can be set aside. Human
rights principles provide the court with guidelines for the translation
of Indigenous law and culture within the common law. In fact the principle
of equality and its construction at international law provides a paradigm
on which to base the incorporation of difference within the framework
of equality/equivalence.

As discussed above
the international law concept of equality is a substantive one. The essential
distinction between a formal and a substantive standard of equality is
their treatment of difference. Formal equality is achieved by erasing
difference. Substantive equality on the other hand not only permits the
recognition of difference but may require it where this is necessary to
achieve equality between racial groups. Judge Tanaka of the International
Court of Justice explained this concept as follows:

The principle of equality before the law does not mean the absolute
equality, namely the equal treatment of men without regard to individual,
concrete circumstances, but it means the relative equality, namely the
principle to treat equally what are equals and unequally what are unequal.To
treat unequal matters differently according to their inequality is not
only permitted but required.(86)

Rather than the
courts focusing on the differential treatment on the basis of race, a
substantive equality approach focuses on the impact of that treatment
on the racial group concerned. Differential treatment is discriminatory
where it has an invidious impact on the racial group concerned. On the
other hand, not to recognise differences is also discriminatory where
it denies and oppresses the cultural identity of the racial group. This
approach can provide a guide to the court's recognition of cultural difference
through the concept of native title.

Equivalence is to
be found in the level of respect or protection that the common law extends
to native title being equal to the level of respect and protection that
the common law extends to non-Indigenous interests in land. A substantive
equality approach would seek to provide Indigenous interests in land with
the protection necessary to ensure they can be enjoyed, according to their
tenor and to the same extent as non-Indigenous interests in land. Constructed
in this way, native title is a vehicle for the continued enjoyment of
Indigenous culture within the protection of the common law.

Within this human
rights framework based on equality it is possible to compare the two constructions
of native title that are before the High Court in the Miriuwung Gagerrong
case. The translation of Indigenous relationships to land into a bundle
of rights fails to provide protection to the enjoyment of Indigenous law
and culture within the common law.

Translating Indigenous
relationships to land into a bundle of rights

In constructing native
title as a bundle of rights their Honours, Justices Beaumont and von Doussa,
appreciate that native title is necessarily a translation of traditional
laws and customs and as such, a construction of the common law.

Once rights and interests that involve the physical use and
enjoyment of land are identified, their recognition by the common law
gives rise to jural rights under the common law system. Native title rights
and interests thus give rise to jural rights which are "artificially defined"
under the common law because they arise from the acknowledgment and observance
of traditional laws and customs under a different legal system. The common
law accords a status to, and permits enforcement of, those rights according
to common law principles. The artificiality is a consequence of the intersection
of the common law system of law with traditional laws and customs of the
indigenous people.(87)

They argue that
native title as a construction of the common law, is subject to the limitations
in the capacity of the common law to recognise particular attributes of
Indigenous culture. One of these limitations is its recognition of the
spiritual connections which constitute the underlying relationship between
Indigenous people and the land. After quoting from The Idea of Property
in Land their Honours Justices Beaumont and von Doussa comment

The authors, while recognising that an aspect of the behavioural
notion of property is a perception of belonging to the land, which in
the context of native title would include spiritual, cultural and social
connection with the land, it is the empirical facts, and the behavioural
data that evidences that connection, which is recognised and protected
by the common law.(88)

As a result of this
'inherent' limitation in the common law, that in the context of native
title it only recognises 'empirical facts and behavioural data', there
is no recognition of a spiritual level within Indigenous culture which
transforms physical activities or presence on the land into a system of
laws. The failure in the bundle of rights approach to recognise and protect
this aspect of Indigenous culture is, as their Honours make clear, a denial
of its unique and essential identity.

While the relationship of indigenous people with their traditional
home land is "primarily a spiritual affair" or as Blackburn J. described
it in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR at 167, a "religious relationship",
the common law applies to protect only the physical enjoyment of rights
and interests that are of a kind that can be exercised on the land, and
does not protect purely religious or spiritual relationships with land.(89)

It is unclear why
their Honours maintain that the common law will only recognise and protect
'native title rights and interests. which involve physical presence on
the land, and activities on the land associated with traditional social
and cultural practices.' It is posited as a premise rather than a conclusion.
As a premise it is simply a terra nullius style denial of Indigenous culture.
As a conclusion it appears to be linked to the way in which their Honours
approach the task of translating Indigenous culture into the common law
recognition of native title.

