Aboriginal and Torres Strait Islander Social Justice

Commissioner
Native Title Report January - June 1994
Human Rights and Equal Opportunity Commission

27 April 1995

The Hon. Robert Tickner, M.P.

Minister for Aboriginal and Torres Strait Islander Affairs
Parliament House
Canberra ACT 2600

Dear Minister
I am pleased to present my first report regarding the operation of the Native Title Act 1993
(Cth) and its effect on the exercise and enjoyment of the human rights of Aboriginal and
Torres Strait Islander peoples as required by s.209 of the Native Title Act.
The report covers the period from the date of the commencement of the Act, 1 January
1994, to 30 June 1994.
Yours sincerely
Michael Dodson
Aboriginal and Torres Strait Islander Social Justice Commissioner
The land is my backbone ... I only stand straight, happy, proud and not ashamed about my
colour because I still have land. I can paint, dance, create and sing as my ancestors did
before me.
I think of land as the history of my nation. It tells of how we came into being and what
system we must live. My great ancestors who live in the times of history, planned
everything that we practise now. The law of history says that we must not take land, fight
over land, steal land, give land and so on. My land is mine only because I came in spirit
from that land, and so did my ancestors of the same land ... My land, is my foundation.
Galarrwuy Yunupingu
Australian Catholic Social Justice Council, Recognition: The Way Forward

Introduction
In addition to my responsibilities as Social Justice Commissioner under the Human Rights and Equal
Opportunity Commission Act 1986 (Cth), I have been given a statutory function in relation to native
title. I therefore have a particular responsibility in respect of the very special relationship of
Aboriginal peoples and Torres Strait Islanders to our land. This responsibility, under s. 209 of the
Native Title Act 1993 (Cth) (NTA), requires me to report to the relevant Commonwealth Minister on
the operation of the NTA and its effect on the human rights of Aboriginal peoples and Torres Strait
Islanders.
This responsibility primarily involves:

a functional review of the operation of the NTA; and

a consideration of the impact of the NTA on the exercise and enjoyment of human rights of
Indigenous Australians.
This, my first report under s. 209, deals with the period from the substantive commencement of the
NTA on 1 January to 30 June 1994. The report will therefore focus on the operation and human
rights aspects of the NTA in its implementation phase. It attempts to provide an account and analysis
of the major issues and events which are connected to the first six months of the life of the Native
Title Act and which lie at the heart of native title, irrespective of any strict reporting period.
In pursuing this approach, I have taken a flexible stance to issues arising and events occurring after
30 June 1994. That is, I have regularly commented on relevant issues or events occurring after 30
June, usually where they are linked to some event within the reporting period and my commentary is
of greater utility by virtue of taking into account such later developments. For example, a claim for
native title by the Waanyi Peoples was lodged with the National Native Title Tribunal (the Tribunal)
on 27 June 1994 within the reporting period. Rulings in relation to the acceptance of this application
were made by the President of the Tribunal on 15 September 1994 and 14 February 1995. 1 As will
be seen, the acceptance of applications, the relevant procedures of the Tribunal and the
extinguishment of native title, which were at the centre of these rulings, were key issues during the
implementation phase of the report and continue to be so. Accordingly I have dealt with these rulings
in this report. However, I have not attempted to comprehensively deal with events outside the
reporting period.
Under current arrangements I report on native title to the Commonwealth Minister for Aboriginal and
Torres Strait Islander Affairs. I welcome the opportunity to report to the Minister with responsibility for
issues concerning Indigenous peoples in Australia. However, I believe it would be more appropriate
for me to report to the Commonwealth Attorney-General. Briefly, this is because of:
the human rights nature of my reporting function and the Attorneys responsibilities and resources in
respect of human rights and international law;
the legal character of my task in assessing the legislation as moulded by the common law on native
title; and
the efficiency, continuity and consistency of reporting to the Attorney as I do in relation to my general
social justice functions under the Human Rights and Equal Opportunity Commission Act.
I intend to seek the agreement of the relevant ministers with a view to my reporting responsibilities on
the NTA being redirected to the Attorney-General.
I share a reporting function in respect of the NTA with the Parliamentary Joint Committee on Native
Title and with the National Native Title Tribunal. The Parliamentary Joint Committees duties are set
out under s. 206 of the NTA and involve consultations and reporting on the implementation and
operation of that Act. Additionally, after two years from the commencement of the NTA, the
Committee must inquire and report on such things as the effectiveness of the National Native Title
Tribunal and the degree of extinguishment and impairment of native title.
Under s. 133, the President of the Tribunal is required to report on the Tribunals management of its
administrative affairs and provide financial statements to the Commonwealth Minister. In canvassing
the administration of its statutory functions, the 1993/94 Annual Report of the Tribunal necessarily
raises a number of the pertinent issues regarding the operation of the Tribunal which are germane to
the implementation period of the NTA. 2
It has been suggested that there is unnecessary duplication in the reporting responsibilities under the
NTA and that it would be more efficient to have a single review mechanism. 3 I do not agree.
Briefly, I believe the Parliamentary Joint Committee provides a useful consultative and monitoring
mechanism for the Commonwealth Parliament on a statute that has great significance for all
Australians. The Committee is specifically established to assist the Commonwealth Parliament
which, since it is responsible for the legislation, has a particular interest in the NTA. The National
Native Title Tribunal is reporting on its operations, which is a very specific aspect of the NTA.
Certainly there is overlap between the subject matter that both these bodies and myself might report
on namely the operation of the NTA. However, I am uniquely charged with monitoring the
legislation in terms of its impact on the human rights of Aboriginal and Torres Strait Islander peoples.
I undertake this responsibility as an Aboriginal person and as the Social Justice Commissioner from
the perspective of Indigenous Australians. The people of Australia intend that Indigenous Australians
will:
...receive the full recognition and status within the Australian nation to which history, their

prior rights and interests, and their rich and diverse culture, fully entitle them to aspire. 4
I believe that all the reporting functions currently provided for in the NTA are necessary to ensure that
the Australian community has the opportunity to be informed of the operation and evolution of the
legislation and of perspectives and emerging views on native title as recognition of it unfolds. I look
forward to continuing my sound and co-operative working relationships with both the Parliamentary
Joint Committee and the Tribunal as we carry out our responsibilities.
To assist me to carry out my responsibility I called for submissions in the national press. I also made
contact with a number of key stakeholders in relation to native title and established a native title unit
to consult, research and advise on native title issues relevant to my functions under the NTA. I have
received significant input from the community as to their views and concerns about the NTA and I
thank those people and organisations who made contributions to this process. I also wish to thank
those people who directly contributed to the compilation of this report. 5
Since I am dealing in this report with fundamental concepts of native title and the implementation of
the NTA I have given emphasis to examining and analysing native title in terms of human rights
principles as well as reviewing the Act itself and its functioning. I have now established an ongoing
capacity within my office to continue this work. I envisage enhancing my future reports with a more
comprehensive and detailed reflection of community views. Of course in light of my responsibilities I
will continue to pay particular attention to Indigenous opinion and concerns.
I would like to reiterate what I said in my First Report about attempting to reflect the wide range of
Indigenous viewpoints across the country:
I acknowledge to my country men and women that it is not appropriate that my views
should be substituted for their own direct voices or that I can presume to speak for any
persons particular traditional country. I ask for the support and assistance of the Aboriginal
and Torres Strait Islander peoples in undertaking this work. 6
I hope to stimulate discussion with this report and the range of recommendations and suggestions
that I make should be seen in this context. That is, I am not in all cases making hard and fast
proposals but rather offering an opinion which may develop through consultation.
This report is solely focused on native title. Clearly Indigenous land ownership needs to be
addressed in the full context of the concerns of Indigenous peoples for their rights. In
addition to the Native Title Act, the Commonwealth quite rightly responded to Mabo [No:2] 7 with the
Land Acquisition Bill and, following discussions with Aboriginal and Torres Strait Islander
representatives, it agreed a Social Justice Package should be implemented. I have taken up the
land acquisition issue in a number of forums 8 and I am about to deliver to all Commonwealth
Parliamentarians my comprehensive response to the social justice initiative. As a result, I have not
dealt with the Land Acquisition Bill or the Social Justice Package in this report.
In my First Report I addressed perspectives on native title at a time when negotiations were reaching
high temperatures as the Native Title Bill moved through the Parliament. I focused on thematic
aspects of native title as a detailed consideration of native title at that juncture was premature.
In the time that has since elapsed, the Bill has been proclaimed and has been implemented. At the
time of writing, in April 1995, complementary validating legislation has been enacted in every State
and Territory except Western Australia, where attempts to extinguish native title and replace it with
statutory rights of traditional usage have foundered against the bulwark of the Racial Discrimination
Act 1975 (Cth).
In addition to the implementation of the NTA, a national tribunal has been established, claims lodged
and negotiations are well under way. But strikingly, no determinations recognising native title have
been made. Native title has to date only been recognised by the non-Indigenous legal system on the
island of Mer.
In many parts of the country native title has been the subject of concerted action by Indigenous
communities. Native title has been the source of cohesion and dispute as the opportunity of gaining
title has both opened up expectations of the return of country and tensions and wounds around
connections to country, family histories and community relationships. As I point out in chapter 2 of
this report, the existence of these complexities is a natural consequence of decades of government
policy which denied the existence of our ownership of land and promoted forced removal. Native
title has spurred governments, industry and others into action so as to cope with the legacy of over
200 years of denial and so as to maintain their claimed dominium over titles.
With Mabo [No:2] and the NTA, native title burst through the countrys consciousness with the force
expected from seeds that were for so long in germination. Following the passage of the Act there

was a change in momentum with the unfolding of the struggle to establish and work with newly
fashioned procedures. The task was to make sure these procedures accommodated traditional title
in the non-Indigenous legal and administrative systems. They confronted the responsibility of
absorbing Indigenous aspirations for justice in a community fearful of perceived threats to their titles,
such fears are evident from the following newspaper article:
Bill and Marie McKay have more than $230,000 and plans for a peaceful retirement
invested in their home at Crescent Head.
...
The Minister for Land and Water Conservation, Mr Souris, ordered that land on the
Goolawah Estate at Crescent Head, 20 kilometres north-east of Kempsey, be withdrawn
from sale as it could not guarantee that those sites were safe from land title claims by local
Aborigines under the Mabo legislation.
...
What concerns us the people that bought and built here is that we have not heard
anything from the Lands Department about where we stand, [Mr McKay] said.
...
A spokesman for the Kempsey Aboriginal Lands Council, Mr Colin Campbell, said many of
the 2,500 local Aborigines who needed housing were living with uncertainty just as the
Goolawah Estate landowners were.
He said the lands council had been seeking land on the Goolawah Estate since the early
1980s. It had dropped a claim to land on the site, in order to smooth the way for
development, in return for six blocks which would be developed to house Aboriginal
families.
But Mr Campbell said negotiations between Aborigines, Kempsey Council and the
Department of Conservation and Land Management had broken down.
It was all agreed before Mabo came on the scene, he said, but no-one wants to talk
about it. We feel just like those people out there [on the estate] now who could have a
claim against them after they bought the land in good faith.
A spokesman for Mr Souris said that he was unaware of any such agreement and that the
Kempsey Aboriginal Lands Council should produce documentation. 9
The period following the enactment of the NTA has given rise to a strong sense of frustration for
native title claimants as the prospect of completing successful claims emerged as a distant reality.
Instead of gaining recognition of native title, Indigenous claimants found themselves enmeshed in the
intricacies of having their claims accepted. They are being asked to demonstrate the strength of their
claims just to get in the door!
The communities efforts were not directed towards gaining recognition of native title. Rather, the
stage has been firmly anchored in the archives of historical tenure searches as the lottery of
extinguishment is played with increasing finesse. At the same time, the financial support required to
equip parties to be players in this theatre has been siphoned out of Canberra at a less-thansatisfactory pace.
Native title exists for Indigenous peoples whether or not it is recognised by non-Indigenous law. If
this is understood, it should be clear why it is of small comfort to us that
we are forced to prove our native title in an imposed legal system. We do not come to the process
by which native title is recognised devoid of misgivings and the system will have to be sensitive to
our situation if the claims process is to meet the necessary human rights standards.
In my First Report, I identified principles that can be useful when reflecting on the framework in which
native title is to be recognised:
there should be a maximum degree of co-existence between native title and validated titles;
the unequivocal international obligation is to provide protection and not to simply pay for the
considered violation of human rights;
a true application of the principle of non-discrimination recognises and gives equal protection to
different ways;
[n]on-discriminatory recognition of native title requires the recognition of the full spiritual, cultural and
economic significance of traditional estates and corresponding rights of full enjoyment and

beneficial ownership. 10
These themes inform my discussion in this report on the foundations of native title and the legislative
framework in which it is regulated.
The basis for native title is the recognition of our human rights, which requires that respect be given
to our relationship to our lands and concepts of land ownership. Native title must be approached
from this principled position. When discomfort arises in the non-Indigenous community, with fear of
uncertainty, inconvenience and the cost of dealing with native title, we must continually return to an
immovable conviction that our human rights to our lands cannot be compromised. The nonIndigenous community must come to accept this. If reconciliation is to be achieved, it is essential
that they do. The well-being of a community cannot depend on the dispossession and denial of the
human rights of a minority. The perspective that native title is a privilege needs to be corrected and
in gaining a sharper focus of the NTA it should be clear to the non-Indigenous community that
governments no longer have the capacity to arbitrarily and unfairly extinguish native title so as to
remove obstacles to development. Native title is a right it is not a benefit or a privilege.
Attitudes towards the process of the recognition of native title should not be locked into a belief that it
is all about a system of resolving competing interests. We must look deeper and beyond the many
ways in which the process is played out and align our perspectives to the universal and fundamental
human rights principles arising from our dispossession. If those non-Indigenous Australians, secure
in their property rights and yet opposed to the recognition of native title, could put themselves in our
place of vulnerability, they may well perceive the injustice of the situation and develop a firm
commitment to co-operatively erasing that injustice. They will realise that human rights derive from
the inherent dignity of all human beings. As the Prime Minister said in Redfern Park:
...it might help us if we non-Aboriginal Australians imagined ourselves dispossessed of land
we had lived on for fifty thousand years and then imagined ourselves told that it had
never been ours.
Imagine if ours was the oldest culture in the world and we were told that it was worthless.
Imagine if we had resisted this settlement, suffered and died in the defence of our land,
and then were told in history books that we had given up without a fight.
Imagine if non-Aboriginal Australians had served their country in peace and war and were
then ignored in history books.
Imagine if our feats on sporting fields had inspired admiration and patriotism and yet did
nothing to diminish prejudice.
Imagine if our spiritual life was denied and ridiculed.
Imagine if we had suffered the injustice and then were blamed for it.
It seems to me that if we can imagine the injustice we can imagine its opposite.
And we can have justice. 11
I acknowledge again the significance of Mabo [No:2] in recognising native title. However, with the
trend of the common law towards the massive extinguishment of our lands, a trend which I most
emphatically believe needs to be urgently redressed, Indigenous Australians hold very modest hopes
for the capacity of the Native Title Act to deliver justice through the protection of our titles. The
likelihood is that our aspirations will be confined to very limited horizons. In this context, is it too
much to ask that non-Indigenous Australians work co-operatively with Indigenous peoples to
maximise what justice there is to be obtained from the NTA?
A notable feature of the NTA is its dependence on the common law to give substance to its
provisions. For example, the crucial definition of native title in the Act is open-ended, it picks up the
common law as articulated by the judges in Mabo [No.2] but it does not guide or restrict the
development of that definition in future judicial decisions. 12 Another important example of the NTAs
deference to common law is that it does not make any provision about the effect on native title of
valid past grants of interests. The policy reason is that, because native title is derived from our laws
and customs, native title rights must be determined in accordance with the evidence in each
particular case and not predetermined by the structure of the NTA. 13 Courts were thought to be
better placed than the legislature to grapple with these vital but specific questions about the content
of native title and the extent to which it co-exists with other forms of title.
This close relationship with the common law is obviously crucial to the operation of the NTA. An
examination of the NTA is not possible without consideration of the common law. Consequently my
approach to reporting on the NTA is infused with consideration of that branch of the law.

One more introductory remark needs to be made before I review the major elements of the NTA and
native title. The High Court, in surveying some provisions of the NTA, qualified its own analysis by
saying that any attempt to summarise aspects of the Act will inevitably be inexact, but a summary
must suffice to expose the salient features of the Act.... 14 I acknowledge this inevitability and I deal
with the NTA in this light and in service of my assessment of its operation and impact on our human
rights.

Executive Summary
Chapter 1 The Native Title Act
The Native Title Act 1993 (Cth) (NTA) is a complex piece of legislation. Its provisions constitute an
attempt to balance many competing interests. The degree to which the balance reflected in the
content of the Act and in its interpretation and application adequately protects the human rights of
Indigenous peoples is a central theme of this report.
In chapter 1, I have reviewed the features of the NTA and some significant aspects of its application.
In the course of this review I have noted certain areas in the operation of the Act that I believe are of
concern. In particular, I have reservations as to whether the claims procedure is operating in a way
that provides appropriate access to Indigenous peoples to achieve recognition of their ownership of
land. Significant defects in the procedure for seeking a determination of native title include the
requirements in the regulations for claimant applications and the existence of the acceptance test,
which creates a serious obstacle to even beginning to prove a claim to land. Another important
difficulty which has been experienced by Indigenous peoples in attempting to use the claims
procedure is the inadequacy of the funding which has been provided to representative bodies.
Although some provisions of the NTA are clearly directed to the protection of native title, the Act also
allows for the validation of invalid past acts.
This process facilitates the extinguishment or
impairment of native title. While the Act sets up a system of compensation for native title holders
whose rights are affected by the validation of past acts, it is important to remember that
compensation does not undo a breach of Indigenous peoples human rights. It is necessary that the
criteria for assessing entitlement to compensation for native title holders are capable of
accommodating Indigenous relationships to land.
If the criteria fail to recognise unique
characteristics of Indigenous land ownership then compensation will be granted on a discriminatory
basis.
An important and controversial aspect of the NTA is the right to negotiate. The right to negotiate is a
key component of the regime for future acts affecting native title and it is an essential entitlement
which allows native title holders some control over activities on their land. Notwithstanding that its
application is already limited, there have been many proposals to further restrict its scope and to
exclude certain categories of acts from the requirement. I have reviewed some of the proposals to
amend the right to negotiate provisions and I consider that there is no justification for changing the
provisions at this stage. Many of the concerns that give rise to the proposals to restrict the right to
negotiate are exaggerated or misconceived. These proposals should be rejected and the concerns
which give rise to them should be balanced against the rights of native title holders to participate in
decision making about their land.
The Act anticipates that State and Territory legislatures will enact complementary legislation. A
relevant issue in this regard is the recognition of State bodies and the conferral on these bodies of
jurisdiction in relation to native title. It is critical that the
institutions that administer native title are able to understand the concerns of Indigenous people and
that those institutions operate in a way that is in keeping with the national approach to the recognition
and protection of native title.
An issue which I have briefly considered is the complex relationship between native title and statutory
schemes for granting land to Indigenous peoples. The recognition of native title is a new and
significant event that must be accommodated into these schemes.

Chapter 2 Human Rights

The recognition of native title was more than a recognition of Indigenous property interests, it is also

about the recognition of our human rights. While the tendency has been to examine the impact of
the NTA in terms of economic criteria, the true test for the NTA is the degree to which it protects the
human rights of Aboriginal and Torres Strait Islander people.
Human rights are those minimum entitlements or standards that are recognised internationally as
applying to all people. The Australian Government and many other nations have acknowledged that
these rights are inherent, inalienable and universal by becoming signatories to the international
instruments that outline minimum human rights standards. Relevant instruments which Australia has
ratified include the Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, the International Covenant on Civil and Political Rights and the
International Convention on the Elimination of All Forms of Racial Discrimination. Also relevant is the
International Labour Organisation Convention No: 169 and the Draft Declaration on the Rights of
Indigenous Peoples. While ILO 169 has not been ratified by Australia and the Draft Declaration is
not finalised, both documents provide an important gauge as to the standards required to be upheld
by the international community. In particular, the Draft Declaration reflects the standards expected by
the international Indigenous community.
The provisions of ratified conventions constitute obligations that are binding in international law on
the Australian Government and international human rights standards are also influential in the way
judges shape the common law. Indeed, one significant motivation for the High Court in rejecting the
common law doctrine of terra nullius was to ensure that the common law did not repudiate
international standards.
These international instruments are relevant to native title in that they protect property against
arbitrary and discriminatory interference and they provide rights to the free exercise of culture. It is
the expectation of the international community that Australia will comply with these standards in its
treatment of the property rights of Indigenous peoples. The Commonwealth Government appeared
to be conscious of its obligation to maintain human rights standards when it passed the Native Title
Act but the Act does not offer complete protection of native title and it does not completely guard
against the infringement of Indigenous peoples human rights.
Some emerging issues are vital to the question of whether the Act adequately protects Indigenous
human rights. The legal definition of native title must be broad enough to fully accommodate
Indigenous land relationships and Indigenous law.
If the content of native title is not fully consistent with Indigenous systems of land tenure then the
treatment of native title will become a means of assimilation rather than recognition.
The legal
means of proving native title claims must be culturally sensitive, procedures must be accessible and
resources available to allow Indigenous peoples to assert and protect their property rights.
Extinguishment of native title is a breach of Indigenous human rights. The Government clearly
believed that this breach was a necessary compromise in balancing the competing interests. By
contrast, I maintain that extinguishment of native title should be kept to a minimum. Co-existence
between native title and other interests should be given effect where possible and native title should
be understood to revive after the expiry of a granted interest.
Commonly, proper recognition of Indigenous human rights and a non-discriminatory accommodation
of native title as a property right will require something other than the treatment of native title as
equivalent to title granted by the Crown. For example, where native title holders are compensated it
is not sufficient to treat the loss of native title as nothing but loss of an economic resource. Land to
Indigenous peoples is not understood solely in economic terms and the criteria for compensation will
have to take this into account in order for native title holders to be treated in a way that is genuinely
equal to other property holders.
In addressing all the specific issues that have arisen and will continue to arise in relation to native
title, it is vital to keep the nature of that title in perspective. Native title is a property right. It is the
very foundation of Indigenous culture and well-being and the non-discriminatory protection of it is a
recognised human right.

Chapter 3 Extinguishment
The question of where native title has been extinguished in the past is fundamental to the operation
of the Native Title Act. Because the NTA is focussed on the presence of native title, the processes by
which Australian governments can validly extinguish native title is a central issue. Apart from
constitutional and statutory limitations on extinguishment, there are also important common law rules
which may place limits on the extent to which native title is found to be destroyed by past acts. The
extent of common law restrictions on the extinguishment of native title is presently unclear.

The NTA only clarifies when extinguishment has occurred with regard to invalid acts that have been
validated in accordance with the NTA. However, most acts which may affect native title are not
invalid and therefore do not attract the validation provisions. The effect of these acts on native title is
left to the common law.
The common law rules about extinguishment are consequently of
fundamental relevance to the proper recognition of Indigenous property rights and to the operation of
the NTA.
In Mabo [No:2] 1 the High Court was not clear on when the common law considers native title to be
extinguished. The ambiguity in this area of law is even more apparent after consideration of common
law precedents in other jurisdictions which conflict with the approaches adopted by the High Court.
Chapter 3 examines these approaches and the issues involved.
It is clear that native title can be extinguished through legislation that manifests the legislatures
intention to extinguish clearly and unambiguously. That much is consistent with case law from
Canada, New Zealand, the United States and England. The degree to which native title can be
extinguished by legislation which does not reveal such an intention but is merely inconsistent with
native title is less clear. In my view, legislation that lacks clear and unambiguous words professing
the intention to extinguish does not have the effect of destroying native title rights.
Aspects of the judgments in Mabo [No:2] also suggest that native title may be extinguished by an
inconsistent grant. This proposition is at odds with the general common law rule that, while the
Parliament can take away anyones property interest, the executive can only do so after it has
received clear legislative authorisation. I reject the notion that an inconsistent grant by the executive
without legislative authorisation can extinguish native title. If the executive acts without authorisation
then it is acting beyond its power and I see no justification for native title to be extinguished as a
result. I refer to a number of common law determinations in other jurisdictions to support my view.
Even accepting the suggestion that inconsistent grants extinguish native title, a crucial issue remains
to be resolved that is, what amounts to inconsistency? Whether or not a lease extinguishes native
title depends upon the way inconsistency is interpreted. It is my view that the most equitable way to
apply the test for extinguishment by inconsistency is by only allowing inconsistency to extinguish
when the inconsistency exists in fact and not when it is merely a matter of theory. In other words,
only when a grant is actually used in a way that is irreconcilable with the continuation of native title
should that grant be said to affect native title rights. The requirements that must be fulfilled in order
for native title to be extinguished should be strict because the consequence of extinguishment is the
destruction of property rights.
The key factors which influence my discussion and conclusions in this chapter are the strong
presumption against extinguishment of native title referred to in Mabo [No:2], the common law
presumption against extinguishment of property interests without legislative authority, the possible
existence of a fiduciary duty imposed on the Crown and the fact that many past grants could well be
wrongful at law and to hold that wrongful acts extinguish native title would be manifestly unjust.
It is clear from the discussion in this chapter that the issue of extinguishment and the effect of
inconsistent grants on native title is an open legal question. The most important consideration in
working out the issues around extinguishment is the people who may be dispossessed as a result of
the way the legal principles develop. Regardless of what the common law says, the legitimacy of the
extinguishment of native title can only be determined by native title holders themselves. It may be
that the High Court will accept the view that native title can be extinguished by inconsistent grants
irrespective of any inconsistency in fact. Ultimately, such court decisions and the consequences of
them will be judged by the Indigenous people whose rights are affected. If the law clings to abstract
administrative dealings to assert that Indigenous peoples property rights have been obliterated, the
law will be understandably perceived as barren and devoid of justice.

Chapter 4 The National Native Title Tribunal

The National Native Title Tribunal (the Tribunal) is set up under the NTA and is given significant
functions in relation to native title including accepting applications, conducting inquiries about certain
applications and dealing with special references from the Commonwealth Minister.
In opposed
applications the Tribunal directs mediation between the parties. The Tribunal also has a series of
functions that require it to make determinations on particular issues. For example, the Tribunal
makes determinations in relation to the acceptance test for claimant applications and determines
unresolved right to negotiate proceedings.
Given this jurisdiction, it is clear that the Tribunal is a significant part of the regime for the recognition
and protection of native title set up under the NTA. Indigenous peoples are concerned that its
procedures are accessible, culturally appropriate, flexible and that its determinations are enforceable.
On this last issue an important concern is whether the Tribunal structure offends the separation of

judicial and administrative powers. A recent High Court decision that struck down the registration
and enforcement of determinations of a non-judicial body in the Federal Court has made finding a
solution to this problem urgent. Any changes to the structure of the Tribunal which may be
implemented to cure the problems arising from the separation of powers must maintain the goals of
providing accessible, affordable and equitable procedures for Indigenous peoples.
I identify some areas of the Tribunals operations in which I believe problems have arisen. In
particular, I consider that some of the regulations relating to claimant applications are inappropriate
and I consider that the Tribunals requirements for mapping of claim areas have sought excessive
detail. One danger that I see in requiring claimants to provide significant detail of their claims before
they can gain access to the Tribunal is that in the process the native title claimed will be transformed
from an Indigenous land relationship into a foreign and unrecognisable claim defined exclusively in
terms of western land tenure systems.
Another area of real concern to me is the existence and interpretation of the acceptance test. In my
opinion, the prima facie standard of proof of a claim required of applicants under the NTA is a lowlevel test. It seems, however, that the standard is being applied in a way that is requiring something
more of claimants than the presentation of an arguable case. Claims are being rejected on
contentious grounds and the Tribunal seems to have formed the view, without unequivocal legal
authority, that whole categories of land are not capable of being claimed. The Tribunal, for example,
has a procedure whereby the Registrar will not ordinarily accept a claim to pastoral land that is wider
than any reservation contained in a pastoral lease for the benefit of Indigenous people.
If there is to continue to be an acceptance test, then it must operate as a screening test and not as a
preliminary trial of the issues in the claim. However, I believe that there is an urgent need to replace
the acceptance test by strike out procedures in the Federal Court.
I briefly review the Tribunals mediation function and some notable features of applications to the
Tribunal during the reporting period. To put into perspective some of the specific
criticisms I have made of some of the decisions emanating from the Tribunal, I commend the effort
that has clearly been made by Tribunal personnel to ensure that it operates in a way that is
responsive to the concerns of Indigenous people.
Although it is too early to fully evaluate the Tribunal structure or its functioning, a range of
circumstances (such as the High Court decision noted above) has provided an impetus to restructure
it. I have commented on a detailed proposal by Justice French, President of the Tribunal, which puts
forward changes to the functions exercised by the Tribunal and calls for a wider role for the Tribunal
in mediation. Justice Frenchs proposal is broad-ranging and thoughtful and I find much in it to
commend. However, I reserve my opinion on important aspects of it pending further consultations.

Chapter 5 Economic and Resource Management Issues

In chapter 5, I review and evaluate some of the responses to the NTA by governments and industry
groups. This review is not done for the purpose of comprehensively evaluating the impact of the Act,
it is clearly too early to make such an assessment. Its purpose is to canvass the issues and to put
some of the more common criticisms into perspective.
The most often-repeated complaints about the NTA from state and territory governments are that it
does not resolve the uncertainty surrounding native title and that government procedures have had to
be restructured as a consequence of its requirements.
Specifically, governments have complained that their dealings with land are hampered by the future
act regime. In my view, the future act regime is not a barrier to future dealings on native title land. In
many cases the procedural entitlements of native title holders will be no greater than the entitlements
of other title holders. In addition, many types of acts may proceed in the absence of a determination
about the existence of native title.
The right to negotiate appears to be a particular irritation to some state governments. For Indigenous
people it is a minimum requirement which may enable them to have a say about dealings with their
land. The right to negotiate may cause some delay in the granting of interests over native title land
but that delay will be reduced as the procedures become more familiar to all participants. It also
needs to be recognised that the rights to negotiate can proceed concurrently with lead times arising
from some other requirements affecting land use. Any inconvenience caused to governments and
applicants for interests in land by the right to negotiate must be balanced against the imperative that
Indigenous people be able to freely exercise their rights to land. This imperative must be kept in
mind in considering government proposals for exclusions from the right to negotiate.

Although I think that some of the complaints of governments are exaggerated, I do not disagree that
the requirements of the NTA may cause some additional delays and impose some new costs on land
dealings. However, I believe that whatever the cost and delay, the recognition of native title and the
implementation of procedures to accommodate it was overdue. Old procedures that allowed native
title to be affected by grants without consultation with Indigenous landholders are no longer
acceptable.
Certain conduct by governments has contributed to the uncertainty surrounding native title. The
refusal by some governments, particularly the Western Australian State Government, to accept the
national approach to the recognition of native title has meant that some of the processes of the NTA
have not been fully implemented or utilised.
The uncertainty for governments needs to be set against the uncertainty felt by Indigenous peoples.
Although Indigenous peoples feel secure about our rights to country in the Indigenous system, until
Mabo [No:2] we had no security to enjoy our property ownership in the non-Indigenous system. We
suffered continued uncertainty, vulnerability and loss due to the capacity of governments arbitrarily to
divest us of our rights. Now that the common law recognises our property rights we still have to
prove our claims to ownership under the non-Indigenous system. If the dimensions of native title
remain uncertain in the non-Indigenous system then that is a function of that system, it is not
attributable to the existence of Indigenous land ownership.
One way that government, in co-operation with native title holders, can reduce uncertainty is by
entering into agreements about land development and land management. Governments have not
fully explored the possibilities of negotiation and agreement as a means of alleviating their concerns.
The recognition of native title and the enactment of the NTA provides an opportunity for governments
to re-evaluate their land management practices with a view to fully including Indigenous peoples.
The possibilities of co-operative management range from small-scale co-existence (for example on a
pastoral lease) to more extensive projects like joint control of national parklands. There are numbers
of examples to indicate that co-existence between native title and other land uses and interests is not
only possible but produces beneficial outcomes for the whole community.
Like governments, certain sectors of Australian industry hold the view that the NTA has caused
uncertainty about security of land tenure and future land use. In my opinion, the effect of the NTA is
to lay down firm procedures for future acts and to validate or allow for the validation of ineffective
past grants. Some of the apprehensions of industry can be put down to a misunderstanding of what
the NTA actually does. However, certain specific concerns of industry groups are not attributable to
ignorance and I have addressed these in detail.
The fishing industry has concerns about the extent of the common law recognition of native title
rights to the sea and rights to take sea resources. The industrys concerns are not assisted by the
fact that the law on this important issue is still being developed. However, after reviewing the
relevant provisions of the NTA, I have come to the conclusion that whatever the extent of native title
over sea resources, it is unlikely to interfere with past grants of interests to the fishing industry nor to
seriously impact on the grant of new rights.
The mining industry has been particularly vocal in its opposition to the recognition of native title and
the procedures introduced in the NTA. It is my opinion that much of the rhetoric from the mining
industry is referable to its ideological opposition to a proper acknowledgement of Indigenous land
ownership and their protests are not always genuinely directed to perceived defects in the Act.
However, some mining companies have
managed to adopt creative approaches to mining developments on Indigenous land and some
agreements that have emerged provide indicators of how to reconcile industry objectives with
Indigenous property rights.
The approach of some pastoral industry representatives to native title has been pragmatic. These
representatives sought to protect farmers interests by ensuring that an effective and comprehensive
scheme for the validation of past grants was instituted. The NTA contains such a scheme and so,
since the enactment of the NTA, the pastoral industry has been less vocal and less critical than some
other industry groups. One issue that remains a concern to the pastoral industry is the making and
acceptance of native title claims to pastoral leases.
Pastoralists complain that, on their
understanding of the law, these claims are without merit and cause respondents considerable
inconvenience, expense and financial hardship. I do not agree that claims to pastoral leases are
doomed. My analysis of the law is that native title will co-exist on pastoral leases to some extent. It
is my opinion that although the claims may inconvenience farmers, such inconvenience cannot
outweigh the rights of Indigenous peoples to attempt to prove their claims to their traditional country.
It is important to put the issues about native title on pastoral leases in the historical context of
Indigenous peoples participation in the pastoral industry. When the experience of Indigenous people

in the industry is understood, it is easy to see why the traditional owners of land used for farming will
not give up their claims. I believe that the rights of Indigenous peoples and the objectives of the
pastoral industry can be reconciled given a genuine will to find mutually acceptable compromises. In
attempting to resolve the issues about native title on pastoral leases and other issues about native
title, we should strive for a process and an outcome that respects both Indigenous and nonIndigenous laws.

Chapter 6 Community Awareness

The NTA is complicated legislation dealing with complicated legal and social issues. Present
indications are that the level of knowledge among both Indigenous and non-Indigenous Australians
as to the nature of the common law recognition of native title and the provisions of the Native Title
Act is low.
This lack of understanding must be redressed. Both Indigenous and non-Indigenous people must
have access to simple and accurate information as to the content of the NTA and the procedures that
it establishes. This is particularly so for Indigenous peoples who must rely on the NTA for the
assertion and protection of their native title rights. The Act will do little to assist Indigenous peoples if
they are not aware of its existence or are not informed as to how they can receive the benefit of it.
While a number of materials have been produced on the operation of the NTA, not all have been
designed to be accessible to Indigenous people. They have not been designed to specifically cater
for people who have not had a secondary education or who have English as a second language. A
significant number of native title claimants and potential claimants fall into this category. Education
and community awareness programmes must be flexible enough to cater for the needs of specific
communities and be culturally appropriate in order to be effective.
Materials that have been produced have not been disseminated to a satisfactory degree among nonIndigenous people who are concerned about native title and the NTA.
Given the level of
misinformation that exists in the community over the recognition of native title and the NTA, this is
most unfortunate.
Greater community awareness is needed, not only so that people gain greater understanding of the
NTA, but also to ensure that the Act operates in an efficient and beneficial manner. This is essential
given the heavy emphasis placed on mediation and negotiation by the Act and the procedures
emerging under it. There is a need for cultural awareness so that dialogue can take place in an
environment where there is a reasonable level of understanding and respect for the issues,
participants and cultures. The non-Indigenous community must be assisted to understand the history
of the dispossession of Aboriginal and Torres Strait Islander peoples and be encouraged to accept
the ramifications of native title for Australias land use systems. Without this, the procedures in the
NTA are likely to be hampered by unnecessary tensions which have already been exacerbated by
misinformation and hysteria on the part of some sections of the community. The effect of this
misinformation has been further exacerbated by the lack of accurate and objective information or its
limited distribution.
Those in professions associated with the implementation and operation of the NTA must also be
adept in cross-cultural communication. This will be crucial in order to make many of the procedures
in the NTA work effectively. Poor communication and lack of understanding will result in an outcome
likely to be detrimental to all parties concerned.
Unless adequate educative processes are implemented to explain the NTA and to assist those who
have to work with it or are affected by it, then the procedures it establishes will be undermined.

