LEGAL ISSUES ON BURMA JOURNAL No. 5, APRIL 2000 
BURMA LAWYERS' COUNCIL


An Overview of the recognition of Native Title 
in the Commonwealth of Australia

D L Ritter 1

Editor's note

Rights to land in Burma are bound up with issues of ethnic conflict, militarisation and lack of democratic institutions. A future democratic Burma will need to seek ways to resolve competing claims to land, taking into account such issues as traditional ownership by particular ethnic nationalities, return of displaced persons, varying religious ties to land, development imperatives and agricultural demands. The chosen method of resolution will need to address, as much as possible, the needs for certainty, efficiency and a fair hearing for those concerned.

The democratic opposition and its international supporters are seeking to explore and collect ideas for the construction of effective and fair ways of dealing with the many complex legal and social issues in Burma. As part of this exploration of ideas for the future, Burma Lawyers' Council encourages articles explaining relevant issues in other countries. The following article is kindly provided by the principle legal officer of an indigenous land council in Australia. The Australian experience offers an interesting perspective on possible judicial, legislative and administrative responses to the issue of indigenous ownership of land.


1 Introduction

Prior to 1992, Australia’s law did not recognise traditional indigenous or Aboriginal rights to land. There were a few statutory exceptions but it was only in the watershed Mabo v Queensland (2) decision, handed down by Australia’s highest court in 1992, that Aboriginal native title was finally recognised by Australia’s legal system. The Mabo case was a judicial revelation that added a new dimension to the law and practice of land holding in Australia by recognising that a whole new layer of land tenure exists within the Australian property law system.

In this article, the legal history of Australia as it pertains to the indigenous inhabitants of the country prior to Mabo is briefly discussed. The Mabo decision itself is then outlined along with the statutory response that followed and some of the case law which has subsequently proliferated. The complicated native title processes that now govern all land use in Australia are described in some detail and are placed in their political and administrative context. An assessment is made of some of the difficulties inherent in the native title system in Australia and some of the more problematic issues facing Australia’s native title processes are addressed. Finally some comments are made about Australia’s native title experience in an international context.

Naturally, Australia’s native title process has spawned a vast literature. However, this article is intended for the general interest reader who may not be familiar with Australian law or history. Accordingly, within this overview references are kept to a minimum. Some further more detailed and technical reading is recommended in the attached bibliography.

By way of brief background to assist readers' understanding: Australia has a national government (the Commonwealth) with separate governments for each of the six States (New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia) and two Territories (Australian Capital Territory and Northern Territory). Powers are divided between the levels of government but a valid Commonwealth law overrides any inconsistent law of a State or Territory. The highest court in Australia is the High Court of Australia, which hears appeals from the Supreme Courts of the States and Territories. The indigenous people of Australia are commonly referred to as a whole as ‘Aboriginal’ but comprise numerous different groups (estimated at 600 tribes at the time of British arrival in 1788). Aboriginals comprise about one and a half percent of Australia’s population of 19 million people.


An Undeclared Invasion

British colonization of Australia began in 1788 with landings on the eastern coast near what is now the city of Sydney. Upon declaration of sovereignty, under common (or domestic) law, the British Crown obtained ultimate (or supreme) title to all land in Australia. Following the commencement of colonization, interests in land were granted by the colonial government to particular colonists in increments. This is notwithstanding the fact that, at the time, Australia was possessed and occupied by numerous Aboriginal groups, each of which held land according to their own unique laws and customs. These indigenous groups (and their own laws) were simply ignored by the British Crown. Colonial law in Australia was not congniscent of Aboriginal people’s traditional interests in land.

The interests granted by the Colonial Government were across a spectrum, from the grant of freehold title (which confers the greatest interest in land that can be held by a private citizen under the common law), through various kinds of lease-hold, down to mere licenses and easements. One form of land tenure, peculiar to the historical development of Australia, is the pastoral lease. This form of tenure was developed in response to Australia’s particular economic, social and geographic circumstances. Pastoral leases were issued to pastorallists and graziers over enormous areas. Although more properly described as a licence at law (because they lack the character of conferring exclusive position on their holder), these pastoral leases nevertheless gave significant control and power over the land in question to the lessees.

Where the doings of Aboriginal people were in conflict with the interest of the colonists, brutal force was used. The colonisation of the southern island of Australia, Tasmania, has long been called Australia’s “Black War”. However, the conflict was much more widespread than Tasmania. A sustained (if disjointed, ad hoc and uncoordinated) campaign was waged against Aboriginal people throughout Australia. Massacres persisted into the twentieth century.