One reason why their
Honours posit this limitation in common law recognition of native title
is that to give native title a systematised basis, is to give it the character
of common law property rights. Because native title is not an institution
of the common law then, it is argued, it 'cannot be elevated to something
akin to common law tenure by describing them [native title rights] as
"incidents"(90) of an abstract form of title
from which pendant rights are derived.

Implicit in their
Honours reasoning is that because there is no equivalent of Indigenous
relationships to land within the common law system of tenure, the recognition
of these unique relationships within the common law cannot resemble or
bear any equivalence to the common law. Where a resemblance does appear
between native title and common law tenures it is a misrepresentation
of the sui generis nature of native title. This reasoning can be criticised
from a human rights perspective in three ways.

First, the task
of cultural translation before the court does not require that native
title be constructed as a title bearing no resemblance to a common law
system of tenure. The uniqueness lies in the relationship that Indigenous
people have with the land. The task for the court is to render this unique
relationship comprehensible (recognisable) within the common law. As indicated
above this process will always involve to some degree an imposition of
concepts and assumptions of the common law onto the understanding of the
Indigenous law system.(91) The danger does
not lie in the process of analogising native title to common law concepts
but in whether the enjoyment of Indigenous culture is denied through any
particular analogy.

Second, the impossibility
of there being a common law construct of native title which is equivalent
to the Indigenous relationship to land does not require that the search
for equivalence be abandoned. Instead the search for equivalence in the
common law's translation of Indigenous culture should be aimed at the
level of protection that the common law gives to Indigenous relationships
to land compared with the protection it gives to non-Indigenous interests
in land. If likening native title to a proprietal interest within a tenurial
system provides a vehicle for the enjoyment of the unique Indigenous laws
and customs within the protection of the common law then such a translation
is justifiable as providing substantive equality to Indigenous people.
Richard Bartlett makes this point in his argument that, on the basis of
equality, the common law presumption against the extinguishment of a proprietary
interest should be extended to native title.(92)

Third, native title
does not have to be 'elevated' to a common law tenure to recognise that,
within Indigenous culture, a systemic relationship exists between the
activities that are traditionally carried out on the land. Anthropologist
Peter Sutton characterises these relationships according to core and contingent
rights.(93) Core rights include 'the right
to assert a requirement to be asked for permission to access, use or alter
the area by those who are not holders of core customary rights and interests'.(94)
Within the traditional system the right to hunt or fish cannot be seen
in isolation from the right to grant access to carry out this activity.
Where the right to control access is disconnected from or given the same
value as the right to fish, each equally extinguishable by the creation
of any inconsistent rights, then the protection which the right to control
access gives to the right to fish (or hunt) is denied. This, in turn,
denies native title the inherent strength which comes when rights are
interrelated and systematised.

The refusal of the
common law to construct native title in a way that accepts Indigenous
forms of social organisation in their own terms can be seen as a return
to the terra nullius approach overturned in the Mabo decision.

The view was taken that, when sovereignty of a territory could
be acquired under the enlarged notion of terra nullius, for the purposes
of the municipal law that territory (though inhabited) could be treated
as a "desert uninhabited" country. The hypothesis being that there was
no local law already in existence in the territory, the law of England
became the law of the territory (and not merely the personal law of the
colonists). Colonies of this kind were called "settled colonies". Ex hypothesi,
the indigenous inhabitants of a settled colony had no recognised sovereign,
else the territory could have been acquired only by conquest or cession.
The indigenous people of a settled colony were thus taken to be without
laws, without a sovereign and primitive in their social organisation.(95)

Terra nullius deemed
that the failure to exhibit an organisational structure analogous to 'civilised'
society was tantamount to a failure to exhibit an organisational structure
at all. The recognition of native title by the High Court in 1992 was
a recognition that law did govern Aboriginal society when sovereignty
was acquired by the British and that Indigenous law was a subtle and elaborate
system which provided a reasonably stable order of society. The bundle
of rights approach, like terra nullius, denies recognition and protection
to an Indigenous system of rights on the basis they are unique and therefore
not analogous to 'part of the tenure system of the common law'. (p186)
Like terra nullius the bundle of rights approach denies Indigenous laws
and culture the recognition of an organisational structure at all.

Translating Indigenous
relationships to land into a right to land

In contrast to the
bundle of rights approach, native title as a right to land does recognise
the systemic nature of Indigenous traditional law and custom. By conceptualising
native title as a holistic entity from which all pendant rights derive
their meaning and authority, the 'right to land' approach;

• offers greater protection
  and ensures the durability of native title, despite incursions into,
  'regulation' or 'suspension' of the exercise of the rights which derive
  from the title,
• . allows greater
  openness in the definition of native title.