The imminent passage of the Native Title Bill will be a great day for Indigenous
Australians ... and I hope a great turning point in their recent history.
This has been the longest continuing problem that Australia has faced now for over 200
years recognising that Indigenous people, that native people, had a right to their own soil.
It is the end of the great lie of terra nullius and the beginning, we all hope, of a new deal,
the basis of social justice and reconciliation. A real basis of reconciliation. ...
It was a very hard process, I think too hard, but nevertheless the Bill will be there, and most
people in the state bureaucracies negotiated to try to find a basis of preserving the states

rights in land management while dealing with the broader rights of justice for Indigenous
Australians.
In the end, the Government was able to bring together a disparate group of interest groups,
and fashion a policy which, I think, will stand Australia in good stead, which will stand the
Aboriginal and Islander community of this country in good stead, but which we have now
got to make work.
The Prime Minister, Paul Keating
21 December 1993

The Native Title Act

1

Introduction

The Native Title Act 1993 (Cth) (NTA) is to a unique degree negotiated legislation. 1 The
negotiations involved miners, pastoralists, bureaucrats, members of parliament of all political
persuasions and representatives of many Indigenous organisations, such as the Aboriginal and
Torres Strait Islander Commission, land councils and Aboriginal legal services.
The result is an Act which is quite obviously complex but with patience it is comprehensible. As Hal
Wootten said:
I can understand the Chief Executive of BHP describing it as like reading porridge, but my
own reaction was to describe it as a labyrinth. The tracks you have to follow are really good
clear tracks, but you sometimes seem to be going backwards and forwards to get to where
you have to go, and you may make a few false starts that don't lead you where you thought
you were going. In the end, if you are patient, you usually get a pretty clear result. 2
He identifies the problem which many readers have in this way:
One reason the Act comes across as complex and even baffling on a first reading is
because of its extensive use of definitions. It is usually possible to get the drift of legislation
without studying the definitions. One usually reads a new Act with the mental reservation
that definitions will have to be checked to see just where they draw the boundaries around
the concepts that are being used, but one expects the general structure, policy and
process to emerge from the substantive provisions.
Much of the Native Title Act cannot be read like that. You sometimes learn more about
what the Act is doing from the definitions than from what you expect to be the substantive
provisions. Some of the definitions contain major statements of policy or process. 3
In this chapter I comment on a range of provisions in the NTA, respond to calls for amendments and
generally review the operation of the Act. In doing this I have had to track through many of the
provisions in the legislation. Whilst on this journey, in addition to Hal Woottens advice to pay
attention to the definitions in the Act, I have found it useful to keep in mind a very clear view of what
the Act sets out to do.
The first object of the Act is the recognition and protection of native title. This is principally achieved
through the statutory declaration that native title is not able to be extinguished contrary to this Act.4
The provisions in the NTA which permit the extinguishment or impairment of native title constitute an
exclusive code. 5 The defeasibility of native title at common law is otherwise removed. The extent
to which native title is protected can be gauged by examining the code provided by the NTA and by
considering the impact of valid past grants, which are beyond the reach of the NTA. As pointed out
by the High Court:
An act which was wholly valid when it was done and which was effective then to extinguish
or impair native title is unaffected by the Native Title Act. Such an act neither needs nor is
given force and effect by the Act. 6
The second object of the Act relates to the facilitation of future dealings which affect native title.
Future acts are either permissible or impermissible. 7 The particular type of permissible future act
will determine the effect of that act in relation to native title. In some circumstances, the NTA

imposes requirements that native title holders be given notice of intention to do the future act and
that native title holders have the right to negotiate.
The NTA sets up the National Native Title Tribunal (the Tribunal) and establishes a regime for
identifying and registering native title interests pursuant to its third object, which is to establish a
mechanism for determining claims.
The fourth object of the NTA is to provide for the validation of past acts which may be invalid because
of the existence of native title. The manner in which validation would be achieved was possibly the
most controversial aspect of the native title negotiations. The NTA directly validates commonwealth
grants which may have been invalid because of the existence of native title. It also removes any
inconsistency between the Racial Discrimination Act 1975 (Cth) (RDA) and complementary state or
territory law, enacted after the NTA, which seeks to validate past acts attributable to the State or
Territory. In other words, it cures, or allows for the cure, of all grants which otherwise may have been
invalid because of the existence of native title. The effect of validation of past grants will depend
upon the nature of the act.

Recognising Native Title

Applications
Claimant applications
Native title is also recognised and protected in the NTA by a process of application for a
determination of native title and registration of such determinations. Applications for determinations
of native title may be made by Aboriginal and Torres Strait Islander people
claiming to hold native title. In the application, the claimant must describe or identify the other people
with whom the claim is made but need not name the individuals nor state numbers of native title
claimants. 8 The NTA appears to contemplate that an individual or a small number of individuals will
represent a communally defined group. It appropriately recognises that Indigenous claimants may
not be in a position to identify each person with an entitlement to the native title. (See the section on
claimants in chapter 4.)
Non-claimant applications
The NTA also provides for applications as to whether native title exists in relation to a particular area
to be made by people who are not claiming native title. Such an application may be made by:
a person with an interest in the whole of the area for which the application is being made; or
the relevant Commonwealth, State or Territory Minister.
This type of application is called a non-claimant application. 9 If in response to such an application,
a claimant application is lodged then the non-claimant process will be dismissed or come to an end
for the area covered by the claimant proceedings. 10 If it is unopposed, then any future act done
prior to a determination is valid and there will ultimately be either a determination that native title
does not exist or the non-claimant application will be dismissed. 11
Revocation or variation
A revised native title determination application for the revocation or variation of an approved
determination of native title may be made under s. 13 by:
a registered native title body corporate;
the relevant Commonwealth, State or Territory Minister; or
the Registrar of the Tribunal.

Regulations for claimant applications

The Native Title Tribunal Regulations 12 set out the form by which applications for determinations of
native title must be made. In some areas the regulations exceed the requirements of s. 61 of the
NTA, which provides that the application contain such information in relation to the matters sought to
be determined as is prescribed.
The matters to be determined are:

whether the native title exists;

who holds it;
whether the native title rights and interests confer possession, occupation, use and enjoyment of the
land and the waters on its holders to the exclusion of all others; and
the nature and extent of any other interests which may affect the native title rights and interests. 13
The regulations, however, go on to prescribe information which is unrelated to the matters to be
determined. They prescribe that the application include:
the description of the area claimed, which must include the Indigenous name of the area. There
may be no Indigenous name for the area and the existence of an Indigenous name is largely
irrelevant to the existence of native title;
a description of sites within the area. This requirement tends to imply a particular type of Indigenous
custom and practice which may not be relevant to claimants or to the matters to be determined;
details of the native title rights and interests possessed under traditional laws and customs of the
applicants. This requirement is potentially consistent with the NTA where it is interpreted as
requiring no more than the specification of a claim to possession, occupation, use and
enjoyment of the land. This was the description of native title rights and interests used in Mabo
[No: 2] 14 and I can see no reason why the regulations should require more detail. In some
cases this provision has been interpreted as requiring detailed particulars of rights and interests
beyond this type of general statement. 15 This interpretation fails to comprehend that native
title amounts to full beneficial ownership and not a series of incidents of title. (This and the
Indigenous name issue are further discussed in chapter 4.)
A non-discriminatory recognition of native title acknowledges the full spiritual, cultural and economic
significance of that title and accords rights commensurate with the content of Indigenous law and
tradition. A determination of native title rights, based on a description of incidents of title limited by an
assumed list of traditional activities, fails to recognise the true content of native title, which is
determined according to our law and custom. While native title is derived from traditional laws, it is
not circumscribed by particular traditional forms of use. To do so is to convert a right into a relic as I
explained in my First Report. 16
It appears to me that the regulations were produced at an early stage in the drafting of the NTA and
despite amendment have not been modified to take account of the evolution of the NTA in its
passage through the Senate. The regulations require detailed reconsideration and redrafting in
consultation with Aboriginal and Torres Strait Islander interest groups.
It is noted that the claimant application form provided by the Tribunal fails to specify the requirement
for applicants to list the details of the native title rights and interests possessed under their laws and
customs. The relevant section merely refers to the connection between the applicants and the land
being claimed. The form also needs to be amended to clearly specify this requirement so as to avoid
confusion as to what information has to be provided. 17

Acceptance test
Upon an application being made to the Registrar, the NTA imposes an administrative procedure of
acceptance which is to be carried out by the Tribunal Registrar and a presidential member (a judge
or a former judge). 18 This preliminary step to the application being considered for determination is
not one which applies to any other area of the law concerning the recognition or enforcement of
property rights. I believe that, because native title claimants are subjected to a procedure that does
not apply to the legal assertion of any other property right, the procedure discriminates against
Indigenous people.
The closest analogy to the acceptance test in civil proceedings is the susceptibility of claims to
strike out proceedings. The availability of a strike out application to a respondent means that a
claim may be dismissed prior to hearing. There is also the concern that well-resourced parties, such
as governments, could use strike out proceedings to exhaust the resources of applicants. These are
clearly justifiable concerns, nevertheless I believe the nature of a strike out proceeding makes it
preferable to the acceptance test because:
in a strike out proceeding, in court, questions of law are judicially determined. The acceptance test
produces only an administrative determination which may be subject to judicial review;
the onus is on the party seeking to strike out the pleading which is entirely reasonable as they seek

the early intervention of the court. Under the acceptance test the onus is on the applicant who
merely seeks to embark upon the process of having their claim determined; and
the power to strike out will only be exercised in plain and obvious cases and the court must be
satisfied that the claim is untenable. This reflects the seriousness of the consequences of preemptively excluding a party from seeking to prove their claim and it also reflects the courts
reluctance to prejudge and reject a claim with any prospects of success even if such prospects
are remote.
See chapter 4 for further discussion of the acceptance test, including a proposal that would result in
the acceptance test being replaced by strike out proceedings.

Bodies corporate
The NTA makes it compulsory that the holders of native title have a prescribed body corporate acting
on their behalf. They are entitled to choose a body to act on their behalf but, if they do not choose
one, the choice will be made by the Tribunal or the Federal Court. Title holders also have a choice
under the NTA as to whether the body corporate holds the title on their behalf, as trustee, or merely
acts as their agent in making decisions concerning their land. 19
Bodies corporate under the NTA have several functions including:
i
ii
iii
iv

authorising future acts; 20

entering into regional or local agreements with government; 21
applying for compensation; 22 and
exercising procedural rights in relation to permissible future acts. 23

At the end of the reporting period, regulations had not yet been made prescribing the kinds of bodies
which may perform these functions under the NTA.
Dr James Fingleton has expressed a preference, with which I agree, for regulations favouring
prescribed bodies corporate with the following features:
1.
2.
3.

the body corporate to include all members of the title-holding group and no-one else;
its powers to be limited to management of native title and related matters; and
its rules to provide for consultation, dispute settlement, decision-making machinery and
notification of group decisions. 24

Dr Fingleton suggests that the Aboriginal Councils and Associations Act 1976 (Cth) does not meet
the requirement for minimum administrative intervention consistent with a self-management ethos.
He suggests that native title corporations are best arranged by means of special legislation 25 such
as regulations under the NTA. In the interim, that seems to be the most appropriate course to take.
However, I note that a review of the Aboriginal Councils and Associations Act is proposed and I
would like to see the outcome of the review produce proposals for reform of the Associations
legislation and its operation so that it becomes a suitable source of incorporated status for native title
holders.
One problem which appears not to have been anticipated in the framing of the provisions dealing
with bodies corporate is that the Tribunal or the Federal Court is required to request a
representative of the common law (native title) holders to nominate a prescribed body corporate. If
there is a conflict between common law holders, then the NTA does not provide any mechanism for
addressing that conflict and reaching a determination as to which body corporate is to perform the
functions. This is a problem which is likely to arise frequently enough to necessitate making good the
omission.

Representative Bodies
Adequate funding
Representative bodies are facing a number of difficulties in performing their functions under the NTA.
The first function of representative bodies listed in the NTA is to facilitate, research and prepare
claims. Performance of this role has been hampered by a lack of funding. For instance, the
Aboriginal Legal Service of Western Australia reports that it did not receive its 1993-1994 funding
until June 1994 and (submitting in August 1994) had still not received a decision on its application for
funding for the 1994-1995 year. The funding body, the Aboriginal and Torres Strait Islander
Commission, faced the constraints of implementing a new and quickly established programme during
the reporting period and it clearly made an effort to distribute funds fairly. Nevertheless, such
constraints on funding make it difficult for representative organisations to perform their functions,
such as preparation for lodgment of claims and the requirement to invoke the right to negotiate at the
earliest opportunity under the NTA in the interests of native title claimants. 26 (See further discussion

on this issue in chapter 2.)

Adequate resourcing of representative bodies will continue to be of concern until it reaches much
higher levels than at present. Significant considerations on this issue of funding are:
representative bodies must have the capacity to assist in making claims that communities seek to
pursue;
they must be able to respond fully to the filing of potentially large numbers of non-claimant
applications (50 in the Cape York region alone) 26 within the two month statutory time limit;
funding must be made available based upon realistic assessments of the cost of bringing a claim
including incidental costs such as transport and accommodation for claimants for attendance at
related meetings and mediation conferences etc.
The timing and present levels of funding are not satisfactory to allow representative bodies to provide
these essential services.
Resolving disagreements
The NTA provides that representative bodies may assist in the resolution of disagreements among
applicants for native title. Ethically, lawyers are generally prohibited from acting for clients who have
competing interests. In particular, Aboriginal legal services have historically avoided participating in
legal activity where a conflict has arisen between Indigenous people. Conflicts have been managed
by the provision of separate and independent legal advice to the parties to the dispute. In more
recent times the duplication of costs which has resulted has forced Aboriginal legal services to
attempt to adopt a preliminary mediation role in an attempt to avoid being obliged to fund competing
interest groups with independent representation.
Land councils have developed with a different perspective and have attempted to help individuals
and groups in conflict to reach agreement. They have also sought the assistance of outside bodies,
particularly where any disagreement is seriously entrenched.
Attempts to resolve disagreements about the complicated issues which surround native title are
inevitably fraught with problems. It has been suggested that in some situations, the handling of
conflicts within and between communities could be assisted if there was more than one
representative body in a region as allowed for under s. 202(2) of the NTA. 28 It is argued that this
would provide Indigenous peoples with a choice about their representation and it would provide a
capacity for at least some competing claimant groups to be independently represented. By way of
example, the availability of alternative representative bodies in the Kimberley has allowed separate
representation for separate interest groups which are so entrenched in their conflicts that they could
not be represented by the one organisation.
When the proposal is considered more closely it gives rise to several major issues which require
careful examination. These issues include:
the need to support the capacity of representative bodies to prioritise native title claims;
the relationship of representative bodies to communities and the need for grievance procedures as a
means of resolving any dissatisfaction;
the availability of alternatives to overlapping representative bodies as a means of providing a choice
of representation;
the duplication of costs in an environment where there are insufficient funds for existing
representative bodies;
the means by which funds and work are allocated; and
the relationship between representative bodies where there is overlapping coverage, including the
method of responding to non-claimant applications.
In relation to these matters, there is the pertinent situation that representative bodies have to concern
themselves with a complex array of interests held by their constituents. They perform the task of
consulting and working through a range of interests and allocate scarce resources in accordance
with priorities which are set through what might be a delicate and evolving process. There will often
be scope for disaffected people in such a situation. They have strong claims for independent
assistance if they feel that their interests are not being properly addressed. Then again, to provide
alternative resources for claims for such people might effectively mean that they jump the queue by
getting assistance ahead of other groups who are in front of them on the representative bodys order
of priorities. Further, any such pressure for assistance may come from a preference for individual

claims over more comprehensive and broader claims.

There is concern about the potential
fragmentation of communities and their native titles that is seen to result from such a preference.
For very good reasons there are strong expectations about native title. This makes it all the more
necessary that information and complaints systems are available for claimants who have to wait their
turn for assistance, or who cannot get assistance. Information should be provided that clearly
explains the system of handling requests for assistance and the reasons for the decisions that are
taken by representative bodies.
Informal mechanisms should be available for handling any
complaints made by native title applicants. 29
In addition to the setting of priorities, representative bodies have to deal with conflicts between
claimant groups. In line with the approach adopted by the Cape York Land Council, I believe that it is
appropriate that organisations providing assistance with native title should consult with all the
claimants that are connected with the land being claimed. Differences between claimants should be
dealt with through meetings and consultations, where groups can be encouraged to work together.
Representative bodies can attempt to mediate differences and should, where possible, avoid lodging
claims until those differences are largely settled. 30 If the differences cannot be resolved and the
point is reached where separate representation is required then alternatives which could be
considered include:
one group remaining with the representative body and the other group(s) being referred to
independent legal representation; or
all groups being referred out to independent legal representation. The representative body, could
then use its resources and expertise to support all groups, to continue with its mediation role,
and to allocate and monitor the funding being provided for the independent representation.
That independent legal representation could be another Indigenous legal service, a legal aid
organisation or a private practioner.
Thus, independent assistance can be provided without
establishing overlapping bodies. But there is then the issue of the relative costs involved of
achieving this outcome as opposed to using overlapping bodies.
In assisting with differences over native title, it is inevitable that there will be tensions between
representative bodies and individuals or groups. The importance of access to independent legal
assistance, particularly in such situations, should not be underestimated. However, at the same time,
it is important that tensions are not aggravated by moving into an adversarial position. It might be
more appropriate for any disaffected claimants to take their concerns up through any complaint
mechanisms at the representative body. If necessary, the matter could be taken up with an outside
body, which could attempt to assist in finding a solution. For example, the regional council of the
Aboriginal and Torres Strait Islander Commission could provide such assistance. 31 Then again,
there will be individuals and communities who will require advice and assistance to use those
mechanisms effectively.
Indeed, the receipt of advice and the knowledge that it is from an
independent source, may redress the concerns held by some disaffected claimants. It is fair to say
that the appropriate way of resolving the concerns of claimants will vary with the circumstances.
Nevertheless there is a very strong case that before there be any further duplication of representative
bodies, existing organisations be provided with the extra funds that are needed to allow them to
perform their responsibilities. If there were sufficient funds available then more of the complexities
associated with claims could be addressed with the likely result that there would be less of a need for
separate representation. Within the realistic likely parameters of any increase in funds in the medium
term it will be difficult to further duplicate any representative bodies.
There are a range of reasons operating against a general establishment of overlapping
representative services. But in some regions of Australia, due to particular histories, relationships
and service needs, it might be appropriate for there to be overlap. Indeed, as has been mentioned,
there already exists duplication in Western Australia.
Certainly if there are to be multiple representative bodies in a region, it is necessary that
communication be maximised between them to ensure, as much as possible, that claims are being
pursued in a co-ordinated and complimentary way. It is important for a single representative body to
do this. It is essential that it is done where there are multiple organisations.
It is necessary that representative bodies have the capacity to deal with the demand for assistance
with claims in a way that allows for an optimal response to the complex and testing issues that can
arise in relation to the recognition of native title after two centuries of dispossession and dislocation.
Representative bodies must be supported to meet the challenges that they face. They play a vital
role in achieving, in line with ILO No 169, the objective that there be [a]dequate procedures...within
the national legal system to resolve land claims. 32 These procedures must ensure that claimants
enjoy equality of treatment before the law. This involves access to legal and other assistance.

Access must be built around maximising the choice of claimants to choose the assistance that is
perceived to best meet their needs and preferences. A variety of factors, including community and
other affiliations, will influence how claimants will want to exercise their choice. If the needs of
claimants are not met, then their sense of injustice will prevail and be a continuing source of
disputation.
There can be tensions for representative bodies between their representative role in relation to the
broad interests of their constituents and the discreet interests of individuals and groups. There might
be no straightforward way of resolving those tensions. Indeed they could be a fact of life for some
representative organisations. Given the short-term that representative bodies have been handling
native title claims, it is too early to be definitive as to how the difficulties I have canvassed can be
best approached. It would seem that these issues will be alive for some time to come. It is
necessary that there be further dialogue and policy development with regard to them, with a view to
ensuring that the human rights of native title claimants are protected. This entails Indigenous people
receiving assistance with their native title matters in a way that respects their choice, meets their
needs, promotes their access to professional and culturally sensitive assistance and minimises
disruption and conflict in communities.

Validation and Extinguishment

The NTA protects existing native title from extinguishment by many future acts (that is, generally
legislation from 1 July 1993 or non-legislative acts from 1 January 1994) but it also provides for the
validation of past acts which would otherwise be invalid because of native title. 33
The impact of the validation of past commonwealth acts is likely to be very limited.
The
Commonwealth has relatively rarely acquired title or used areas of land since the enactment of the
RDA (inconsistency with the RDA being the most likely cause of invalidity). One example of the
possible operation of the NTA is the Commonwealth military training base north of Derby in the west
Kimberley, which was the subject of commonwealth acquisition after the enactment of the RDA and is
the subject of native title claims pending in the Supreme Court of Western Australia. 34
The effect of validation of particular grants depends upon which category they fall into under the NTA.
For example, the validation of some interests (such as freehold and certain sorts of leases)
extinguishes native title whereas the validation of other interests (such as mining leases) does not
extinguish native title. 35
Where a validated interest falls into one of the categories of acts which does not extinguish native
title it is still exercisable during its term. To the extent that native title interests conflict with the
validated interest, native title interests are suspended but they revive when the other interest expires.
This result achieves approximate formal equality for native title holders. A similar situation applies to
a freeholder where a mining lease is
granted over the property. Activities conducted under a mining tenement may limit the exercise of
rights of the freeholder during the period of the tenement but the impairment abates upon its
termination.
As has been mentioned, the NTA leaves the question of the extinguishment by valid past grants for
determination by the common law.
One important issue in the recent High Court challenge to the NTA was whether the Commonwealth
provisions which purport to validate past acts were constitutional. The Commonwealth cannot pass a
law that retrospectively validates legislation which was in the past invalid because of an
inconsistency between a state law and the RDA. 36 The key validation provision in respect of the
States and Territories, s. 19 of the Native Title Act, declares that:
...The law of a State or Territory may provide that past acts attributable to the State or
Territory are valid, and are taken always to have been valid.
In upholding the validity of this provision, the High Court reasoned that:
Section 19 of the Native Title Act does not purport to deny the overriding effect of the
Racial Discrimination Act upon any inconsistent law of a State in the past. Section 19
removes any invalidating inconsistency between, on the one hand, a State law enacted in
the future that purports to validate past acts attributable to a State and, on the other, the
Racial Discrimination Act or any other law of the Commonwealth (including the Native Title
Act itself). The validation of past acts attributable to a State is effected by a State law
which, at the time of its enactment, is not subject to an overriding law of the
Commonwealth. The force and effect of a past act consisting of a State law which was

invalid by force of s. 109 of the Constitution because of inconsistency with the Racial
Discrimination Act is recognized only from and by reason of the enactment of the future
State law but, from that time onwards, the force and effect of the past act is determined by
the terms of the State law enacted in conformity with s. 19. 37

Aboriginal and Torres Strait Islander land

The NTA excludes from specified categories of validated past acts which effect extinguishment,
grants to or for the benefit of Aboriginal and Torres Strait Islander peoples or land which on 1 January
1994 was held under certain land rights legislation. 38 The NTA avoids the irony of the validation
regime extinguishing native title to areas which are already held by Aboriginal and Torres Strait
Islander peoples.

Compensation
Native title holders are entitled to compensation for extinguishment by validated past acts. Similarly
compensation is payable for validated past acts which impair native title:
to the extent that the past act would not have been validly done had the native title holders held
ordinary title;
where compensation would be payable if they did hold ordinary title; or
the native title relates to an offshore place. 39
(Ordinary title is defined to mean a freehold estate in fee simple, except in the Australian Capital
Territory and Jervis Bay, where it is defined to mean a lease of land granted by or on behalf of the
Commonwealth. It does not include grants to or for the benefit of Aboriginal people or Torres Strait
Islanders.) 40
Subject to an exception where native title is impaired, s. 51 of the NTA provides for an entitlement on
just terms to compensate the native title holders for any loss, diminution, impairment or other effect of
the act on their native title rights and interests.
As I point out in chapter 2, this requirement is
derived from the Commonwealth Constitution.
In determining what just terms would be for the loss or impairment of native title, it would be a
mistake to place undue emphasis on western concepts of land values as determined by economic
factors. Such a reliance is unlikely to be sufficient to deal with the spiritual attachment to land that
Indigenous peoples have. To overcome the inequity that would arise, spiritual attachment to land and
consequential cultural loss must be taken into account. To do otherwise will not deliver genuine
equality to Indigenous peoples for the loss or impairment of their native title lands. As Silas Roberts,
the first chairperson of the Northern Land Council, has pointed out:
It is true that people who belong to a particular area are really part of that area and if that
area is destroyed they are also destroyed. In my travels throughout Australia, I have met
many Aborigines from other parts who have lost their culture. They have always lost their
land and by losing their land they have lost part of themselves. 41
Whether or not a State or Territory validates a past act, native title holders are entitled to
compensation from the particular State or Territory if they would be entitled to compensation if the act
was done by the Commonwealth under s. 17. 42 This provision provides a clear mechanism for
native title holders to recover compensation when the effect of a past act is still uncertain because
the relevant State or Territory has not validated the act. It is important to note, however, that where
an act has not been validated, native title holders may have the option of pursuing their rights under
the RDA. That Act may operate to invalidate the grant and preserve native title rather than providing
the title holders with a bare right to compensation.
Despite any right to compensation, I maintain my view, as discussed in chapter 2, that the
extinguishment of native title cannot be cured by the payment of compensation.

Future Acts

Future acts are classified in the NTA as impermissible and permissible. Apart from a number of
exceptions, a permissible future act is defined by s. 235 as one which:
applies to native title holders as it would to ordinary title holders; or
additionally and in relation to legislation, it does not disadvantage native title holders any more than if
they held ordinary title.

Again, native title is placed in a position of formal equality with other titles. But the Indigenous
relationship with land is incompatible with the western economic approach to land value. The
impairment of a native title interest not only limits the enjoyment of that interest by the native title
holders, but in many cases will impair an aspect of the culture of those people. Land to Indigenous
peoples is more than a production asset. Ethnocentric comparisons which form the basis of what is
and what is not permitted to be done to particular parcels of land will not account for the real impact
of acts affecting native title land. For example, there is no justification for permitting acts over native
title land that is culturally significant on the basis that the same act would be permitted over ordinary
title which has no cultural significance. The fundamental rationale for the permissible future act
regime needs to be re-examined in the light of the principles of genuine equality.

The right to negotiate

The right to negotiate set out in the NTA 43 is a compromise between control by the native title
holders or claimants over their land and the interests of miners who are concerned about continuing
access to mineral resources. Miners have identified difficulties in obtaining a consent to mine under
provisions such as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which provides a
right to refuse access to Aboriginal land (which can be overridden in the national interest).
The right to negotiate only applies to government grants in relation to exploration and other mining
activity on land where a government acquires land to grant it to others and any other approved act.
44 The right to negotiate does not give any veto to native title holders or claimants but it does oblige
governments to negotiate in good faith. The negotiations may result in revenue sharing for the
benefit of the native title holders or claimants. 45 Additionally, compensation for land use and
heritage protection may also be amongst the outcomes of negotiations. These provisions at least
provide some encouragement for governments to see native title holders and claimants as important
stakeholders whose interests must be considered.
Response to proposed amendments
I have received a number of suggestions for amendment to the NTA during the reporting period.
Certain significant proposals focus on the right to negotiate.
Prospecting and exploration
It has been suggested that the definition of mine should be amended to exclude prospecting and
exploration from the right to negotiate. 46 I strongly disagree with this proposal. It is based on the
suggestion that exploration and prospecting are insignificant events which under the NTA are
subjected to cumbersome procedures. 47 The NTA anticipates and provides mechanisms to deal
with the considerations which give rise to this proposal:
it exempts low impact future acts which can continue up to the time of the determination of native
title; 48
future acts which have minimal effect on native title can be excluded from the right to negotiate by
the Commonwealth Minister 49 (see further discussion on this matter under Exclusions below);
and
a government can invoke an expedited procedure which allows an act to be done if there is no
objection within two months. 50
There is ample statutory provision for fast-tracking of exploration and prospecting applications unless
Indigenous people give notice that it is a matter of particular impact.
There may be many instances where prospecting and exploration may be just as intrusive and
disruptive to Indigenous peoples as the extraction phases of mining. That will depend upon the
particular land, its significance culturally, spirituality and economically and the nature of proposed
activity. That can only be determined on a case-by-case basis and so it would be inappropriate to
exclude the complete category of prospecting and exploration activity from the right to negotiate.
Compulsory acquisitions
The Australian Mining Industry Council (the AMIC) and the State of South Australia have suggested
that the right to negotiate should have a restricted application to compulsory acquisitions. They
suggest that the right to negotiate should not apply to industrial developments but should continue to
apply to residential and tourist developments. 51
I do not agree with the exclusion of some compulsory acquisitions from the right to negotiate

process. If a native title exists and the NTA is to be true to its first object of protecting it, then the
right to negotiate should apply to all compulsory acquisitions.
Any other interest holder subject to compulsory acquisition is entitled to notice and a negotiation
process ensues in an ordinary compulsory acquisition. 52
Expectations of interests
Section 25 of the NTA validates the renewal of an interest arising from a legally enforceable right to
renew which was created before 1 January 1994. Such renewals are exempted from the right to
negotiate procedures. The AMIC has suggested that s. 25 of the NTA be amended to allow a future
renewal of an interest where the activities in the renewed interest would be of a similar kind and
carried out by the original interest holder or a person who acquired the original interest. 53 The
amendment would apply to a further grant at the time the first grant expires, in cases where there is
no right of renewal. Where an interest has expired there is a mere expectation that another interest
will be granted. There is no justification for elevating that expectation over an existing native title
interest so that the native title holder or claimant is deprived of the right to negotiate before the grant
of a future interest. The proposed amendment subordinates the interest of native title holders or
claimants in favour of a mere expectation of a grant and is therefore unacceptable.
Converted pastoral leases
An amendment has been proposed on behalf of the AMIC in relation to pastoral leases, which have
been converted to native title under s. 47. The proposal is that where there has been in existence
any right to explore or mine on such a pastoral lease then the right to negotiate would not apply to
any further mining right applications. 54 Again, this seems to be an attempt to ignore the existence
of native title by focusing on the ignorance of native title prior to its recognition.
It also seems to give little attention to the fact that the intent of the Native Title Act was that mining
interests would co-exist with native title. Where it existed before, there would not appear to be any
difficulty with an existing mining interest continuing to operate after the act of conversion of a pastoral
lease. The negotiation procedures would only apply where there was a further application for a right
to mine. That would occur in circumstances where there had already then been some co-existence
between the exercise of native title rights and mining rights and one would have thought that some
understanding would have been reached between the parties as to their future co-existence. To
exclude the right to negotiate is an over-reaction.
Negotiating royalties
The AMIC says that mining companies should not be exposed to the alleged bargaining power of
native title holders or claimants to seek payments calculated by way of reference to profits, income or
production. It therefore proposes the repeal of s. 33. 55 It is difficult to see that the repeal of that
provision will make any difference, since s. 33 merely suggests that negotiated agreements may
include a revenue or production condition. In my view, s. 33 is not required to authorise such a
condition.
Section 33, together with the prohibition in s. 38(2) on the arbitral body determining a revenue or
production condition, provide an incentive for native title holders or claimants to come to an
agreement at an early stage in the negotiation process.
To move away from allowing the benefits of revenue or production-sharing for Indigenous peoples
may result in matters being more likely to go to arbitration, which will extend the delay arising from
the process and disadvantage miners. On the other hand, revenue or production-sharing through
negotiations has the potential to work to the lasting benefit of the community as a whole. An example
of a negotiation process is the negotiated result between Zapopan N.L. and the Jawoyn Peoples of
north Australia. 56
There is the possibility of significant advantages to be gained by reaching negotiated arrangements
in relation to mining on native title lands. This is the case in regard to the point of view of Indigenous
interests; the overall welfare of the community; and in terms of reconciliation between Indigenous
and non-Indigenous Australians. It is likely to result in closer working arrangements between those
involved with the land and, in broader terms, an enhanced relationship arising out of a shared
economic interest in the mining activity.

Arbitration
If negotiations are unsuccessful, the NTA allows for arbitration by the National Native Title Tribunal or
a recognised state or territory body (the arbitral body). The arbitral body in making its determination
must take into account the following criteria:

the effect of the proposed act on:

i
ii
iii
iv
v
vi

native title rights and interests;

the way of life, culture and traditions of any of the native title parties;
social, cultural and economic structures of the native title parties;
freedom of access by native title parties and freedom to carry out cultural activities;
any area or site of particular traditional significance to native title parties; and
the natural environment;

any environmental impact assessment made by a court, tribunal or Crown body;

the interests, opinions and wishes of native title parties in relation to management, use or control;
the economic or other significance to Australia and the State or Territory concerned;
any public interest; and
any other relevant matter. 57
Response to proposed amendments
Keeping arbitration within the State or Territory
There may be no recognised state or territory arbitral body to determine right to negotiate matters. In
such a situation, it has been suggested by the AMIC that instead of having the National Native Title
Tribunal perform that function in the particular State or Territory, the relevant exploration and mining
approval body should be the arbitral body for acts within that State or Territory, which are not related
to the Commonwealth. It is argued that this would overcome the inefficiency of two separate bodies
considering exploration and mining applications. 58
This proposal ignores the importance of applying the criteria in s. 251 of the NTA, which are directed,
in part, to the approval of an appropriate body to arbitrate on right to negotiate matters. The criteria
are designed to ensure a nationally consistent approach to the protection of native title. It is not
acceptable to suggest that an existing body be allowed to determine native title issues, if that body
has not been approved as satisfying the relevant criteria. Neither is it acceptable to water down the
criteria so that mining approval bodies are given the jurisdiction without serious scrutiny of their
capacity to administer that jurisdiction properly.
Duplication
Section 40 of the NTA prohibits the same negotiating parties from altering an earlier agreement or
arbitration result without leave of the arbitral body. The AMIC has proposed an amendment to s. 40
which attempts to apply a similar restriction to issues not decided, but which might have led to a
determination. 59 It is framed in terms wide enough to affect parties who were not parties to the
original negotiations. In my view the amendment would be difficult to interpret and apply. It would
add a complex hampering provision to an arbitration process which, to maintain its greatest
effectiveness, should remain as flexible as possible. It could also impact unfairly on parties who had
not previously engaged in negotiations in relation to the area.
Arbitration Criteria
Concerns have been expressed about the arbitration criteria contained in s. 39 of the NTA. For
example, the AMIC contends that it is likely that the Tribunal will veto the grant of exploration and
mining interests, in accordance with the wishes of Aborigines, due to the weighted criteria on which
it is required to base its decision. 60 The proposed response to this perceived bias in the criteria is
that there should be a counterbalancing by a further articulation of economic interests. The so-called
weighting seems to proceed from the counting of the number of words relevant to Indigenous
interests as compared to the number of words relevant to economic interests set out in arbitration
criteria. There is no weighting expressed in the criteria. It is true that there are more sub-paragraphs
relating to Indigenous interests than there are relating to economic interests, but that is not indicative
of the weight to be placed upon each criterion. The criteria relating to economic interests, the public
interest and other relevant matters leave a broad discretion to the arbitral body to take into account
the full range of economic matters. It appears to me that the only reason that Indigenous interests
are spelt out in greater detail is on the basis of an assumption that they may be less well-known to an
arbitrator than are matters of economic significance. The cultural issues, being so often overlooked
by the western world when considering matters of property, commerce and industry, need to be
explicitly emphasised.

The AMIC proposal is to replace s. 39(1)(d) (which accounts for economic interests) with a longer
provision which, amongst other things, refers to the interests of prospective employees, government
and the beneficiary of the grant.
The proposed provision also takes into account previous
assessments of the effect on employment or the economy of the proposed grant and the effect on
employment and the economy of refusing the grant. 61 In my view the suggested amendment would
just say in more words what is already in the NTA and it is therefore unnecessary.
The criteria required to be taken into account by the arbitral body includes any assessment of
environmental impact made by any other court, tribunal or Crown instrumentality. The State of South
Australia remarkably suggests that such matters should not be taken into account as they have
already been dealt with by state legislation. 62 What the NTA actually requires is that the arbitral
body should take account of the fact that the matter has been dealt with under state legislation and
give appropriate weight to assessments by a state authority. The suggested amendment of the
South Australian Government would result in ignoring the state authority, which seems an
inappropriate result from the point of view of state authorities as well as anybody else.

Ministerial override
Any determination made by a recognised state or territory body may be overruled with or without
conditions by the State or Territory Minister in the interests of the State or Territory and any
determination by the National Native Title Tribunal may be overruled with or without conditions by the
Commonwealth Minister in the national interest or in the interests of a State or Territory. 63
Response to proposed amendment
State and Territory relations
An amendment is proposed to s. 42 which would have the effect of removing from the
Commonwealth Minister and conferring on the State Minister, power to overrule a decision of the
National Native Title Tribunal in relation to acts attributable to a relevant State or Territory. 64 In my
view the amendment is unnecessary and inappropriate. A national body should not be subject to
overrule by a State Minister. If the States set up bodies which can be recognised, then the State
Minister can exercise the power to override in relation to such tribunals. That is a more appropriate
way to deal with the matter.
A related suggestion for amendment is that the Commonwealth Minister should not require
consultation on non-judicial appointments to recognised state bodies. 65 It is my view that the
intended result of the NTA, in allowing for the recognition of state bodies, was that the functions of
the state bodies would be subject to the Commonwealth regime. The power of the Commonwealth
Minister to consult with the States over appointments is a reflection of that overriding policy with
which I agree. (See my discussion on Wardens Courts under the section on complementary
legislation below.)

Exclusions
Under s. 26(3)-(4) of the NTA, the negotiation process is excluded by a written determination of the
Commonwealth Minister where the Minister:
(a)
(b)
(c)
(d)

considers the act will have minimal effect;

has notified representative Aboriginal and Torres Strait Islander bodies and the public;
has invited submissions; and
is satisfied that native title holders will be consulted about access authorised by the excluded
act.

The Prime Minister suggested in his Second Reading speech that certain prospecting and
exploration permits would be likely to fall into the category of excluded acts. 66
The Commonwealth Government's Native Title Implementation Task Force has developed general
principles (endorsed by the Government) that would be addressed by the Minister in considering
exploration exclusion proposals. 67
Those principles include:
(1)
(2)
(3)

minimal effect on native title means small and temporary effect;

consultation means informing native title holders and claimants one month prior to access
for exploration;
customary activities should be disrupted only to a limited extent; and

(4)

petroleum exploration (on shore only: s.26) will require special consideration where the right
to explore carries with it production rights. 68

These principles are insufficient to protect the interests of Indigenous peoples. Patrick Sullivan has
drawn attention to the statement of the Special Minister of State, the Honourable Gary Johns, to the
Parliament that: 69
...it is also possible for State and Territory Governments to facilitate exploration activity.
They can propose that exploration methods with a minimal effect on native title be
excluded completely from any right to negotiate procedures. 70
Mr Sullivan points out, however, that occupation and use, in the Aboriginal view, can be impaired by
the exercise of very minimal activity. 71 He says that since native title arises out of Aboriginal
custom and tradition, harm to the title follows from harm to this body of cultural practice, not simply
from harm to the land itself. Proposals based on a ranking of activities according to an impact on the
terrain itself will not work... No fair regime can be implemented to give effect to these provisions of
the Native Title Act without a thorough examination of the significance of the land itself that will be
subject to disturbance. 72
Mr Sullivan goes on to point out that:
Aboriginal occupation and use of the land is significantly affected in two ways by adverse
activity:
firstly, it is significantly harmed by entering on to, damaging, or behaving inappropriately in
areas of particular significance in tradition and custom;
secondly, it is damaged by dealing in a culturally inappropriate way with the native title
holders or registered claimants. 73
He proposes that an appropriate way of applying the exclusion provisions is the adoption of an
approach along the lines of the Work Program Clearance method, which strictly adheres to the
provision of maps, plans and written information concerning proposed activity. An assessment of the
activity and the areas of activity is then made before any disruptive impact occurs and without
divulgence of cultural information. Aboriginal owners are involved in scrutinising the plans, inspecting
the proposed sites and certifying the acceptability of the activity.
That is a process which is unlikely to be contained (in time or otherwise) within the limited scope for
consultation which the Task Force principles appear to envisage. In my view, the principles need to
be reconsidered. That reconsideration should involve consultation with the Aboriginal and Torres
Strait Islander community and practitioners with experience in the field to work out a more practical
and culturally sensitive process.