Australian Law has Historically been Racially Discriminatory

While not directly related to native title, it is salient to consider other features of the Australian legal system that have related to Aboriginal people. In broad terms, Australia has a profoundly racist history of law -making and Aboriginal people had minimal legal rights until the 1960’s, when Aboriginal people finally obtained the right to vote. Laws restricting the freedom of movement of Aboriginal people in a manner redolent of Apartheid or the segregation era in the southern states of America were historically commonplace in much of Australia. The application of the criminal law of Australia has consistently, in practice, discriminated against Aboriginal people with Aboriginal people being vastly over-represented in custody. Aboriginal people are also much more likely to die in custody than non-Aboriginal people, prompting a national royal commission of inquiry into the subject in the 1980’s. A later royal commission considered the historical practices of Australian government departments removing Aboriginal children from their parents by force. It cannot be denied that Australia has a racist past, with Aboriginal people being both expressly and implicitly excluded and discriminated against by the application of the Australian legal system.

Fortunately, and not before time, Australia is gradually (and not without serious hiccups) improving its record on racial equality before the law. A Commonwealth Racial Discrimination Act was passed in 1975. Various items of state racial discrimination legislation have followed, as has legislation prohibiting racial vilification. The Mabo decision and the Commonwealth Native Title Act are also an expression of Australia’s modern commitment to racial equity. The Mabo decision was a statement that the common law of Australia “should neither be nor be seen to be frozen in an age of racial discrimination”2.


2 The Mabo Case

The question of whether native title existed in Australia was not the subject of any litigation until Milirrpum v Nabalco, decided by the Supreme Court of the Northern Territory of Australia in 1971. In that case, his Honour Justice Richard Blackburn incorrectly applied Canadian and other international common law precedents to find that the doctrine of native title did not exist in Australia. It was not until 1982, when the the Mabo litigation was commenced, that the existence of native title was again argued before the courts. In the Mabo case it was argued by the applicants that the Meriam people of the Murray Islands in the Torres Strait in the north of Australia held native title to their traditional lands. It took a decade for the case to survive various challenges as well as racially discriminatory legislative efforts by the state of Queensland to prevent the case proceeding, before the matter was argued and then finally the subject of a decision by the High Court of Australia.

In the Mabo decision, handed down in June 1992, six out of seven judges of the High Court of Australia held that, where applicable on the facts, the common law of Australia recognises the doctrine of native title. The Court found on the facts that such native title existed and was held by the Meriam people of the Murray Islands. The Court stated that, in broad terms, for native title to exist, a number of elements must be satisfied:

* There must be an indigenous group who held native title for the country in question at the time of sovereignty;

* that group must have had to have a continuing traditional connection to their country that extends unbroken to the present day; and

* while the Court recognised that traditional Aboriginal society could not be expected to remain frozen in time, for a group to hold native title its connection to the land must remain rooted in tradition.

The Court recognised that in some circumstances native title could be “washed away” by “the tide of history”3, or simply abandoned. The court in Mabo determined that the content of native title is dependent on the law and custom of the indigenous group concerned. Similarly, the identity of those who held the native title would be a matter of factual enquiry. The Court also recognised that native title could be obliterated by an act of government demonstrating a clear and plain intention to extinguish native title. The Court further found that, where native title was extinguished, the Aboriginal group who had lost their native title would have a right to compensation, where the extinguishment occurred after the passage of the Commonwealth’s Racial Discrimination Act in 1975. Extinguishment prior to that time did not give rise to any right to compensation.

Immediately following the Mabo site decision there was, metaphorically, a short silence in which the Australian government, media and interest groups digested the decision. This was followed by a deafening cacophony of reaction over the meanings of Mabo and how government – and Australian society - should respond.


The Meanings of the Mabo Decision

Not surprisingly, given its late recognition, 'native title' was not a concept that easily located into existing Australian land administration. A party who has native title to an area of land or waters has rights and interests over and in that land and waters and may, accordingly, make use of that land. The exact rights and interests recognised by law each case will vary according to the native claimant groups'specific rights and interests, as determined. The native title will draw its content from the unique laws and customs of each claimant group. However, native title cannot displace any valid right or interest that existed prior to the determination of native title.