The 'title to land'
approach employs common law property notions to establish the degree of
protection of native title that is to be granted by the common law.

It reflects the fact of aboriginal law translated into the language
of the Australian legal system. What is involved is a characterisation
of the relationship between aboriginal people and the land translated
into terms which have meaning for Australian law.(96)

North's approach
is consistent with the following statement of Brennan CJ in Mabo, which
illustrates how the analogy to common law proprietary interests ensures
the capacity of the common law to protect native title.

If it be necessary to categorize an interest in land as proprietary
in order that it survive a change in sovereignty, the interest possessed
by a community that is in exclusive possession of land falls into that
category.(97)

In this statement
Brennan C.J. does not assert that native title is equivalent to a 'proprietary'
interest under the common law. Rather, the statement signifies that while
the indigenous relationship with land is entirely different to common
law 'proprietary' interests in land, it requires an equivalent degree
of protection. It indicates that native title is to be regarded as a common
law property right and entitle to the protection that this characterisation
warrants.

Consequently, the
'right to land' approach satisfies a substantive equality standard in
relation to property rights, in that it protects the circumstances required
to protect the right, without prescriptively defining the exact content
of native title. Rather than merely substituting common law categories
for the Indigenous nature of the right, it provides a greater degree of
openness for the expression of the Indigenous character of the right to
be protected.

5. The interpretation of
statutes that create non-Indigenous property rights over native title
land should be guided by human rights principles

It was argued above
(98) that, within the common law doctrine
of native title, the processes of recognition and extinguishment are posited
as distinct and separate. Recognition is a process of the common law,
while 'extinguishment' is a process of the executive or legislature. Extinguishment
occurs at the time that the Crown act creates an interest in the land
which is inconsistent with native title while recognition occurs at the
time of the court's determination. Accordingly the Court's role in the
extinguishment of native title is limited to interpreting the legislative
or executive act that created a non-Indigenous interest in the land to
determine whether there was an intention to extinguish native title. As
pointed out above, this approach fails to appreciate the interrelationship
between the court's contemporary construction of native title and the
capacity of native title to survive the past creation of non-Indigenous
interests in land. It also fails to appreciate the anomaly created by
the fact that native title was only recognised by the court after the
'extinguishing' acts took place.

In this section it
is argued that even if it is accepted that the extinguishment of native
title is effected through legislation, the court should be guided by human
rights principles in its interpretation of these statutes. This argument
is not without judicial precedent. It is a long-established presumption
that a statute is to be interpreted and applied, as far as its language
admits, so as to be consistent with the established rules of international
law.(99) If the legislature intends to effect
inconsistency "it must express its intention with irresistible clearness
to induce a Court to believe that it entertained it".(100)
Where there is ambiguity in the meaning of a statute, the Court has held
that it should favour a construction which accords with the obligations
of Australia under an international treaty.(101)
This is because, the Court has said, a common sense approach suggests
that Parliament intended to legislate in accordance with its international
obligations.(102) In more recent cases,
the Court has indicated that a narrow conception of ambiguity is to be
rejected.(103)

The rules of statutory
interpretation determining whether the Crown has extinguished or appropriated
a citizen's property is that this will not occur unless there is a clear
and plain intention to do so. The corollary of the requirement for a clear
and plain intention is the common law presumption that the Crown will
not so intend.(104) An intention to extinguish
is not evinced from the state of mind of the legislators at the time of
legislating but from the words and construction of the statute.(105)

Because the statutes
which created non-Indigenous interests in land were based on an assumption
that there was no prior Indigenous interests in the land there could never
be an express intention to extinguish native title. In both the Mabo and
Wik decisions this difficulty appears to be overcome by a finding that
a clear and plain intention to extinguish native title can be implied
when interests created by past Crown acts and native title are unable
to co-exist.(106) Toohey J. quoted from
Lambert J. in the Canadian decision in Delgamuukw v British Columbia (1993)
104 DLR 470 at 668 to explain the test;

Implicit extinguishment is extinguishment brought about by sovereign
power acting legislatively in an enactment which does not provide in its
terms for extinguishment but which brings into operation a legislative
scheme which is not only inconsistent with Aboriginal title or Aboriginal
rights but which makes it clear and plain by necessary implication that,
to the extent governed by the existence of the inconsistency, the legislative
scheme was to prevail and the Aboriginal title and Aboriginal rights were
to be extinguished.(107)

This then is the
inconsistency test. It takes the focus away from whether, at the time
of the enactment, there was an express intention to extinguish proprietary
rights, to a comparison between two sets of proprietary interests; those
created by the Crown and native title. It is the effect, or implication
of the creation of interests by the Crown on native title rather than
the actual intention of the Crown in the creation of these interests that
extinguishes native title.