Time concerns
Geoffrey Ewing of the AMIC postulates that the right to negotiate adds a total of two years as an
additional period on top of the usual application time. 74 He arrives at the two-year period by
adding together the following statutory periods:
(a)

Exploration Application
(I) negotiation
(ii) arbitration
(iii) Ministerial override

(b)

4 months
4 months
2 months

Mining Application
(I) negotiation
(ii) arbitration
(iii) Ministerial override

6 months
6 months
2 months

Total

24 months

First, Mr Ewings calculations are based on worst case scenarios and do not reflect the likely impact
of the right to negotiate. These periods are maximum periods. The grantee of an interest and the
native title holders or claimants might resolve the matter in a shorter period, which may mean any
proceedings beyond the negotiation stage are avoided. These periods commence from the time a
government party forms an intention to grant the tenement and gives the required notice 75 or an
application is made to the arbitral body. 76 There is, however, nothing to prevent the parties

progressing the matter before these starting points and concurrently with the lead times required
regardless of native title.
Second, a government party may give notice that it considers that the expedited procedure applies to
an act. Where there is no objection to the governments assessment within the notification period the
grant will be valid without further delay. This expedited procedure applies to acts which do not
interfere with community life or areas of traditional significance and do not involve major disturbance
to land. 77
Third, it is unlikely that many applications would proceed through all the stages of a mining project.
As Geoffrey Ewing says, [o]nly about 1 in 1,000 exploration prospects ever becomes a mine. 78
Fourth, given that most of the exploration being undertaken in Australia is being carried out by ten
major international companies, 79 one would expect that such organisations are capable of
accommodating the statutory processes in their programmes.

Preservation of Native Title Rights and Interests

Preservation of activities
Section 211 of the Native Title Act limits the effect of the regulation of certain activities that may
constitute a component of native title rights and interests. If a law prohibits or restricts a class of
activity so that it cannot be undertaken except in accordance with a licence, permit or other
instrument, then s. 211 declares that such a law does not prohibit or restrict native title holders from
carrying on the particular class of activity so as to satisfy their personal, domestic or non-commercial
communal needs. Laws solely for the benefit of Aboriginal peoples and Torres Strait Islanders are
excluded from s. 211. The classes of activity are defined in s.211(3) as:
(a)
(b)
(c)
(d)
(e)

hunting;
fishing;
gathering;
a cultural or spiritual activity;
any other kind of activity prescribed for the purpose of this paragraph.

Section 211 ensures that such native title rights and interests, insofar as they do not involve any
commercial activity, can continue without a licence or permit. This will be the case even where the
relevant law contains a clear and plain intention to prohibit or restrict the activities carried out in
enjoyment of native title rights and interests. As such s. 211 improves the common law position for
native title holders. The provision amounts to an important protection as it is a fetter on the power of
governments to regulate aspects of our cultures out of existence.

Ownership of natural resources and access to beaches

Section 212 of the Native Title Act is a very limited empowering provision to confirm certain matters.
Section 212(1) provides that the Commonwealth, a State or a Territory may enact legislation which
confirms existing ownership or rights in relation to natural resources, water and fishing access. The
purpose of this provision is unclear because if the rights or ownership exist then the declaration of
the same does not alter the status quo.
Section 212(1) allows for the confirmation of resource ownership, rights to regulate the flow of water
and existing fishing rights. In my view, it is highly possible that native title rights can extend to
ownership of particular natural resources. Legislation which purports to vest such ownership in the
Crown or a third party may not carry an intention that is sufficiently clear and plain to interfere with
native title rights. In these circumstances, any existing ownership will be subject to the rights of
native title holders regardless of whether that existing ownership is confirmed or not. For instance,
in Western Australia, s. 9 of the Mining Act 1978 (WA) declares that minerals are owned by the
Crown, except in relation to titles granted before 1899. It is arguable that native title holders having
held title prior to 1899 may own minerals in the lands, the subject of native title. The declaration of
any law pursuant to s. 212(1) would not alter that position at law. Such an approach would ensure
that native title holders have an equal position before the law in compliance with the RDA.
In any event, under s. 212(3), such declaration is subject to any native title or statutory rights.
Section 212(3) provides that the confirmation under s. 212 does not extinguish or impair native title
rights or any statutory benefits of Indigenous people. The heading of s. 212(3) refers to s. 212(2)
only. However, section headings are not considered part of a Commonwealth Act. 80 The wording of
s.212(3) clearly refers to the whole of s. 212.

Section 212, in providing additional rights under subsection (2), may have a broader operation in that
it seeks to confirm existing public access to and enjoyment of waterways and their adjoining
foreshores, beaches or other public places. Insofar as it is not limited to legally enforceable access,
then it extends the current legal position if laws confirming such access are enacted by the
Commonwealth, a State or a Territory. As with s. 212(1), the confirmation in s. 212(2) is restricted by
s. 212(3) and cannot impair or extinguish native title.
It might be suggested that s. 212 operates to allow confirmations which reassert the absolute rights
of ownership of minerals and rights regarding water and access so as to return to the position which
was presumed prior to the common law recognition of native title. In this regard s. 212 would operate
to allow extinguishment without going through either the future or past acts regime. Such a result is
clearly contrary to the structure of the NTA and the wording of the section, particularly s.212(3). In
my view confirmation is not a means of escaping either the validation provisions or the future act
regime. Any validation should take place within the validation provisions which, unlike s. 212, deal
with extinguishment and compensation. Future acts should be dealt with under the relevant regime.

Complementary Legislation

The states of Queensland, New South Wales, Tasmania and South Australia, the Northern Territory
and the Australian Capital Territory are all heading down the path of legislation which will complement
the Commonwealth Native Title Act.

State bodies
Queensland, New South Wales, the Northern Territory and South Australia are all seeking to have
Wardens' Courts recognised as state bodies in relation to mining matters in the area of
determinations and arbitration. The conventional role of mining wardens has been to assess the
impact of mining projects and their compliance with procedural statutory requirements. New South
Wales is limiting the Wardens' Courts role to compensation
applications and arbitration.
However, the compensation application requires a preliminary
determination as to the extinguishment of native title and thus a Wardens Court may be required to
consider evidence as to the existence or prior existence of native title.
There was a vigorous campaign by Aboriginal interest groups, with which I agreed, against Wardens'
Courts being appointed to perform functions in relation to native title. Wardens Courts were not
regarded as appropriate administrators of native title issues because of the conventional role of
wardens.
I remain to be convinced that Wardens' Courts are appropriate, in terms of their
institutional culture and the procedures that they have traditionally applied, to adequately consider
native title issues.
The NTA makes it a precondition for recognition of such state bodies that they have available to them
expertise in matters relating to Aboriginal peoples and Torres Strait Islanders. 81 This is a safeguard
against Wardens' Courts adopting too narrow an approach to performing any native title functions. If
the Commonwealth Special Minister of State carefully exercises his discretion in conferring
recognised status on such bodies, and insists on compliance with the statutory duty to consult him
before making non-judicial appointments to state and territory bodies, 82 then it may be that
Wardens' Courts will function with an appropriate level of cultural awareness, sufficient to properly
perform the functions conferred under the NTA.

Declaratory provision
Complementary legislation so far passed by States and Territories generally follows the model of the
commonwealth legislation. However, the Queensland legislation is adopting a course of declaring
that pastoral leases extinguish native title. The commonwealth legislation deliberately avoided such
a declaration. As Justice French has said:
The uncertainty at common law with respect to leasehold interests has been recognised. In
the discussion paper entitled "Mabo the High Court Decision on Native Title" published
by the Commonwealth Government in June 1993, it was said at paragraph 2.8 that the
comments of the Justices made it difficult to predict how they would determine a claim of
native title in respect of non-freehold land. The observation was also made at paragraph
2.10 that:
The differing views of the Justices on the effect of the sardine factory lease
illustrate how difficult it is to predict the Courts' approach to future claims to
leased land, as notions of what is and is not incompatible with continuing

native land are likely to differ. However, even if native title is not
extinguished by leasehold or other grants where such grants are validly
made, the native title would be restricted or limited by the grant. 83
The pre-emptive statutory declaration by Queensland, if inconsistent with the common law, will fall as
an invalid legislative act, because of its inconsistency with the RDA. There is therefore little legal
utility in such a declaration. It appears to be sourced in an attempt by that government to gain
political mileage from the appearance of allegiance to pastoral interests and a corresponding
abandonment of Indigenous interests, which is deplorable.

Inconsistent legislation
The Victorian Parliament passed the Land Titles Validation Act 1993 which is inconsistent with the
commonwealth legislation. However, that Act has not been proclaimed and it now appears likely that
it will be amended to make it consistent with the federal legislation.
The State of Western Australia alone sought to proceed with legislation inconsistent with the
commonwealth Native Title Act. The Land (Titles and Traditional Usage) Act 1993 (W.A.) was
passed in December 1993. It purported to extinguish native title in Western Australia and replace it
with a statutory right of traditional usage. Rights of traditional usage were made subordinate to all
other rights relating to land.
The Western Australian legislation did not provide equality before the law in relation to property rights
of native title holders, and was therefore contrary to the RDA. The Wororra and Yawuru Peoples of
the Kimberley and the Martu Peoples of the Western Desert successfully challenged the validity of
the Western Australian legislation in the High Court, alleging that it is inconsistent with both the RDA
and the NTA. Both of those challenges were determined at the same time as a challenge by the
Western Australian Government to the Native Title Act of the Commonwealth. In the meantime the
Western Australian Government failed to comply with the right to negotiate provisions of the NTA and
did not pursue any non-claimant applications under the federal legislation. See the summary in
appendix 4.

Financial arrangements
At the end of the reporting period complementary native title legislation passed by the States and
Territories was still not operative pending continuing discussions concerning compensation for
extinguishment of native title. The Commonwealth's offer of financial assistance proposed that the
Federal Government provide 75% of the compensation pay out for validation of past acts which
extinguish native title, for which the States and Territories may be liable, together with 50% of the
legal and administrative costs of setting up and conforming with the NTA. By late 1994 the States
had shifted from seeking 100% to 75% of the legal and administrative costs. 84
At the time of writing all States and Territories, with the exception of Western Australia, had
proclaimed validating legislation in keeping with the Prime Minister's 31 December 1994 deadline for
complementary state and territory native title legislative regimes.
Only South Australia and
Queensland, however, had accepted the Commonwealth's offer. 85
The Northern Territory has instead officially rejected the Commonwealth proposal labelling it meanspirited and claiming that it did not even cover the on-going legal and administrative costs of the
federal legislation. 86
Discussions have taken place between the Commonwealth and the States and Territories to
determine general umbrella principles which will govern these financial arrangements. Whilst South
Australia and Queensland have accepted the Commonwealth offer, no formal bilateral agreements
have yet been finalised. Once acceptance has occurred the Commonwealth will then negotiate with
the individual state or territory government to determine the specific details of the arrangement.
State-by-state differences will necessarily occur when resolving which category of expenditure will be
included in a state's legal and administrative costs, the extent to which alternative provisions
regarding the right to negotiate regime and exclusions will be permitted, and in deciding whether or
not to establish an alternative tribunal in the State in question. It seems likely that the first of these
agreements will be finalised in April 1995.

Native Title and Statutory Title

I would fervently hope that no court is likely to conclude that the creation of statutory titles, through
legislation such as the Aboriginal Land Rights (Northern Territory) Act and the Pitjantjatjara Land
Rights Act 1981 (SA), express a clear and plain intention to extinguish native title. In Pareroultja and

Ors v Tickner and Ors, 87 the Full Federal Court held that a grant of a statutory title to a Land Trust
under the Aboriginal Land Rights (Northern Territory) Act was not inconsistent with the continuance
of native title so as to extinguish it and was not in breach of the RDA. The Court held that there was
no inconsistency between statutory title and the common law native title and the protection of
equality before the law afforded by the RDA was not required to be invoked.
However, Professor Garth Nettheim has put the view that:
Land rights legislation conferring title other than on the basis of traditional rights will almost
certainly extinguish native title if the grantees are people other than the native title holders.
If the grantees are the native title holders, the legislation may still extinguish native title if
the terms of the grant are inconsistent with native title. 88
It may be that such grants would be invalid because of the RDA. Should this be the case, then the
validation provisions of the NTA come into effect. Under those provisions, grants for the benefit of
Aboriginal and Torres Strait Islander peoples are specifically excepted frompast acts which effect
extinguishment. 89 Therefore, native title is not extinguished but suspended and overlaid by statutory
title. 90
Some grants of statutory title cannot be made as future acts over land which is subject to native title
because of the effect of the RDA or because they are impermissible future acts under the NTA. If
governments intend to continue to make such grants pursuant to affected statutory schemes, they
will need to ensure that relevant legislation provides that future grants of statutory title are subject to
native title. The necessary amendments have been made for Queensland and New South Wales
land rights legislation. 91 Such action is required to avoid the granting of titles which are invalid
because of the operation of the RDA or the NTA. 92 Where the grantees of statutory title differ from
the native title holders, it appears that the former title will be subject to native title to the extent of any
inconsistency.

Indigenous peoples have the collective and individual right to own, control and use their
lands and territories. This includes the right to full recognition of their laws and customs,
land-tenure systems and institutions for the management of resources, and the right to
effective measures by States to prevent any interference with or encroachment upon
these rights...
Draft Declaration on the Rights of Indigenous Peoples

Human Rights
1

Native Title and International Law

The public debate that took place in the lead-up to the Native Title Act 1993 (Cth) (NTA) was
illustrative of how easily the nature of native title can be misunderstood. The comment of one
prominent politician, that in deciding to grant a new right, the Mabo judgement failed to take
account of the immense damage it would do to the rights other Australians thought they had, 1 is
indicative of these misconceptions. Reference to native title in this way evinces an attitude which
sees native title relegated to the status of a mere privilege and delegitimised to the extent that it is
perceived as being inferior to other titles. This is, of course, a fundamentally erroneous perspective.
Native title is neither a privilege nor is it a grant or an invention of the High Court. 2 It is a title based
on the traditional laws and customs of Indigenous peoples. The title is recognised by the common
law by virtue of its existence prior to the British assertion of sovereignty. It is not something that is
gained by Indigenous people through the goodwill of courts or governments.
As I argued in my First Report, the recognition of native title is as much about the recognition of basic
human rights as it is about recognition of rights at law. 3 The right to own and to inherit property, and
the right not to be arbitrarily deprived of property, are examples of rights which non-Indigenous
Australians readily enjoy and which are fundamental to the comfortable lifestyle that most Australians
lead. Yet these same rights have been substantially denied to Indigenous peoples for the most part
of two centuries. It took the decision of the High Court in Mabo [No:1] 4 to confirm that these rights
would be applicable to Indigenous Australians, without discrimination, if native title were to be
recognised by Australian law. It took the decision in Mabo [No:2] 5 to provide that recognition, and to
force the Australian nation to acknowledge that Indigenous peoples are entitled to the same human

rights protections that other Australians take for granted.

That fundamental human rights are the inherent entitlement of all human beings is articulated in
numerous international instruments, a great proportion of which have been signed and ratified by
Australian governments. The important influence of these instruments is apparent from Mabo [No:2]
itself. In rejecting the view that Australia was terra nullius, the High Court acknowledged the
influence of international standards which no longer tolerate the denial of human rights at the hands
of flawed legal doctrines. The view is most clear from the judgment of Justice Brennan:
Whatever the justification advanced in earlier days for refusing to recognize 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 to individuals 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 the 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. 6
The standards enunciated in international instruments assist in defining the minimum standard of
protection which native title holders are entitled to enjoy. These instruments include the Universal
Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights,
the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on
the Elimination of All Forms of Racial Discrimination. In addition to these are the more specific
standards relating to the human rights of Indigenous peoples that are evolving at an international
level. In particular, the International Labour Organisation Convention No: 169 (ILO 169) (while not
yet ratified by Australia) and the Draft Declaration on the Rights of Indigenous Peoples, (while not yet
considered by the United Nations Commission on Human Rights or the General Assembly) are
equally important in gauging the conformity of the operation of the Native Title Act 1993 (Cth) with
international standards. The Draft Declaration on the Rights of Indigenous Peoples is particularly
relevant in providing a clear indication of what the international Indigenous community perceives as
the appropriate standards.
The rights set out in these instruments are human rights. As such they are rights which cannot be
taken away. The Australian Government's stated commitment to human rights is consistent with this
approach. The Preamble to Australia's National Action Plan provides:
In seeking to advance human rights through its foreign and domestic policies, the
Australian Government subscribes to the view that human rights are inherent, that is,
they are the birthright of all human beings; inalienable, insofar as they cannot be lost or
taken away; and universal in that they apply to all persons, irrespective of nationality,
status, sex or race. Australia rejects the view that there is any hierarchy of human rights.
7
The willingness and commitment of Australian governments to respond to the High Court's
recognition of native title in a manner consistent with the full protection of our human rights, will be a
significant test of Australia's commitment to human rights and a guide to the integrity of our nation at
an international level. That the Native Title Act 1993 (Cth) operates in practice in a manner
consistent with international standards must be a primary goal of those concerned with the operation
of the Act. The extent to which this occurs will only be determined over time.

The Native Title Act and Human Rights

The Preamble to the Native Title Act provides a clear statement of intention from the Australian
Parliament that Australia's obligations under various international instruments to provide equality,
freedom from discrimination and to give full respect to human rights, will not be neglected in the
legislative response to the recognition of native title. The Preamble provides, in part, that:
The Australian Government has acted to protect the rights of all of its citizens, and in

particular its indigenous peoples, by recognising international standards for the

protection of universal human rights and fundamental freedoms through:
(a)
the ratification of the International Convention on the Elimination of All Forms
of Racial Discrimination and other standard-setting instruments such as the
International Covenants on Economic, Social and Cultural Rights and on Civil and
Political Rights; and
(b)
the acceptance of the Universal Declaration of Human Rights; and
(c)
the enactment of legislation such as the Racial Discrimination Act 1975 and
the Human Rights and Equal Opportunity Commission Act 1986. 8
This declaration must be at the forefront of the considerations to be taken into account in the
interpretation and implementation of the Native Title Act. The primary objectives of the NTA are:
(a)
(b)
(c)
(d)

to provide for the recognition and protection of native title; and

to establish ways in which future dealings affecting native title may proceed
and to set standards for those dealings; and
to establish a mechanism for determining claims to native title; and
to provide for, or permit, the validation of past acts invalidated because of the
existence of native title 9

It is essential that these are only approached from a perspective of ensuring full respect for the
human rights of Indigenous peoples. In this respect it is important to acknowledge that, although the
Native Title Act has been classified by the Federal Government as a special measure for the
advancement and protection of Aboriginal peoples and Torres Strait Islanders 10 within Article 1(4)
of the Convention and the Racial Discrimination Act 1975, the majority of provisions in the Act do not
give native title holders special rights, they merely
provide native title holders with the same entitlements that non-Indigenous Australians take for
granted, but which Aboriginal land owners have seldom enjoyed.

Recognising Indigenous ownership on Indigenous terms

Section 223(1) of the Native Title Act defines native title and native title rights and interests as:
the communal, group or individual rights and interests of Aboriginal peoples 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 recognised by the common law of Australia.
This broad definition is both appropriate and necessary. In Mabo [No:2] Justice Brennan said of
native title, as recognised by the common law, that it 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. 11 If native title is a term conveniently describing the
interests and rights of indigenous inhabitants in land, 12 then the recognition of native title at
common law, and for the purposes of the NTA, must be on terms that are consistent with those laws
and customs.
A concept of native title which purports to recognise our laws and customs must be consistent with
our laws and customs, however they may have developed over time. This means that the content of
native title must be determined in accordance with our meanings of land ownership. Recognition in
this manner is consistent with the observation in R v Sparrow that ...it is possible, and, indeed,
crucial, to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake. 13
Land ownership must be recognised in the context of its intrinsic relationship with Indigenous social,
political, economic and religious systems. To recognise native title on any other criteria is not
recognition, but a distortion effecting a form of legal assimilation.
It is essential to remember that, for Indigenous peoples, native title exists whether it is recognised by
the common law or not. The common law recognition does not alter the form of that title, it only
alters its enforceability in Australian courts. Indeed it is as a result of the continued observance of
our laws and customs, independently of the acceptance of common law recognition by Australian
courts, that native title continues to exist today. It is those laws and customs of Indigenous peoples
that have continued to exist, and their meaning to us, that should be recognised by the common law,
not a remodelling of that meaning by lawyers so that it can be neatly compared with interests they
are familiar with or be understood in accordance with their own world-views.

Astoundingly, it appears to be assumed too eagerly by some that native title is allowed to exist only
because it is recognised by the common law. 14 This misconception is then used to legitimise the
manipulation of Aboriginal concepts of land ownership to conform to western concepts. To pigeonhole native title and to analogise it to western concepts of land tenure is paradoxical to the
recognition of a title based on our laws and customs. Our interests in land cannot be defined by a
comparison to the rights enjoyed under western interests such as leases, permissive occupancies,
mere equities or freehold title. As Justice Toohey pointed out in Mabo [No:2], ...the specific nature
of such a title can be understood only by reference to the traditional system of rules. An inquiry as to
whether it is personal or proprietary ultimately is fruitless and certainly is unnecessarily complex.
15 Alongside Western concepts of interests in land native title is sui generis the only one of its
kind. 16
It is equally wrong to adopt the approach of limiting the content of native title according to particular
uses. It is important to remember that the declaration of the High Court in Mabo [No:2] was that the
Murray Islanders are entitled as against the whole world to possession, occupation, use and
enjoyment of the lands of the Murray Islands. 17 Justice Brennan did not rely on use as the
defining character of native title but the traditional laws and customs of Indigenous people. 18
At another level this approach involves defining our laws and customs in the most simplistic manner
imaginable. To suggest that our ownership of land only extended to the right to use it for certain
purposes is an absurdity. It does not accord with our laws and customs in the way in which we would
understand them. Desmond Sweeney points out that this approach is not used in determining the
nature of non-Indigenous titles and it is equally nonsensical in relation to native title:
Take a farming family which for generations has grown wheat on the family farm. The
family holds the fee simple estate in the land. An observer who attempted to define the
rights of the family over that land may well say that they comprise of a right to grow and
harvest wheat on the land. The farmer then decides to graze cattle on part of the land. Is
this allowed? Under the initial definition of the right in the land as "a right to grow and
harvest wheat" the apparently new use of grazing cattle would not be permissible. Had
the observer categorised the right in slightly broader terms, for example "to use the land
for farming purposes", the new use would be permitted. However, even on this broader
characterisation of the right the building of residential dwellings on the land and leasing
them out to members of the public would not be permitted. The dichotomy between the
manner in which a right is traditionally exercised and the content of that right is clear.
The concept of a fee simple title in land cannot be understood by looking at the manner
in which the holders of that right choose to enjoy it. Similarly, the content of a particular
Aboriginal right cannot be understood by simply looking at the manner in which that right
is exercised. 19
We have the legal right to continue our exclusive occupation of our land in accordance with our laws
and customs as we always have. This exclusive occupation is against the whole world and cannot
be conceived as other than amounting to the full beneficial ownership of land on the part of the
community. In the words of Justice Brennan, there are no other owners. 20 The fact that we may
have permitted others to use our land does not detract from this any more than it may detract from a
farmers freehold if he permits his neighbour to graze cattle in one of his paddocks.
The rights of individuals under that communal title are also determined by our laws and customs. In
Mason v Tritton 21 Justice Kirby referred to the nature of the individual interests derived from native
title as being analogous to a usufructuary right. He stated:
A usufructuary is one who has the use and reaps the profit of anything. The term
extends to one who has the temporary use and reaps the fruits or profits of an estate,
benefice, office, etc., legally belonging to another or others ... an individual cannot, by
our law, have a usufructuary right over particular property, if that property is not itself the
subject of the use, possession and occupation of another. That much would appear to
be a fundamental feature of such a derivative right ... native title to the use, possession
and occupation of land is normally held by a community. An individual's right to
derivative use and benefit of that land is capable of protection in a manner analogous to
the protection traditionally afforded to a usufructuary right ...a "usufructuary right" is
dependent upon the wider native title to land being established ... 22
The term usufructuary, which was also used by Justice Brennan in Mabo [No:2], 23 is particularly
misleading as it encourages what I consider the erroneous use based approach to defining our laws
and customs and our native title rights. In my view it adds nothing to an understanding of the rights
of individuals in traditional lands of a community and falls into the category of what Justice Dickson
referred to in Guerin as inappropriate terminology drawn from general property law. 24 It is my
belief that if native title belongs to a community, then individual members of that community are not
usufructuaries, they are co-owners. Indigenous people carrying out traditional hunting and fishing

activities are not exercising usufructuary rights on land belonging to others. They are exercising the
rights of owners to enjoy their land in the manner that they desire.
The common law allows that native title can be validly extinguished through legislation with a clear
and plain intent and, it would seem, through inconsistent grants. In some cases this will not be
wholly inconsistent with the continued enjoyment of our native title rights, although our exclusive
occupation may have been impaired. Indigenous peoples may be able to continue to enjoy some of
our native title rights despite the land belonging to another. In these circumstances the reference to
usufructuary rights may be more accurate. In my view however, a greater understanding of our
native title rights is not achieved by such labelling. Our remaining native title rights will still be
derived from, and determined in accordance with, our laws and customs.
That native title be recognised on Indigenous terms is required by Article 26 of the Draft Declaration
of the Rights of Indigenous Peoples and is implicit in Article 14 of ILO 169 and Article 27 of the
International Covenant of Civil and Political Rights. Article 27 provides:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging
to such minorities shall not be denied the right, in community with other members of
their group, to enjoy their own culture, to profess and practice their own religion, or to
use their own language.
Land is central to Indigenous cultures and we will be denied the right to exercise our culture if our
land ownership is contingent upon or impaired by western concepts of land ownership or limited by
concepts of property that are completely foreign to our culture.

Proving native title

Articles 13 and 14 of ILO 169 declare a duty on state parties to identify Indigenous lands, to protect
their rights and to establish adequate procedures to resolve claims. Article 6 of the International
Convention on the Elimination of All Forms of Racial Discrimination obliges state parties to assure
everyone of effective protection and remedies against racial discrimination. Fundamental to
procedures being adequate or protections being effective is the requirement that those whose
human rights are purportedly being protected have access to, and are able to utilise, those
procedures and protections.
One of the stated goals of the Native Title Act is to establish a mechanism for determining claims to
native title. This will not be achieved consistently with protecting the human rights of Indigenous
peoples if the process established is not flexible enough to cater for the unique needs of Indigenous
claimants. It follows from the need to establish native title as it relates to Aboriginal laws and
customs, that the process of gathering evidence and the process of determining the existence of that
title should accord as much as possible with the realities of the Aboriginal communities involved.
Of fundamental importance in this regard is the fact that Indigenous people carry the burden of
proving native title exists rather than governments proving it does not. It is perhaps the ultimate
expression of colonial arrogance to assume control over the lands of another people and then require
them to prove the legitimacy of their land ownership in imposed institutions. Such a requirement will
invariably lead to injustice, particularly where the imposed institutions operate on the premise of a
world-view that is entirely foreign to that of Indigenous peoples.
The recent decision of Mason v Tritton, 25 highlights the heavy burden of proof that we carry in
establishing the continuation of our laws and customs in common law courts. Mason v Tritton
involved a customary fishing claim which was rejected by the NSW Court of Appeal on the basis of
insufficient evidence. The judgments in the Court of Appeal provide an indication of what may have
to be proved in the common law courts when claiming native title. Justice Priestly summarised the
evidentiary issues in the majority judgments as follows:
1.

2.
3.

4.

Because, if the native interest did not exist at the time when the common law
became the law of the colony, the radical title, the legal estate and the beneficial
estate in the relevant land all vested together and undivided at the time in the
Crown, any claimed native interest can not now be recognised by the common
law unless it was in existence immediately before the common law became the
law of the colony;
The native interest must be a recognisable part of a system of rules observed
by an identifiable group of people connected with a particular locality;
A person asserting entitlement to enjoyment of the interest at the present day,
must show biological descent from the group which was observing the system of
rules of which the interest was part; that is show biological descent dating back to
just before the establishment of the common law;
A person asserting such entitlement must also show that the biological
descendants of the pre-common law group have continued and are continuing to

5.

observe the system at the time the claim is asserted;

Such claims to common law recognition of native interests can only apply to
certain kinds of unalienated Crown land. 26

As to proving that title existed prior to 1788 (in NSW), Justice Kirby noted the grave difficulties due to
lack of records and stated that if title was proven back to 1850, he would infer its existence during
17881850.
This outline establishes a ridiculous and unnecessary level of proof to be satisfied. Unlike Justice
Priestly, I see no justification for establishing our title back to a specified period. Dates such as 1788,
1850 are, in my opinion, irrelevant to whether a title based on our laws and customs exists. If
Indigenous people can show that their laws and customs still exist then it can be reasonably
assumed that those laws and customs have existed since time immemorial. At the very least, the
burden should be on those attempting to delegitimise our laws and customs to show that our title has
not existed since then. Furthermore, to require the proving of biological descent back to such dates
is an absurd and discriminatory requirement. No other title holder has to establish this and would not
be likely to satisfy this requirement if they had to. The view that biological descent is necessary to
establish native title has been rejected with regard to traditional ownership under the Aboriginal Land
Rights (Northern Territory) Act 1975 (Cth). 27 There is no reason for it to be a prerequisite for
establishing native title. Finally, it is implicit from what I have written in chapter 3 on extinguishment
of native title that I disagree with Justice Priestlys limiting of native title to certain kinds of
unalienated Crown land.
It is little joy to Indigenous peoples that we are forced to prove our native title in an imposed legal
system. Nor is it a simple task. In practical terms this onus is heavy and places native title holders at
a considerable disadvantage for a number of reasons, not the least of which relates to a question of
legitimacy. It is difficult for Indigenous peoples to comprehend that the existence of our native title is
to be determined by a non-Indigenous court and even more difficult to accept that it may have been
extinguished. This is true not only of courts but of tribunals as well. The fact that a tribunal system
has been established does not alleviate this problem. It must be accepted by those in the
determination process that there may well be a significant degree of scepticism and lack of trust on
the part of Indigenous claimants.
If Indigenous people are going to be required to undertake the difficult task of proving their title in
foreign institutions, then approaches must be adopted that will introduce a degree of balance to the
inquiry. This will require not only an understanding of the difficulties that Indigenous peoples face in
proving their title but also a degree of flexibility in the manner that claims proceedings are conducted.
The need for flexibility in procedures also arises from the subject matter of native title claims, namely
the laws and customs of Indigenous peoples. It is imperative that the collation of evidence as to the
nature of these laws and customs takes place in an environment which allows claimants to freely
articulate and express their laws and customs. The conduct of proceedings must be done in a
culturally sensitive manner. This was acknowledged in Ejai v The Commonwealth:
...the courts, in dealing with issues of this kind, must be alive to the fact that in aboriginal
culture, notions of property and association may take a different form to that with which
Western cultures are familiar.
The courts must also recognise that there are elements of aboriginal culture and
spirituality about which there is much sensitivity. It is not always easy for law men and
law women to disclose details of sensitive matters in an open forum where the
information is available to persons to whom disclosure would otherwise be prohibited.
In claims touching on native title the best evidence lies in the hearts and minds of the
people most intimately connected to aboriginal culture, namely the aboriginal people
themselves. Expert evidence from anthropologists and others is of significance and due
regard must, and will, be afforded to it. However, it seems to me that the full story lies in
the hearts and minds of the people. It is from there that it must be extracted. This is not
always easy, particularly from a people whose primary language might not be English
and who, historically, have depended on oral rather than written recording of tradition. 28
Our human rights cannot be permitted to be undermined through inappropriate tribunal procedures or
practices developed in the name of convenience. In this regard some of the time periods placed on
native title holders are a matter of concern. In particular the two month time frame placed on native
title holders to respond to non-claimant applications may well prove to be unrealistic.
The
preparation of a claim is time-consuming. It will be necessary in many cases for consultation and
research to take place in order to respond to a non-claimant application. The result for Indigenous
peoples is that we can lose our land and our right to freely exercise our laws and customs as we
have since time immemorial. This is the highest imaginable price to pay for not having the time or
the resources to organise sufficient evidence to satisfy a registrar or tribunal that we have native title
rights that have not been extinguished.

The heavy burden on Indigenous organisations to establish the existence of our native title has been
further weighed down by funding problems. A number of submissions from representatives of
Aboriginal native title claimants expressed concerns about funding. 29 Long delays in funding
approvals make it more difficult for organisations to allocate resources and to effectively represent
Indigenous peoples. The lack of effective resources is exacerbated in States such as Western
Australia where land use proposals are being pushed forward at a rapid pace. 30 Not only do
Aboriginal organisations have to meet the financial burden of the claim itself, substantial resources
are also required to enable those organisations to satisfactorily represent the interests of claimants in
negotiation processes and in responses to draft bills from state governments which have the
potential to affect Aboriginal interests. 31
The recognition of native title has raised a range of complicated issues which Aboriginal communities
will be forced to deal with. The reality for many Aboriginal communities is that they do not consist of
a homogenous group of Indigenous people, rather they are a conglomeration of those who are
descendants of traditional owners and those who have moved into those communities either by
choice, necessity or coercion. The needs of all Indigenous peoples in various communities must be
acknowledged. In some cases there may be a degree of tension between traditional claimants and
other Indigenous people who for whatever reason have a long historical association with certain
areas. This tension is not a creation of the NTA itself. The existence of these complexities is a
natural consequence of decades of government policy which denied the existence of our ownership
of land and promoted forced removal. However, the procedures outlined in the NTA must operate in
a manner that acknowledges the possible existence of these tensions. Disagreement among
Indigenous claimants is not a valid reason to reject an application for the determination of native title.
Ultimately it is a matter for the relevant community to resolve itself. The mediation procedures in the
NTA should assist in resolving these conflicts. This resolution will not be meaningful and is unlikely
to be permanent if those party to negotiations are not adequately represented. There should be
sufficient resources allocated so that various interests in the community can adequately put their
views forward. (See further discussion in chapter 1.)
It is my strong belief that the recognition of native title and the legislative process of recognition and
protection implemented by the NTA will constitute hollow initiatives if Indigenous peoples are not
provided with the resources to protect our human rights or if the procedures adopted are not
appropriate to the needs of the title holders whose human rights are allegedly being protected by the
NTA.

Protection of native title

One important characteristic of the NTA is that it reinforces the proposition that native title holders are
entitled to the same property protections as freehold title holders. 32 This concept is undoubtedly
problematic to those who maintain that native title is a collection of specific uses. However, once it is
accepted that native title is to be determined according to the laws and customs of Indigenous
peoples and that those laws and customs provide an exclusive occupation for Indigenous
communities, the result becomes inescapable.
To provide native title holders with the same level of protection that is accorded to freehold title
holders does not detract from its status as a sui generis interest. It is recognising that the concept of
ownership of land in Indigenous society is no less legitimate, and deserving of no less protection,
than full ownership in western society. Moreover, that native title be equated with freehold, in
determining what procedural rights native title holders are entitled to, is not a requirement that is
unfamiliar to the common law. In United States v Shoshone Tribe it was observed that:
Although the United States retained the fee and the tribes right of occupancy was
incapable of alienation or of being held otherwise than in common, that right is as sacred
and as securely safeguarded as is fee-simple absolute title. 33
In that case it was also noted that for all practical purposes, the tribe owned the land ... The right of
perpetual and exclusive occupancy of the land is not less valuable than full title in fee. 34
That the property of Indigenous peoples be fully protected, and not be subject to arbitrary and
discriminatory interference, is also a human right. This principle is clear from the general body of
international human rights law which opposes discrimination on the basis of race. The norm against
discrimination is articulated in the Charter of the United Nations itself, in Article 2(2) of the
International Covenant on Economic, Social and Cultural Rights, in Article 2(1) of the International
Covenant on Civil and Political Rights and, of course, in the International Convention on the
Elimination of All Forms of Racial Discrimination. Australia has ratified the two Covenants and the
Convention. Both the Universal Declaration and the International Convention on the Elimination of
All Forms of Racial Discrimination expressly cover the right to own property. In particular, Article 17
of the Universal Declaration on Human Rights provides that:

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.
Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination
provides that:
...States parties undertake to prohibit and to eliminate racial discrimination in all its forms
and to guarantee the right of everyone, without distinction as to race, colour, or national
or ethnic origin, to equality before the law, notably in the enjoyment of the following
rights:...
(d)
(v)
The right to own property alone as well as in association with others;
....
(vi)
The right to inherit;
It follows from the recognition of native title as a right rather than a benefit or a privilege, that we are
entitled to full protection from discriminatory or arbitrary interference with our property. 35
Fundamental to a commitment to the principle of non-discriminatory treatment of native title is a
commitment to the Racial Discrimination Act 1975 (Cth) [RDA].
The RDA has the effect of
transforming the fundamental human right of freedom from discrimination, as expressed in numerous
international instruments, into an enforceable right in Australian law. All Australians have the right to
be protected by this legislation. It would make a mockery of the RDA and the international standards
it purports to implement if the RDA were altered to disapply to certain people or certain situations. As
I wrote in the First Report 1993:
Any interference with the Act [Racial Discrimination Act 1975 (Cth)] which suspends,
nullifies or reduces the rights of native title holders is, in itself, an act of racial
discrimination. No people other than Aboriginal and Torres Strait Islander people would
be adversely affected. It would adversely affect our enjoyment of equality before the law
and our right to own property, inherit and not to be arbitrarily deprived of property. 36
Section 7(1) of the NTA preserves the operation of the RDA. This preservation does not apply to the
validation provisions. 37 The fact that validation of past acts can occur in a discriminatory manner is
an outcome which cannot be allowed to be conveniently forgotten, as it is by those who are opposed
to some of the procedures which the NTA introduced for the benefit of Indigenous people. (For a
more comprehensive discussion of the relationship between the NTA and the RDA see appendix 4.)
It is, to some extent, reassuring that some governments and various organisations 38 are
increasingly accepting and adopting the principle that native title cannot be interfered with in a
discriminatory manner. The level of commitment to this principle in practice, however, remains to be
seen. It appears that there is a range of views as to what is meant by equality and what type of act
is discriminatory. The notion of equality is invoked as frequently by those who seek to extinguish all
native title as by those who seek its protection.
For example, the argument that native title should be extinguished so that there is one nation one
continent; one law, one people, one destiny, 39 misrepresents native title, does injustice to the
concept of equality and confuses what is meant by non-discrimination. It amounts to using equality
and freedom from discrimination as a guise for assimilation. A statement by one Aboriginal man aptly
highlights the injustice associated with this notion of equality:
If equality is about making me have the same values and the same priorities, then I do
not want it. I want access and equity. If the end result of equality is being exactly like you
white fellas, then I do not want it. I do not believe that is what our people want.
We have a separate identity. We know how to care for our land and that is why it is so
important to us. We want to be able to do the right thing. The right thing is not destroying
the land. It is not destroying the culture. It is not replacing it. 40
Equality and freedom from discrimination is not about uniformity, assimilation or conformity. It is
about recognising and respecting the differences of people and allowing different cultures to flourish
and to enjoy equally the human rights which belong to everyone. All people have a right to own
property, to inherit and to not be arbitrarily deprived of their property. We are all entitled to enjoy
these rights equally. The form that the property takes is not relevant to our entitlement to enjoy these
fundamental rights.
Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination
defines racial discrimination as meaning any distinction, exclusion, restriction or preference based
on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other field of public life.