The potential effect of the Mabo decision was that where it had not been extinguished, native title could exist over the entire continent of Australia. However, this native title was inchoate and would remain incorporeal until recognised by a determination. It would exist prior to the determination, but it would not be clear what the native title was or who held it. In the absence of any specifically designed mechanism, the only way open to Aboriginal people to seek to have their native title determined would be by litigation. Further, if indigenous people wished to prevent a particular development occurring on their traditional lands then the primary remedy open to them would be to request a court order prohibiting the development under general law principles. Further, through the application of the Commonwealth Racial Discrimination Act, any item of state legislation that did not treat Aboriginal interests in land equally with non-Aboriginal interests in land could be invalid. The Commonwealth Government sought to address these and other issues in enacting the (Commonwealth) Native Title Act 1993.


3 The (Commonwealth) Native Title Act 1993

The Commonwealth’s Native Title Act (“NTA”) established a specific regime for the recognition and protection of native title; for the interaction of native title with other existing and future interests in land; and for applications for compensation arising out the extinguishment of native title.

In broad terms, under the NTA, a claimant application for a determination of native title is made to Federal Court of Australia (a Commonwelath court with specific jursidiction over various Commonwealth matters). Once such an application is made, it is obligatory for the Court to refer the claim to mediation, which is conducted by a special body known as the National Native Title Tribunal. The mediation is between the native title claimants and, potentially, every other party that has an interest in the land and waters covered by the native title claim. All levels of government in Australia (national, regional and local) are permitted to join such mediations as interested parties. Other interests that are commonly parties include mining and resource companies, pastoral leaseholders, developers and fishing interests. The purpose of such mediation is to achieve a determination of whether native title exists and if so, who holds and how it interrelates with other interests within the claim area. This is obviously an extremely difficult exercise that is time consuming, resource intensive and draining on all participants. This is reflected by the fact there have been only six such determinations of native title in Australia since the NTA came into operation at the beginning of 1994.

Where mediation reaches an impasse, the claim must be concluded before the Federal Court by litigation. Four claims have been determined by litigation since Mabo. The applicants were successful in three of the four claims (see page 43, below). Three of the four decisions have been appealed, two of which have been decided but may be the subject of further appeal. The scale of native title litigation is massive, with multiple parties, hundreds of days of evidence, hearings in the field, teams of experts and numerous witnesses. Even when a case is determined by litigation, the parties may still be left having to negotiate on the terms of how they are expected to relate to one another. Accordingly, although native title mediation may be difficult, it is still always likely to be faster, cheaper and more efficient than litigation.

The NTA is designed to have maximum flexibility between the litigation and mediation streams. There is the capacity under the statute for particular questions of fact and law to be referred for determination in the Federal Court and, conversely, for particular questions to be referred from the Court to the Tribunal for further mediation.

Apart from the procedures for determining native title claims, the NTA sets up separate processes for dealing with the interface between native title and future interests in land. Whenever a native title claim is lodged with the Court, the registrar of the Tribunal applies a registration test that considers both the merits and the form of the native title claim in question. The claim must satisfy all such criteria or it will not be registered. Once registered, the native title claimants obtain valuable procedural rights in respect of non-indigenous parties who wish to perform ‘future acts’ on the land that is subject to the native title claim. In plain English, under the NTA a ‘future act’ is simply something with legal effect that a third party wants to do on land that is subject to native title.

Chief among these procedural rights that are obtained by native title claimant groups as a consequence of the registration of their claim, is the right to negotiate. The NTA gives registered native title claimants the right to negotiate over any significant proposed mining or exploration activity or any compulsory acquisition of native title rights and interest by government over the land that is subject to the native title claim in question. The native title party, the future act proponent and the government party are required to negotiate in good faith with respect to the proposed future act in question. If the negotiations do not result in an agreement about the doing of the act then there is provision for the matter to be referred to the National Native Title Tribunal which, in an arbitral capacity, will decide whether the act can go ahead and, if so, under what conditions. The future act processes of the NTA are essentially designed to maintain a status quo in respect of land that may be subject to native title, pending a determination of the native title claim in question. Apart from the right to negotiate, numerous lesser procedural rights exist under the NTA in respect of other future act interests in land.


Extinquishment of Native Title

The Mabo case did not make clear what kinds of land tenure would extinguish native title. In this respect, the chief debate that followed Mabo was whether or not pastoral leases extinguish native title. The significance in this question lies in both the vast percentage of arable land in Australia that is covered by pastoral lease and the political strength of the pastoral industry. The matter was not decided decisively until the decision of high court in Wik v. Queensland4, which was handed down in December 1996. In the Wik decision, the High Court held by a 4-3 majority that pastoral leases did not manifest a plain and clear intention to extinguish native title. The High Court has, however, made clear that a grant of freehold title extinguishes native title. It is also clear that exclusive possession leasehold extinguishes native title, as, for instance, do roads.