In determining whether
native title is extinguished as a result of the creation of non-Indigenous
interests over native title land, constitutional jurisprudence should
be applied to the extinguishment of native title in the same way as it
is applied to the appropriation of general property. For the purposes
of s51(xxxi) of the Constitution, before an acquisition of property is
held to have occurred, a very thoroughgoing elimination of practical enjoyment
of the ownership of land should be applied. In relation to s 51 (xxxi),
there are numerous situations in which a diminution of rights or restriction
of use will not amount to an acquisition of property.(108)
To establish an acquisition, it must be shown that the relevant person
has been denied the substance and reality of its proprietary interest
or everything that made it worth having.(109)
There are many measures which in one way or another impair an owner's
exercise of his or her proprietary rights which involve no acquisition
such as pl (xxxi) speaks of.(110)

In general property
law, an example of the temporary displacement of rights dependent on underlying
freehold title which does not destroy the underlying title can be seen
in planning legislation. Such legislation does not have the effect of
extinguishing the underlying freehold title. Instead, for the period of
restrictions upon the rights of the freehold title holder to use and enjoy
the land in specific ways, the rights affected are suspended, but the
freehold title remains in existence.

Another example
in general law is the effect of statutes giving the Crown or a statutory
authority control over waterways. Again, the rights of the holder of the
freehold are overridden, but not extinguished.(111)
From a human rights perspective, there can be no justification for a discriminatory
distinction between the continuation of freehold title in such circumstances
and the continuation of native title in circumstances involving no "fundamental,
total or absolute" inconsistency reflecting the intention of the Crown
to remove all connection of the Aboriginal people from the land in question.(112)

Similarly in general
property law, the notion of suspension of rights and interests is well
accepted, reflecting an idea which lies at the foundation of the doctrine
of estates.(113) It would again be contrary
to the prohibition of discrimination to decline to extend the concept
of suspension of rights to the law of native title.

On an ordinary approach
to statutory interpretation, courts require very plain words to reveal
a legislative intention to abrogate rights of private property.(114)
Courts impose a strict construction where the interference with property
rights is expropriation. If there is any doubt as to the way in which
language should be construed, it should be construed in favour of the
party who is to be dispropriated.(115)

The effect of these
aspects of law in Australia applying to land generally (that is, land
not held under native title by indigenous people) is that such title or
ownership is not treated as extinguished (or expropriated, or acquired,
or destroyed) unless that is, effectively, the only possibility.(116)
The effect of the decision of the majority in the Full Court is
to depart from the principle of "full respect" and to discriminate markedly
between native title and other title in the adoption of a bundle of rights
approach and the rejection of the possibility of suspension or qualification
of native title rights and interests. The effect of the majority's decision
is to disregard the different character of native title rights, which
ought not be seen for these purposes as merely a bundle of severable rights,
but rather as communal rights which derive from the distinct underlying
religious or spiritual relationship of indigenous peoples with their country.

The consequence of
applying a presumption against extinguishment is to seek to find a way
in which native title could be reconciled with the interests created by
statute. The negotiation of the contemporary legal relationship between
Indigenous and non-Indigenous rights may involve co-existence, regulation
or suspension rather than extinguishment. This approach is reflected in
the decision of Justice North.

The law will recognise consequences on native title short of
extinguishment, such as suspension of the enjoyment of some of the incidents
dependent upon the holding of native title, in order to allow full scope
for the enjoyment of the inconsistent rights or interests but permits
native title to survive and permits the rights or interests dependent
on holding native title to be enjoyed without interfering with countervailing
rights or interests. (p331 ALR)

This can be contrasted
to the approach of the majority who posit the inconsistency test in this
way;

...a law or executive act which creates rights in third parties
inconsistent with a continued right to enjoy native title extinguished
native title to the extent of the inconsistency, irrespective of the actual
intention of the legislature or the executive and whether or not the legislature
or the executive officer adverted to the existence of native title. (p180
para 69)

The bundle of rights
characterisation of native title coupled with an inconsistency test which
results in the extinguishment of one or more native title rights whenever
there is any inconsistency with the grant ensures that the accumulation
of every incursion, large or small, will result in the complete erosion
of native title.