Implicit in the use of the words on an equal footing is the notion that freedom from discrimination
can only be achieved by ensuring that the effect of any action is not discriminatory. Likewise,
equality before the law as required by Article 5 of the International Convention on the Elimination of
All Forms of Racial Discrimination will not be achieved by merely asserting that a law is to have a
general application. Genuine equality involves looking behind the words of particular laws to see
whether equality is actually achieved. This was acknowledged by the majority of the High Court in
Mabo [No:1] where it was observed:
Although the human right to own and inherit property (including the human right to be
immune from arbitrary deprivation of property) is not itself necessarily a legal right, it is a
human right the enjoyment of which is peculiarly dependant upon the provisions and
administration of municipal law. Inequality in the enjoyment of that human right may
occur by discrimination in the provisions of the municipal law or in the administration of
the municipal law or by both. 41
Laws which purport to have a general application without regard to their effect on certain groups
such as native title holders may well be discriminatory. Whether a law is discriminatory must be
determined through reference to the effect of that law on the laws and customs of Indigenous
peoples in comparison to its impact on the rights of non-Indigenous people. The protection provided
by the NTA in conjunction with the RDA must provide genuine equality for Indigenous Australians.
This is not a radical proposition. It is simply requiring that the laws and customs get the full respect
and protection that those laws and customs dictate and that various international standards require,
and not merely nominal equality.
Protection as a primary concern
Australia's primary obligation with regard to human rights is to provide protection. Article 6 of the
International Convention on the Elimination of All Forms of Racial Discrimination requires that:
State Parties shall ensure to everyone within their jurisdiction effective protection and
remedies, through the competent national tribunals and other State institutions, against
any acts of racial discrimination which violate his human rights and fundamental
freedoms contrary to this Convention, as well as the right to seek from such tribunals
just and adequate reparation or satisfaction for any damage suffered as a result of such
discrimination.
The fact that reparation is payable for discrimination does not justify or legitimise the discriminatory
act. In the case of Indigenous Australians, the injustice arising from any future extinguishment of
native title will be exacerbated by the fact that most native title has already been extinguished. The
High Court's decision in Mabo [No:2] had limited benefit. Although it recognised that in some areas
native title continues to exist, it also held that discriminatory dispossession was a legitimate exercise
of sovereign power. 42 This effectively legitimised the dispossession of a significant number of
Indigenous peoples, at least to the satisfaction of the Australian common law. This aspect of the
decision has understandably been criticised by Indigenous people. 43 I received a number of
submissions that reiterated this concern. 44 The reality for many Indigenous peoples is that neither
the NTA nor the common law will recognise their traditional rights to land. It hardly needs to be said
that the impact of such dispossession on those communities has been devastating.
It is not attributing past wrongs to the present generation of Australians to acknowledge a
responsibility to prevent past injustices continuing. The future extinguishment of native title will be a
continuation of past injustices and a contravention of our human rights. It must be remembered that
the extinguishment of native title is not simply the removal of a right to land. It can have the effect of
destroying traditional social, economic, cultural, political and religious systems.
This is in
contravention of the protection of human rights declared in Article 18 of the Universal Declaration of
Human Rights, Article 27 of the International Covenant on Civil and Political Rights, Article 15 of the
International Covenant on Economic, Social and Cultural Rights and Article 30 of the International
Convention on the Rights of the Child. It is also contrary to Article 14 of ILO 169 and Articles 25 and
26 of the Draft Declaration on the Rights of Indigenous Peoples. For these reasons, the protection of
our human rights should be a paramount concern in the operation of the NTA.
The paramountcy of the protection of the human rights of Indigenous people brings obligations which
must be reflected in the implementation of the NTA. I do not believe it is necessary to extinguish
native title in the future. Future activities and development can take place on Indigenous land with
Indigenous consent. In construing the effect of past grants over native title land, the co-existence of
native title and other interests must be recognised in as many situations as possible. That the NTA
only adopts this principle with regard to validation of certain interests is regrettable. This is
particularly so with the validation of pastoral leases which extinguishes native title altogether 45 a
result which is arguably contrary to the common law and amounts to an unnecessary violation of our
human rights. While pastoral leases are discussed at length in chapters 3 and 5, it is pertinent to
point out here that the operation of the NTA establishes a situation in which Indigenous peoples,

whose title is affected by a pastoral lease established through an invalid act, lose their title altogether
when, if the act was always valid, they may have at least retained some native title rights under the
common law. That those affected by invalid acts are further disadvantaged in this way is, in my
opinion, unacceptable. There is no reason why our laws and customs cannot continue to the extent
that they do not interfere with legal entitlements created in other interests. Our human rights do not
have to be infringed completely in order for certain leases to take effect. In particular, the holders of
pastoral leases in many instances will be able to get the full benefit of their entitlement without
necessitating the full extinguishment of native title.
That native title should revive after the expiry of certain interests is also a principle that should be
applied as liberally as possible. I see no reason why it cannot also apply to the expiry of validated
pastoral leases. There should be no problem in this being the case if governments adopt the attitude
that native title protection is a primary concern.
Finally, as a matter of policy, I believe governments should not attempt to interfere with native title
rights in the absence of agreement from native title holders, even where the act is a permissible
future act. Although native title may revive after the expiry of the interest, the disruption to our
communities in the interim may be irreparable.
Negotiation and consent
Consistent with the need to give native title protection in accordance with international human rights
standards is the requirement that there be negotiation with and consent from Indigenous peoples
before any interference with our rights takes place in the future. I believe this is a right of all people.
With regard to property it is implicit in Article 17 of the Universal Declaration of Human Rights which
provides for protection from arbitrary interference with property. It is also clearly expressed in Articles
15, 16 and 17 of ILO 169. Both Articles 10 and 30 of the Draft Declaration on the Rights of
Indigenous People require free and informed consent being obtained before any removal of
Indigenous people from their land or before the approval of any project affecting their lands.
The right to negotiate, as outlined in the NTA, is limited and only arises where there are mining
interests or acquisitions under an acquisition Act for the benefit of a third party. 46 The right to
negotiate must be viewed in the context of the human rights it is designed to protect. It enables us,
in limited circumstances, to have at least some control over the manner in which our culture and our
property is interfered with in the future. Any move in the future to undermine or reduce the ability of
Indigenous land owners to negotiate with regard to the matters which will impair our title and impair
the exercise of our human rights must be strenuously opposed. The right to negotiate must be
included in as wide a range of situations as possible and, most importantly, it must operate in a
manner that is meaningful to those participating in negotiations. The express powers of tribunals to
override the wishes and concerns of Indigenous peoples need to be exercised as far as possible in
accordance with these international standards.
Furthermore, the negotiation process must be culturally appropriate in order to be seen as being
beneficial by all parties involved. Some of the suggested factors which the negotiations should take
into account are group decision-making processes, remoteness of communities and their members,
cultural business and cultural factors which may lead to late postponement. 47 It is pointless
imposing a requirement of negotiation in a climate which is not conducive to constructive dialogue
between the parties.
National and state interest
That there is potential for the rights of Indigenous peoples to be overridden in the national or state
interest 48 in some circumstances is contrary to the notion of full respect and protection for our laws
and customs. It is difficult to see how it can be said that the national or state interest can be served
by overriding or interfering with the human rights of particular sections of the community. The
prosperity of society cannot be contingent on the dispossession and lack of protection for the human
rights of some. Indeed, in this respect the observations of Chief Justice Dickson and Justice La
Forest in R v Sparrow are most appropriate:
The Court of Appeal below held...that regulations could be valid if reasonably justified as
necessary for the proper management and conservation of the resource or in the public
interest. We find the public interest justification to be so vague as to provide no
meaningful guidance and so broad as to be unworkable as a test for the justification of a
limitation on constitutional rights. 49
While this statement is made in the context of a consideration of the use of the public interest as a
limitation on constitutional rights, I believe that the use of the national interest or state interest is
equally vague and meaningless in terms of justifying a limitation on the human rights of a section of
the community.

Validation in perspective
Another important component of the NTA is the validation of post1975 Crown grants. It is important
not to lose sight of the nature of this validation. Firstly, it is racially discriminatory. Some post1975
grants were believed to be invalid because they were granted at the expense of Indigenous title
holders in a manner contrary to the RDA. The validation of those grants at the expense of
Indigenous title holders is equally discriminatory. This is expressly acknowledged in s.7(2) of the
NTA. It validates invalid Crown grants at the expense of valid native title contrary to the many human
rights instruments mentioned above. Secondly, it has the effect of continuing the systematic
dispossession of Indigenous people in the same manner as has occurred over the past two
centuries.
In the public debate during the drafting of the NTA, the nature of this validation was often
conveniently forgotten.
Politicians and others argued that the present generation was not
responsible for the injustices of the past and then called for further injustices to take place. It did not
occur to many of these people that they were doing exactly as previous generations had done. This
was largely a result of the trivialisation of native title and the depiction of it as a privilege and a new
form of title. This is exemplified in a joint press release by a number of Australian industries, which
argued that failure to protect existing titles would undermine business confidence, which in turn
forms the basis for economic prosperity and an enhanced quality of life for all Australians. 50 The
reference to existing titles conveniently ignores the fact that native title is itself an existing title
which is just as entitled to protection from interference as any other title.
The extinguishment of native title in and after 1992, as a result of validation, has the same effect on
Indigenous cultural, social, spiritual, and economic well-being as extinguishment in prior decades. It
is no less devastating to those dispossessed. It is no less discriminatory. This must not be forgotten
by those who seek to further extinguish native title or to undermine some of the protections that the
NTA attempts to provide.
Furthermore, the fact that validation is discriminatory makes it difficult to describe the NTA as a
special measure. Section 8(1) of the RDA provides that the prohibition of racial discrimination does
not apply in relation to the application of special measures to which paragraph 4 of Article 1 of the
Convention for the Elimination of All Forms of Racial Discrimination refers. That paragraph states:
Special measures taken for the sole purpose of securing adequate advancement of
certain racial or ethnic groups or individuals requiring such protection as may be
necessary in order to ensure such groups or individuals equal enjoyment or exercise of
human rights and fundamental freedoms shall not be deemed racial discrimination...
(emphasis added)
I do not believe it is accurate to characterise the NTA as a whole as a special measure. That is not
to say that legislation which establishes a general scheme for the recognition of Indigenous land
rights cannot constitute a special measure. Both the Pitjantjatjara Land Rights Act 1981(SA) 51 and
the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) 52 could be described as special
measures because, at the time of enactment, they were considered to be the only means by which
Aboriginal rights to land could be legally acknowledged. Mabo [No:2] altered that position, and the
subsequent NTA lacks that rationale: it regulates rather than confers rights. In addition, because of
the validation provisions, it is arguable that the NTA is not a special measure as it is not for the sole
purpose of securing the advancement of Indigenous people a requirement which would appear
essential under both s.8(1) of the RDA and the Convention.
Whether specific provisions can be construed as special measures is another question. In my view
however, the issue will not arise in most cases, as I believe that the majority of the provisions in the
NTA do not need to be construed as special measures as they operate to protect Indigenous people
from having the equal enjoyment of our human rights impaired.
They are therefore not
discriminatory.

Compensation
The NTA provides for compensation for the extinguishment of native title. The mere fact that
compensation is payable does not justify the extinguishment. The extinguishment of native title will
always amount to a breach of the human rights of Indigenous people. I have previously stated in my
First Report:
Australia's unequivocal international obligation is to provide protection. It is not to simply
pay for the considered violation of human rights. The intentional interference with the
exercise and enjoyment of human rights and fundamental freedoms by Aboriginal and
Torres Strait Islander peoples cannot be rectified, or said to be "non-discriminatory", by
the provision of compensation for such interference. 53

Providing a scheme of compensation assumes that the damage done to Indigenous people through
the extinguishment of their title is a harm that can be adequately remedied through compensation. It
is difficult to understand how a value can be put on the loss of freedom to exercise human rights and
the loss of the ability to exercise traditional cultural lifestyles and the destruction of traditional cultural,
social, economic, political and religious systems. The fact that the NTA talks in terms of just terms
compensation and the possible right to other titles in exchange does not resolve this difficulty.
Nevertheless, where an entitlement to compensation arises, it is imperative that the full extent of the
loss to Indigenous people is taken into account. The requirement for the Commonwealth to pay just
terms has its source in the Australian Constitution. The States are not constitutionally obliged to pay
just terms for acquisition of property, although many of them do. Importantly, however, wherever
there is an acquisition of native title rights by the States through legislative power derived form the
Commonwealth, native title holders are entitled to just terms compensation in accordance with s.
51(xxxi) of the Constitution. This is particularly relevant in off-shore areas. To the extent that the
States derive power to acquire native title interests from the NTA they are constitutionally bound to
pay just terms compensation. I believe that to deprive people of property without just and fair
compensation amounts to an arbitrary deprivation of property contrary to Article 17 of the Universal
Declaration of Human Rights. Both the Draft Declaration on the Rights of Indigenous Peoples and
ILO 169 speak in terms of fair and just compensation. Compensation for the extinguishment of, or
interference with, Indigenous native title rights will be neither fair nor just if the spiritual and cultural
attachment to land is not taken into account. This requires more than mere tokenism in the
determination. There must be recognition of the value of those interests to Indigenous people and
account taken of the sui generis nature of native title. What amounts to full non-discriminatory
compensation of sui generis native title rights and interests is a matter that will undoubtedly be the
subject of future disputes between Indigenous peoples and governments. It is a matter which I
intend to monitor closely in the future.
While not fully remedying the injustice and infringement on human rights resulting from
extinguishment, compensation for the validation of titles under the NTA or for future acts will at least
allow those dispossessed to have some chance of rebuilding their lives. In some circumstances it
may enable them to purchase property on their traditional lands.

Opportunity for the Future

The NTA should not be seen as just a response to a High Court decision, nor as merely an exercise
in fitting native title into the legal landscape.
It can, in the words of Prime Minister Keating represent an historic turning point, the basis of a new
relationship between indigenous and non-Aboriginal Australians. 54 Clearly, it is a key element in
the process of reconciliation being pursued under the Council for Aboriginal Reconciliation Act 1991.
The recognition of Indigenous Australians' rights and interests in relation to land as a legal interest,
accommodated and protected by Australian law, also elevates the negotiating position of Indigenous
Australians from one based on a moral claim to one based on a legal right.
Such recognition and protection of native title as has been achieved, coupled with the proposed Land
Acquisition Fund and the Social Justice Package, may provide a basis for beginning to overcome the
appalling disparities in the enjoyment of human rights experienced by so many Indigenous
Australians when measured against various international instruments including the International
Covenant on Economic Social and Cultural Rights. Acknowledgment, though belated, of the lie of
terra nullius, and of the reality of Indigenous relationships to land and Indigenous law, may assist to
restore some pride to people who have been for so long denied the fundamental human right of
equality under the law.

The broader recognition of Indigenous customary law

The common law recognition of native title brings renewed pressure on the need for the recognition
of Indigenous law in other areas. In Mabo [No:2], an observation of Justice Brennan would appear
to indicate that the recognition of native title could also include the recognition of some components
of traditional adoption and marriages:
The incidence of a particular native title relating to inheritance, the transmission or
acquisition of rights and interests on death or marriage, the transfer of rights and
interests in land and the grouping of persons to possess rights and interests in land are
matters to be determined by the laws and customs of indigenous inhabitants, provided
those laws and customs are not so repugnant to natural justice, equity and good
conscience that judicial sanctions under the new regime must be withheld. 55

Unfortunately, the full extent to which this can take place will be limited if a recent judicial comment is
any indication. In the Walker case, Chief Justice Mason expressed some of his views on the
limitations of the recognition of Aboriginal customary law. With regard to criminal law he argued:
Even if it be assumed that the customary criminal law of Aboriginal people survived
British settlement, it was extinguished by the passage of criminal statutes of general
application. In Mabo [No.2], the Court held that there was no inconsistency between
native title being held by people of Aboriginal descent and the underlying radical title
being vested in the Crown. There is no analogy with the criminal law. English criminal
law did not, and Australian criminal law does not, accommodate an alternative body of
law operating alongside it. There is nothing in Mabo [No.2] to provide any support at all
for the proposition that criminal laws of general application do not apply to Aboriginal
people. 56
While not commenting on the merits of the particular outcome of the Walker case, it is clear from the
reasoning of Chief Justice Mason that the recognition of customary law is limited to where it conforms
with the common law. In my opinion it is an absurd position to recognise a native title which is based
on the laws and customs of Indigenous peoples and then not give the laws and customs upon which
the title is based equal recognition. It is equally absurd to recognise Indigenous laws and customs
for the purpose of determining interests in land and not recognise those same laws and customs for
other purposes.
To recognise our laws and customs only to the extent that they conform will invariably involve
artificially selecting aspects of our law to the degree that they fit into the compartments of the
Australian legal system. Our laws and customs are interwoven and cannot be isolated out of
convenience and they should not be compromised because they are different. As one Canadian
academic wrote, Aboriginal cultures are the waters through which Aboriginal rights swim. 57 I
believe that any process of artificially selecting what may be legitimate will only result in
compromised justice for Indigenous peoples and make a mockery of our system of laws.
The degree to which the common law recognises other aspects of Indigenous customary law is yet to
be fully determined in the courts. In my view, that uncertainty does not detract from the obligation of
governments to provide that recognition themselves.
Indeed, I believe that the Australian
Government is under an obligation to recognise Indigenous laws and customs. This is clear from a
number of international instruments. Of the instruments that Australia has ratified, Article 27 of the
ICCPR, which requires that minorities shall not be denied the right, in community with other
members of their group, to enjoy their own culture..., provides the strongest support for the
recognition of Aboriginal customary laws. ILO 169 and the Draft Declaration on the Rights of
Indigenous Peoples both call for recognition of Indigenous law, and rights under that law, in areas
other than native title.
The Australian Law Reform Commission (ALRC) in its 1986 Report No. 31 on Recognition of
Aboriginal Customary Law, made numerous recommendations for some recognition of Indigenous
law. The lack of action on these recommendations of the Report was the subject of criticism by the
Royal Commission into Aboriginal Deaths in Custody (RCIADIC). 58 Recommendation 219 of the
RCIADIC National Report called for the government to report as to the progress in dealing with this
Law Reform Report. 59 More recently, the House of Representatives Standing Committee on
Aboriginal and Torres Strait Islander Affairs commented with regard to the ALRC report:
It is a serious denigration to Aboriginal and Torres Strait Islander people and their beliefs
that this report remains unresponded to and Recommendation 219 remains
unimplemented. 60
The recognition of Indigenous law in the context of native title, coupled with international human
rights standards, should finally persuade Australian governments to take such recommendations
more seriously.
The evolution of the Social Justice Package, as the third stage of the
Commonwealth Government's response to Mabo [No:2], provides a context in which such claims
may be advanced. As the Minister for Aboriginal and Torres Strait Islander Affairs told the United
Nations Working Group on Indigenous Populations:
There is no doubt that the social justice package presents Australia with what is likely to
be the last chance this decade to put a policy framework in place to effectively address
the human rights of Aboriginal and Torres Strait Islander peoples as a necessary
commitment of the reconciliation process leading to 2001. 61

Self-determination and Self-government

A number of international instruments make clear that all peoples have the right to self-determination.
Article 1 of the International Covenant on Economic, Social and Cultural Rights and the International

Covenant on Civil and Political Rights both provide that:

All peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
I believe that our distinct and collective identity makes our classification as peoples inescapable.
Accordingly, we are entitled to fully exercise the right to self-determination in the same manner as all
other peoples.
The common law recognition of native title, and the laws and customs upon which it is based, has the
potential to facilitate the full exercise of the right to self-determination which has long been denied to
Indigenous peoples. As Charles Perkins has argued, Mabo is also about self-determination giving
Aboriginal and Torres Strait Islander peoples the space and resources to enjoy our culture, to work
out our own solutions and control our own lives. 62
In addition to providing a land base, it acknowledges the traditional mechanisms and institutions
which may be affirmed by Indigenous peoples in the exercise of our right to self-determination.
Indeed, it is arguable that the 1992 High Court decision may provide support for a common law right
of self-government. While the High Court expressly stated that any challenge to the sovereignty of
Australian governments was non-justiciable, 63 it did not consider whether the recognition of
Indigenous law in relation to land might also extend to recognition of surviving, though subordinate,
powers of self-government on the US model of the domestic dependant nation. 64 Under this
model, Indigenous people are able to enjoy a degree of autonomy on their traditional lands, although
ultimately this autonomy is subject to the sovereign power. Arguments for such survival have been
rejected in earlier cases 65 but on grounds which are difficult to reconcile with the statements of
principle in the Mabo [No:2] judgments, particularly the supposed distinction drawn in the earlier
cases between the levels of social and political organisation of Aboriginal peoples and native
Americans. 66 The argument has been raised twice in the High Court since Mabo [No:2], on both
occasions in strike out proceedings. On both occasions it has been rejected by Chief Justice
Mason. 67 It is possible that the argument might gain a more receptive hearing if advanced in a
more appropriate litigious context.
It would, of course, be more appropriate for self-government arrangements to be negotiated
politically.
The recognition of Indigenous law in the context of native title, coupled with the
international law on self-determination, may encourage governments to take seriously the wishes of
particular Indigenous communities to govern aspects of their own affairs and to have an effective
voice in decisions by other levels of government that affect them.

Concluding comments
The common law recognition of our land ownership and the enactment of the NTA is as much about
the recognition of our human rights as it is about protecting our long-neglected legal rights. 68 Much
of the debate and discussion about the recognition of native title and the enactment of the NTA has
failed to acknowledge the human rights issues associated with any interference with Indigenous land
ownership. During 1993 when the NTA was being drafted and 1994 when it came into operation,
native title was rarely discussed in terms of human rights. It has too frequently been discussed in
terms of its effect on business uncertainty and investment. An American businessman wrote
recently:
If Hawaiians had 138 different ways to describe falling rain, we can assume the rain had
a profound importance in their lives. Business, on the other hand, only has two words for
profit gross and net. The extraordinary complex manner in which a company recovers
profit is reduced to a single numerically neat and precise concept. It makes no
distinctions as to how profit was made. It does not factor in whether people or places
were exploited, resources depleted, communities enhanced, lives lost, or whether the
entire executive suite was in such turmoil as to require stress consultants and
outplacement services for the victims. In other words, business does not discern
whether the profit is one of quality, or mere quantity. 69
Human rights are one of the factors which are often made invisible in economic evaluations of
business activity. Many industries are constantly reminding the public of the invaluable benefits of
their activities to the community; however, the costs of these activities are not always fully disclosed.
In particular, the special costs that some sections of the community are required to pay in order for
the national benefit to be achieved are rarely acknowledged. 70 Native title exemplifies this.
Industry and governments must accept that the efficiency and profitability of various industries cannot
be premised on the infringement and neglect of the human rights of Indigenous peoples. It would be
a serious breach of Australias international obligations if government procedures permitted such an
outcome.

It should be clear from what I have said that many of the provisions in the NTA reflect requirements
that are minimum standards in various international instruments. In some aspects, particularly
validation, the NTA falls below those standards. Native title is the legal expression of one of
Indigenous peoples most fundamental human rights. Protection of human rights must be at the
forefront of the interpretation of the Act. Likewise, any assessment or review of the operation of the
NTA must have the protection of Indigenous human rights as the primary concern. Any future
changes to the NTA must be carefully considered in reference to the protection of our rights and must
uphold the standards that the Australian Government is obliged to provide under various international
instruments.
These people havent lost this land, they are now recognised under Balanda law. Thats
all it is a recognition. In our own law it has been recognised for thousands of years,
and that law remains. We never lost it to anybody. It is restating of our rights of
ownership to land.
Galarrwuy Yunupingu
speaking at presentation of title to part of the Upper Daly land claim

Extinguishment
1

Introduction

The question of where native title has been extinguished in the past is fundamental to the operation
of the Native Title Act (NTA). Because the NTA only operates where native title might exist, the
processes by which Australian governments can validly extinguish native title is a central issue.
It is clear that there are constitutional limits on the ability of Australian governments to extinguish
native title. For example, the Commonwealth must provide just terms compensation whenever it
acquires property. 1 More importantly, no State or Territory can extinguish native title contrary to the
valid laws of the Commonwealth. 2 Indeed, Commonwealth legislation now prescribes the most
specific and significant barriers to the extinguishment of native title. The Racial Discrimination Act
1975 (Cth) (RDA) and the NTA regulate the extinguishment of native title. Aside from legislative and
constitutional restrictions, there are also limited yet important common law rules which potentially
restrict the extent to which native title has been extinguished in the past. The extent of common law
restrictions on the extinguishment of native title are presently unclear.
The NTA does not purport to clarify the common law position on when native title will be extinguished
in every situation. Instead it only dictates the extent of extinguishment with regard to future acts or
for past acts which have been validated under the NTA. However, the majority of acts which will be
relied upon by governments to show that extinguishment has occurred will not be invalid and thus will
not attract the validation provisions. The effect of these interests on native title has been left to the
common law to resolve. The common law rules relating to extinguishment therefore continue to be of
fundamental relevance to the operation of the NTA and its impact on the human rights of Aboriginal
and Torres Strait Islander peoples. For this reason, it is necessary to discuss the conflicting
approaches to the issue of extinguishment

The Right to Extinguish

In the 1823 case of Johnson v McIntosh, 3 the United States Supreme Court confronted the same
issue that the Australian High Court was to deal with over 170 years later. That court was faced with
the dilemma of reconciling the Crowns desire to grant interests in land with the possession and
ownership of the same land by Indigenous people. Chief Justice Marshall rationalised the competing
interests by holding that while the Indigenous people had a right of exclusive occupancy, the United
States Government had an ultimate power to acquire the lands of the Native Americans. He stated:
It has never been contended, that Indian title amounted to nothing. Their right of
possession has never been questioned. The claim of government extends to the
complete ultimate title, charged with this right of possession, and to the exclusive power
of acquiring that right. 4
As Felix Cohen writes, the compromise was that the Indians were protected. The grantees were
protected, assuming that the Federal Government went ahead to secure a relinquishment of Indian

title. The power of the Federal Government was recognised. And the needs of the feudal land
tenure theory were fully respected. 5 While Johnson v McIntosh represented a compromise as far
as the common law was concerned, for Indigenous people it meant that land could be given to
people who had no right to it. The morality of such assumptions was never seriously questioned.
Robert Williams has described the endorsement by the common law of the Crowns right to claim
sovereignty and to dispose of lands belonging to Indigenous peoples as preserving ...the legacy of
1 000 years of European racism and colonialism directed at non-Western peoples. White societys
exercise of power over Indian tribes received the sanction of the Rule of Law in Johnson v McIntosh.
6
The compromise enunciated in Johnson v McIntosh and its appreciation in subsequent cases has
established a body of law which has been said to have never rejected its first principles. 7 It was
upon this body of law that the High Court based substantial parts of their judgments in Mabo [No:2] 8,
although some of the conclusions they reached vary significantly from the legal position that the
North American cases arguably support. In confirming the Crowns right to claim sovereignty and
gain the power to extinguish native title, the source of that right was not scrutinised to any substantial
degree. 9 The High Court appeared conscious of the flaws in the theories by which the Crown
claimed sovereignty over new territories and acquired for itself the right to extinguish Indigenous
titles but it deemed these issues non-justiciable. 10 The Court restated the view that the acquisition
of sovereignty gives rise to the right to extinguish native title. As Justice Brennan argued:
Sovereignty carries the power to create and to extinguish private rights and interests in
land within the Sovereign's territory. It follows that, on a change of sovereignty, rights
and interests in land that may have been indefeasible under the old regime become
liable to extinction by exercise of the new sovereign power. The sovereign power may or
may not be exercised with the solicitude for the welfare of indigenous inhabitants but, in
the case of common law countries, the courts cannot review the merits, as distinct from
the legality, of the exercise of sovereign power. 11
It is the exercise of this paramount power rather than the claim of sovereignty itself to which the
dispossession of Indigenous people is attributable. 12 Professor Richard Bartlett has recognised the
function of extinguishment in providing for the dominance of the immigrant society:
Native title is subject to extinguishment at common law without the consent of the
aboriginal people or the payment of compensation. This limitation upon native title is a
fundamental aspect of the compromise of the Aboriginal interest which the common law
imposes in order to give paramountcy and validity to the interests of the settler society.
13
The assumed power to extinguish the property of Indigenous people was sanctioned by the common
law in Australia in Mabo [No:2]. As Robert Williams described in reference to North America, it
amounts to the entrenchment of the legacy of colonial racism. For Indigenous people, the exercise
of the right to extinguish is no less an expression of colonial racism today than it has been over the
past 207 years. Australian governments may justify extinguishment of native title with the courts
endorsement as a valid exercise of sovereign power. Indigenous people, however, are unlikely to be
satisfied with this explanation as to the validity of the extinguishment.
The assertion of sovereign power to usurp our rights to land is a continuing source of grievance to
Indigenous peoples and is deeply resented. By claiming that native title was extinguished in the
distant past does not dispose of the grievance that extinguishment causes. Governments must
recognise that regardless of their basis for considering that the extinguishment of native title is a valid
exercise of their sovereign power, the grievance to Indigenous people that results is a matter that
cannot be ignored and will have to be dealt with.

Indigenous Perspectives
This ground belongs to blackfella but that munanga [whitefella] law says it belongs to
them. That law is too hard that Northern Territory law.
Us blackfellas, weve got one law from early days, it goes on and on and on. One law,
thats all. Munanga! Today, one way, next day another law, theyre changing the law.
That government is different, theyve got a strong law I dont understand. Them
munanga, they dont think about things. 14

Apart from extinguishment by exercise of sovereign power, it was Justice Brennan's view that native
title will also be extinguished where a clan or group loses its connection with the land by ceasing to
acknowledge the laws and observe the customs under which it holds native title, or when the last of

the members of the group or clan dies. 15 Justices Deane and Gaudron were of the view that
common law native title rights can be forfeited on the extinction of the relevant tribe or group or
when the connection with the land is abandoned. However, they regarded it unnecessary to decide
whether native title will be lost when traditional customs and ways are abandoned but the relevant
group continues to occupy or use their land. 16
In my view it is essential to determine these matters from an Indigenous perspective. It is in the
hearts and minds of Indigenous people that the relevant connection to land lies. That connection
could be strong and unbroken despite the absence of a continuous physical occupation.
Indigenous perspectives are also relevant to broader questions on the issue of extinguishment and
are not limited to the continuance of the traditional laws and customs of a particular people. It is my
view that the starting point for any consideration of extinguishment of native title is the people who
are being dispossessed. In the sense that Indigenous peoples were moved off their lands, the
common law, as Justice Brennan interprets it, acknowledges that the Australian governments have
alienated or appropriated ...most of the land in this country during the last two hundred years, [and
that] the Australian Aboriginal peoples have been substantially dispossessed of their traditional
lands. 17 However, regardless of what the common law says, we have not lost our connection with
our lands. In the minds of Indigenous people, our laws and customs do not disappear just because
the common law deems them to be extinguished. All that the common law changes is the
enforceability of our laws and customs in the Australian courts. The sense of injustice that
Indigenous people will have over their title being deemed to be extinguished will not only arise from
the perceptions of the illegitimacy of the power to extinguish. It will also arise from their view of
reality, particularly where extinguishment is purported to be carried out through an inconsistent grant.
In many cases, despite past dealings with various parcels of land, Indigenous people have continued
the exercise of their laws and customs. Indeed, even though there has been occupation by the
grantee, some Indigenous people have remained on their lands and have maintained continuity in
the exercise of their traditional activities. This is apparent from the comments of the Aboriginal Land
Commissioner in the Garawa/Mugularrangu (Robinson River) Land Claim under the Aboriginal Land
Rights (Northern Territory) Act 1976 (Cth) in regard to the continuing attachment to land of the
Garawa People despite the existence of pastoral leases:
In spite of the difficulties associated with European settlement in the region, Garawa
people in general appear to have remained in the region and have tended to live and
work on stations in their own country.
It is unnecessary to say more of the historical attachment of the claimants and their
ancestors to the claim area other than to observe that the evidence points to a strong
traditional attachment of the claimants to the land claimed. 18
The continuing attachment to land is even more likely to exist in those cases where a grant of land by
the Crown was never fully taken up by the grantee. In these circumstances it is no less unjust and
incomprehensible to Indigenous people that their title has been extinguished by a piece of paper than
it is to explain that their title was extinguished by the planting of a flag and a declaration of
sovereignty. The passing of paper between governments and third parties does not make our title to
land and our laws and customs disappear. The reality is that in a number of places Indigenous
peoples have not ceased to have a connection to traditional lands, regardless of whether native title
is deemed to be extinguished. To cling to snippets of administrative transactions in order to declare
that our title is gone when we have not broken our attachment to land or ceased to observe our laws
and customs is absurd.
In my view, as long as our laws and customs are being observed and practised, the only manner in
which our title can be validly extinguished is through consent. Without such Indigenous consent,
Indigenous people will see no legitimacy in our title to land being regarded as extinguished.

The Presumption Against Extinguishment

The recognition of Indigenous land ownership is not something new. Colonial governments in
Australia were well aware of Indigenous land ownership and that the British colonial policy was that
Indigenous rights to land should be respected. The policies of the imperial and colonial authorities
have been closely traversed in submissions in legal proceedings and in a number of publications on
native title. 19
However, in determining whether extinguishment has occurred, more important than the policies of
colonial offices as they were expressed in government documents, is the common law presumption
against extinguishment which is intended to provide protection to Indigenous peoples. While this
presumption has been primarily discussed with regard to the question of whether native title survives
a claim of sovereignty, it is just as relevant to the interpretation of legislative and executive acts

affecting Indigenous land after sovereignty has been asserted. The effect of the presumption is that
where there is silence as to the intended effect of an Act of the Crown on native title, the courts will
give effect to the act in a way that preserves native title. In Adeyinka Oyekan v Musendinku Adele it
was stated that the courts will assume that the British Crown intends that the rights of property of the
inhabitants are to be fully respected. 20
The applicability of the presumption against extinguishment was clearly stated by Justices Deane
and Gaudron in Mabo [No:2]:
The strong assumption of the common law was that interests in property which existed
under native law or customs were not obliterated by the act of State establishing a new
British colony but were preserved and protected by the domestic law of the colony after
its establishment. 21 (emphasis added)
The presumption was repeated frequently throughout the judgments of the High Court. 22 Although
this presumption is only a rebuttable interpretive tool for construing the effect of government action,
when properly applied it provides crucial protection for Indigenous property interests under the
common law. In many cases the determination of whether native title is extinguished will take place
through an interpretation of the effect of past legislative acts and grants. The presumption against
extinguishment is therefore a crucial limitation on the extinguishment of native title. If applied in
accordance with its rationale, native title will not be extinguished unless that intention is the
inescapable construction of the legislation. Furthermore, as the Australian common law appears to
be developing so that inconsistent grants extinguish native title, the presumption should be equally
important in determining the effect of the grants.
The presumption against extinguishment is crucial as a result of native title being ignored for so long.
The reliance by the parliaments in the past on the doctrine of terra nullius has meant that there is
unlikely to be any express extinguishment of native title. This misconception was not that the
occupation of lands by Indigenous people was unknown, instead there was an erroneous and racist
belief that Indigenous legal rights could be ignored. This provides no basis for any interference with
the presumption against extinguishment or any other protection that the common law may provide.
While this may be a matter of lamentation for those who seek to interpret as many past acts as
possible as extinguishing native title, it must be remembered that terra nullius was a discriminatory
doctrine based on racial superiority. To interfere with the presumption against extinguishment or
other common law protection on the basis that Indigenous rights were disregarded in a discriminatory
way would, in my view, amount to the reintroduction of terra nullius into contemporary law.

Extinguishment by Clear and Plain Intent

All of the majority judgments in Mabo [No:2] made statements indicating that a clear and plain intent
was necessary for the extinguishment of native title. For example, Justice Brennan acknowledged
the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional
rights and interests in land. 23 He indicated that regardless of its juristic foundation, it is patently
the right rule. 24 Accordingly he argued that in order to extinguish native title, the legislature or the
executive had to show a clear and plain intent that this would be the effect. 25
Justice Toohey was also of the view that where legislation reveals a clear and plain intention to
extinguish traditional title, it is effective to do so. 26 With Justices Deane and Gaudron, 27 he found
that such property rights cannot be removed without a legal right to compensation, unless there is an
unequivocal expression of legislative intention to do so and he noted that this principle has been
applied to traditional title in several North American decisions. 28
The recent Canadian case of Delgamuukw provides a useful analysis of how the clear and plain
intention test should be applied. Justice Macfarlane noted that because of the special relationship
between the Crown and aboriginal people which has existed since the assertion of sovereignty,
particularly in relation to land, the clear and plain test should be applied with as much vigour to
aboriginal title as it is to traditional property rights. 29 He argued that the honour of the Crown
stemming from its position as the historic protector of aboriginal lands necessitates a clear and plain
intent that is express or unavoidably implicated. Such an implication can only be established if
extinguishment is the only possible interpretation of the statute or if the interpretation of the statute
permits no other result. 30 It is necessary to note that Indigenous interests may be impaired as well
as extinguished and that if the intention is only to limit the exercise of the right it should not be
inferred that the right has been extinguished. 31 Justice Macfarlane added that, before a conclusion
is reached that extinguishment has occurred, it is necessary to inquire whether the legislative
intention was co-existence of the Indigenous interest and the interest authorised by the legislation.
32 In the same case Justice Lambert was of the view that where there is any doubt whether the
intention to extinguish is clear and plain, that doubt must be resolved against extinguishment. 33
These comments illustrate an approach which is appropriate to consider in the Australian context.