The NTA and other Legislative Rights in Land for Aboriginal People

It is important to note that the NTA does not cover the field in terms of legislation that has a bearing upon indigenous people’s relations with land in Australia. Most states and territories have Aboriginal heritage legislation, which affords particular rights for Aboriginal people with respect to preserving their cultural heritage. A number of states and territories also have land rights legislation which creates the opportunity for Aboriginal people to have land granted to them. Land rights legislation, although significant, is of a different order to native title legislation. Importantly, the law of native title is not a matter of any grant or gift of land being made to indigenous people. Rather, it is a matter of recognising indigenous native title rights, which already exist, albeit incorporeally. Indigenous people, along with other landholders may also access rights under a variety of environmental, planning and social impact legislation.


The NTA and the Political Climate

Native title has not ceased to be controversial in Australia. The original NTA was passed in 1993 by the (centre left) Australian Labour Party which was then in national government. The legislation was not supported by the (centre right) Liberal-National Party coalition. When the Liberal-National Party coalition was swept to power in the federal election of 1996, it quickly moved to introduce a bill to amend the NTA. This bill was the subject of much political debate and a number of redrafts before becoming law as the Native Title Amendment Act 1998. In general terms, while the 1998 amendments were, in some instances, merely procedural, they also swung the balance of the NTA firmly away from Aboriginal people (although the legislation remains broadly beneficial in character). Thus, there has not been a political consensus to native title law making in Australia. Rather, native title has been a political target with both sides of politics accusing the other of failings of principles and pragmatism.


The Role of Native Title Representative Bodies

The NTA also established provision for the recognition of specialist legal services to represent native title claimants. These organisations, known as ‘native title representative bodies’ are funded by the Commonwealth Government and have specific statutory responsibilities to represent their Aboriginal constituents. Each body has a geographic jurisdiction and is required under the NTA to meet certain minimum conditions of representation and service to its constituents. It is usual for native title representative bodies to have not only lawyers on staff, but also anthropologists, field officers, project officers, administration staff and, in some instances, historians, cartographers, economic advisers and others.


Evidence of Native Title and the Role of Experts

The Courts have recognised that the best evidence of native title comes from Aboriginal people themselves. Nevertheless, it is in the interest of native title claimants to bring expert witnesses in support of their case. Anthropologists will give evidence of the existence of Aboriginal groups and their laws and how those laws relate to country. Historians will demonstrate the continuity of connection to land. Linguists will assist with the interpretation of Indigenous evidence and other matters. Such experts have been extensively involved in the native title cases that have been decided to date.


Post-Mabo Litigated Determinations of Native Title

There have been four litigated determinations of native title since the Mabo case. In chronological order these are as follows:

Ward & Ors v Western Australian & Ors 5

In this case, the Miriuwung Gajerrong peoples established native title over large tracts of the north of Western Australia and the east of the Northern Territory. In the appeal decision, the full court of the Federal Court agreed with the trial judge that native title existed on the facts, but watered down the judgement significantly in terms of extinguishment and the extent of native title.

Yarmirr v Northern Territory 6

In this matter it was determined for the first time that native title could exist over ocean waters. However, the judge found that such native title as may exist over the ocean is non-exclusive and so cannot impact on non-indigenous rights over the sea.

Hayes v Northern Territory 7

The Federal Court found that native title existed in and around the city of Alice Springs in the Northern Territory. The case has not been appealed.

Yorta Yorta Aboriginal Community v Victoria & Ors 8

In contrast to the other three cases, in this matter, the Federal Court found that the native title of the Yorta-Yorta people had been washed away by the tide of history as long ago as the late 19th Century. The Court found to be persuasive, the writings of an amateur historian and pastoralist, Mr. Edward Curr who had described in his writings changes in the traditional way of life of the Aboriginal groups in question. The Court found this as evidence that native title had been washed away. The appeal in this case has not yet been decided.


4 Difficulties Inherent in the Native Title Process

Native title remains an intensely complicated process. Notwithstanding six years of operation, the NTA still excites extreme emotions. Some members of the Australian community still appear opposed to the very recognition of native title, and there remains widespread lack of understanding of both the concept and the attendant legal processes. This political volatility continues to have a significant impact on the length of time it takes to resolve native title matters.