The dynamic relationship
between the common law and the legislature is set to be a long term one.
It is my role to ensure that this relationship is one based on equality.
In 1992 the High Court broke the inertia over Indigenous rights. Since
then the issue has been high on the political agenda of successive governments.
In this chapter I have made it clear that the role of the courts is instrumental
in maintaining the momentum on native title. The common law is still the
central plank on which the statutory definition of native title rests.
Where the common law gives Indigenous culture a meaningful place within
contemporary society then the standard of equality will form the benchmark
against which a legislative response will be measured. Where however the
common law reduces native title to an historic right that cannot be exercised
or enforced within contemporary society then it is incumbent on the legislature
to reset the standard in keeping with its international obligations.

---

Footnotes

1.
Western Australia and Ors v Ward and Ors (2000) 170 ALR 159 (the 'Miriuwung
Gagerrong case').

2.
s47B NTA.

3.
ibid, per Beaumont and von Doussa J.J., at 185, 189.

4.
ibid, at 186 and 189.

5.
ibid, at 188.

6.
ibid, at 321.

7.
ibid, at 180.

8.
ibid, at 180.

9.
ibid, at 184, 189-190.

10.
ibid, at 189-190.

11.
ibid, at 189-190.

12.
ibid, per North J., at 328 and 353-354; Ward and Others (on behalf of
the Miriuwung and Gajerrong People) and Others v State of Western Australia
and Others; Federal Court of Australia, 159 ALR 483 (the Miriuwung Gajerrong
case at first instance), per Lee J. at 507-508.

13.
The Miriuwung Gajerrong case op cit, per North J., at 332-336, 336 and
371; the Miriuwung Gajerrong case at first instance op cit, per Lee J.,
at 508.

14.
The Miriuwung Gajerrong case op cit, per North J., at 328; the Miriuwung
Gajerrong case at first instance op cit, per Lee J., at 508.

15.
The Miriuwung Gajerrong case op cit, per North J., at 328.

16.
The Miriuwung Gajerrong case op cit, per North J., at 328-329, 348, 776,
see generally North J.'s discussion of the precedent, at 342-349; the
Miriuwung Gajerrong case at first instance op cit., per Lee J., at 500,
508,509.

17.
See: Article 2, Universal Declaration of Human Rights; Article 2, International
Covenant on Civil and Political Rights; Article 2 International Covenant
on the Elimination of All Forms of Racial Discrimination; Article 2, Convention
on the Rights of he Child; Article 2, International Covenant on Economic,
Social and Cultural Rights and; Article 2, International Labour Organisation
Convention No169 concerning Indigenous and Tribal Peoples in Independent
Countries.

18.
UN Doc E/CN 4/52 (1947), section V; this comment is discussed in Sarah
Pritchard, 'Special Measures', in Race Discrimination Commissioner, The
Racial Discrimination Act 1975: A Review, Canberra, 1995, p186;Warwick
McKean, Equality and Discrimination under International Law, Oxford, 1983,
p182; Australia, Parliamentary Joint Committee on Native Title and the
Aboriginal and Torres Strait Islander Land Fund, February 2000, Sixteenth
Report - Consistency of the Native title Amendment Act 1998 with Australia's
International Obligations under the Convention on the Elimination of all
forms of Discrimination (CERD) - Report of the Non-Government Members
of the Parliamentary Joint Committee, Chapter 3, p114.

19
.Minority Schools in Albania (1935) PCIJ Ser A/B No 64, at 17.

20.
ibid.

21.
Sarah Prichard, Official Committee Hansard, 22 February 2000, p NT 66.
These comments were made in the course of Dr. Pritchard's submission to
the Joint Parliamentary Committee on Native Title and the Aboriginal and
Torres Strait Islander Land Fund: Parliament of Australia, Inquiry into
the Consistency of the Native title Amendment Act 1998 with Australia's
International Obligations under the Convention on the Elimination of all
forms of Discrimination (CERD), Commonwealth of Australia, Canberra 2000
(Herein the Joint Parliamentary Committee CERD Inquiry) Dr. Pritchard's
comments were discussed in the Non-government Members Report at p117.

22.
Committee on the Elimination of Racial Discrimination, General Recommendation
XXIII (51) concerning Indigenous Peoples, CERD/C/51/Misc.13/Rev.4 (1997),
paras 4-5. (Herein CERD General Recommendation 23).