Indeed, the Wik Peoples have argued that where there is any doubt as to the necessary legislative
intention, a finding should be made for the native title holders because a clear and plain intent to
extinguish cannot be demonstrated. Further, any approach that limits the circumstances in which the
intention to extinguish is found to exist should be preferred. 34 A related practical issue is the
question of who carries the burden of showing that a clear and plain intent exists. In R v Horseman,
Justice Cary argued that the onus of proving either express or implicit extinguishment lies upon the
Crown. 35 I endorse these
views and believe that they are preferable to that of Chief Justice Mason who, in Coe v The
Commonwealth, suggested that the onus of proving that native title to a particular area under claim
had not been extinguished, rests upon the claimants. The Chief Justice said:
It seems to me that, if the plaintiff asserts native title to land, then the plaintiff must
establish the conditions according to which native title subsists. Those conditions
include (a) that the title has not been extinguished by inconsistent Crown grant and (b)
that it has not been extinguished by the Aboriginal occupiers ceasing to have a requisite
physical connection with the land in question. 36
If Chief Justice Masons comments on the onus of proving extinguishment are accepted for the
purposes of the NTA, claimants will bear major additional burdens when researching and filing claims
which were arguably not anticipated by the NTA. The National Native Title Tribunal in co-operation
with state and territory government agencies which hold information on land-tenure history, is
conducting some title searches to assist claimants. This is a commendable approach; however, the
whole question of the powers of the National Native Title Tribunal when deciding whether to accept
claims requires consideration. (See chapter 4 of this report.)
The issue of whose intent is required in order to establish a clear and plain intention is also the
subject of recent comments in the Canadian courts and is at issue in the Wik Peoples claim. The
comments of Justice Brennan would appear to suggest that he believes that it can be either the
legislature or the executive. 37 In Delgamuukw, Justice Lambert was of the opinion that the
necessary intention for extinguishment was that of the sovereign power, acting legislatively. 38
Where there is a clear and plain legislative intention to extinguish Aboriginal title, even by
administrative or executive act, then the intention still has to be that of the legislature and not merely
the intention of the person carrying out the authorized administrative or executive act. 39
The perceived difficulty in requiring a clear and plain intent from legislation is that throughout
Australian history native title was largely ignored by the legislature. However, in my view, to see a
difficulty with the capacity of a legislature to hold an actual intention to extinguish native title because
the legal enforceability of our occupation was recognised by the common law for the first time in
Mabo [No:2] 40 ignores the widespread awareness of Aboriginal rights and interests by colonial and
subsequent authorities in Britain, Australia, New Zealand, North America and elsewhere. Indeed,
after reviewing a number of Western Australian historical documents, the High Court noted recently
that:
So far as these vignettes of history reveal, those involved in establishing the British
Colony of Western Australia knew that there were Aborigines who, by their laws and
customs, were entitled to possession of land within the territory to be acquired by the
Crown and settled as a Colony. 41
It cannot be assumed that colonial governments were unaware of Indigenous rights and therefore
could never have evinced a clear and plain intention to extinguish. The reality is that they were
aware of our occupation but they chose, with the exception of some reservations in pastoral leases,
to ignore Indigenous interests in land.

Extinguishment by Inconsistency

At common law, as articulated in Mabo [No:2], the requirement for clear and plain intent is not a
requirement for express intent nor does it appear that the intention has to arise from the words
themselves. In Delgamuukw it was noted that the intention may be declared expressly or
manifested by unavoidable implication. 42 In practice this means that where a legislative act
cannot be construed to operate except through the extinguishment of native title, a clear and plain
intent would exist in a manner which is sufficient to rebut the presumption against extinguishment. In
other words, if the only way that an act can be given effect is inconsistent with the existence of native
title, then the intent to extinguish native title is implied. As discussed below, this approach appears to
have been adopted by the High Court, not only with legislation but with regard to inconsistent grants
as well.
In recognition of the great injustice that extinguishment of native title delivers to Indigenous peoples, I
seriously question whether anything less than legislative intent through clear and unambiguous

words should be sufficient to extinguish native title. While application of this test may result in
intention to extinguish being found less readily, it is essential that such a process be pursued. As the
Wik Peoples have argued, the extinguishment of native title may attribute both procedural and
substantive unfairness to the legislature and extinguishment should only be acknowledged if there is
a compelling case requiring it. 43
There are judicial comments which are critical of the dilution of the clear and plain intention
requirement. In Delgamuukw, Justice Lambert was of the opinion that Sparrow 44 was authority for
the proposition that [i]nconsistency was not enough. Clear and plain intention was required. 45
Further, Justice Lambert cited Justice Hall in Calder for the proposition that:
...before extinguishment could occur there must have been an act of extinguishment so
that extinguishment could be seen to be clear and plain, and not merely a supposition
derived from a pattern of behaviour that might be regarded as inconsistent with the
continuation of aboriginal title and rights. 46
Notwithstanding these doubts the High Court appears to have embraced the concept that
extinguishment can occur by inconsistent grant even in the absence of clear and plain legislative
intent.
Inconsistent grants
That native title can be removed by legislative acts which have a clear and plain intent to extinguish
does not place native title in a position different from other property interests. The Parliament has the
power to extinguish any property interest through legislation with clear and unambiguous words. 47
However, the executive does not have the power to remove property rights unless authorised to do
so by the legislature. That authority should also be clear and plain. As discussed below, the
reasoning of the High Court in relation to extinguishment departs from this rule by allowing executive
acts to extinguish native title without clear and unambiguous legislative authorisation.
In Mabo [No:2] the majority of the bench indicated that an inconsistent grant could extinguish native
title. Justice Brennan rationalised this lesser protection of native title on the basis that native title was
not a grant from the Crown and therefore did not attract the presumption against derogation which
protects Crown grants. 48 Generally, a grant cannot be extinguished by the Crown unless there is
statutory authority. Without this authority, there is a presumption that a statute does not authorise
any impairment of a Crown grant of land. According to Justice Brennan, because native title is not
dependent on a Crown grant no such rule protects it. 49 Justice Brennan stated that:
A Crown grant which vests in the grantee an interest in land which is inconsistent with
the continued right to enjoy a native title in respect of the same land necessarily
extinguishes the native title. The extinguishing of native title does not depend on the
actual intention of the Governor in Council (who may not have adverted to the rights and
interests of the indigenous inhabitants or their descendants), but on the effect which the
grant has on the right to enjoy native title. 50
Further on in the judgment, when referring to whole or partial inconsistency, he said that native title
is extinguished to the extent of the inconsistency. 51 Justices Deane and Gaudron also came to the
view that the absence of clear and unambiguous words in the relevant
legislation will not prevent the extinguishment by inconsistent grant. But the presence of such words
will provide a basis for extinguishing native title rights without compensation. 52
In my opinion, the failure of the common law, as the majority of the High Court have appeared to
interpret it, to protect native title holders as it protects the rights of other property holders produces a
grossly unjust result for Indigenous people. This is not only because we are denied the protection of
the presumption against derogation from property interests but also because the requirement for
clear and plain intent by the legislature is undermined.
The denial of the presumption against derogation does not sit comfortably with other jurisdictions
which regard Indigenous rights of occupancy as being as sacred and as securely safeguarded as is
fee-simple absolute title, 53 or that Indigenous property rights are to be fully respected. 54 It is
certainly difficult to reconcile with the English case law which has acknowledged the continuance of
customary land and resource ownership despite the grant of the same land by the Crown. For
example in Attorney-General for the Isle of Man v Mylchreest, the Privy Council noted with regard to
the effects of Crown grants on the customary tenure that:
The...language of the grants is quite large enough to carry the full title to the soil of the
Isle, including minerals...so far as the Crown could grant them. But, on the other hand,
the Lordship could only be granted subject to the rights which the customary tenants
might then have acquired by custom or otherwise in their tenements, ...55

Indeed some United States courts have held that while grants to third parties could be made, the
Native Americans were entitled to remain in possession until their title was extinguished by
subsequent legislative action. As Felix Cohen points out, while a grant of land in Indian possession
may convey a legal fee, such a grant does not impair the Indian title, which the grantee must respect
until it has been duly terminated by treaty, agreement, or other authorised action of Congress or the
Indians. 56 Thus in Mitchel v United States it was held:
Subject to this right of possession, the ultimate fee was in the crown and its grantees,
which could be granted by the crown or colonial legislatures while the lands remained in
possession of the Indians, though possession could not be taken without their
consent. 57
The watering down of the requirement for a clear and plain intent is disturbing. The effect of the
approach referred to by the High Court is that not only can native title be extinguished by legislation
through implication, but that it can also be extinguished by executive action. In the latter case, the
requirement for legislation with a clear and plain intent is rendered almost meaningless and the
presumption against extinguishment arising from severe consequences to Indigenous people given
little force at all.
The degree to which legislative intent is relevant to inconsistent grants is at issue in the Wik claim.
The Wik Peoples have argued that:
What is required to bring the executive act within the ambit of legislative intention is
evidence that the legislature not only intended that the executive should have the
necessary power but that the use of the power to extinguish native title was at least
within its contemplation and within the scope of any directions given. 58
The respondents have argued that the legislatures intention is only relevant as to whether the
legislature has or has not, by the legislation, empowered the Governor to issue a title which
extinguishes native title. 59 They argue that the relevant legislative intention required to extinguish
native title is a general legislative intent to authorise the executive to grant interests in Crown land
which, of necessity, have the consequence of extinguishing native title. 60
As I have noted above, even where native title is treated as having been extinguished, the relevant
title holders will still maintain their connection to the land and will consider that under their laws and
customs they still have title. This fact and the presumption against extinguishment, which arises from
the serious consequences flowing from the extinguishment of the rights and interests in land of
Indigenous people, mean that the statements in Mabo [No:2] that seem to permit the extinguishment
of native title by inconsistent administrative or executive action are problematic. That analysis
contradicts the Courts endorsement of the requirement for clear and plain legislative intent and
entrenches a discriminatory treatment of native title into the common law by not providing the same
protection against derogation that other titles receive. It is my view that the preferable position is that
expressed by Justice Lambert who observed:
I do not think that there is any basis in principle for saying that inconsistency between
the grant and native title necessarily means that it is the native title that must give
way...if the clear and plain intention to extinguish in the event of an inconsistency were
not shown, then I do not understand the nature of the rule of law or principle which
would decree that the new grant should prevail over the longstanding aboriginal title. I
do not think that the effect of a grant should determine the test of legislative intention,
unless it is clear and plain from that effect that the intention to extinguish is clear and
plain. 61
In summary, his Honours position is that there could be extinguishment to the extent of the actual
permitted inconsistency, provided that:
1.

there is a clear and plain intent, expressed legislatively by the legislature or the sovereign in
parliament, to extinguish by administrative or executive act; and

2.

there is legislative authorisation for, and contemplation of, an act which permanently and
adversely affects native title; and

3.

that except where legislation provides that extinguishment occurs with the grant of a
potentially inconsistent tenure, there must be permanently inconsistent use made of the land
rather than a temporary suspension of Aboriginal title. 62

Justices Deane and Gaudrons elliptical explanation of extinguishment by wrongful act indirectly
supports Justice Lamberts inclination against finding extinguishment by inconsistent grant. They
argue that where legislation does not disclose a clear and plain intent to extinguish but nonetheless
authorises inconsistent grants then the power of the Crown wrongfully to extinguish the native title

by inconsistent grant will remain but any liability of the Crown...for such wrongful extinguishment will
be unaffected. 63 Here it seems that the judges are saying, where no clear and plain intent can be
found in the legislation then extinguishment by inconsistency will be an actionable wrong.
I would go further and say that grants purporting to confer rights that are inconsistent with native title
without clear and unambiguous legislative authorisation are beyond the power of the executive. A
purported grant that lacks the requisite degree of statutory authority is ineffective to dispose of any
interest in land. 64 Assuming the capacity of the executive to wrongfully extinguish by unauthorised
inconsistent grant, surely the fact that the impact on native title is wrongful is good reason to
construe that impact strictly.

What is inconsistent?
On the basis of Mabo [No:2] and assuming that inconsistent grants are effective to extinguish native
title, it is necessary to examine what amounts to inconsistency. In answering this question the courts
may be poised to do great damage to Indigenous human rights. This is particularly apparent once it
is acknowledged that in many places, despite past grants, Indigenous people have maintained their
connection to their traditional lands and have continued to observe their laws and customs
irrespective of transactions between governments and past dealings. If inconsistency is not subject
to thorough analysis it will be artificial rules rather than facts that will be deemed to extinguish native
title. In my opinion, to deny the existence of native title rights on the basis of old grants and expired
leases which never in fact prevented continuance of traditions is ludicrous and grossly unjust.
To avoid this result, the assessment as to whether inconsistency, which extinguishes native title,
exists should proceed through a detailed consideration of:
1.
2.
3.

the nature of the interests granted;

the circumstances under which the interest arose; and
the circumstances under which the grant took effect and was used.

One approach which has been suggested and which has attracted some judicial support is an
analysis which does not purport to rely on a theoretical analysis of the nature of the interest granted,
but seeks to determine whether native title has been extinguished in fact. I am drawn to the view
that, in the absence of clear and plain intent expressed by the legislature,
[t]he relevant "inconsistency" is not to be founded in arbitrary a priori hypotheses, but
rather in the reality. Where interests are in fact exercised in a manner inconsistent with
the continued existence of native title, it is appropriate that the native title is suspended,
or alternatively, is extinguished to the extent of the inconsistency. Where the
inconsistency does not arise in fact, a mere hypothetical possibility of inconsistency
does not give rise to such extinguishment. 65
Following this analysis through leads to the position that a grant of land does not necessarily
extinguish native title. Extinguishment would depend on the whether the land granted has been used
in a manner that is in fact inconsistent with continuing native title. This is the view of Justice
Macfarlane in Delgamuukw:
A fee simple grant of land does not necessarily exclude aboriginal use. Uncultivated,
unfenced, vacant land held in fee simple does not necessarily preclude the exercise of
hunting rights: 66
...
[Fee simple] or lesser grants may or may not interfere with the exercise of aboriginal
rights of a sui generis nature. Such a finding is highly dependent upon the facts of a
specific case of conflict between the two. 67
Justice Lambert, otherwise dissenting, took a similar approach to the majority on this matter:
The fact that an Indian people have an aboriginal title to the occupancy, possession, use
and enjoyment of a parcel of land is not necessarily inconsistent with the holding of a fee
simple title to the same land by someone else, unless either party decides to try to
exclude the other. Hunting under the Wildlife Act and mineral exploration under the
Mineral Act can both take place lawfully by one person on land in which the fee simple
title is owned by another person, without that other person's consent. In R. v.
Bartleman...this court decided that a right to hunt over unoccupied land as formerly,
confirmed by one of the Douglas Treaties on the south end of Vancouver Island, could
be exercised over land held by someone else in fee simple, as long as the land
remained unoccupied in fact. So even if the theory of extinguishment by adverse
dominion were to be applicable, and I do not think it should be applicable except in

accordance with a clear and plain legislative intention test, the extinguishment should
only occur to the extent of the permanent inconsistency. That is, if priority were to be
given to a fee simple title over an aboriginal title, by the application of an appropriate
legal principle about priorities, then the fee simple title may extinguish the aboriginal title
of exclusive occupancy in the same land, but may not extinguish the aboriginal rights of
hunting or gathering on the land, depending, perhaps, on the use that the holder of the
fee simple title is making of the land. 68
In terms of principle, I believe that the analysis of the Court of Appeal of British Columbia in
Delgamuukw is compelling and that it has put a view that, in terms of justice, more adequately
reconciles the competing interests in land. There is no reason why, in the absence of clear legislative
authorisation for and contemplation of extinguishment by inconsistent grant, that there should be an
extinguishment of native title merely because there is a theoretical inconsistency between a
particular Crown grant and native title. As has been said, it is necessary to look at the reality and
determine if in fact there is inconsistency and then limit extinguishment to the extent of the
permanent and permitted inconsistency.
Importantly, this approach does not prevent effect being given to Crown grants, but it does provide an
application of the presumption against extinguishment which is both more equitable and more
consistent with the protection that principle is intended to provide. Even then, this approach begs the
question as to why native title, as the prior interest in the land, should give way to a Crown grant.
This fundamental matter of principle and justice needs to be much more deeply considered if the
common law is to claim that it truly recognises native title and Indigenous prior occupation.
At present, the issue of whether native title has been extinguished is one of fact to be determined in
any particular case. 69 It was argued by the applicants in the Wik Peoples case that the question of
extinguishment cannot be determined without regard to the whole of the relevant circumstances. 70
For example, a lease which is relied on as the extinguishing event might never have been taken up
with native title holders being left undisturbed. The National Native Title Tribunals ruling on the
acceptance of a native title claim by the Waanyi Peoples 71 (the Waanyi Acceptance Ruling), which
is on appeal, provides a perfect illustration.
In that case Frank Hann, the grantee of the pastoral lease which was created in 1882 and took effect
in 1883, abandoned the property in 1895 or 1896. 72 The Indigenous people remained and have
claimed to have maintained their attachment to the area ever since. In these circumstances it is
difficult to see how extinguishment can be said to have occurred, as Justice French did, merely
because an interest has been created. As Henry Reynolds points out:
It would hardly be surprising if the Waanyi people, as [Justice] French surmised, found
his decision perverse and the law itself burdened by moral shortcomings. It is highly
selective in its application.
It has a very long arm but it is very choosy as to what it picks up. It can reach back to
1882 and determine that a pastoral lease granted to Hann extinguished their rights to
their traditional land despite the fact that Hann went off to Western Australia and never
came back, while they stayed on in their country. 73
Even amidst the focus in the Mabo [No:2] decision on extinguishment by inconsistent grants, Justice
Brennan acknowledged, in relation to appropriations by the Crown of land to itself, as a criterion of
extinguishment, the use to which land is put:
Where the Crown grants land in trust or reserves and dedicates land for a public
purpose, the question whether the Crown has revealed a clear and plain intention to
extinguish native title will sometimes be a question of fact, sometimes a question of law
and sometimes a mixed question of fact and law. ... if the land is used and occupied
for [a] public purpose and the manner of occupation is inconsistent with the continued
enjoyment of native title, native title will be extinguished. A reservation of land for future
use as a school, a courthouse or a public office will not by itself extinguish native title:
construction of the building, however, would be inconsistent with the continued
enjoyment of native title which would thereby be extinguished. 74
Unfortunately, this approach does not appear to have been contemplated in any broader context by
the High Court in Mabo [No:2]. Instead they have addressed the question of what amounts to
inconsistency in a manner which emphasises the nature of the interest contained in the grant rather
than the actual use of the granted rights and their impact on native title.
Mabo [No:2] and leases
The flaws in the High Courts analysis on extinguishment by inconsistent grant are most apparent in
the Courts analysis of leases. Although the issue was not fully argued and the High Court was not

required to determine the matter, the majority judgments in Mabo [No:2] did make some reference to
the issue of leases. In relation to whether a lease was capable of extinguishing native title Justice
Brennan purported to apply the inconsistency test:
Where the Crown has validly alienated land by granting an interest that is wholly or
partially inconsistent with a continuing right to enjoy native title, native title is
extinguished to the extent of the inconsistency. Thus native title has been extinguished
by grants of estates of freehold or of leases but not necessarily by the grant of lesser
interests (e.g., authorities to prospect for minerals). 75
Justices Deane and Gaudron were of the view that native title was extinguished by an unqualified
grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring
the right to exclusive possession. 76
In regard to the leases on the Murray Islands, Justice Brennan held that the granting and renewal of
a special lease on the island of Mer to missionary organisations extinguished native title. 77 As to a
20-year lease, which was eventually forfeited, over the whole of the islands of Dauar and Waier for a
sardine factory, and which contained special conditions protecting the use of the Islander gardening,
plantation and fishing activities, Justice Brennan held that if:
...the lease of Dauar and Waier were validly granted, the limited reservations in the
special conditions are not sufficient to avoid the consequence that the traditional rights
and interests of the Meriam people were extinguished. 78
Justice Toohey expressed no conclusive view on the impact of the leases. 79 Justices Deane and
Gaudron offered no opinion as to the extinguishing effect of the missionary organisations' lease but,
in contrast to Justice Brennan, they did say in regard to the sardine factory lease that it would seem
likely that, if it was valid, it neither extinguished nor had any continuing adverse effect upon any rights
of Murray Islanders under common law native title. 80
Given the very limited discussion of these leases it is difficult to discern any general principle as to
why leases are inconsistent with native title and therefore result in extinguishment. There is little
elaboration as to what gives rise to the inconsistency, although Justice Brennan did proffer an
analysis which argues that the mere existence of a reversion was enough to give the Crown a
plenum dominium, or absolute beneficial ownership. When the Crown grants a lease the Crown
acquires the reversion. Justice Brennan was of the opinion that the effect is that the radical title of
the Crown, which is previously burdened by native title, is enlarged and becomes a plenum
dominium by the mere fact that there is a reversion. 81 Thus for Justice Brennan the existence of a
reversionary interest is inconsistent enough to extinguish native title.
The notion of a reversionary interest is appropriate to describe the interest held by a private lessor
when a fee simple estate is reduced by the granting of a lease and to describe the interest recovered
by the private lessor at the expiry of the lease. But the Crown does not hold fee simple estates since
it does not hold land of itself. The radical title of the Crown continues even when a lease has been
granted and that title does not change before, during or after the grant of a lease. Significantly, land
generally reverts to unalienated Crown land at the expiry of a Crown lease, assuming no other grant
is made. Consequently, I believe it is incorrect to conceive of the effect of the acquisition of the
reversion as revealing a plenum dominium in the Crown. In my opinion when a lease is granted
native title subsists as a burden upon the Crowns radical title, albeit subject to the terms of the lease.
Assuming that the Indigenous connection with the land persists, the Crowns title remains burdened
by native title at the expiry of the lease, as it was before the grant of the leasehold. 82
In the Waanyi Acceptance Ruling Justice French was also uncomfortable with the notion that native
title was extinguished by a reversion to the Crown at the expiry of a lease. He rightly queried the
consistency of Justice Brennans approach, pointing out that it was difficult to reconcile with his
previous statement, that extinguishment is determined by the effect which the grant has on the right
to enjoy the native title. 83 If Justice Brennans plenum dominium argument is accepted, then there
is no room for the effect test to have any operation. 84 In my view, the stronger argument, if native
title is to be extinguished by inconsistency without clear and plain legislative intent, is that which
examines the nature of the inconsistency itself. However, as noted above, the conceptual foundation
for extinguishment by inconsistency is itself weak.
In my opinion the existence of a lease is not inconsistent with the continuation of native title. Even
where a lease provides exclusive possession, that exclusive possession applies only for the term of
the lease. The existence of a lease should be understood as having the effect of regulating native
title rights for the period. There should be no bar to native title rights continuing in full when the
interest expires, provided that the laws and customs which give content to native title continue to be
observed. I suggest that even on the basis of the inconsistency test, that leases should be treated as
inconsistent only for the duration of the term of such an interest and that the incidents of native title
which cannot be reconciled with the interests granted in the lease should only be suspended, or

deemed unenforceable, for the duration of the term.

This approach should be adopted for all leases but it is particularly appropriate for leases which apply
for a short term. It is an insult to our culture to suggest that short-term leases extinguish tens of
thousands of years of customs when the interference contemplated in the lease is negligible.
Indeed, in the Waanyi Acceptance Ruling, Justice French conceded that the characteristics of a
lease, such as short terms or preserving wide rights of general public access, may negate the view
that the lease extinguishes native title. 85
Accordingly, I query how a lease can extinguish native title. If there is inconsistency and the requisite
clear and plain intent that the grant will prevail to the extent that the inconsistency exists, then
inconsistent native title rights may be impaired or suspended for the term of the lease and the term of
any renewal pursuant to a right to renew contained in the original grant. It is not safe to assume that
native title holders will cease to maintain a connection to traditional land even where a lease grants
exclusive possession. In practice the fact of whether expired leases have extinguished native title
could be determined by examining whether the laws and customs of Indigenous people still
recognise a traditional title after a lease expires. Indeed, I believe the mere fact that native title
continues to exist and Indigenous people continue to observe their laws and customs after an
interest expires is itself compelling evidence that the interest was not so inconsistent with native title
as to render it extinguished.
It is a great injustice that native title can be extinguished by a grant which is deemed inconsistent by
its nature when, in fact, no inconsistency has arisen and the laws and customs of Indigenous peoples
are allowed to continue along with our attachment to land. In my view it makes an equal nonsense
of the law and is equally barbarian 86 as to infer extinguishment from laws of general application
which do not contain a clear and plain intent.
Pastoral leases and inconsistency
If the factual approach to extinguishment which I advocate is adopted in determining whether an
inconsistency exists, then pastoral leases may not necessarily extinguish native title. In many States
pastoral leases were never intended to dispossess Indigenous peoples.
This is clear from
statements like that of the Secretary of State in the imperial government, Earl Grey, who in 1848 took
the position that it was:
...essential that it should be generally understood that leases granted for this purpose
give the grantees only an exclusive right of pasturage for their cattle, and of cultivating
such Land as they may require within the large limits thus assigned to them; but that
these Leases are not intended to deprive the Natives of their former right to hunt over
these Districts, or to wander over them in search of subsistence, in the manner to which
they have been heretofore accustomed, from the spontaneous produce of the soil,
except over land actually cultivated or fenced in for that purpose. 87
It is my belief that the question of whether colonial governments intended pastoral leases to confer
exclusive possession has to be considered in light of the colonial and imperial policies regarding the
access of Aboriginal people to pastoral leases; the common use of reservations to this effect; the
wide rights of access that can be created to pastoral properties; and the nature of the pastoral
properties and the activities on them, such as the sparse settlement and open-range grazing.
However, even assuming the clear and plain intent test is compromised, as it appears to have been
in Mabo [No:2], it is clear from an examination of these leases that they are not always wholly
inconsistent with the existence of native title rights. This is particularly so if the examination goes
beyond the mere terminology of the instrument and considers the entire nature of the transaction
between the Crown and the grantee in order to determine whether the tenure granted amounts to
exclusive occupancy. 88
The problem of relying on categories of interests to determine whether extinguishment has occurred
without looking behind the instrument or viewing the actual impact on Indigenous people is
particularly well illustrated by the fact that many pastoral leases contain reservations which, in my
view, amount to compelling evidence that native title has not been extinguished. For example, the
Northern Territory had reservations in leases which permitted Indigenous people to enter properties,
utilise natural waters and to hunt for traditional purposes. 89 Pastoral leases in South Australia are
subject to the rights of Indigenous inhabitants who have access to lands and natural waters and are
permitted to erect traditional dwellings and to exercise traditional hunting and fishing rights as if the
lease had not been made. 90 In Queensland, as noted in the Waanyi Acceptance Ruling, many
leases were issued with reservations for Indigenous peoples as an exercise of administrative
discretion. Western Australian pastoral leases also contained reservations for rights of access for
Indigenous peoples to seek their sustenance in their traditional manner. 91 The Crown retains a
significant degree of control of the leased lands and the law authorises other uses of the lands at the
same time as the pastoral activity. Apart from access rights for Aboriginal people, pastoral leases in
Western Australia also have restrictions on the use of timber on the land, on cultivation and the

removal of vegetation, 92 and are subject to government reservations to make public roads, to
remove rock or soil. The leases are also potentially subject to a public right of way over unimproved
areas of leases. 93 These arrangements are consistent with Earl Greys view, to which I have already
referred, that pastoral leases were only to provide an exclusive right of pasturage. 94
Clearly, it is arguable that pastoral leases do not always confer exclusive possession.
The
description of such instruments as leases cannot convert a tenure which is not an exclusive
possessory title into one which is.
Consequently I hold the view that a grant of a Crown pastoral lease does not automatically extinguish
native title. In addition, I believe that reservations in favour of Aboriginal people acknowledge and
preserve native title. 95 This is particularly the case if the presumptions against extinguishment are
given some application with regard to native title and allowed to support a position that any ambiguity
as to extinguishment should be resolved in favour of the pre-existing interest.
In considering the proper construction of a pastoral lease, I believe the following should be taken into
account: the intention and understanding of the Crown when such leases were becoming more
widespread; the lease's purpose and the occupancy history, including the level of co-occupation
between pastoralists and native title holders. I suggest that an assessment of these criteria can
reveal that pastoral leases are not always inconsistent with native title. If, after a thorough
assessment of the tenure, there is found to be a form of exclusive possession, there remains the
question whether that possession was intended to be exclusive of everyone or everyone bar those
with a co-existent native title. There are precedents where proprietary rights are recognised even
though they are subject to prior title. An example would be a bailee (a person who has possession of
goods for some purpose on the understanding they will be returned to the owner), who has good title
against the world, except the true owner, and may take legal action in relation to that title. 96
The lack of clarity as to where the common law presumes native title has been extinguished by
inconsistency has meant that the degree to which governments will have to consider native title
before doing future acts in relation to land where other interests exist is also difficult to determine.
Although the Preamble to the NTA states that native title is extinguished by valid government acts
that are inconsistent with the continued existence of native title rights and interests, such as the grant
of freehold or leasehold estates, it should be apparent from the above discussion that there are very
good reasons to suggest that this is not necessarily the case.
I have discussed the principles of extinguishment by inconsistency, but it is still my belief that to rely
solely on inconsistency to extinguish native title is unjust and arguably contrary to overseas
precedents. I reject the suggestion that the legislative intention to extinguish native title can be
inferred from the degree of inconsistency between a grant and native title. Such an analysis involves
an untenable inversion of the relationship between the legislation and the executive action it
authorises. Furthermore, if the analysis of Justices Deane and Gaudron is accepted, it produces the
result that a wrongful executive act becomes the justification for the construction of statutory intent.

Co-Existence and Partial Inconsistency

A crucial factor that also needs to be considered in determining whether a particular act was capable
of extinguishing native title is the possibility of co-existence of the two interests. The possibility of coexistence is a direct result of the recognition of the possibility of partial inconsistency. In Mabo [No:
2], Justice Brennan indicated that:
Native title continues where the waste lands of the Crown have not been [inconsistently]
appropriated or used or where the appropriation and use is consistent with the
continuing concurrent enjoyment of native title over the land (e.g., land set aside as a
national park). 97
In my view this observation is as equally relevant to Crown grants as it is for appropriations.
Referring to the inconsistency tests in the Mabo [No:2], Justice French in the Waanyi Acceptance
Ruling also raised the prospect of co-existence:
It is the notion of partial inconsistency or partial extinguishment of native title that gives
rise to questions about the effect of grants of interest in land which may be capable of
co-existing with some elements of native title. 98
Where such a possibility of co-existence exists then, it has been argued, there is not necessarily any
legislative intention to permanently extinguish each and every incident of native title. 99 It is not a
necessary consequence that all native title rights for a particular parcel of land will be removed by a
particular Crown grant. Even [i]n the case of a fee simple grant, remnant rights may continue. 100
This is particularly likely if the presumption against extinguishment is given full consideration.

There have also been favourable statements from the courts in other jurisdictions in relation to coexistence. I have already quoted from Justice Lambert's judgment in respect of the need to consider
the use of the land when addressing the matter of extinguishment. His Honour twice made the point
in that extract of his judgment that even fee simple could co-exist with native title rights and interests.
As we move into the future we need to make a full assessment of how a widespread willingness to
find the co-existence of native title with Crown grants could have a positive impact on the
reconciliation process. As we look into the past we find that the notion of the co-existence of native
title has been with us for some considerable time. In 1823, Chief Justice Marshall put it this way:
While the different nations of Europe respected the rights of the natives, as occupants,
they asserted the ultimate dominion to be in themselves; and claimed and exercised, as
a consequence of this ultimate dominion, a power to grant the soil, while yet in
possession of the natives. These grants have been understood by all to convey a title to
the grantees, subject only to the Indian right of occupancy. 101

Giving Effect to Wrongful Acts at Common Law

In my opinion one of the compelling matters in determining whether native title has been
extinguished is whether or not the act was wrongful. In their brief joint judgment Chief Justice Mason
and Justice McHugh were explicit in pointing out that the majority of the Court (comprised of Mason
CJ, McHugh, Brennan and Dawson JJ) did not support the conclusion to be drawn from the
judgments of the remaining bench that, without clear and
unambiguous words, the extinguishment of native title would be wrongful. Further, the majority did
not believe that compensation is claimable for the wrongful extinguishment of native title by
inconsistent grant. 102
Justices Deane, Gaudron and Toohey, on the other hand, argued that in some circumstances the
extinguishment of native title by inconsistent grant would be wrongful. Justices Deane and Gaudron
explain that the Privy Council has made it plain that at common law the Crown was not lawfully
entitled to unilaterally extinguish native title against the wishes of the title holders. The Privy Council
in Nireaha Tamaki v Baker 103 has endorsed the following judicial statement from New Zealand that:
Whatever may be the opinion of jurists as to the strength or weakness of the Native
title...it cannot be too solemnly asserted that it is entitled to be respected, that it cannot
be extinguished (at least in times of peace) otherwise than by the free consent of the
Native occupiers. 104
Justices Deane and Gaudron also refer to Chief Justice Barwick's majority judgment in Administration
of Papua and New Guinea v Daera Guba 105 and they were of the opinion that Barwick would have
been most unlikely to have described common law native title as he had done if he had considered
that the Crown could extinguish it by unilateral act at any time without breach of its legal obligations
to the traditional owners. 106 Nevertheless they did not doubt that native title could still be
extinguished by the Crown, but that, subject to the effect of any acquiescence, the Crown would
have infringed the legal rights of the traditional inhabitants and would have acted wrongfully. 107
They argued that until relevant reforms were enacted and since there was no breach of contract
involved, the Crown was immune from proceedings to restrain such wrongful acts or to make it liable
for compensation. While such action is now available, 108 for many Indigenous Australians it is too
late. Their title has been extinguished by wrongful acts and statutes of limitation prevent them from
receiving compensation. It surely is a history of unutterable shame. 109 However there remains an
opportunity to mitigate this shame by taking a just approach to the application of extinguishment to
future claims for the determination of native title.
If past grants are wrongful, this constitutes a further compelling reason for the common law to find
that Crown grants absent of clear and plain intent only regulate native title for the duration of the
period of the interest rather than extinguish it. The common law should not be interpreted to give
greater effect to those grants than is necessary. A title granted by wrongful act should not extinguish
native title where the laws and customs continue to be observed and there is a continuing attachment
to the land. This does not mean that the recipient of a grant which amounts to a wrongful act cannot
receive the full benefit of the interest. However, it is not necessary that extinguishment must also
take place as a result. With interests less than freehold, this at least provides some possibility for
native title rights and interests to continue unimpaired after the expiry of the interest.

Fiduciary Duties and the Extinguishment of Native Title

A further factor to consider in determining whether native title has been extinguished is the possible
existence of a fiduciary obligation by the Crown towards Australias Indigenous peoples. North
American courts have recognised a form of fiduciary obligation between governments and Native
Americans. 110 In Canada, fiduciary obligations have been held to arise from the Crown's
relationship with Indigenous people. 111 Although the question of whether this arises only when land
is surrendered to the Crown for a particular purpose 112 or arises from the nature of the title itself 113
was not fully clarified in earlier cases, in Sparrow the Supreme Court of Canada indicated that it was
sourced in both the sui generis nature of native title and the historic powers and responsibilities
assumed by the Crown. 114
There are no general criteria as to when a fiduciary duty arises. As Chief Justice Gibbs pointed out,
a test which might seem appropriate to determine whether a fiduciary relationship existed for one
purpose might be quite inappropriate for another. 115 The courts have instead preferred to develop
the law on fiduciary duties on a case-by-case basis. 116 The question of whether the Crown in right
of the Commonwealth and the States is under a fiduciary obligation to Indigenous peoples with
regard to their native title is yet to be fully addressed. With the exception of Justice Toohey, the High
Court in Mabo [No:2] did not deal with this issue at length. Justice Toohey argued that a fiduciary
obligation existed with regard to native title as a result of its vulnerability to extinguishment and its
inalienability except to the Crown. 117 He observed:
The power to destroy or impair a people's interests in this way is extraordinary and is
sufficient to attract regulation by Equity to ensure that the position is not abused. The
fiduciary relationship arises, therefore, out of the power of the Crown to extinguish
traditional title by alienating the land or otherwise; it does not depend on an exercise of
that power. 118
He added:
...if, contrary to the view I have expressed, the relationship between the Crown and the
Meriam people with respect to traditional title alone were insufficient to give rise to a
fiduciary obligation, both the course of dealings by the Queensland Government with
respect to the Islands since annexation...and the exercise of control over or regulation of
the Islanders themselves by welfare legislation...would certainly create such an
obligation. 119
Justice Brennan felt that he did not have to decide the matter, but conceded that there may be a
fiduciary obligation where native title is surrendered to the Crown in expectation of a grant of a
tenure to the indigenous title holders. 120
The issue of the existence of fiduciary obligations has been raised twice in Australian courts since
Mabo [No:2], with no clear answer resulting. It is an issue in the Wik claim, the arguments on which
are yet to be heard, and in the Coe Case. 121 In the Coe Case the fiduciary duty was argued to be
owed by governments to the Wiradjuri People and was said to arise from representation by New
South Wales (by conduct or otherwise) that it recognised and continued to recognise Wiradjuri title,
personal and usufructuary rights and Wiradjuri laws, customs and practices. 122 Chief Justice
Mason doubted that a fiduciary duty could arise merely by such representations.
Whilst
acknowledging that a fiduciary relationship may arise out of a representation, just as it may arise out
of an undertaking, 123 he did not decide the matter and rejected the claim as inadequately pleaded.
The existence of a fiduciary duty may well influence the manner in which governments deal with
Indigenous peoples, as a breach fiduciary duty can give rise to compensatory damages. This is clear
from the conclusion of Justice Toohey in Mabo [No:2] that:
A fiduciary obligation on the Crown does not limit the legislative power of...Parliament,
but legislation will be a breach of that obligation if its effect is adverse to the interests of
the titleholders, or if the process it establishes does not take into account those
interests. 124
With regard to the Murray Islands he noted that the Crown's obligation was to see that there was no
impairment or destruction of traditional title without the consent or against the interests of the title
holders. If the Crown broke that obligation it would be in breach of its duty and liable therefor. 125
Clearly such a requirement imports a necessity for fair dealing
by the Crown with Indigenous peoples a point which was clearly made in Sparrow. 126 There, in
determining the validity of certain fishing regulations, the Supreme Court of Canada held that the
special trust relationship and the responsibility of the government vis-a-vis aboriginals must be the
first consideration in determining whether the legislation or action in question can be justified. 127
This was in recognition that the honour of the Crown is at stake in its dealing with aboriginal
peoples. 128

Furthermore, if a fiduciary duty exists, it strengthens the presumption against extinguishment on the
interpretation of acts of the Crown where the intention of the Crown to extinguish is unclear. Justice
Macfarlane in Delgamuukw argued that the fiduciary duty of the Crown in relation to Indians must
influence the correct test applicable to legislation claiming to extinguish Aboriginal title. 129
Discussion of the possibility of a Crown fiduciary duty to Indigenous people has continued during this
reporting period and is likely to continue in the future. While the existence of a fiduciary duty is a
matter that will ultimately be determined in the Courts, recognition of the duty in North America will
provide Indigenous peoples with strong arguments for a similar acknowledgement in Australia.