Of particular concern has been the proliferation of overlapping native title claims. The NTA does not prevent native title claims from overlapping one another and, with significant procedural rights to be obtained through the registration of the native title claim, some parts of Australia have experienced an abundance of overlaps. Resources remain another significant issue in the native title process. It is commonly accepted that native title representative bodies are insufficiently funded to attend to even their minimum core functions under the NTA and this has a flow-on effect for the entire native title process. Party political division and Commonwealth-State political rivalries are another complicating factor. Regrettably, such politics can at times impair the commitment of governments to seeking pragmatic solutions to native title issues. The ongoing uncertainty of the law of native title is also problematic.


The Australian Experience in International Context

The law of native title in Australia is most often compared with Canada, America and New Zealand. Yet, in each of these other three colonial societies the framework which native title is dealt with is markedly different. In America, Canada and New Zealand the process of colonisation included treaty making between the colonising power and the indigenous peoples. No such treaty making occurred in Australia. The effect is that a very different framework of native title rights exists in Australia compared to other colonial societies. However, where common law about native has emerged in Canada, America and New Zealand that law is useful in the interpretation of native title in Australia.

Less specifically, the Australian experience may be compared and contrasted with how modern nation states are dealing with their Indigenous peoples throughout the world from Japan to Norway; and from Russia to Malaysia. Australia’s native title system may prove a useful precedent to such diverse international situations as Basque separatism in Spain, compensation and repatriation for land taken from black people in South Africa in the course of Apartheid and the treatment of the Romany people in the European Community. The Australian experience will no-doubt be of particular interest to other members of the Southeast Asian international community. Finally, the Australian experience is also being both studied and critically examined by the United Nations in the context both of the Convention for the Elimination of all forms of Racial Discrimination and the draft Declaration on the Rights of Indigenous Peoples.


5 Conclusion

Respect for traditional indigenous rights to land is a new phenomenon in Australia. The Australian legal system and Australian society are taking time to adjust. Dealing with the watershed of native title has required new and extremely complicated legislative machinery that is unique in the world.

Thus far, the Australian native title system has delivered recognition of native title to groups scattered throughout Australia, in northern Queensland, northern Western Australia and the Northern Territory. Whether a determination of native title can be achieved by Aboriginal groups in the more heavily colonised southern areas of Australia remains to be seen. However, regardless of outcomes in specific cases, the recognition of native title in Australia unquestionably marks a crucial step in Australia’s retreat from an unjust and racist history.


Notes

1. BA (Hons) LLB (Hons), Principal Legal Officer of the Yamatji Land & Sea Council native title representative body. Author’s note: I would be very pleased to engage in correspondence with any interested international readers of this article. Please contact me by email on <[email protected]>. Thanks to Emma Smith for her assistance with editing.

2. Mabo & Ors (2) v Queensland (1992) 107 ALR 1 at 28.

3. Ibid at 43.

4. Wik People & Ors v Queensland & Ors (1996) 141 ALR 129.

5. (1998) 159 ALR 483. Appeal decision is not yet published in hard copy but is available electronically at [2000] FCA 191.

6. (1998) 82 FCR 533. Appeal decision is not yet published in hard copy but is available electronically at [1999] FCA 1668.

7. [1999] FCA 1248.

8. [1998] 1606 FCA.


Select Annotated Bibliography

The literature of native title in Australia is indeed vast and is subject to the hazard of becoming outdated very quickly as the law of native title changes. The following is merely a selection of the more comprehensive works and sources of information.

* Loose-leaf Service
Butterworths’ Native Title Service [cited as NTS] is the sole loose-leaf native title service dealing with native title and can provide the most up to date hard-copy information.

* Website Addresses
<http://www.nntt.gov.au> is the National Native Title Tribunal’s homepage. 

<http://www.austlii.edu.au> is the most comprehensive electronic source of Australian case law and statutes

*  Texts
Bartlett, R., Native Title in Australia, Butterworths, Adelaide, 2000 is the most up to date and comprehensive text book. 

Horrigan, B. and Young, S., Commercial Implications of Native Title, Federation Press, Sydney, 1997 is a little dated but still a helpful anthology.

* Journals 
Indigenous Law Bulletin, Australian Indigenous Law Reporter, Australian Mining and Petroleum Law Journal and Native Title News have all covered native title and related issues extensively