23.
Commonwealth of Australia, Written answers to the Committee on the Elimination
of Racial Discrimination. Issue: Does Australia regard the Convention
as requiring formal or substantive equality. See also Ms Leon, in Foundation
for Aboriginal Islander Action (FAIRA), Transcript of Australia's appearance
before the Human Rights Committee, 20-21 July 2000, 21 July 2000, FAIRA
Brisbane 2000, www.faira.org.au/hrc/, p19. The Commonwealth government
expanded on this interpretation to the Human Rights Committee, when Australia's
periodic report under the ICCPR was considered in July 2000. See: Summary
record of the 1858 th meeting: Australia, UN Doc: CCPR/C/SR.1858, 28/7/2000.
This is discussed in greater detail in Chapter 1.

24.
Attorney-General's Department, Submission No 24, Part I, p17; quoted in
the Joint Parliamentary Committee CERD Inquiry, op cit, p8.

25.
ibid, para 4.

26.
Daes, Erica-Irene, Final Report Indigenous Peoples and Their Relationship
to Land, UN Doc E/ CN.4/Sub.2/2000/25.

27.
Cobo M., Study of the Problem of Discrimination against Indigenous Populations,
E/CN.4/ Sub.2/1986/7/Add.4.

28.
Martinez, M., Study on treaties, agreements and other constructive arrangements
between States and Indigenous populations, Commission on Human Rights,
Sub-Commission on the Prevention of Discrimination and Protection of Minorities,
UN Doc E/CN.4/Sub.2/1999/20.

29.
ibid, para. 252.

30.
Committee on the Elimination of Racial Discrimination, Decision 2(54)
on Australia - Concluding observations/comments, 18 March 1999. UN Doc
CERD/C/54/Misc.40/Rev.2. para. 3. (Herein CERD Decision 2(54)).

31.
CERD General Recommendation 23, op cit, para 4.

32.
Chief Ominayak and the Lubicon Lake Cree Band v Canada. Communication
No 167/1984, Report of the Human Rights Committee, UN Doc A/45/40 (1990).

33.
CERD Decision 2(54) para. 6.

34.
ibid, para. 7.

35
Ms G. McDougall, Australian Country Rapporteur, Meeting of the Committee
on the Elimination of all forms of Racial Discrimination - Report, http://staff.faira.org.au/issues/racial-discrimination-con.
html (19/3/99), pp4-5.

36.
Prichard, S. op cit, p.NT 69.

37.
CERD General Recommendation 23, op cit, para 5.

38.
ibid, para 4.

39.
(1999) UN doc. CCPR/C/79/Add.105.

40.
Human Rights Committee, Consideration of Reports submitted under Article
40 - Concluding Observations of the Human Rights Committee - Australia,
(69 th session), 28 th July 2000, UN Doc CCPR/CO/69/AUS, para 9 (Herein
HRC Concluding Observations).

41.
CERD General Recommendation 23, op cit, para 9.

42.
CERD Decision 2(54), para 9.

43.
Human Rights Committee, General Comment No 22 (1993), in Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc HRI/GEN/1/Rev 4, 2000, paras 1 & 2. See also T van Boven,
Elimination of All Forms of Intolerance and Discrimination Based on Religion
or Belief, UN Doc E/CN 4/Sub 2/1989/32 (1989), para 5; E Odio Benito,
Elimination of All Forms of Intolerance and of Discrimination Based on
Grounds of Religion or Belief, UN Doc E/CN 4/ Sub 2/1987/26, para 13,
reprinted United Nations Human Rights Study Series No 2, UN Sales No E.89.XIV.3
(1989); A Krishnaswami, Study of Discrimination in the Matter of Religious
Rights and Practices, UN Doc E/CN 4/Sub 2/200/Rev 1 at 1, UN Sales No
60.XIV.2 (1960) reprinted (1978) 11 New York University Journal of International
Law and Policy at 227.

44.
Odio Benito, ibid, para 19.

45.
ibid, at 68. As to the characterisation of Aboriginal belief-systems as
religions, see: M. Charlesworth, "Introduction" in M Charlesworth (Ed)
Religious Business: Essays on Australian Aboriginal Spirituality, Cambridge
University Press 1998 xiii at xv; W.E.H. Stanner, "Some Aspects of Aboriginal
Religion" written 1976, reproduced in Charlesworth, ibid, at 1.

46.
Mabo and Ors v Queensland (No 2) (1992) 175 CLR 1, per Brennan C.J. at
49-50 (quoting from the Privy Council decision, Amodu Tijani (98) (1921)
2 AC, at p403 per Viscount Haldane), 51-52, 57; per Deane and Gaudron
J.J. at 87, 91, 109, 116; and per Dawson J. at 133, (Herein Mabo (No 2)).