10

Conclusion

In Mabo [No:2], Justice Brennan wanted to dispel the misconception that it is the common law rather
than the action of governments which made many of the indigenous people of this country
trespassers on their own land. 130 But whether or not the common law can be seen as participating
in this dispossession depends upon the answers that the courts give to the question of when the
extinguishment of native title occurs. Ultimately, it is the degree of protection which the common law
provides against extinguishment of native title which will determine the extent to which Indigenous
peoples are dispossessed. If we are denied the common law protection from derogation which other
property interests receive, if native title can be extinguished without the same degree of clear and
unambiguous legislative intention that is required for other property interests, or if the presumption
against extinguishment is given little practical application, then the argument that it is the exercise of
sovereign power rather than the common law which dispossesses Indigenous people is
unconvincing. It may be that it is the Crown which grants interests in land parcel by parcel but it will
be the common law that builds the fences and locks the gate.
Those seeking to determine whether extinguishment has occurred should be fully aware of the
implications of weakening the common law presumption against interference with native title. If the
exercise of the Crowns power to extinguish native title is implied too
readily by actions rather than intent, or if inconsistency is implied too quickly, then not only will it
result in the further entrenchment of colonial racism, I believe it will ensure that the common law will
continue to perpetrate an injustice against Indigenous people.
It must be stressed that a strict interpretation of when native title is extinguished does not mean that
the existing titles of non-Indigenous people need to be placed in jeopardy. It is, however, unjust and
unnecessary to assume that the extinguishment of native title is a prerequisite to grantees getting the
full benefit of their interest. Some interests are not inconsistent with the co-existence of native title.
Even those interests which are wholly inconsistent may only operate for a period and there is no
reason why these interests need to be deemed to have the effect of destroying rights which have
existed for more than 40 000 years. Governments must be mindful of the fact that even if it is
established that extinguishment of native title has occurred in the eyes of the common law, the
assertion of that legal position will be insufficient to remove the grievances of Indigenous people, who
maintain their connection to that land.
Accurate guidelines as to when the common law will consider native title to be extinguished do not
presently exist. It should be apparent from the above discussion that there are conflicting authorities
about extinguishment of native title. The issue of extinguishment will not be resolved quickly and will
be a source of on-going tension between Indigenous people, governments and those who hold
interests in land. It is this component of the common law recognition of native title which potentially
impinges most greatly on the enjoyment of our human rights. Developments in the approach of the
courts and governments to the extinguishment of native title are certainly a matter which my office
and other bodies concerned for the human rights of Indigenous people will be monitoring closely.

During the course of their land rights case, the Yolngu leaders who gave evidence to
establish the grounds of their claim to clan lands frequently commented about the Crown
Solicitor, Doesnt he believe our words? The leaders had taken to Darwin some of the
ritual objects which their counsel characterised as title deeds to their lands in order to
show the judge. Their comments indicated that their perception of the proceedings at
that point was based on the rituals of revelation in which clan leaders reveal the
important knowledge symbolised by ritual objects. The judge and other white Australian
important men were expected, through acquiring the appropriate knowledge, to
understand the grounds of the Yolngu claim. The Yolngu believed understanding them

entailed acknowledging their existence as a part of the natural order.

Nancy Williams
Two Laws: managing disputes in a contemporary Aboriginal Community

The National Native Title Tribunal

1

Role of The National Native Title Tribunal

The National Native Title Tribunal (the Tribunal) comprises a President, who is a judge of the
Federal Court, Justice French, Deputy Presidents who are either judges or former judges and other
members with relevant special knowledge. The Tribunal is empowered by the legislation to hold
inquiries into unopposed applications, applications in relation to the right to negotiate and special
matters referred to it by the Commonwealth Minister. In opposed applications it directs the parties to
mediate by way of a conference and, if no agreement is reached enabling a determination to be
made without opposition, then the Tribunal lodges the application with the Federal Court for a
decision. 1
One of the perceived advantages for Aboriginal and Torres Strait Islander peoples of the Tribunal is
that it is not bound by technicalities or legal forms of evidence and must pursue its objective of
carrying out its functions in a fair, just, economical, informal and prompt way: taking account of the
cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders. 2 I must
commend at the outset the drive and energy which has gone into achieving good outcomes by the
Tribunal and the efforts that have been made to optimise culturally appropriate services to its
Indigenous users.
However, there are disadvantages inherent in the structure by which the Tribunal operates and
concerns have arisen about some of the practices it has developed. These matters are discussed in
this chapter.
If these difficulties grow to outweigh the advantages described above and the
commendable efforts of the members and staff of the Tribunal in establishing and operating the
organisation, then Aboriginal and Torres Strait Islander people might obtain a better result from
having the determinations of our claims dealt with by the Federal Court, with the assistance,
notification and mediation functions remaining with the Tribunal.
It needs to be taken into account that the Federal Court has jurisdiction to hear and determine an
application lodged with it. The Federal Court is obliged to pursue the objective of providing a
mechanism of determination that is fair, just, economical, informal and prompt. It must take into
account the cultural and customary concerns of Aboriginal and Torres Strait Islander peoples and is
not bound by technicalities, legal forms or rules of evidence. 3 These are all procedural provisions
which, when combined with careful judicial selection, appropriate training and a close operating
relationship with a Tribunal providing assistance and mediation services, could amply equip the
Federal Court to deal with the lodgement and determination of native title claims.
Justice French was of the view in September 1994 that the use of the term Tribunal:
...tends to raise expectations based on the misconception that the Tribunal is
empowered to hear cases and make decisions about the existence or non-existence of
native title. The truth is different. The most important role of the Tribunal is to assist the
parties to native title or compensation claims to resolve the claims by agreement. There
the Tribunal acts as mediator. It has a second role, which involves mediation and
arbitration in relation to the granting of mining tenements on, or the compulsory
acquisition of, land which is subject to a native title claim. The Tribunal might more
accurately and appropriately have been called, The National Native Title Dispute
Resolution Service. 4
As I will outline towards the end of this chapter, the Tribunal has experienced problems in explaining
to its clients the limitations of its role as described by Justice French. However, in addition to the
determinative function mentioned above, the Tribunal has a significant number of other determinative
and decision-making functions. The determinative functions are:
determination of an application where it is unopposed, an agreed determination, or where a
determination is the subject of an agreement after mediation. 5 In the case of an unopposed
application the Tribunal may make a determination if it is satisfied that the applicant has made

out a prima-facie case and must make a judgement as to whether the determination is just
and equitable in all the circumstances. In relation to agreed determinations, the Tribunal must
make a judgement as to whether it would be appropriate in the circumstances.
determination by the Tribunal as an arbitral body as to whether a proposed future act is one which
attracts the expedited procedure. 6
It is important to note that determinations of the Tribunal are not binding or conclusive, other than
determinations in relation to proposed future acts. 7 Further, determinations under ss. 70, 71 and 73
must be registered in the Federal Court, whereupon they have effect as if they were orders made by
that Court. But the determination is subject to review, depending on the outcome of which it may
become enforceable as an order of the Federal Court. 8
The decision-making responsibilities of the Tribunal are:
the Registrar or a presidential member to decide as to the acceptance of an application for a native
title determination or for compensation. 9
a presidential member to decide that a person can be a party to an application. 10
the President to direct that a mediation conference be held.
the Registrar to refer an application to the Federal Court when no determination is made under ss.
70, 71 or 73. 11
the Registrar to decide whether to accept an application objecting to the expedited procedures or an
application in regard to a proposed future act determination. 12
the Tribunal to decide as to whether an application should be dismissed at the inquiry stage due to it
being frivolous or vexatious, the absence of a prima facie case or upon the request of the
applicant. 13
In light of these determinative and decision-making powers the contentious question arises as to
whether the Tribunal as an administrative body is exercising judicial power.

Judicial Power

There are differences between the legislative structure for the making of determinations between the
NTA and federal discrimination legislation.
Nevertheless, the system for the registration and
enforcement of such determinations is in all relevant respects the same. Consequently I am of the
view that the system of registration and enforcement of determinations of native title and
compensation is unconstitutional and invalid in line with the High Courts decision in the Brandy
decision. 14
The Tribunal has responded to the Brandy decision with an administrative proposal which would
effectively result in the Tribunal making no determinations under ss. 70, 71 or 73 with the matters to
be referred off to the Federal Court for consent orders under s. 87 of the NTA. 15 This may provide
an adequate short-term solution, but the nexus between determinations of native title and
compensation and the enforcement of those findings needs to be resolved. This should be done in
tandem with consideration of the question as to whether the Tribunal is improperly called on to make
the remainder of its determinations and decisions without any necessary foundation of judicial power.
In relation to the possible judicial nature of the determination-making power of the Tribunal, the view
that the Tribunal is unconstitutionally vested with judicial power by the Act is consistent with the
following analysis of the operation of the inquiry provisions by Justice French:
There is a requirement for an inquiry to be undertaken in respect of unopposed
applications or applications where agreement has been reached. ...it is essentially a
sort of checking or backup process. It is intended to ensure that where the Tribunal is
asked to make a determination..., the determination is within its powers and appropriate.
In other words, it is not rubber stamping something which simply could never succeed in
a contested situation. And further to use the various terms used in the Act, the Tribunal
must be satisfied that the agreement is just and equitable or appropriate. That involves
some inquiry into its fairness and reasonableness and perhaps the extent to which the
parties fully understand its nature and consequences. 16
The Tribunal cannot enforce its determinations.
In respect of the Human Rights and Equal
Opportunity Commission, the High Court said in the Brandy decision that:

The fact that the Commission cannot enforce its own determinations is a strong factor
weighing against the characterization of its powers as judicial; though it must be
recognized that this is not an exclusive test of the exercise of judicial power. 17
Recalling that determinations of the Tribunal are not binding or conclusive, other than determinations
in relation to proposed future acts, it is worth noting that the Court also stated that because the
relevant statute:
provides that a determination of the Commission is not binding or conclusive between
any of the parties to the determination, the holding of an inquiry and the making of a
determination under the Act cannot of itself be seen as an exercise of judicial power. In
that regard, where the Commission finds a complaint to have been substantiated, the
Commission is confined to making a declaration (which is not binding or conclusive)
qualified in terms of what the respondent should do rather than in terms of what the
respondent shall or must do. 18
As has been indicated, determinations by the Tribunal as to right to negotiate applications are not
subject to the prohibition against being binding or conclusive. A determination that a proposed future
act may be done subject to conditions has a contractual effect in addition to any other effect it may
have. 19 Justice French is of the view that since such determinations under s. 38 are subject to
ministerial override, they would have to remain outside the court process. 20 It is difficult to say
what the nature of that particular function is, however, in terms of Commonwealth judicial power, the
issue may not be of particular significance if the states and territories widely establish their own
arbitral bodies to make this particular type of determination.
The other difficult question is the nature of the decision-making power (as opposed to the
determinative power) of the Tribunal. It is difficult for a range of reasons, including that it has not
been found possible to offer an exhaustive definition of judicial power. 21
In any event, there is perhaps no need to be conclusive about the nature of the determination and
decision-making powers of the Tribunal. Suffice to say it is necessary that an effective and long-term
enforcement mechanism be implemented.
Related to this, it is necessary in my view that
determinations and decisions should be made and enforced by one body, which under the
Commonwealth Constitution has to be a judicial body if federal judicial power is being exercised. Any
such body must be accessible, affordable, equitable and its decisions enforceable and there needs to
be certainty about this:
It is desirable...that determinations of native title and other determinations under the Act
should be secure beyond the possibility of constitutional challenge. Finality and reliability
of outcome is a primary concern among those involved in the native title process. 22
At the time of writing, the constitutional validity of the acceptance process of the Tribunal has been
raised in an appeal and elsewhere. 23 Action is necessary to restore certainty to the process of
dealing with native title applications and related matters. Further on in this chapter, I discuss a
proposal of Justice French which addresses this important need.

Preparing the Application

To 30 June 1994 there has only been one compensation application accepted and little has emerged
to elucidate the processes involved in such applications. No native title determinations in favour of
claimants have been made, so there has been no occasion for any applications to be made to revise
a native title determination.
The majority of activity of the Tribunal to date has related to applications for determination of native
title. Those applications can be made by either claimants or non-claimants.

Claimants
Initially the Tribunal was accepting applications by corporate bodies or unincorporated associations
representing Aboriginal claimants. However, it has been drawn to the Tribunal's attention that under
s. 61(1) of the NTA a claimant application can only be made by a person claiming to hold native title.
Given the customary law basis for holding native title, a corporate body created pursuant to statute
could not be the holder of native title in accordance with common law or custom or tradition. The
procedures for applications for native title determinations issued on 16 May 1994 have therefore
been modified to specify that an application must be by a natural person or persons claiming to hold
native title either alone or with others. 24 There is a certain tension between this procedural
requirement and customary practices:

Generally speaking, representation of one adult's interest by another is not something

many Aboriginal people feel at all comfortable with, indeed they usually repudiate it. 25
The Tribunal has set out its position as follows:
...native title claimants are uninclined to name an individual as an applicant or as a
registered native title claimant. If those people who are making the claim have not
formed a body corporate and name every individual on whose behalf native title is
claimed, or refer to the applicants by a tribal or language group name, does this mean
that every named or included person must swear or affirm an affidavit a ridiculous
enterprise if there are hundreds of applicants, and yet one seemingly required by the
Regulations. (For the moment the Tribunal is not rejecting claims on the basis that only
one of the applicants has sworn or affirmed the affidavit). 26
Relevantly, the procedures provide that an application that does not substantially comply with the...
Regulations...will be returned. 27 Justice French has stated this in the positive:
[u]se of that precise format [the application form] will not be mandatory. Any application
that substantially complies with the Regulations will be received. 28
The procedures indicate that subject to the NTA:
they may be varied or departed from in any case in which the Native Title Registrar or a
Member of the Tribunal thinks it appropriate to permit such variation or departure. 29
Nevertheless the NTA, the regulations and the procedures should be amended to allow applications
to be made using group names and permitting body corporates to make applications as agents for
the native title holders. If necessary, verification could be required of the bona fides of applications
made by corporate bodies acting as agents.
In relation to the affidavit in respect of an application, the requirement that the affidavit be sworn by
the applicant (the NTA does not allow the option of an affirmation) could be problematic. This is
because the applicant is required to swear that she or he believes that native title has not been
extinguished in relation to any part of the area. 30 Such a proposition may involve a detailed and
complex legal and historical analysis which may be well beyond the applicant's capacity even with
expert assistance and goes to the ultimate issue at the heart of the claim. Indeed, it may be a matter
upon which it is not possible to form an unequivocal view at the time of lodging the application.
Further, the applicant is required to swear that she or he believes that none of the area is covered by
an entry in the National Native Title Register, when that can be more readily ascertained by the
Registrar than the applicant.
In my view, verification by affidavit is not a necessary requirement. It is not a requirement in most
jurisdictions (including the Federal Court and Supreme Courts) in order to commence proceedings.
The only requirement in most jurisdictions is that there be a local address supplied for service of
documents on the applicant. The NTA places an unrealistic burden on the person swearing the
affidavit and this requirement could be dispensed with without interfering with the integrity of the
application system.

Application fees
The financial means of claimants and native title holders is relevant to their capacity to pay the $300
fee required for the lodgement of an application. 31 There are exemptions to the payment of the fee
which cover those:
with legal aid;
with a range of health benefit cards; or
a detainee in a public institution. 32
In my view, it is necessary that the health benefit card remain as one of the eligibility criteria to
provide clear guidance as to when an exemption is available. It is therefore necessary to confirm
that the current regulation properly reflect the terminology used by government departments in
relation to concession cards. This is required to minimise misunderstandings and to ensure that
those intended to be eligible for the exemption are in fact eligible.
However, I do not believe the health benefit card exemption is broad enough. Eligibility for such
cards is income based. It would seem that there will be native title applicants who do not come
within any of the other exemptions, but who will not be eligible for a health card. These applicants
may nevertheless be financially disadvantaged. Also, a person might be eligible for a card, but for

some reason has not actually been granted one.

The exemptions should be supplemented by a specifically defined financial hardship provision to
cover those who fall through the gap and who cannot reasonably afford to pay what is a significant
application fee. There needs to be community consultation on this matter to ensure that all needs
are met and to ensure that the suggested exemption is properly designed and targeted to meet the
range of financial and cost of living situations around the country.
It is necessary to address this issue, since it has already caused disquiet. A comparison has been
made with the exemption arrangements in respect of the Administrative Appeals Tribunal, which
allow for financial hardship in addition to the other exemption categories mentioned above. In
relation to the fee exemption arrangements of the National Native Title Tribunal it has been stated by
an Indigenous claimant that they are:
tantamount to a practice of preventing us from experiencing a right enjoyed by nonIndigenous Australians merely because of our race; and therefore contrary to the Racial
Discrimination Act and the International Conventions on the Prevention of Racial
Discrimination. 33

Form design
The design of forms is also an area of concern. The forms are unnecessarily complicated and would
probably be inaccessible to most applicants. However, I am also mindful that simplifying the forms
may only serve to mask the rather complex requirements placed on applicants by the NTA and the
procedures of the Tribunal. 34 (See chapter 1 as to the requirements of the Native Title Tribunal
Regulations for application forms.)

Indigenous name
Section 62(1)(c) provides that a native title determination application must contain a description of
the area over which native title is claimed. The National Native Title Tribunal Regulations provide,
however, that applicants must furnish a description which includes the indigenous name of the area
and sites within the area. 35 The wording of this regulation is varied slightly on the application form
itself, so that the description must include the indigenous name of the area and identify and mark the
indigenous name of the registered site within the area. 36 There may not be, however, an
Indigenous name for the area, or there may be many names, which reflects a troubling ignorance of
Indigenous tenure systems in the regulations.
Applicants who do not provide the Tribunal with the Indigenous name of the area will not be
complying with the regulations or s. 61(2) of the NTA which requires the application to be in the
prescribed form.
However, as I have noted, it is only necessary that applications substantially comply with the
regulations. Nevertheless, I regard the inclusion of this requirement in the regulations as a serious
consideration because it may still, in some cases, prove onerous, unjust and was included without
sufficient consultation with the Aboriginal and Torres Strait Islander community. I trust that a sensible
approach will be taken as to what constitutes substantial compliance until there is an opportunity to
fully overhaul the regulations.

Tenure searches
The Tribunal identified another major issue which has arisen in relation to information prescribed by
the regulations and contained in an application. The regulations prescribe at Form 1, paragraph A8
that the application contain [d]etails of all searches conducted with public bodies and
authorities...together with:
(a)

a copy of any documents that record an existing or expired interest granted

over any part of the area covered by the Application; and,

(b)

a copy of the documents of title issued as evidence of the existing or expired

interest.

The Tribunal has asked:

Does this question require searches to be done by the applicants, and the documents
there listed to be obtained, or does it only require this information and these documents
to be supplied if the applicant has obtained them? If the former, then the applicants are
under an onerous, expensive and time consuming duty regarding searches and
providing documentation about interests in land.

On the other hand title searches, information and documentation concerning existing
and expired interests in land which is the subject of a native title claim will have to be
provided at some time, and it may well speed up the commencement of an inquiry and
determination of a claim if all of this information is provided at the time of lodgement of
the claim.
The compensation application form highlights this issue even more clearly. At A8 of the
compensation application...the applicant is required to provide some extremely detailed
information concerning the acts which are alleged to create an entitlement to
compensation.
The Tribunal is presently assessing a compensation claim covering an area of
approximately 30,000 square kilometres... .
...
The Tribunal has required the applicants to set out the specific acts which are alleged to
have extinguished or impaired native title. The Registrar is of the view that this degree of
specificity is prescribed and therefore the application must contain it. The applicants
legal representatives dispute that this degree of specificity is required, partly on the
basis that the exercise of providing such detailed information would be incredibly costly
in time and money.
These questions about prescribed information and prescribed documents really raise
issues about minimalist versus maximalist approaches to native title applications. We
foresee these issues are only likely to be resolved after claims have been dealt with at
least at the level of the Federal Court. 37
The Tribunal appears to have adopted the approach of requiring extensive searches to be done by
the applicants at the acceptance stage in a number of cases, for example, in the Maduwongga and
Ngaluma Injibandi claims (WN 94/3 and WN 94/6). 38 This is contrary to the requirements of s. 62
(1)(b) of the NTA, which only requires all information known to the applicant (emphasis added)
about interests in the land to be provided and the intent of the Senate amendment of that provision to
delete a compulsory requirement on applicants to conduct searches.
It also seems to conflict with the legislature specifically empowering the Registrar to help people
prepare applications and accompanying material, 39 including the conducting of searches referred
to in sub-paragraph 62(1)(a)(i). 40 The reference to sub-paragraph 62(1)(a) (i) appears to be a
drafting error, because that sub-paragraph makes no reference to searches. It may be a vestige of
the process of redrafting s. 62. Nevertheless the clear direction from the Parliament to the Tribunal is
that it may help applicants with searches. In the earlier stages of its operation the Tribunal appeared
not to have been providing the assistance that it was empowered to deliver.
However, under the Tribunals Assistance to Applicants Procedures, the Tribunal may assist
applicants to define the area being claimed or in relation to which compensation is being claimed.
For this purpose the Tribunal may commission tenure searches. 41 In exercising this discretion and
in determining the extent of the assistance to be provided, the Tribunal will consider:
(i)
(ii)
(iii)
(iv)

the utility of such assistance in defining a viable application;

the cost of such assistance;
the time within which the assistance can be provided;
the extent to which the applicant has resources available to him or her for
the purposes of preparing the application. 42

The applicant may be required to make a contribution to the cost of any assistance provided. 43 I
discuss my concerns about the appropriateness of the Tribunal assisting with the formulation of
claims under the section of this chapter below on the proposal to separate mediation and
determinations.
On a different aspect of this same issue, I am troubled to receive reports of governmental
unwillingness to give Aboriginal and Torres Strait Islander people access to vital land tenure
information as they endeavour to prepare native title applications or respond to non-claimant
applications. These concerns were raised in consultations with the Parliamentary Joint Committee
on Native Title and in correspondence circulated by the Cape York Land Council. 44
Although, as has just been explained, the Tribunal plays a role in providing tenure information, it is
imperative that Indigenous people wishing to lodge claims nonetheless have easy direct access to
such information. By using tenure information claimants can control and understand their claims,
efficiently screen potential claims and prepare arguments and counter-arguments for what can be the
very hotly contested question of extinguishment during the acceptance process. The ability of
Indigenous claimants to own their claims is necessary for the successful operation of the Tribunal

process.
As to minimalist and maximalist approaches to applications, a former Aboriginal Land Commissioner
of the Northern Territory has observed that:
...some people concerned to advance Aboriginal interests will want to adopt a minimalist
approach to the preparation of native title applications. In my view, this would be a
mistake. I suspect the requirements of proof, in their own way, will be no less rigorous
(perhaps, more so) than those postulated by the definition of traditional Aboriginal owner
in the Northern Territory legislation. Experience there reveals that there is nothing more
inimical to claimants' interests than poor research and preparation of their claims. 45
Another commentator responded:
While I would not advocate poor research or preparation, I am an advocate of the
minimalist approach. There is one practical statutory reason for that, and that is that the
right to negotiate in relation to a proposed permissible future act of a Government party
under the Native Title Act is only conferred on a native title party' and a person only
becomes a native title party by becoming a registered native title claimant (Native Title
Act ss. 29 and 30). 46
As to the perceived benefits flowing from the registration of claims, Justice French has put the view
that:
...if an applicant for a native title determination wishes to seek a court order to restrain
the doing of a proposed act on the ground that it is a future act, it must be shown that
the act will affect native title to some extent. That is the duty which the applicant faces
whether or not it is on the Register of Native Title Claims. There is, on both the
indigenous and non-indigenous sides, an inflated importance attached to registration of
a claim. 47
It is true that the right to negotiate procedures do not expressly and immediately restrain a future act
from proceeding. However, the validity of such an act is dependent on compliance by the relevant
government with the right to negotiate procedures. The possible outcomes of those procedures
include a conditional agreement to an act proceeding or a prohibition on such a course of action.
The validity of an act is a very real factor affecting whether or not the act will be performed. I believe
these are very real benefits for a registered native title claimant who has standing in the right to
negotiate procedures. 48
If the acceptance test is in truth a low level screening test, 49 then a minimalist application ought to
be capable of satisfying that test.

Maps and descriptions

In line with the regulations, paragraph A6 of Form 1 requires a description of the area of land or
waters covered by the application...and what its geographic boundaries are and a map...showing
clearly where the area is located must be attached to the application. Problems are emerging as to
the interpretation being placed upon those words.
Descriptions
In addition, the revised procedures require that a written description of the claim area should include
a clear statement of the external boundaries of the claim and definitions of areas within these
external boundaries where they are not being claimed. 50
It would seem more desirable that the Registrar require only an identification of the external
boundaries by means of a map and a clear and general statement from applicants as to which areas
are excluded from their claim.
Further, the Tribunals guidelines for description of areas claimed compound concern about the
acceptance process. 51 Those guidelines request applicants to endeavour to comply with relevant
state or territory land description requirements when lodging their applications.
This places native title applicants inside a non-Indigenous framework of land tenure and may prove
onerous in the preparation of their claim.
Maps
The procedures require that:

[the] maps should show cadastral (survey) boundaries if possible, and include relevant
topographic (natural and artificial) features, particularly where these are important in
defining the exact area of the claim. Colour coding of various tenures, for example
freehold, leasehold, special leases, conservation reserves and Aboriginal reserves will
assist in the acceptance process. Any waters claimed should also be colour coded. 52
The procedures clearly overlook the fact that there is a vast difference in meaning between
geographical boundaries, and cadastral...boundaries. Geographical in its ordinary meaning is a
reference to topography. Cadastral is a reference to lines surveyed and mapped as a method of
establishing non-Aboriginal tenure. The procedural requirements being imposed by the Tribunal go
beyond what is sanctioned by the prescription in the regulations. The procedures are seeking to
impose upon applicants the burden of identifying competing interest holders in relation to the claim
area. That is clearly contrary to the Senate amendment to what is now s. 62 of the NTA which, in Bill
form, imposed a requirement upon an applicant, when lodging the application, to conduct complete
searches of other interests in relation to land and waters claimed. The Senate clearly rejected that
and limited the requirement upon applicants to provide only such information as was known to the
Applicant. 53
The preference of the Tribunal for cadastral maps appended to native title applications is an issue of
significance. The requirement for cadastral maps has once again shifted the focus of the Tribunal
from a process which looks at native title to one which is grounded in the non-Aboriginal title process
of definition. 54
Further, the inclusion of such a map in an application can be a very costly business. Although it
seems that the Tribunal may request the provision of a map from relevant sources and receive it free
of charge, potential applicants might need significant resources to lodge a native title claim which will
be accepted by the Registrar. 55
In the Ngaluma Injibandi claim, 56 for example, the claimant group has paid $13 000 for cadastral
maps to support their claim. Although in this case the Indigenous party was able to raise the money
to commission this information from Auslig, it is clear that substantial resources might be required if
claimants are to lodge acceptable claims with the Tribunal. My understanding is that this was not the
intention of the Parliament when it drafted the legislation. 57

Accepting the Application

Pre-acceptance consultations
As I discussed in my submission to the Parliamentary Joint Committee on Native Title, 58 a number
of aspects of the current pre-acceptance approach of the Tribunal are questionable, such as:
the exercise of a discretion of the Registrar to make inquiries or receive information;
the procedures allowing submissions by non-applicants and the seeking of further information with
regard to the application of the acceptance test by a presidential member. 59
I believe that, in relation to the first point, there is merit in the contention of the applicants in the
Waanyi criteria ruling, that no investigation is required on the part of the Registrar and no material,
other than that accompanying the application, should be taken into account. 60
There is a great deal of merit in the view of the applicants in the Waanyi criteria ruling that the
question of extinguishment is a matter for the determination of native title rather than for the
acceptance phase of an application for native title.
To consider extinguishment at the acceptance stage moves applicants in the direction of having to
anticipate all responses and the ultimate result of the claim. 61
I understand that the Tribunal wants all relevant information to enable it to carry out its task
effectively. I also understand that this includes, where possible, clearing up issues which could
otherwise impede the subsequent mediation process. However, s. 63(3)(a) of the NTA grants an
applicant an opportunity to satisfy the presidential member. No opportunity is granted to other
parties! At the very least, procedure 6.8 should specifically provide an opportunity for the applicant to
respond to any submissions received. This is provided in procedure 6.7, which deals with a related
matter.
Despite s. 63(3)(a), the possibility of pre-acceptance consultation between the Tribunal and
non-applicants has emerged and has occurred in a way which troubles me.

Since there is an acceptance phase, consideration needs to be given to balancing conflicting

interests during that phase.
This may require activity with state and territory governments with
regard to land tenure history searches and, where appropriate, consultations to resolve any
ambiguity and uncertainty in relation to the boundaries of the claim (procedures 5.2 and 5.5). But I
question the need for detailed consultations between Tribunal staff and non-claimants at this stage of
the claim process.
I would be particularly concerned if this method of consultation were to amount, in effect, to a
preliminary determination with regard to native title even before a claim has been accepted by the
Tribunal. Such a process is onerous for the potential claimants as well as being informal and
administrative in nature. As I have pointed out, s. 62(1)(b) of the NTA requires that an application for
native title contain all information known to the applicant about interests in relation to the land or
waters concerned. In view of this and s. 63, it seems clear that there is little legislative support for a
process which includes detailed pre-acceptance consultations between the Tribunal and
non-claimant parties to any potential claim.

Receipt of applications
At the end of 1994, concern was expressed to the Parliamentary Joint Committee on Native Title that
the registry staff were neither accepting nor rejecting claims but were instead handing them back to
applicants presumably to give those claimants an opportunity to improve the applications. 62
Although in one sense such a practice favours applicants, it worries me, even though it is covered by
procedure 2.5, that it might result in substantial questions being put in issue at a preliminary stage
a general concern that I have with the procedures of the Tribunal.

Acceptance test
The Registrar is obliged to accept an application unless of the opinion that the application is frivolous
or vexatious or that prima-facie the claim cannot be made out. 63 There is a review process in
which a presidential member is obliged to direct the Registrar to accept or not accept the application
after considering whether the applicant has satisfied her or him that a prima-facie claim can be
made out. 64
Justice French has described the acceptance test as, a low level negative screening test. 65 The
procedures issued by the Tribunal state that:
The acceptance phase of the application is to be treated as a screening process so that
the time and resources of the Tribunal are not taken up with hopeless applications or
applications which have not met the requirements of s.62 of the Act. 66
While that approach has the appearance of being sensible and pragmatic, in practice it is operating
in such a way as to require the applicant to satisfy the Tribunal, at the threshold, of significant and
complex questions of law and facts, such as, whether a pastoral lease extinguishes native title. 67
Justice French has drawn attention to the fact that the test which the Registrar must apply differs
from that which a presidential member applies. The Registrar must consider the negative, that is,
whether a claim cannot be made out, whereas a presidential member must consider whether a claim
can be made out. His Honour finds this distinction inconsistent since it results in the applicant having
to surmount a higher test in front of a presidential member before gaining acceptance of the claim.
68
There is a second distinction which may prove important in many cases and that is that the Registrar
considers the claim whereas a presidential member considers whether a claim can be made out.
It may be that the result to which that distinction leads is that, while a Registrar may form the opinion
that the whole of the claim cannot be made out, and therefore cannot be accepted, it may be open to
a presidential member to come to the view that a claim can be made out in respect of part of the
area, the subject of the application, and direct that the application be accepted.
It has been suggested on behalf of the Tribunal that, under the prime-facie test, the Registrar is
only required to decide whether there are any circumstances which clearly make the claim untenable,
not that the claim is bound to succeed. 69 It is suggested as examples of claims which might be
unacceptable, those where there is insufficient information to identify the land under claim, or the
native title rights and interests claimed, or the people with whom the applicant claims to hold title.
Again, while that expressed approach may suggest an appropriate concern on the part of the
Registrar for correct form and procedure, it has in fact been used to reject applications on the basis
of the adoption of fundamentally contentious views of the law. The Maduwonagga and Waljen claims
70 were rejected, and one of the issues adverted to in so doing was whether the claim to the right to

occupy, use and enjoy the land was a sufficiently specific claim to native title rights and interests. 71
It surprises me that there could be any question raised as to whether, prima facie, that is an
appropriate way to describe native title rights and interests. It is similar to the description used by
the High
Court in Mabo [No:2] 72 and it is broadly consistent with the terminology in the Native Title Act and
the view adopted by such commentators as Wootten 73 and Bartlett 74 that native title can be
regarded as full beneficial ownership. (It should be noted that the claims were later amended to
include possession, which made them identical to the wording used by the High Court.)
The low threshold test for the acceptance of claims inherent in Justice French's classification of the
acceptance phase of the claim as a screening process and his direction that an applicant is not
required to establish a prima facie case in order to have an application accepted 75 is encouraging
in the context of an acceptance test. The result is that, should the matter go on to a presidential
member, then the applicants are required to show that a prima facie claim can be made out, but they
are not required to make out that claim. 76
Justice French's reasoning in the Waanyi criteria ruling generally represents quite a balanced and
sensible approach, given the task of determining what claims should be accepted by the Tribunal.
There appears to be a problem, however, arising from the use of a prima facie test in the legislation.
As Justice French interpreted it in Waanyi, the acceptance test does not contemplate any resolution
by the Registrar of contested questions of fact or arguable questions of law, 77 but where there is a
question of law the Presidential Member should form a view on it for the purpose of deciding whether
a prima facie claim can be made out. He suggests that distinction on the basis that Presidential
Members, although exercising administrative functions, are Judges or former Judges. 78 That
distinction, while pragmatically attractive, is insupportable as a matter of principle, blurring as it does
the distinction between the exercise of judicial power and the administrative status of the Tribunal. It
also, inappropriately in my view, results in the determination at the threshold of the process of what
may be substantial questions of law, which deserve a comprehensive argument taking into account
the full factual context of the particular case.
Ultimately I believe that the acceptance test should be replaced by strike out procedures see
discussion under the acceptance test in chapter 1 and the discussion below on the separation of
mediation and determinations.

Acceptance and extinguishing events

The most significant position reached by the Tribunal in relation to the acceptance process is the
question of whether, and to what extent, the Tribunal will take into account extinguishing events in
relation to determining whether an application should be accepted.
Justice French has suggested that:
So far as freehold grants are concerned we will reject an application which seeks to
establish native title over freehold land, but anything else which hasn't yet been the
subject of statutory validation and is at all arguable, having regard to what was said in
Mabo, will probably get through the screening... [I]n relation to leasehold interests...we
cannot say, absent statutory validation, that the question is unarguable in the sense
necessary to fail the screening test. 79
Justice French has, on more than one occasion, acknowledged the uncertainty at common law with
respect to leasehold interests in relation to the question of their extinguishing effect on native title. 80
Since the High Court has not yet delivered any further judgement on the matters of controversy
concerning extinguishment affected by freehold and leasehold titles, I believe it is undesirable that
the views of the Tribunal in relation to questions of law having that degree of uncertainty are finding
their way into determinative decisions upon whether or not to accept applications.

Guidelines and pastoral leases

The guidelines of the Tribunal with regard to claims over pastoral leaseholds indicate that a claim
over rights and interests which is wider than any reservation in favour of Aboriginal and Torres Strait
Islander people contained in a valid current or expired lease will not ordinarily be accepted by the
Registrar. 81
The legal uncertainty as to the extent that pastoral leases extinguish native title even beyond the
reservations raises the question as to why the Registrar of the Tribunal is rejecting applications on
this ground while this uncertainty persists.
As already noted, Justice French has stated that the acceptance process by the Registrar does not

contemplate any resolution by the Registrar of contested questions of fact or arguable questions of
law. 82 So it is difficult to see why the guidelines adopt a restrictive view on an arguable point of
law. As the applicants in the Waanyi criteria ruling submitted, if the legal proposition is arguable, then
a prima facie claim has been made out. 83
It is true that if an application is rejected by the Registrar, an applicant can still try to satisfy a
presidential member that there is a prima facie case. If that fails then there is an appeal to the
Federal Court. However this is putting applicants through a number of hoops just to get a claim
accepted. Once again, I agree with what the applicants in the Waanyi criteria ruling have contended:
it was not intended that unnecessary procedural impediments be placed in the way of persons
seeking to have their native title rights and interests ascertained. 84

Guidelines and presumptions of law

Furthermore, certain presumptions as to legal questions are now appearing in the guidelines. The
result of the guidelines is that the Registrar will make a presumption in favour of extinguishment
where freehold or certain leasehold interests are detected to be within the claim area, and that
presumption must be rebutted by the applicant.
The Registrar is thus requiring, in many cases, that applicants, in order to have their applications
accepted, will have to present detailed and complex arguments to the Registrar on issues such as
the nature of a pastoral lease, its statutory history, the interaction of its incidents with the incidents of
the native title claimed and the application of the presumption against extinguishment of native title. I
regard such a requirement as going far beyond what was contemplated by the legislature as the
function of the acceptance process.

Decisions of the registrar which amount to decisions on points of

law
As indicated in my submission to the Parliamentary Joint Committee on Native Title, 85 it is of
concern to me that the Registrar has, in some instances, made quite substantial decisions on
questions of law in what is supposed to be a preliminary screening process. The Registrar, in the
case of a matter begun by the lodging of a non-claimant application at Edmonton in relation to a road
reserve, decided to reject a native title claim over a piece of Crown land. The Crown land had been
reserved for the construction of a road. The Registrar proceeded on the basis that this reservation
had extinguished native title.
On hearing the matter, the member of the Tribunal, Mr Fred Chaney, considered that there was an
alternative view and that there was a possibility that the mere reservation of a piece of land for the
construction of a public work may not amount to an act which extinguished native title. He sought
submissions from the Crown and from the unsuccessful claimant applicants. The member on 18
January 1995 determined the application in favour of the non-claimant. The determination was
based on a conclusion as to whether the phrase ownership...shall be and remain vested in the
Crown in the Land Act 1962 (Qld) was a reference to the Crown's radical title or whether it vested
the fee simple in the Crown. The decision is now the subject of an application for review in the
Federal Court.
I am concerned that a mechanism exists however, whereby a claimant applicant was removed from
the claim process by a decision of the Registrar on the basis of a view being taken by that Officer of
such a contentious question of law; especially when the Tribunal itself purports to accept the
screening status of the acceptance process. 86

Preliminary inquiries: prima facie case and questions of law

Justice French has suggested that there is merit in a provision which would enable an inquiry to be
held, on a discretionary basis at any point after the acceptance of the application, to determine
whether there is a prima facie case, and, in that context, allowing for important points of law which
may affect the negotiation process to be referred to the Federal Court. 87
The proposal appears to suggest that the Tribunal has the power to make the reference of its own
initiative without the consent of the parties.
The arguments in support of the amendment are:
(i)
(ii)

a determination that a prima facie case exists might facilitate the negotiation process; and
the need for exhaustive investigation of native title in particular cases could be avoided.

Investing in the Tribunal such a power in relation to a prima facie case will vest in it another possible

element of judicial power to dismiss an application. This is at odds with the more recent proposal
that the Tribunal be divested of its determinative powers (see discussion above on judicial power
and below discussion of the proposal 88). The amendment has, at its source, what I believe to be an
unnecessarily expanded view of the inquisitorial and determinative role of the National Native Title
Tribunal.
The proposed amendment appears to proceed upon the supposition that the mediation and
investigation processes in the Tribunal need always to be exhaustive. It perhaps overlooks the fact
that if the application is contested it may, failing the reaching of an agreement, proceed to the Federal
Court and the mediation processes can be continued. 89

Mediation

The Native Title Act suggests the use of mediation processes in a number of areas.
It is suggested by s. 253 that representative Aboriginal and Torres Strait Islander bodies have the
functions of, first, assisting in the resolution of disputes among claimants and second, representing
claimants in negotiations and proceedings.
The Tribunal is empowered to make a determination consistent with any agreement reached by the
parties. 90 It appears on a literal reading of s. 71 that there is no power in the Tribunal to make a
determination in relation to an agreement by only some of the parties.
If one accepts the appropriateness of the Tribunal having a determinative role, that provision may
unnecessarily limit the role of the Tribunal when dealing with unopposed applications and
agreements following mediation. 91 In cases such as the Yorta Yorta peoples claim, 92 the parties
exceed one hundred for instance, and it may be that it is possible to reach agreement through a
process of mediation on some aspects of the application with some of the parties, but not others.
There does not appear to be any statutory power in the Tribunal to provide any endorsement of such
agreements. Despite this, the Tribunal assumes for the present that it would have the power to
mediate with a view to agreement as to part of the application and referral of the balance to the
Federal Court. 93
Section 72 makes provision for a compulsory mediation conference at the direction of the President if
there has been no determination where the application is opposed or the parties have reached
agreement. In many cases, the parties are unlikely to be even aware of each other, let alone have
had any chance to reach an agreement before s. 72 comes into operation. So that, in some cases,
there may well be room for some agreement guided by the mediation process at that early stage of
the application.
There is also some suggestion of the invocation of the mediation process once an application
reaches the Federal Court as an opposed application. Assessors are to be appointed to assist the
Federal Court and to preside over a conference of the parties or their representatives to help in
resolving any matter that is relevant to the proceedings. 94 Assessors are, as far as possible, to be
selected from Aboriginal peoples and Torres Strait Islanders. 95
The primary area of mediation may be in the exercise of the right to negotiate in relation to mining
and compulsory acquisitions.
At the end of the reporting period, no mining companies or
governments had sought to invoke the right to negotiate provisions of the NTA in relation to future
acts and so there is no experience, during the reporting period, of its operation upon which to
comment.
Hal Wootten suggests that the case for emphasising mediation techniques in relation to native title
issues:
...lies less in their demonstrated special suitability than in the horror of the conventional
alternative the lengthy formal, technical, legalistic and adversarial processes that tend
to grow up if Western lawyers are left to administer justice or find facts according to their
traditions. 96
Dennis O'Neill of Resource Futures Pty Ltd, suggests that the:
commercial appeal in an appropriate negotiating model is to achieve a market-driven
way around the obvious political difficulties of amending flawed legislation...avoiding the
inefficiencies and unattractiveness of institutional deal-making. 97
Terry Strapp of Zapopan NL strongly emphasises direct negotiation with a group of Aboriginals (the
Jawoyn) who had a highly organised professional Association. 98

The statutory mediation processes under the Native Title Act are open to the criticism that they are
indirect and they are institutionalised. The support for them as an alternative to the adversarial legal
process may also be misplaced, given the direction in the Native Title Act to the Federal Court that it
act informally and that it is unbound by technicalities, legal forms or rules of evidence. 99
On the other hand, any process by which claims of Aboriginal peoples and Torres Strait Islanders are
dealt with fairly, efficiently and with the minimum of trauma is to be welcomed. I do not draw any
conclusions as to whether mediation will provide that panacea.

Claims

The remarkable features of the claims and other applications received up to 30 June 1994, as set out
in the table in appendix 3, include:
1.

There have been no applications to engage in non-claimant applications or the right to

negotiate by mining companies (see an explanation for this in an address by Geoffrey Ewing of
the Australian Mining Industry Council 100 )or governments for the purpose of compulsory
acquisition.

2.

Non-claimant applications have been dealt with expeditiously; some having been finally
determined within a six-to-ten-month period. 101

3.

There has been a progression towards mediation in many of the claimant applications.
Nevertheless, the process of acceptance and mediation of claimant applications was promising
to be a time-consuming business. At the time of writing some matters had been referred to the
Federal Court, but as yet there have been no determinations of native title. 102 There are a
range of reasons for the delay in realising determinations of native title, but in part the delay
can be explained by the structure of the legislation, as described by Justice French:
The procedures for which the Act provides in relation to the various decisionmaking functions of the Tribunal give rise to inconsistencies and unreasonable
rigidities which have the potential to generate delays and additional expense in
processing applications. 103

4.

The Waanyi claim, which was not accepted by the Registrar, has been the subject of a
reasoned decision by the Tribunal President on 15 September 1994 which has provided a
good deal of elucidation of the Tribunal President's view of the operation of the acceptance
test. That claim was later rejected by the President in his ruling of 14 February 1995. 104
The Maduwongga and Waljen claims 105 are currently the subject of submissions being
considered by the President from the claimants and Western Mining Corporation relating to the
prescribed content of an application including the description of the area, the form of a map
and the description of the rights claimed and extinguishing events. The ruling may provide
further elucidation of the acceptance requirements for an application.

5.

Non-claimant applications appear likely to be the subject of determinations more quickly than
claimant applications. Nevertheless, these non-claimant determinations will provide further
views of the Tribunal on questions of law, such as extinguishing events. The extinguishing
effect of the dedication and creation of roads was raised by the application of Selpam Pty Ltd.
The determination of the Tribunal is on its way to the Federal Court for review.

Proposal to Separate Mediation and Determinations

In what, in terms of timing, amounts to a postscript to the commentary in this report on the nature of
the National Native Title Tribunal, the question of judicial power, and the acceptance test, Justice
French released in March 1995 a detailed discussion paper of his proposal to substantially
restructure the Tribunal. 106 I make limited comment on the proposal in this report because of its
relevance to the issues of the nature and function of the Tribunal, which arose during the reporting
period and which are discussed in this publication.
As stated by Justice French:
The proposal has as its objective the removal of conflict between the determinative and
mediating functions of the Tribunal, the misunderstanding that that conflict generates,
the avoidance of any uncertainty arising from the Brandy decision and a general
improvement in the procedures for dealing with applications under the Native Title Act.
107

The discussion paper outlines the tensions and confusion created by the combination of
determinative (including the decision-making responsibilities as referred to in the section on Judicial
Power towards the beginning of this chapter) and mediation responsibilities of the Tribunal, its
classification as a Tribunal and the role of serving judges on the body. It is argued that these factors
have produced:
a perception that the Tribunal is similar to a court and can determine native title in non-consensual
situations;
the adulteration of the Tribunals mediation function;
review litigation of the decisions of the Tribunal; and
uncertainty about the effectiveness of the Tribunals determinations following the High Courts
decision in the Brandy decision. 108
In relation to these views, I have already discussed the problems created by the acceptance process,
but it is worth noting some further comment on the difficulties this aspect of the Tribunals
determinative roles creates:
The categoric rejection that has been made in a number of applications in this regard is
seen by the Aboriginal communities to be an exercise without being even-handed.
...
...the tribunal is in a situation betwixt the devil and the deep blue sea. Whichever way it
opts it would seem to favour one group over the other. It could equally be so, as you say,
if they accept it. 109
When it comes to perceptions of the Tribunal by Indigenous communities in relation to the operation
of the acceptance process on extinguishment, Justice French has described the gravity of the
problem:
The Tribunal risks been seen as a forum in which many indigenous hopes founder on
the reefs of historical extinguishment which are in themselves perceived as an
expression of historical dispossession and injustice. 110
As to the role of serving judges:
When you have a judge or an ex-judge involved, there is an impression falsely created
in the Aboriginal communities. They are expecting some determinative outcome,
because this is a judge, and they cannot really appreciate the different capacity in which
he is functioning. 111
Justice French sees the problems as emerging from the structural arrangements whereby the
Tribunal and the Federal Court are placed end-to-end in what he describes as an inflexible series
arrangement as opposed to what he sees as a more desirable parallel relationship between the
two bodies. This series arrangement is complicated by the determinative responsibilities of the
Tribunal which he sees as more appropriate for a court. This structure places unacceptable
demands on claimants at the start of the process and can generate review litigation. All of this
produces unnecessary cost and delay and the need to regularly explain that the Tribunal cannot
recognise native title in the absence of agreement. What is more, Justice French sees the question
of the exercise of judicial power as calling into question the finality of orders of the Tribunal and that
this uncertainty taints the whole process of the Tribunal. 112
To overcome these difficulties, it is proposed amongst a range of suggestions that:
the determinative functions of the Tribunal be removed, except for arbitration in respect of future
acts subject to the right to negotiate procedures;
all applications for native title determinations or compensation be commenced in the Federal Court;
the Court routinely refer all applications to the Tribunal for registration (which would be automatic),
public notification, identification of parties and mediation;
the Tribunal (possibly renamed along the lines of the National Native Title Mediation Service) would
assist in the formulation of claims, the conduct of searches and background research,
notification, identification and mediation (which might continue through the Court process);
the Court control the progress of claims, with a discretion to strike out applications, give directions,

including for the determination of issues of law or fact;

determinations be made by the Court, including those arising out of mediated agreements, with
inquiries as to the appropriateness, equity, etc. of any orders that are required; and
judicial registrars might carry out inquiry and evidence-gathering responsibilities, deal with objections
to the use of the expedited procedures and deal with non-claimant applications. 113
The proposal involves a continuing separate existence for the renamed Tribunal as an assistance,
community liaison and mediation service. It is suggested that an expanded mediation service could
be provided, involving an integrated approach to native title, land use, access and heritage issues
with wider mediation services being available on contractual and co-operative arrangements. The
service could play a role in developing framework agreements to provide a basis for the resolution
of continuing pressures between Indigenous interests and development activities of government and
a spectrum of industries. 114
There is certainly merit in Justice Frenchs proposal as a means of resolving what are very real
difficulties with the operation of the Tribunal. The essential criteria for evaluating the proposal are
whether or not it will deliver a process that is accessible, affordable, enforceable and equitable. The
fundamental question is whether the proposal will enhance the delivery of justice for access to land
by Indigenous peoples. At the time of writing, there is a need for further consultation on the proposal
generally and my comments here are subject to such deliberations.
With that qualification, I am very supportive of the need to separate the mediation and determinative
functions in the native title process. Not only is there a need to cure the registration mechanism for
enforcement of Tribunal decisions in the light of the Brandy decision, but there is also a need to
remove the uncertainty arising from the possible exercise of judicial power by the Tribunal when
exercising its determinative responsibilities.
With the unacceptable impediment to the recognition of native title that is presented by the
acceptance test, there is undeniably an urgent imperative to remove that test and allow parties to
contest any threshold questions as to the viability of claims through the strike out process in the
Federal Court. As I indicated in chapter 1, I suggest that the strike out process will provide a more
appropriate means for both claimants and non-claimants to resolve the acceptance question where it
arises. It is a matter that is properly resolved between parties, rather than initiated by the Tribunal,
which may then invite non-claimants into any proceedings. At the same time, I believe that
Indigenous claimants have to be provided with the opportunity of developing their claims through
time and as the legal process unfolds and I reject any routine requirement that they be put to a
detailed and exhaustive test at the outset of proceedings. So I agree with Justice Frenchs view that,
apart from established grounds for the exercise of the Courts discretion to hear preliminary issues,
there should be statutory protection against routine preliminary interventions unless the Court is of
the opinion that without such intervention, mediation is unlikely to succeed or that such intervention
may speed the resolution of the matter. 115
It is necessary to consider closely whether the Tribunal should, as suggested under the proposal,
continue to publicly notify the community of applications and identify the parties to such applications.
Such a proposal could cause confusion which could be resolved by those functions being undertaken
by the Federal Court. This is particularly the case in relation to the identification of the parties, since
it is a complex issue which can have a great impact on proceedings and on rights. It is argued
therefore, that identification is a matter that should be handled by a judicial body.
In relation to the proposal to provide both assistance and mediation services, I have a concern about
the combination of these two very necessary responsibilities in the one body. I am concerned about
the difficulty of those assisting with the formulation of claims, tenure searches and background
research to avoid, in some way, influencing how those claims are constructed. I question the
appropriateness of an independent mediation service to perform what is really an essential aspect of
the advocacy role. I tend to the view that it is a function that is best allocated, if properly funded, to
representative bodies or other advisers to perform. To meet the valid point that claimants do not
always have access to either forms of assistance, then state-wide bodies, such as Aboriginal Legal
Services, or some national Indigenous organisation, could be funded to provide an information and
assistance service to meet the needs of those claimants who fall through the gap. An immediate
question that arises from such a suggestion is the willingness of relevant government departments to
take a co-operative approach to providing such organisations with tenure information on a systematic
basis.
It appears that referral from the Court to the mediation service would be routine, which I take to mean
compulsory, for unopposed or unresolved applications. There is clearly great merit in providing for
the compulsory calling of a mediation conference, despite the commonly supported principle that
mediation should be voluntary. Otherwise it could prove very difficult to initiate negotiations with nonIndigenous interests and provide Indigenous peoples with a platform from which to negotiate.
Nevertheless, a number of native title claimants have the view, for very good reasons, that mediation

will be fruitless and find that having to deal with a large number of non-claimant, and possibly hostile
parties, onerous and oppressive. Some applicants would just rather get on with establishing their
claims.
Representatives of such claimants have suggested that mediation should be optional at the choice of
the claimants. I believe that such a proposal deserves consideration, but should it be moulded into a
proposal that mediation be voluntary for all parties, then I would be concerned at the disadvantage of
such a provision for those claimants who want to negotiate with reluctant non-Indigenous parties. In
any event with any compulsory system, I think that it is important that there is a flexible approach to
completing mediations when there is good reason to do so, such as in a case where it is clear that
negotiations will be fruitless.
Subject to the issue of compulsory mediation and other concerns, I do see potential in the proposal
to expand the mediation service. In some respects, it will often be very appropriate to treat land
issues, including native title, in an integrated way. Indeed discussion needs to take place about such
a mediation services role in respect to disputes within Indigenous communities about land and
related issues; in regard to regional agreements; and as a body with on the ground exposure which
would enhance its ability to contribute to policy and legal developments affecting Indigenous peoples.
Parallels with the Waitangi Tribunal come to mind. Any discussion of an expanded role for the
Tribunal will have to clarify its role in light of the responsibilities appropriately undertaken by
representative bodies.
At the same time, I am also concerned about the possibility that the introduction of extra issues to the
mediation of native title will complicate that process and place strong pressures on native title
claimants to trade-off native title for heritage protection and other land management commitments.
The current process, which primarily involves native title, can already be a profoundly complex
experience. To add other aspects might only endanger prospects of success and significantly add to
the time involved to settle acceptable outcomes. As such, there will be added pressure on claimants
to trade off native title so as to avoid lengthy proceedings for which they may neither have the
resources nor the desire to endure. I find that it is easy to sympathise with those communities who
just want to receive recognition of their title and then talk about other land management issues with
the security and the reality of that recognition.
The proposal as it relates to the name of the Tribunal has been questioned. It is suggested that
people take the Tribunal seriously, see it as having a role in achieving the objects of the NTA and
appreciate that it is not just another mediation service. Indeed a lot of understanding and goodwill
has developed for the Tribunal. Further, the involvement of a judge as the President of the Tribunal
is considered to bring status and respect to the Tribunal rather than confusion. 116 Another concern
raised about the proposal is that it will result in a loss of clout for the Tribunal.

Conclusion

Justice French has identified a clear objective of the Tribunal to be the recognition and protection of
native title. 117 The legitimacy of that objective must be a cornerstone of the operation of the
Tribunal. The centrality of country to the native title process has also been recognised by the
President. 118 There has been a shift in perspective between these views expressed by Justice
French and the procedures growing up around the acceptance process.
As already noted, Justice French emphasised the importance of the Tribunal balancing the interests
of all parties affected by native title. Previous discussions of the pre-acceptance and acceptance
phase of the claim process leads me to query whether this balancing act is really taking place or
whether non-Indigenous notions of land tenure are being given undue emphasis. I am disturbed by
those procedures, which have developed over the short life of the Tribunal, which place potential
native title claimants within the non-Indigenous framework of land tenure. I believe Justice Frenchs
proposal, which I have just discussed, presents the opportunity for dialogue around placing the native
title claims process squarely back within the realm of the recognition and protection of native title.

Such practical difficulties as there may be in the administration of the legislation of

Western Australia governing land, minerals and the pipeline transportation of petroleum
products can be attributed to the realization that land subject to native title is not the
unburdened property of the State to use or to dispose of as though it were the beneficial
owner. The notion that the waste lands of the Crown could be administered as the
patrimony of the nation and that the traditional rights of the holders of native title could

be ignored was said to be erroneous in Mabo [No:2] and the effect of the Native Title Act
on State administration must be seen in that light.
The State of Western Australia v The Commonwealth
High Court, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ

Economic and Resource Management Issues

Most criticism of the Native Title Act 1993 (Cth) (NTA) has come from industry groups and state
governments.
This criticism often relates to the impact of the NTA on land and resource
management. The nature and extent to which these claims can be substantiated remains to be seen
at the time of writing. The NTA has only been operating since January 1994 and it affects a broad
range of factors, so the impact of the Act and its efficiency cannot yet be adequately or finally
assessed. A comprehensive analysis of the impact of the NTA on each State and Territory and
industry is not within the scope of this report. Nevertheless, I propose in this chapter to survey the
economic and resource management issues that have arisen and canvass some of the issues which
are likely to arise in the future.

State Governments, Future Grants and Infrastructure

In response to the recognition of native title and the enactment of the NTA, state and territory
governments have begun to introduce procedures to deal with native title in accordance with the
commonwealth Act. While some governments and their departments have tried to deal with native
title in a practical manner, most have voiced concerns about the operation of the NTA. In summary,
the issues raised by state and territory governments and their agencies are as follows:
the NTA is perceived as an excessive usurpation of state powers;
it does not provide a resolution to the uncertainty about where native title remains and how
governments are affected by its continued existence; and
governments object to the costs, delays, administrative expenses and consequential restructuring
that they regard as imposed on them by the NTA.

State governments and the future act procedures

The basic principles that underlie the future act regime in the NTA should not be regarded by state
and territory governments and their administrators as controversial. The requirements for nondiscrimination and for native title holders not to be disadvantaged when compared with other title
holders are already required by the Racial Discrimination Act 1975 (Cth) (RDA). And, as noted in
chapter 2, that native title is equated with freehold, in determining what procedural rights native title
holders have, is a requirement that arguably exists at common law. Nevertheless, it appears that a
number of States have found the procedures for future acts in the NTA difficult to work with, even
where the right to negotiate does not apply. This is particularly so for Western Australia and South
Australia who challenged (unsuccessfully) the procedures in the High Court.
All departments which made submissions to my office have indicated that they have been
significantly affected by the operation of the NTA. In my view some of these complaints are
overstated. Many of these concerns would have existed regardless of the commonwealth legislation
by virtue of the common law and the RDA. For example, a submission from the South Australian
Department of Premier and Cabinet claimed:
Dealings in Crown land has been significantly affected following the introduction of the
NTA. Workloads to Government have increased due to the requirement to undertake
tenure history searches and seek legal advice before proceeding with land dealings
where native title may be at issue. 1
Tenure history searches and legal advice would have been necessary regardless of the existence of
the NTA. To attribute to the NTA all the expenses associated with the recognition of native title at
common law is misleading. Other departments have at least recognised that some fundamental
problems attributed to the Commonwealth legislation do not arise primarily from the provisions of that
legislation, but are problems arising from the High Court decision itself. 2 Of course, it should equally
be remembered that the High Court decision is an attempt to deal with one of the problems of
colonisation; the decision is not, in itself, the source of the problem.

Procedures for future grants

In order to ensure that native title is not impaired or that native title holders are not discriminated
against by the manner in which future grants are made, state and territory governments have had to
reassess the procedures through which future grants take place. This has been approached in a
variety of ways by different governments. Western Australia has not adjusted its land management
systems to conform with the NTA. Instead it has operated in accordance with its Land (Titles and
Traditional Usage) Act 1993 (WA) which has now been found to be invalid. Other States and
Territories have commenced introducing procedures which conform with the NTA, but have voiced
concern about some of the requirements. Some of these concerns are a result of a lack of
understanding of the NTA.
In particular, the SA Department of the Premier and Cabinet has claimed that the risk of
extinguishing native title contrary to the provisions of the Native Title Act can only be averted by the
lodgement of a non-claimant application 3 for all the parcels of land in question. They add that to do
this for a total reserve of some 29 000 parcels of land is onerous and time consuming and bears
little relevance to those native title rights and interests that may ultimately be enjoyed by native title
holders. 4 The submission of the NSW Department of Conservation and Land Management also
states that lodgement of non-claimant applications is considered necessary where investigations are
inconclusive as to whether or not native title is extinguished. 7 In my view, the need to achieve
certainty to this extent is an overstatement of the problem. As noted below, many government
functions that deal with land are permitted to proceed regardless of whether there has been a
determination of native title or not.
Non-claimant applications in these circumstances are
unnecessary under the NTA.
Permissible future acts
A permissible future act with regard to native title is any act that can also be done to freehold title 8
and is not discriminatory in formal terms. Also, legislative acts must not place Indigenous people at
a disadvantage at law. 9 Importantly, any future act can proceed with the agreement of the native
title holders. 10 In my view, the permissible future act regime has been made more controversial
than necessary. Unless the right to negotiate arises, the crucial factor in establishing whether a
determination of native title is necessary is the nature of the procedural rights that are afforded to
freehold title holders. If freehold title holders do not have any procedural rights, then native title
holders will have no rights. If freehold title holders are entitled to some form of notice then native title
holders are entitled to the same notice. This will be straightforward where only general notice is
required. It is more difficult where individual or personal notice is necessary and native title holders
are yet to be identified. In these circumstances however, governments may rely on s. 23(7), which
suggests a way in which notice provisions can be satisfied. Whether native title exists and who its
held by is, in many cases, only relevant for determining compensation.
While non-claimant applications may be necessary in some cases, it is misleading to suggest that
they are necessary for all parcels of land before the government can deal with the land. I believe that
non-claimant applications will primarily only be necessary where the procedural rights afforded to
freehold title holders require consent or negotiation, and large-scale future acts give rise to concerns
about the extent of compensation that is payable.
Provision of public infrastructure
Although the impact of the NTA cannot be accurately gauged at this stage, I believe the provision of
public infrastructure need not be greatly affected by the operation of the NTA. In many cases, public
infrastructure projects will not be discriminatory and will therefore be permissible future acts. Also,
public infrastructure projects which do not involve compulsory acquisition for the benefit of a third
party, will not attract the right to negotiate unless negotiation is deemed necessary by the
Commonwealth Minister. Consequently, in most cases the NTA will only involve ensuring we have
the same procedural rights as freehold title holders.
Some States are already showing that the provision of infrastructure can proceed under the NTA
despite the fact that determinations as to the existence, nature and extent of native title are yet to be
made. The New South Wales Department of Conservation and Land Management has noted that
the NTA has had negligible impact on the provision of infrastructure in the State, since it is largely
done through compulsory acquisition in circumstances where the right to negotiate does not apply.
The Department of Public Works, for example, acquires land on which it constructs water supply and
sewerage facilities on behalf of local councils in NSW country towns. 11 Depending on any
procedural rights involved, native title is not really an issue in determining whether or not the work
may go ahead, although the Department of Public Works has indicated that native title may
potentially impact on the timetable for the delivery of public works. 12 Instead, the question is
whether compensation will be payable should native title be proved to exist in the land at some future
date. A similar situation has been noted with regard to the Water Act 1989 (Vic). 13

Genuinely equal procedural rights

Governments should be aware however, that native title holders have to be afforded the same
procedural rights as freeholders, but the procedural rights must also be non-discriminatory. There
will be cases where there is no difference between the two requirements. In other cases the
protection of genuine equality rather than formal equality 14 may mean there needs to be a degree of
flexibility in these procedures to ensure that native title holders can utilise their procedural rights to
the same degree as freeholders.
That a degree of flexibility is necessary so that we can enjoy the same procedural rights as other title
holders is clear from the procedures of the NSW Roads and Traffic Authority (RTA). The RTA has
introduced procedures which purportedly notify native title holders of a planned acquisition in the
situation where no determination has been made. After notification, freehold title holders are entitled
to negotiate compensation and if negotiation fails the property is acquired by compulsory process. In
order for native title holders to get the benefit of a right to negotiate compensation, rather than
having the matter determined through the compulsory acquisition process, they must produce
evidence of the claimed interest within 90 days from the date of the notice.15 Although the content
of the information required by the RTA is not dissimilar to that required under the procedures of the
Tribunal, the Tribunal requires only a prima facie case can be made out at the point of application. 16
The prima facie test does not generally require the production of evidence, rather parties are required
to demonstrate an arguable case. I would be greatly concerned if the RTA procedures operated at a
level that required more than showing that a prima facie case is capable of being made out within a
90-day period. The 90-day period could prove onerous, especially for under-resourced Indigenous
groups. I believe a lower threshold for recognising interested parties in compensation negotiations, a
reasonable time frame and less stringent evidence requirements may be necessary to ensure that
native title holders have non-discriminatory access to a right to negotiate in the RTA acquisition
process.
Another notable aspect of the RTA's approach has been its assumption that native title will be
extinguished by pastoral leases. This is an assumption which a number of government departments
have been willing to make. It is clear from what I have said in chapter 3 that governments operating
under this view of the law are potentially introducing procedures that are discriminatory and acts
done in accordance with those procedures are potentially invalid.
The right to negotiate
The right to negotiate only arises under the NTA in limited circumstances in relation to permissible
future acts of governments, such as when there is an acquisition under a compulsory acquisition Act
for the purpose of conferring an interest on persons other than the government. 17 The right to
negotiate also arises with regard to mining interests. A failure to comply with the relevant procedures
results in the act being invalid. 18 There will be no invalidity if effective notice of the future act has
been given and there are no registered native title holders or claimants at the end of the two month
notice-period. 19
The formal right to negotiate in the NTA has been the source of resentment by state governments
and their departments. The Victorian Department of Conservation and Natural Resources claims that
the right to negotiate regime will place the State under an even greater load in terms of land
administration. 20 Concern is also expressed by the NSW Department of Mineral Resources about
the commonwealth provisions. The Department recognises that the time requirements included in
this division of the NTA can be absorbed into the overall process of granting mining leases, but it is
concerned about the impact of the provisions on the grant and renewal of exploration titles. 21 They
estimate that had it not been for the enactment of the NTA, 200 exploration licences, additional to the
700 in existence, would have been issued. 22
The procedures set down for the negotiation, arbitration and ministerial override may take up to ten
months in relation to exploration applications. But this is a maximum period (see chapter 1). I
believe that the waiting period, within this maximum, is a necessary safeguard for any native title
holders or claimants. I should add that, given the preparation that generally goes into mining
ventures and other acts which attract the right to negotiate, the limited delay is insubstantial.
Exclusions from the right to negotiate
Both the New South Wales Department of Mineral Resources and the Queensland Government are
attempting to have exploration licences and permits exempted from the negotiation process. In order
to be exempted an act must be deemed to have a minimal effect on native title. As Patrick Sullivan
has pointed out, in order to properly determine whether a proposed activity will have a minimal effect
on native title an investigation will have to be conducted to determine the extent of the proposed
activity, the extent of the land on which the activity is proposed, and the appropriateness of the

Indigenous group consulted. 23

The NSW and Queensland proposals to exclude exploration and permits seems to be based upon
the idea that a general list of low-impact activities will be appropriate for exclusion. This approach to
exclusion will not reveal whether or not an activity will have a minimal impact on native title. The right
provided to Indigenous peoples, under s. 26(4), to be consulted and to make submissions about
applications for exclusion can only be exercised properly where Indigenous people have full
knowledge of the nature of the particular activity proposed. In dealing with proposals for exclusions,
it must be remembered that the content of native title is determined according to the laws and
customs of Indigenous peoples. Therefore, for an activity to have minimal impact on native title it
must have minimal effect on Indigenous cultural practice and not just minimal effect on the land. If
the criteria in the NTA are properly administered it is difficult to make assumptions about when
exclusions may be appropriate. As Patrick Sullivan points out:
... it is established beyond argument in Aboriginal ethnography that entering on to
certain areas of land, by any person in some instances, or by certain categories of
persons in many cases, or at inappropriate times or in an inappropriate manner, can
cause damage to the group with responsibility for the land as well as to the trespasser.
In these areas, ... there is no activity with minimal impact unless it is highly managed. 24
In the light of Patrick Sullivans analysis, the claims by the NSW Department of Mineral Resources
that the right to negotiate process undermines the purpose of mineral claims which are small,
short-term, cheap, quickly processed titles for small-scale miners and prospectors 25 cannot be
taken at face value. In certain circumstances, the most apparently minimal impact activity on to
native title land may damage that title. It is necessary to assess the impact of the specific activity in
relation to the specific aspects of the native title in question.
The protection of potential native title holders and their interests in land according to their traditions
justifies grants of mineral titles remaining subject to the right to negotiate regime despite the delay
that may be incurred. My view is reinforced by the requirements of mining legislation such as the
Mining Act 1992 (NSW). Under that Act, an application for a mineral claim over privately held land
must be accompanied by the written consent of the owner and occupier of the land. 26 This gives all
title holders an effective veto over mineral claims in NSW. I fail to see how a right to negotiate is an
added burden to this requirement. 27 While I can appreciate that governments and their clients may
feel inconvenienced by the right to negotiate provisions, this inconvenience must be balanced
against the imperative to recognise and respect the special relationship of Indigenous people to their
land.

Administrative procedures
State government departments have had to adapt their administrative procedures not only to make
them consistent with the NTA and the RDA but also to determine where native title has been
extinguished by past grants. This invariably carries with it administrative costs to the States. Some
States have avoided these costs by choosing to stall rather than respond to the recognition of native
title. For instance, the South Australian Department of Premier and Cabinet admits that [t]he State
has not as yet formulated internal policies and procedures to address native title questions. 28 It is
of concern that policies and procedures are not yet in place, twelve months after the enactment of
the NTA and two-and-a-half years after the common law recognition of native title. Inactivity on the
part of the States contributes to the uncertainty surrounding native title.
Other States have organised procedures to do land tenure searches and determine where native title
is extinguished. The Queensland Government, for example, has at least introduced procedures to
deal with native title although I have reservations over the manner in which these are being carried
out (as discussed below). The Queensland Department of Lands has utilised its Aboriginal and
Torres Strait Islander Land Interests Program (ATSILIP) to respond to native title issues. The
programme, through the establishment of a number of special units, co-ordinates a variety of
functions including, but not limited to, land tenure history searches and investigations about the
status of native title on parcels of land, policy development, education, and the preparation of
documentation and information for non-claimant applications made by the Queensland Government
or its agencies. 29 The Department says that policies are being developed regarding the compulsory
acquisition of land with due regard to the customs and traditions of native title holders. 30 In
discussing outstanding policy issues the Queensland Government also states that where native title
may exist, the Queensland Government proceeds on the assumption that native title does exist to
avoid the possibility of invalidly dealing with land. 31 I am encouraged by this approach since it
means that native title is not ignored.
Although I see value in a co-ordinated programme such as ATSILIP to deal with native title and land
management issues, I am concerned that Indigenous rights are not abused in the procedures that
are established. The Cape York Land Council has alleged that information, especially the results of
land tenure searches, is being withheld from potential native title claimants while being made

available to non-claimant applicants. It has been suggested that the Queensland government has
consistently adopted a hostile attitude towards Aboriginal people seeking tenure information. The
result is that...researchers...are forced to expend considerable time, effort and money in acquiring
information through processes provided by the Freedom of Information Act. 32 If this is the case,
serious issues of discrimination and human rights abuses are raised. If Indigenous peoples are
being denied access to information which is readily available to other members of the community, the
Queensland Government is engaging in discriminatory conduct. Such conduct also compromises
Indigenous peoples' legal rights to land and denies or diminishes the protection afforded native title
under the NTA.
A further concern has been raised about Queenslands management of native title issues. It is also
the belief of the Cape York Land Council that the Queensland Government intends to lodge
numerous non-claimant applications with the Queensland Native Title Tribunal once it is established.
33 This will affect Indigenous peoples. Since non-claimant applications must be answered within
two months, or they will proceed unopposed through the Tribunal, a bulk lodgement of claims will
place Indigenous communities and representative bodies under enormous pressure as they attempt
to address these claims and assert native title rights. 34 Concerns also exist that the Queensland
Government is attempting to establish a state process which would provide incentives for nonclaimant applicants to lodge their applications at a state level. 35 This will affect Indigenous peoples
who may not be aware that they may elect to have the application heard and decided at Federal
level. 36
The NSW Department of Mineral Resources has devised a mechanism which by-passes the right to
negotiate regime as it applies to the renewal of existing exploration titles. An exploration title may
continue as long as, at the time of its expiration, an application for its renewal has been lodged.
Under the Mining Act 1992 (NSW), where there is an application for renewal of a licence,
assessment lease or a mining lease, the holder of the interest is allowed to continue the interest until
a determination of the application is made. 37 While the NSW Department of Mineral Resources has
been negotiating with the Commonwealth Government to have the grant and renewal of exploration
titles excluded from the right to negotiate process it has kept its exploration title renewal applications
pending and thereby managed to exempt these titles from the right to negotiate regime. 38 I have
great concerns over this procedure. The practice is not in accordance with the spirit of the NTA and
provides a windfall to those with exploration titles in that they are allowed to continue benefiting from
a title after it has expired at the expense of the procedural rights of Indigenous peoples.
A number of departments have also raised the issue of the administrative costs which arise from the
NTA and the adjustment of existing land management procedures that it requires. Departments are
experiencing additional costs in having to account for the existence of native title. The claim that
such costs are attributable solely to the NTA, is dubious. The recognition of native title required that
government departments involved in land and resource management accommodate the existence of
native title rather than continue on the presumption of its non-existence. Regardless of the NTA, the
States were required by
virtue of the RDA to treat native title in a non-discriminatory manner. After the belated recognition of
our legal and human rights, old procedures which allowed interests to be granted over our land,
irrespective of our concerns, are no longer acceptable.
It is inevitable that some delay and costs will arise from any legislation which requires the
restructuring of procedures for the granting of interests in land. The necessity for this change should
not be resisted. It should be seen as a necessary innovation to ensure that our human and legal
rights are respected.

Keeping uncertainty in perspective

The issue of uncertainty was raised in many of the submissions made to me. Governments are
concerned about the lack of definition about the nature and extent of native title at common law;
where native title is and who holds it; and the extent to which past acts extinguish native title. 39
Complaints about uncertainty must be kept in perspective. Some governments say that if all native
title were identified much of the cost and delay involved in determining whether native title exists
would be alleviated. 40 The most effective and equitable way of achieving this would be to assume
the entire continent is still owned by Indigenous peoples and put governments to the task of
disproving native title by evidence of extinguishing acts or abandonment. Such an assumption would
increase certainty and encourage governments to deal with land as if it were subject to native title. A
system based on the presumed existence of native title is more balanced and reasonable than the
nostalgic hankering for terra nullius that seems to be implied in some of the state governments
lamentations.
Given that this is not the system contemplated in the NTA, all sides need to make compromises so

that administrative efficiency can be reconciled with human rights. The reality is that our title to land
was largely ignored for over 200 years by non-Indigenous people. Aboriginal communities are not
homogeneous and the degree to which they will be able to maintain a claim to native title will vary.
Given that we have limited resources, clarification as to where native title exists must take time. It is
unrealistic to assume that all native title be identified in a short period. From an Indigenous
perspective, our knowledge of our ownership of the entire continent prior to invasion is secure. The
fact that the dimensions of native title in the non-Indigneous system are still uncertain is a function of
that system and not the responsibility of Indigenous owners. The inconvenience to governments and
the beneficiaries of Crown grants must be set against the inconvenience to Indigenous people of
having to prove their ownership to an alien system in the first place.
For these reasons, I also reject the suggestion, that a sunset clause is necessary to ensure
certainty. 41 The recognition and protection of native title finally acknowledged our prior ownership
and provided us with rights to land similar to those of non-Indigenous
Australians. It is, I believe, in violation of our human rights to now require our claims to our native
title rights to land to be constrained or controlled by arbitrary time limits. Advocates of the sunset
clause can achieve the result they desire through the mechanism of a non-claimant application.
The problems arising from so-called uncertainty are accentuated in the early stage we are now at in
the process of coming to terms with native title. Uncertainty will be reduced through determinations
of native title and non-claimant applications and through clarification of the common law. More
importantly, I believe that the continuation of uncertainty will largely depend on how governments
react to the recognition of native title and the NTA.