47.
ibid, at 185.

48.
ibid, at 189.

49.
The Miriuwung Gagerrong case, op cit, at 242.

50.
R.S. French, "The Evolving Common Law of Native Title", paper delivered
at University of Western Australia, 19 September 2000, at 12. On the potentially
'dramatic impact' of the majority's approach on the extent to which native
title may have survived over current or former pastoral leases in Western
Australia, see also D. Bennett S.G. Q.C., "Native Title and the Constitution",
Native Title in the New Millennium Representative Bodies Legal Conference,
Melbourne, 16-20 April 2000, at 20.

51.
R.S. French, ibid.

52.
ibid, p12, fn 97.

53.
Yanner v Eaton (1999) 166 ALR 258.

54.
Under the NTA mining leases are excluded from the categories of interests
which extinguish native title: in relation to past acts ss 13A, 228, 231,
15(1)(d); in relation to future acts s 24MA.

55.
K. Barnett, "Western Australia v Ward: One Step Forward and Two Steps
Back: Native Title and the Bundle of Rights Analysis" (2000) 24 Melbourne
University Law Review 462 at 474-477.

56.
The Miriuwung Gagerrong case, op cit, per Beaumont and von Doussa J.J.
at 188.

57.
ibid, at189.

58.
ibid, per North J. at 784.

59.
ibid, at 784.

60.
Mabo (No 2) op cit, per Brennan C.J. at 46.

61.
The Wik decision, op cit, per Gummow J. at 180.

62.
In re Southern Rhodesia (60) (1919) AC 211, per Lord Sumner, at pp233-234
- quoted in Mabo (No 2) op cit, by Brennan C.J. at 39.

63.
Mabo (No 2) op cit, per Brennan C.J., at 40.

64.
ibid, at 40.

65.
(1998) 156 ALR 721 (Fejo).

66.
(1999) 166 CLR 258 (Yanner).

67.
Wik decision, op cit, per Kirby J. at 230.

68.
A 'connection' based on continued acknowledgement and observance of traditional
law and custom: see section 223 NTA; Mabo (No 2) op cit, per Brennan C.J.,
at 70; per Deane and Gaudron J.J. at 110; Yanner op cit, per Gleeson C.J.,
Gaudron, Kirby and Hayne J.J. at 270; the Miriuwung Gagerrong case at
first instance op cit, per Lee J., at 500.

69.
Mabo (No 2) op cit, per Brennan C.J., at 63.

70.
Mabo (No 1) (1988) 166 CLR 186, per Brennan Toohey and Gaudron J.J. at
213; Mabo (No 2) op cit, per Brennan C.J., at 64; per Deane and Gaudron
J.J. at 111; Western Australia v Commonwealth (The Native Title Act Case)
(1995) 183 CLR 373, per Brennan, Mason, Deane, Gaudron, Toohey McHugh,
at 433; Wik decision op.cit.; Toohey at 123-124, 130; per Gaudron J. at
155, 166, per Gummow J. at 193, 185; and per Kirby J. at 247.

71.
p65.

72.
Mabo (No 2) op cit, per Brennan C.J., at 36.

73.
ibid, per Brennan C.J., at 45.

74.
ibid, per Brennan C.J., at 40.

75.
ibid, per Brennan C.J., at 38-43 this was confirmed in The Native Title
Act Case op cit, per Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh
J.J. at 433.

76.
p67.

77.
Mabo (No 2) op cit, per Brennan C.J., at 41-43.

78.
ibid, at 42.

79.
ibid, at 42.

80.
Dietrich v The Queen (1992) 177 CLR 292 at 320 per Brennan J.

81.
The Miriuwung Gajerrong case, op cit, per Beaumont and von Douss J.J.,
at 188.

82.
Mabo (No 2) op cit, per Brennan C.J., at 58.

83.
ibid.

84.
See: discussion in Mantziaris, Christos, and Martin, David, Native Title
Corporations: a legal and anthropological analysis, The Federation Press,
Sydney, 2000, Chapter 1 "Native Title: The Product of a Recognition Space".

85.
[1919] A.C. 211 at pp233-234: quoted in Mabo (No 2) op cit, per Brennan
J. at 39, 41, 55, 58; per Deane and Gaudron J.J. at 83; per Toohey J.
at 185; in The Native Title Act Case, op cit, per Mason C.J., Brennan,
Deane, Toohey, Gaudron and McHugh J.J. at 432; in Fejo, op cit, per Kirby
J. at 132.

86.
South West Africa Case (Second Phase) [1966] ICJ Rep 6, pp303-304, p305.

87.
The Miriuwung Gagerrong case, op cit, at 188.

88.
ibid, at 188.

89.
ibid, at 188.

90.
ibid, at 186.

91.
p75.

92.
Bartlett, R., Native Title in Australia, Butterworths, Australia, 2000,
p184.

93.
Sutton, P., Kinds of Rights in Country: The 'Incidents' of Aboriginal
Native Title, forthcoming manuscript dated 24/6/1999, National Native
Title Tribunal, Perth, 2000, cited in Martin and Mantziaris, op cit, p61.

94.
ibid, p66.

95.
Mabo (No 2) op cit, per Brennan C.J., at 36.

96.
North J. in the Miriuwung Gagerrong case, op cit, at 784.

97.
Mabo (No 2) op cit, per Brennan C.J., at 51.

98.
p68.

99.
Leroux v Brown (1852) 12 C.B. 801; The Zollverein (1856) Swab.96; The
Annapolis (1861) Lush. 295; Jumbunna Coal Mine NL v Victorian Coal Miners'
Association (1908) 6 CLR 309; Zachariassen v Commonwealth (1917) 24 CLR
166. See also Maxwell on the Interpretation of Statutes 7 th Ed, 1929,
at 127.

100.
Murray v Charming Betsy (1804) 2 Cranch 64, 118; also United States v
Fisher (1805) 2 Cranch 390.

101.
Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson J.J.

102.
Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason C.J. and McHugh
J.; also Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR
529 at 534 per Gummow J.

103.
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
at 287 per Mason C.J. and Deane J.; also Kartinyeri v Commonwealth (1998)
195 CLR 337 at 384 per Gummow and Hayne J.J. Generally A. Simpson and
G. Williams, "International Law and Constitutional Interpretation" (2000)
11 Public Law Review 205 at 208; J. Spigelman, "Access to Justice and
Human Rights Treaties" (2000) 22 Sydney Law Review 141 at 149.

104.
Mabo (No 2) op cit, per Brennan C.J. at 64; per Deane and Gaudron J.J.
at 82-83, 111; the Wik decision op cit, per Gaudron J. at 146-147, 154-155;
per Kirby J. at 247-251; Toohey J. at 123- 124; The Native Title Act Case
op cit, per Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh J.J.
at 422-3.

105.
Mabo (No 2) op cit, per Deane and Gaudron J.J. at 111; Wik decision op
cit, per Toohey J. at 108, Gaudron J. at 146-7, 154-155, per Gummow J.
at 166.

106.
Mabo (No 2) op cit, per Brennan 68; Wik decision op cit, per Toohey J.
at 126 [citing Delgamuukw (1993) 104 DLR (4 th ) 470 at 668]; per Gummow
J. at 185-186; per Kirby J. at 249.

107.
Wik decision op cit, per Toohey J. at 126 [citing Delgamuukw (1993) 104
DLR (4 th ) 470 at 668].

108.
Lane's Commentary on the Australian Constitution (2 nd Ed) at 316-318.

109.
Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349; Newcrest Mining
(WA) Ltd v The Commonwealth (1997) 190 CLR 513, at 530, 633-634; Minister
of State for the Army v Dalziel (1994) 68 CLR 261 at 286; also Commonwealth
of Australia v State of Western Australia (1999) 196 CLR 392 at 433 per
Gummow J., at 480, 485 per Hayne J.

110.
Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397, per Stephen
J. at 415.

111.
Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317 at 331; also
the Miriuwung Gajerrong case, op cit, at 348.

112.
The Miriuwung Gajerrong case, op cit, per North J., paras [684], [784].

113.
The Miriuwung Gajerrong case, op cit, per North J., at 358, 360.

114.
Bennion, Statutory Interpretation, 3 rd Ed, section 278; Clissold v Perry
(1904) 1 CLR 363 at 373; Greville v Williams (1906) 4 CLR 64; Wade v New
South Wales Rutile Mining Co Pty Ltd (1970) 121 CLR 177 at 181, 182.

115.
Methuen-Campbell v Walters [1979] QB 525 at 542; Stile Hall Properties
Ltd v Gooch [1980] 1 WLR 62 at 65; Chilton v Telford Development Corpn
[1987] 1 WLR 872; also Mabo (No 2) op cit, at 111; the Wik decision at
155.

116.
Compare New Zealand jurisprudence which maintains in relation to extinguishment
the equal status of native title with other interests: Te Runanganui o
Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 at 24.