Regional agreements
The NTA provides a mechanism for Indigenous people, governments and industry to reduce
uncertainty themselves through negotiation and agreement instead of costly and time-consuming
litigation. In particular, s. 21 of the NTA allows any future act to proceed with the agreement of native
title holders. This provision provides scope for the development of regional or local agreements,
which can incorporate arrangements for environmental and resource management although it is not
the only way in which regional agreements can be reached. As the Prime Minster said in his Second
Reading speech for the Native Title Bill:
The Bill recognises further that there may be cases where regional negotiation is the
most efficient way to avoid or resolve conflicts over land use for large areas. 42
Regional agreements, whether they are within the structure of the NTA or not, have the advantage of
allowing future development projects and land and resource management to operate with certainty,
even where the full extent of the common law recognition of our native title rights is yet to be defined.
It also creates an environment where Indigenous concerns are not neglected and future
developments proceed with our consent. Development approval procedures that require consultation
with, and consent from, Indigenous peoples will create a framework for real Indigenous participation
in regional projects. Such a framework is a practical expression of reconciliation and to bring it into
existence should be the ambition of all governments, whether local, state or commonwealth.
The potential for using regional agreements to sort out uncertainty over land use has not been fully
considered by those who dismiss the NTA as unworkable. If governments enter into fair and
comprehensive agreements with native title holders under the NTA there is no reason why any
uncertainty for development cannot be vastly diminished.

Environmental and Land Management Issues

The recognition of native title and the enactment of the NTA forces Australian governments and those
interested in land use to reassess the levels of Indigenous involvement in land management.
Although the common law is presently uncertain, it is at least clear that there may be instances
where native title will not be fully extinguished when land is alienated. As a result, there are many
situations where native title interests can co-exist with other forms of title over the same land. Under
the NTA, co-existence may result to the extent that some leases are consistent with the existence of
native title, 43 or in any situation where the non-extinguishment principle applies. 44 In addition,
many future acts may require negotiation and an agreement or a determination in order for the act to
be valid. 45 Co-existence and the right to negotiate mean that we can no longer be marginalised.
Governments have a responsibility to incorporate our Indigenous land management expertise into
their policy and practice.
The inclusion of Indigenous peoples in land management schemes should be regarded by
governments as a benefit rather than a burden. Our extensive knowledge of the environment, and

the resources within it, have for too long been ignored or trivialised. Indigenous peoples have often
been referred to as hunter-gatherer societies. Unfortunately the words hunter-gatherer imply to
many Australians images of a simple, primitive lifestyle devoid of any active manipulation of the
environment. Because of the baggage that comes with them, the words hunter-gatherer do not
evoke the intricate manner in which we have interacted with the environment. But, as Williams and
Hunn have noted, hunter-gatherers actively manage their resources, whether through strategic
ecological or economic courses of action via social controls and political manoeuvre, or by virtue of
the power of symbol and ritual. We can firmly reject the stereo-type of hunter-gatherers as passive
food collectors in opposition to active, food producing agriculturalists. 46
Thousands of years of human occupation invariably have an impact on the environment. Indigenous
peoples have, nonetheless, utilised the environment in a sustainable and efficient manner. In a world
where sustainability is now the aim of land management and resource use, the wealth of knowledge
and experience that we can provide in achieving this goal must not be dismissed.

International recognition
The knowledge of the environment that is ingrained in Indigenous cultures is gaining greater
recognition. In international reports and instruments there is increasing references to Indigenous
peoples and our knowledge of the environments in which we live.
For example, the World
Commission on Environment and Development has argued for recognition of the role that
marginalised and dispossessed groups such as Indigenous peoples can take in sustainable
development. The Commission reported that:
[Local communities] are the repositories of vast accumulations of traditional knowledge
and experience that links humanity with its ancient origins. Their disappearance is a loss
for the larger society, which could learn a great deal from their traditional skills in
sustainably managing very complex ecological systems. It is a terrible irony that as
formal development reaches more deeply into rain forests, deserts, and other isolated
environments, it tends to destroy the only cultures that have proved able to thrive in
these environments.The starting point for a just and humane policy for such groups is
the recognition and protection of their traditional rights to land and the other resources
that sustain their way of life rights they may define in terms that do not fit into standard
legal systems. These groups' own institutions to regulate rights and obligations are
crucial for maintaining the harmony with nature and the environmental awareness
characteristic of the traditional way of life. Hence the recognition of traditional rights
must go hand in hand with measures to protect the local institutions that enforce
responsibility in resource use. And this recognition must also give local communities a
decisive voice in the decisions about resource use in their area. 47
Other significant international instruments which call for Indigenous people to be treated as land
managers include the Convention on Biological Diversity (ratified by Australia on 18 July 1993), the
Rio Declaration on Environment and Development, and Agenda 21.
I believe the recognition of native title makes it urgent that all relevant land, resource and
environmental managers incorporate Indigenous concerns into their management plans and that they
ensure active participation by Indigenous people. A recent comment adopted by the Human Rights
Committee about the protection of culture in accordance with Article 27 of the International Covenant
on Civil and Political Rights confirms this view:
With regard to the exercise of the cultural rights protected under article 27, the
Committee observes that culture manifests itself in many forms, including a particular
way of life associated with the use of land resources, especially in the case of
indigenous peoples. That right may include such traditional activities as fishing or
hunting and the right to live in reserves protected by law. The enjoyment of those rights
may require positive legal measures of protection and measures to ensure the effective
participation of members of minority communities in decisions which affect them. 48

National Parks: an example of co-operative land management

National parks provide a useful practical example of workable co-operative land management. The
example of national parks is particularly relevant to native title because recognition of native title
raises as many issues about control and management of national parks as it does in other areas of
land management. The possibility of native title remaining after the establishment of national parks
was clearly anticipated by Justice Brennan in Mabo [No:2]. 49
The NTA provides for the validation of past acts and reservations which created national parks and in
so doing it accomodates the potential for the co-existence of native title. 50 In practical terms,
Indigenous peoples interaction with and management of ecosystems is compatible with the aims of

nature conservation and regeneration that inspire the establishment of national parks. I believe that
the co-existence of native title and national parks will produce outcomes that will benefit all
Australians, but before this outcome can be achieved it is necessary to correct some popular
misconceptions that structure this debate.
Opposition to the idea of Indigenous ownership of national parkland is often based on the view that
national parks are to be valued because they are virgin territories or pristine wilderness, untouched
by human hands. These views arise from the same logic as terra nullius. People who hold these
views must understand that national park wilderness has been touched by human hands
Indigenous hands and it is our prior presence in these areas that is the foundation of our special
interests in the land. This has been increasingly acknowledged by environmental organisations in
recent years. Indeed, a number of the major environmental organisations have noted the central role
Indigenous peoples have had in shaping many of Australias natural environments and have been
supportive of the common law recognition of native title rather than seeing it as a threat. 51
To deny our participation in the management of national parkland is as much an act of dispossession
and infringement of the right to enjoy our cultural heritage as any other alienation of Aboriginal land.
The injustice of non-recognition takes on a new twist for Indigenous people in some cases where
parks were created purely as a means of preventing Indigenous purchases of pastoral leases on the
open market. A good example of this is Archer Bend National Park on Cape York. 52 This
background of capricious denial of Aboriginal land aspirations undermines the cries of national
heritage and universal access that can be heard every time Aboriginal rights in national parks are
mooted. An understanding of the Aboriginal contribution to this national heritage makes these
claims seem fraudulent and deceptive. As Robert Blowes succinctly states:
The hypocrisy in the arguments against Aboriginal ownership and control of national
parks is compounded by the fact that a substantial component of the value of the parks
is their Aboriginal cultural heritage value which is exploited in the promotion of the parks
for the economic benefits of tourism.
To seek to profit from the culture of Aborigines whilst ignoring their existence is to
continue the cultural ascendancy implicit in the spirit of terra nullius. 53
More specific conflict about the co-existence of native title in national parks may arise as a result of
the continued exercise of hunting and fishing rights on particular species. What must be recognised
however is that animal and plant species may be vital to Indigenous peoples for a variety of reasons
including nutrition, supply of products for living purposes, and for spiritual and ceremonial purposes.
Plants and animal species are significant in dreaming and rituals, and are intricately connected with
socio-political organisation. Biodiversity and species protection has always been a high priority for
Indigenous peoples. Continued concern about the ability of endangered species legislation to be
enacted as a result of the recognition of native title and the NTA 54 is misplaced. There is nothing in
the NTA 55 which exempts Indigenous peoples from valid legislation which protects endangered
species, except in the limited circumstances where other people are entitled to do the same activity
through a licence, permit or other granted interest. 56
There are already models in place which show that Indigenous ownership and control of national
parks can serve the interests of the entire community and ensure that our rights are respected. A
number of joint management arrangements have been established in the Northern Territory 57 which
many Indigenous people are keen to see replicated elsewhere, especially as a response the
recognition of native title. 58 Uluru, Kakadu, Nitmulik (Katherine Gorge), and Gurig (Cobourg
Peninsula) National Parks are all examples of the type of agreements which can be facilitated by s.
21 of the NTA. Gurig and Nitmulik National Parks are of particular relevance as both were
compromises reached in response to land claims lodged under the Aboriginal Land Rights (Northern
Territory) Act 1976 (Cth). 59 The ownership of these parks is vested in Aboriginal people 60 who
have agreed to lease-back agreements with governments so the land can be managed as national
park. Importantly, Indigenous people have negotiated active participation in the management of the
parks, as well as financial benefits from the parks' operation. 61
Although not all aspects of joint park management are beyond criticism, these examples prove that
joint management has substantial benefits, not only for Indigenous people, but for the community as
a whole. Not only is nature conservation enhanced by our knowledge, 62 but parks under Aboriginal
joint management have continued to play an important role in regional economies. 63
The initiatives being pursued in relation to Indigenous participation in national parks provide useful
models for our participation in wider environmental and conservation management. 64 As Ross,
Young and Liddle argue:
Equitable Aboriginal participation in land and resource-use decision-making is essential,
both ethically and practically, and must be supported by strong legal structures, policies
and planning frameworks. Aboriginal people, through their values, their expertise, and

willingness to participate in practical land and marine management have much to

contribute to sustainable development in Australia. 65

The Native Title Act and Australian Industry

Industry groups have voiced concern that the NTA has led to a degree of uncertainty. Investors and
financiers and businesses are unsure about the potential effect of the future act regime on their
operations. They are also concerned about the validity of their existing interests in land. In
discussing some of the economic issues arising from the enactment of the NTA, and the recognition
of native title, it is important to note that the NTA affects industries differently, depending on the
nature of the industry and the nature of the title that they rely upon. Before dealing with a number of
industries specifically, a few general points should be made.
Many of the concerns of industry groups relate to apprehensions about the validity of their present
interests. I believe this concern is overstated and based on a lack of understanding of the NTA which
allows for all invalid past titles to be validated. 66 Of course, validation does not always result in the
full extinguishment of native title. In a number of cases native title will co-exist with the granted
interest. This is the case with some leases and certain other interests. 67 Where this occurs, the
enjoyment of the grant takes priority over native title rights and interest. Native title is either
extinguished 68 or suspended 69 to the extent that it is inconsistent with the grant. Likewise, some
valid interests which do not require the operation of the NTA, will not have fully extinguished native
title and will co-exist with some remaining interests.
The second important factor to note is that the conduct of some state governments has contributed to
the uncertainty for industry. The WA government chose to go it alone in responding to the High
Courts recognition of native title and brought a legal challenge to the constitutional validity of the
NTA. Those seeking new interests or wishing to have prior interests validated cannot be blamed for
being unsure of the effect of the NTA if there was doubt created by the challenge over its validity.
Uncertainty has been intensified by WAs practice of issuing grants under its own Land (Titles and
Traditional Usage) Act 1993 (WA) in a manner contrary to the procedures of the NTA. The High
Court has now unanimously held that Act is invalid. In these circumstances, it is difficult to attribute
business uncertainty to the procedures established by the NTA. I believe that anxiety will diminish
now that the validity of the NTA is without question and all parties realise that they must operate in
accordance with it.
A third general point which must be made is that the process of issuing future interests had to be
altered so that native title could be considered. Recognition of our legal and human rights required
that discriminatory procedures had to be revised. In Mabo [No:2] Justice Brennan states that the
dispossession of Indigenous Peoples underwrote the development of the nation. 70 In the past
Australian industries may have operated in an environment that sanctioned the ignorance of our
human rights but there is no justification for the perpetuation of such unfairness. It may be in the
economic interest of the country to see resources developed but it is not necessary for such
development to take place at the expense of our rights. The prosperity of Australian society cannot
be contingent upon the continuing dispossession and infringement of the rights of Indigenous people.

The Native Title Act and the fishing industry

Those fishermen still humbug us but still keep on, fighting for country, because weve
got everything there, Dreaming, everything. 71
Nowhere is the difference between Indigenous and western concepts of property ownership more
apparent than with submerged lands and sea resources. Sea resources are central to a number of
industries including commercial fishing, pearling, and aqua-culture.
The viability of all these
industries is premised on the availability of sea resources which industry considers to be a common
resource. As the Ecologically Sustainable Working Group on Fisheries described them, [f]isheries
are a community resource; they belong to nobody yet everybody. 72 Indigenous peoples on the
other hand perceive sea resources differently. This difference is derived from a world-view which
contains notions of ownership of submerged lands and the resources themselves, concepts to which
some commercial fishing groups have voiced strong opposition. 73 For Indigenous people, the
relationship and sense of belonging to sea country is as elemental as their affiliations with the land.
74
Similarly, Dr Dermot Smyth has noted that traditional rights to the resources of clan estates included
rights to use and control resources in the sea. The sea also contains sacred sites and Dreaming
tracks and was created in the Dreamtime along with all its animals, plants, rocks and currents. From
an indigenous persons perspective, therefore, there is no distinction between native title on land or
sea. 75

Common law native title and fisheries

The extent to which our concepts of ownership of sea resources are recognised by the common law
is yet to be fully clarified by Australian courts. The courts of New Zealand and Canada have left little
doubt that traditional fishing rights are an integral component of native title 76 and it would be
surprising if a similar position were not reached in Australia. This is especially so since the NSW
case of Mason v Tritton. 77 In that case, Mr Mason, an Aboriginal man, had been charged with
collecting and shucking abalone contrary to the regulations under the Fisheries and Oyster Farms
Act 1935 (NSW). He pleaded not guilty, was tried and convicted in the Local Court, and appealed
(unsuccessfully) to the NSW Supreme Court 78 and again (unsuccessfully) to the NSW Court of
Appeal. 79 The defence for Mr Mason argued that the regulations did not apply to him, since he
enjoyed a right to fish as part of his native title rights in the relevant seas which was recognised by
the Australian common law.
He claimed that he was exercising this traditional right when
apprehended. It was argued that the general language of the Act and Regulations revealed no
specific intent to extinguish that right. Although he lost his appeals, he did so ultimately only upon a
point of evidence. His fundamental legal arguments were accepted by the Court of Appeal. As
Justice Kirby found:
The native title claimed is that of a right to fish coastal waters... In my view the claim
cannot succeed. This is not because the common law does not recognise the type of
claim made. I would hold that it does. It is because Mr Mason, the appellant, failed to
provide sufficient evidence that he had exercised such a traditional and customary 'right
to fish' when apprehended. Had he established such exercise he would in my opinion,
by law, now be entitled to the relief which he sought. 80
Justice Kirby noted that there is no bar to the recognition of fishing rights as a component of
ownership of land. 81 As a result, it would appear that at the very least, individuals have native title
fishing rights where there is a communal native title to the area where the fishing takes place.
Many legal questions relating to the common law recognition of traditional interests in sea resources
remain unresolved. Whether our customary fishing rights will be recognised even though our title to
land has been affected by Crown acts is yet to be determined. In my view the granting of interests
over our land is not inconsistent to the continuing exercise of our customary fishing rights. Also
awaiting clarification by the common law is the nature and extent of the rights attached to communal
native title to off-shore areas. I have argued in chapter 2 of this report that the communal title
provides an exclusive right against all the world in the area claimed. Questions of exclusive
possession to off-shore interests will, as a consequence, require resolution as will the extent to which
the exercise of native title fishing rights can be validly regulated at common law without amounting to
an extinguishment.
Whether native title fishing rights at common law contain a commercial component is also open.
There is Canadian and New Zealand authority both for and against this proposition. As Desmond
Sweeney observes:
The courts in other common law countries have experienced considerable difficulty in
addressing this issue of whether aboriginal rights include a commercial component. The
views may generally be broken into two categories: those which see aboriginal rights
frozen as at the time of European settlement and those which consider that aboriginal
rights are capable of evolving over time to correspond to contemporary needs. 82
The ambiguity over whether the common law will recognise commercial uses of Indigenous fishing
rights are part of the larger question of how the content of native title rights will be construed.
Desmond Sweeney has neatly summarised the possible outcomes:
If the content of Aboriginal rights is determined by reference to pre-colonisation
practices then some Aboriginal communities may be able to establish the requisite right.
To do this they would need to establish that they bartered goods with other tribes and
the modern day exercise of this right includes commercial trade or, alternatively, that
they had already engaged in trade with passing European explorers or neighbouring
Melanesian peoples. However, the preferable approach is that Aboriginal rights should
not be determined solely by the observed manner of exercise of the right at the time of
European settlement, but rather by reference to the underlying Aboriginal concepts of
their relationship to land and its resources. 83
I believe that if it is established that Indigneous fishing rights include ownership of fish resources or
that Indigenous fishing rights are exclusive, then those rights should be given full force and effect.
There is no reason why those rights should be prohibited by the common law from being exercised in
a commercial manner. As noted in Sparrow, it would be artificial to try and make a hard distinction
between the right to fish and the particular manner in which that right is exercised. 84

Fishing interests and the Native Title Act

The native title rights recognised by the NTA are those defined in s. 223(1) (see chapter 2). The
definition in that section includes fishing rights. 85 There is nothing in the NTA which limits the nature
and extent of the fishing interests that are recognised. In response to the fact that it is our concepts
of native title that are being recognised, the NTA acknowledges that native title can be claimed to
waters the definition of which includes seas, rivers, lakes, bays, estuaries or the sea bed or sub-soil
under or airspace over any water. 86
From an Indigenous perspective, the important component of the NTA is the degree of protection that
it affords to the rights that are recognised. The NTA offers only limited protection for the fishing rights
of Indigenous peoples. The principle ways in which the NTA affects Indigenous fishing rights are:
(1)
(2)
(3)
(4)

it allows for validation of invalid fishing leases and licences;

where validation occurs, native title holders may be entitled to compensation;
the principle of non-discrimination applies to future grants of fishing interests; and
s. 211 provides protection for some subsistence fishing rights.

As far as interference with the present operations of commercial fishermen is concerned, the limited
protection that is available to native title holders does not impair the existing activities of the fishing
industry.
Validation and future acts
In respect of invalid past acts, the non-extinguishment principle applies to fishing licenses. 87 Native
title revives in full at the expiry of a licence. 88 Leases granted for the purpose of aquatic industries
(such as oyster leases), which have been validated, extinguish native title. 89 These interests can
also be renewed as long as the renewal does not create a greater interest. 90 Native title is not
necessarily extinguished completely by leases which do not require validation.
In these
circumstances, there is scope for co-existence under the common law. Clearly there is no danger of
commercial fisheries not receiving the full benefit of their existing interests as long as complementary
legislation has been enacted.
Future acts are more complicated. With regard to leases, the renewal, re-grant or extension of a
lease, which are not past acts, are permissible future acts as long as they take effect before or at the
end of the term of the lease. 91 The NTA may have some impact on the issuing of future interests
which are more extensive than existing interests that they replace, but this is very limited. I believe
the impact on the issuing of new fishing licences is also limited. Apart from limitations on
discriminatory acts, there is nothing preventing any future acts relating to commercial fisheries in offshore areas where the majority of commercial fishing take place. 92 With regard to on-shore places,
which includes rivers, tidal waters, estuaries, bays and inlets, future non-legislative acts will be
permissible future acts if they could be done if we instead had ordinary title to land adjacent to the
waters. 93 The way this test operates in practice in the context of the fishing industrys interests is
difficult to predict and will vary depending on the rights which ordinary title holders have in relation to
adjacent land. It is fair to say, however, that future acts which give rights of access for the purpose of
commercial activity to on-shore waters where native title exists may not always be permissible.
Future acts in relation to commercial fisheries are, in most cases, exempt from the formal negotiation
process. Unless the issuing of future commercial or agricultural leases or fishing licences involve an
acquisition under an acquisition Act, the right to negotiate does not arise, unless required by the
Commonwealth Minister. 94 Depending on the relevant fisheries legislation there may be some
procedural rights afforded to holders of existing interests which will also have to be afforded to
Indigenous people.
The above analysis indicates that the NTA does not provide substantial protection for native title and
it does not interfere with past grants or seriously impact on the grant of new rights. Notwithstanding
this, a considerable amount of concern over the operation of the NTA has been voiced by commercial
fishermen. The primary concerns of the industry appear to be that, first, they are concerned that their
licences may be impaired or devalued; second, they may be excluded from certain areas; and third,
they are opposed to ownership of waters whether they be inland waters or off-shore. 95
I believe that some of this criticism is premised on a misunderstanding of the provisions of the NTA
and their potential impact. That the legal definition of our fishing rights is, at present unclear, has
partly contributed to this. Although we have a clear understanding of what our fishing rights mean to
us and what those rights entitle us to under customary law, whether these are fully recognised by the
common law is another matter. I can understand that this leaves commercial fishermen and fisheries
authorities unsure as to the nature of the rights recognised.
Access

Concerns voiced by sections of the fishing industry over access, 96 in my view are probably
somewhat exaggerated. All existing rights of access that are created in licences or legislation can be
validated if indeed they are invalid in the first place. If the interest creating the access right is not
invalid then whether that access is subject to native title will be determined by the common law and
statute. Future grants of access over off-shore waters are permissible. Future grants of access to
waters in on-shore places, where native title rights and interests exist, will depend on whether the act
which gives rise to the access right could be done if Indigenous peoples instead held ordinary title to
the land adjoining those waters.
Any confusion that there may be over access is not clarified by s. 212. Some of the doubt over
access may be a result of the confusion surrounding s. 212. As I noted in chapter 1, I believe that s.
212 has limited operation. Any confirmation that existing fishing rights prevail over any other, as in
accordance with s. 212(1)(c), adds little. This is particularly so given that confirmation under s. 212 is
subject to the rest of the NTA 97 and is subject to s. 212(3), which provides that any confirmation
under this section does not extinguish or impair any native title rights and interests.... 98
Confirmations under s. 212 are limited to existing interests where the confirmation does not affect
native title. Section 212 is of little assistance to the fishing industry, or to anyone else, but the
industry has the benefit of the validation provisions and the future act regime which, I believe,
respond to the industrys main concerns.
Compensation
Depending on the nature of the right being interfered with, and the extent of that interference, there
may be a significant financial incentive to limit the future impairment of native title rights. The amount
of compensation is likely to be substantial if customary rights are found to support commercial
interests. This is a matter of concern for the fishing industry. They have argued that if the cost of
compensating Indigenous people is too high, future interests would be too difficult to get. 99 In
addition, there is a possibility that where a new commercial fishing interest is created, the recipient
may have to contribute, either partially or wholly, to the cost of compensating Indigenous people for
the infringement of their native title rights and interests. 100 Whether this eventuates is a matter of
discretion for the relevant government.
Despite the concerns voiced by the commercial fishing industry, I do not believe the compensation
scheme in the NTA is unjust. It would be preferable if our legal and cultural rights were protected and
maintained rather than impaired and compensated. The NTA
does not provide this outcome. It allows for validation of invalid titles at the expense of our valid
native title. In future it allows our rights to be interfered with for the benefit of third parties who, at the
time that they seek an interest, merely have an expectation of a grant. They have no legal
entitlements. We are entitled to be compensated for loss of our cultural heritage and loss of
enjoyment of our property rights. We are guaranteed just terms compensation by acquisitions of
property authorised by the Commonwealth by virtue of s. 51(xxxi) of the Constitution. 101
Interference with our property and cultural heritage will be a cost that will have to be considered in
the future creation of commercial fishing interests in some areas. The fact that a government
creating the interest may not let the beneficiary of the interest externalise and pass on that cost is
irrelevant to our entitlement to compensation. If the cost is too great to make the creation of the
future interest viable, then it should be regarded as just part of the vicissitudes of business activity.
Surely such assessments of viability are a component of every business decision involving the
acquisition of property. There should be no difference when the property interest being acquired is
an interest belonging to Indigenous people.
Indigenous involvement in fisheries management
While the NTA largely protects the commercial fishing industry, the Act brings an urgent need for
fisheries authorities to re-evaluate their management schemes in order to accommodate our
concerns and to allow for our resource use. Not only is this because our interests have to be taken
into account in order for some future acts to proceed, but also because the co-existence of our
customary rights are recognised and partly protected. This is a result of both the common law, which
provides limited protection from fisheries regulations, 102 and s. 211 of the NTA. As described in
chapter 1, section 211 operates to protect the activities of native title holders from certain forms of
regulations, namely, those that prohibit or restrict persons from carrying on the class of activity other
than in accordance with the licence, permit or other instrument granted or issued to them under the
law. This protection from certain regulations is limited to where the native title activity is for the
purpose of satisfying personal, domestic or non-commercial communal needs. 103 Section 211
protects Indigenous customary subsistence fishing rights from being regulated into non-existence.
Commercial fishing interests which may be held to arise from custom are not so protected and may
be regulated; however given that impairment has to be compensated, this may not occur as readily
as fisheries authorities may desire.

That ownership of sea resources may be a component of native title is a factor that government
agencies have to consider when granting future interests.
Furthermore, the recognition of
Indigenous fishing rights requires our traditional fishing rights and sea resource management
systems to be acknowledged by government agencies responsible for fisheries management of sea
resources, and our concerns and interests meaningfully accommodated in management systems.
Although there has been limited recognition and acceptance of Indigenous subsistence fishing rights
in a number of States and Territories, 104 active and meaningful involvement in sea resource
management is another matter. It has been noted that in many States, indigenous rights to utilise
and manage resources are subservient to commercial, government and conservation priorities and in
many cases, the cultural artifacts of Aboriginal society (especially sites) are given greater legislative
protection than the concerns and interests of living Aboriginal people.105
Our involvement in sea resource management is long over due.
Commission in its 1993 Coastal Zone Inquiry: Final Report stated that:

The Resource Assessment

Coastal land and marine resources are important both economically and culturally for
many indigenous coastal communities throughout Australia. Depending on the manner
in which these resources are managed, conditions of life for indigenous communities
can be improved or degraded. As the original owners and managers of the coastal zone,
Australia's indigenous people have a right to participate in, and benefit from, the
management, development and protection of the zone. 106
As with land management, the recognition of native title and the enactment of the NTA bring new
urgency to this change occurring.
Regional agreements and fisheries
As noted above, regional agreements may be a means of resolving disputes over resource use and
management. The fishing industry and government agencies responsible for fisheries management
should look to regional agreements and s.21 of the NTA as a means of resolving conflict and
uncertainty.
In coastal zone management there are significant overseas precedents demonstrating what can be
achieved through negotiated settlements. In Canada and New Zealand several agreements of this
kind have been developed despite legal uncertainty about the recognition of Indigenous customs. Of
particular interest is the Nunavut Agreement concluded in 1992 between the federal government of
Canada, and Inuit peoples in parts of northern Canada. The Nunavut Agreement has the objectives
of clarifying Indigenous rights to ownership and use of lands and resources and to participate in the
management of water and resources. It in part provides Indigenous people with (1) wildlife
harvesting rights; (2) financial compensation and means of participating in economic opportunities
and (3) a means of participating in economic opportunities in order to encourage self-reliance and
the cultural and social well-being of the Indigenous people. 107 Among the elements of the Nunavut
Agreement is the right of representation on new institutions to manage land, water, and wildlife, and
to evaluate and mitigate the impacts of resource development throughout Nunavut including the
offshore. 108 Inuit peoples will also have negotiating rights in relation to proposed national parks
and conservation areas, and will be guaranteed, subject to principles of conservation, the right to
harvest marine and terrestrial wildlife throughout Nunavut sufficient to meet their consumption
needs....109
For the commercial fishing industry regional agreements could be the catalyst which restores
certainty to their operations. The Maori experience has shown that such agreements are achievable
and can provide a compromise that serves the interest of all parties. In 1992 the Maori negotiated a
settlement about commercial fisheries. A settlement deed, dated 23 September 1992, was an
agreement under which Maori signatories agreed that Maori customary fishing rights claimed on the
basis of both customary law and the Treaty of Waitangi were extinguished and, pending litigation,
would be discontinued. In return, the Maori received a payment from the Crown for the development
of Maori commercial fisheries, a quota of fish species bought under the New Zealand quota
management system, and increased representation on statutory fish management bodies. 110
Although the Maori settlement was not universally accepted as the best possible outcome, 111 it
shows that there are mechanisms that allow agreements to be reached and certainty of interests
achieved.
It is my view that a great deal of potential conflict could be eliminated by joint
management of coastal areas between government authorities and Indigenous peoples. 112

The Native Title Act and mining activity

During the negotiations towards the enactment of the NTA, the relationship between native title and
various forms of mining rights to land, and mineral and petroleum resources therein was a subject of
considerable controversy.

Many of the issues relating to the validity of past titles and the process of issuing future grants which
are important to the mining industry have been discussed above. It is useful, however, to restate
some of the aspects which directly affect the mining industry. The effect of the NTA is that, generally
speaking, native title is equated to freehold. 113 Thus, if a mining tenement cannot be granted
according to state laws over freehold land, or only with compensation or rights to object, so too with
land subject to native title. As discussed above, of particular importance in regard to resource
exploration and development on native title land is the right to negotiate procedure. This provides
some protection for Indigenous peoples against grants of exploration permits or production leases or
the compulsory acquisition against our wishes of our title for the benefit of mining companies.
These procedures are available to those claiming native title upon the claim being accepted by the
Registrar even though the claim may never ultimately be proved. The right to negotiate, however,
does not apply to existing mining titles, or the exercise of a legally enforceable right of renewal. Only
new grants attract the negotiation regime.
All invalid past grants of mining tenements may be validated by the States and Territories passing
complementary legislation to achieve that end. The grant of a mining lease is deemed a Category C
past act 114 which does not extinguish native title. However, native title is suspended for the term of
the tenement, or any recognised renewal. At the expiration of the mining or petroleum tenement, any
native title existing in the land revives. 115 The grant of a new mining interest (whether for
exploration or mining) likewise does not extinguish native title. 116
The NTA has very limited impact on mining or petroleum activities conducted offshore. All future acts
in off-shore areas are permissible future acts. Similarly, future grants offshore are not subject to the
right to negotiate procedures. Thus the NTA provides no real impediment to the Commonwealth or
State Ministers granting future petroleum or mining titles offshore. Of course, once operations wish
to come onshore for example, a gas pipeline or construction of a treatment plant the situation
changes.
The position of ownership of minerals and petroleum is not entirely clear, as the question of whether
Indigenous ownership of land extends to ownership of minerals has not been resolved. For many
years, the States and Territories have had in place laws declaring that all minerals (as variously
defined) are vested in the (State) Crown. The NTA permits the States and Territories to legislate to
confirm existing Crown ownership of minerals but only to the extent that it does not extinguish or
impair native title. If state legislation conferring ownership of minerals in the Crown was not effective
to extinguish Indigenous ownership of minerals then that ownership remains as neither the validation
provisions nor the confirmation provision in s. 212 (see discussion in chapter 1) alter the situation. If
this is the case, then to remove any Indigenous ownership of minerals, a state or territory
government will have to go through the future act regime.
The regime introduced by the NTA and the delays much criticised by the mining industry in the right
to negotiate procedures should encourage resource developers to sit down and negotiate resourcedevelopment agreements with native title holders and claimants. Indeed, the right to negotiate
provisions themselves include provision for entitlement to payments referable to profits, income and
things produced. 117 Thus, royalty payments, income or profit sharing are contemplated although
the Tribunal cannot order such payments, unless the parties consent. 118 It is my belief that
certainty and reductions in any delays which may have been introduced can be achieved if mining
companies negotiate with Indigenous people in a meaningful manner which respects Indigenous
world-views and Indigenous ownership of land.
Relations between the Australian mining industry and Indigenous rights have long been a focus of
legal, economic, social and political concern. Debate about the human rights implications of mining
on Indigenous land reflects concern about both the historic impacts of Australias post-war mining
boom on Indigenous communities in remote Australia and the actions of international mining
companies in other jurisdictions.
Australia is a major contributor to global trade in minerals and mineral products. Much of its mineral
production comes from land in which Indigenous Australians have continuing interests, whether or
not those interests are formally recognised by governments. For many decades, these interests
have been ignored, trivialised and marginalised.
Passage of land rights legislation in some
jurisdictions has regulated some aspects of relations between miners and Indigenous people. The
principle of Crown ownership of minerals, however, has not been challenged by these laws. Indeed,
the provisions of some legislation, ostensibly aimed at recognising our rights, actually seek to
constrain and even exclude increased levels of Indigenous control over or benefit from mining in their
estates.
Recent recognition of native title has raised difficult questions about Indigenous resource rights in
Australia and the distribution of the costs and benefits of resource development. As Professor
Richard Bartlett observes:

Resource developers and holders of resource titles have long been accustomed to a
legal recognition of the dominance or paramountcy of their rights to use land. 119
The recognition of native title along with changing community values on environmental issues
challenges this previously unquestioned paramountcy and has prompted discontent within and veiled
threats to Australians economic welfare from resource industries. Australian Mining Industry Council
spokesperson Geoffrey Ewing, for example, has suggested that passage of the Native Title Act 1993
...will certainly result in a reduction in exploration and mining expenditure in Australia,
although the impact of this may not be felt in a dramatic sense for some 5 to 10 years.
120
In a submission to me, Mr Ewing restated this concern, suggesting that:
Most mining companies in Australia have a very strong view that...the provisions of the
Native Title Act...[will mean] access to land over which native title is claimed is likely to
be extremely difficult.
The response to this perception is that there will be a marked tendency to avoid
exploring on areas over which the procedures of the Native Title Act must be utilised.
This will mean that companies will spend far more effort exploring on areas where native
title has clearly been extinguished or on brownfields exploration..121
It is a matter of public record that mining industry bodies and many individual industry leaders feel
the Native Title Act unfairly affects the mining industry and the interests of States and Territories
dependent upon mining-based revenues. Specific criticisms have highlighted:
reduced security over resource titles as a result of the possibility of native title claims, and the need
to negotiate with native title claimants and native title holders;
the possibility that the right to negotiate may become a de facto veto over development;
additional complications in administration of mining tenements, increased time and expense in
securing titles;
inconsistencies between jurisdictions;
delays in commencing exploration programmes;
increased sovereign risk for resource developers;
the impact of reduced exploration and increased social division of Aboriginal economic development;
and
the substantial economic cost in terms of reduced employment, expenditure and consumption
imposed on the wider community. 122
This apparent litany of flaws in the NTA fails to recognise the rights attached to native title and the
nature and significance of unresolved grievances resulting from Indigenous Australians experience
of development, including mining, and its impact on their country and lives. In my opinion, mining
industry criticism of the High Court decision, the Act and the broader implications of community
recognition of native title, along with the mass medias emphasis on simplistic, conflict-oriented
accounts of this issue, has inflamed community division. It has also tended to imply that things were
better under previous regulatory regimes. This was clearly not the case in terms of recognition,
respect and protection of our rights. It should be clear to all Australians, including the managers of
mining companies, that it is no longer in the power of governments to arbitrarily and unfairly
extinguish existing native title interests to clear areas of impediments to development. Like all
economic activity, mining must be accountable to social values and the principles of human rights.
Misunderstanding of the basic principles involved has led to many misinformed concerns gaining
currency within the industry.
Significant sections of the industry continue to express unwillingness to accept that dealing with
native title interests involves recognition of pre-existing rights, rather than a grant of a concessionary
interest by governments. Unequal power relations continue to characterise relations between the
nations major mining enterprises and the Indigenous communities affected by their operations. As
the work of the Royal Commission into Aboriginal Deaths in Custody demonstrates, this inequality is
causally related to the continuing disadvantage of many Indigenous peoples. 123
The industry acknowledges that it may take several years for many of its concerns to be reflected in
relevant statistics. 124 The extent to which the operation of the NTA itself may affect mineral
exploration and development activity in the future will reflect a variety of factors. These factors all
complicate interpretation of industry statistics and make it impossible to reach conclusions about the
immediate and short term impact of the operation of the Act on exploration and mining. It is clear that
some sections of the industry have made political and economic judgements about their investments
in exploration and development under emerging management systems which acknowledge native
title. Their assessment seems to be that creation of a political climate hostile to recognition of our

rights may allow them to avoid certain costs involved in dealing with these (currently existing) rights
and interests. Such manipulation of privilege by powerful vested interests in the mining industry in
the guise of a concern for wider community welfare and the national interest is regrettable. 125
Inevitably, figures for any short period will be affected by many contingencies, including (but not only)
economic conditions, credit availability, and range of other policy settings. In the case of Western
Australia, political confrontation between the State and Commonwealth governments has created
much greater uncertainty than either the existence of native title or the provisions of the
commonwealth Act.
In all the States and Territories, it is clear that the industry feels it can, within certain constraints at
least, work with native title in the same way it works with leasehold or freehold interests. 126 The
introduction of new administrative arrangements under the NTA has inevitably imposed delays and
difficulties on those affected by its provisions. It remains to be seen to what extent the NTA will
actually affect access to Indigenous land for mining purposes. In many places, agreements between
native title claimants and mining companies have been reached, or are under active negotiation.
In the Northern Territory, where the mining provisions of Aboriginal Land Rights (Northern Territory)
Act 1976 have been in place for several years, expansion of gold production and exploration on
Warlpiri lands in the Tanami region has continued. Agreement has also been reached over
development of gold resources on Jawoyn lands at Mt Todd and other exploration agreements have
also been reached. There have been continuing discussions between Aboriginal people affected by
the Mt Isa Mines McArthur River base metals project near Borroloola, which was the subject of
special legislation in the Northern Territory and fast-tracking through commonwealth approval
processes. At Mapoon on
Cape York Peninsula, Venture Minings proposal to develop a small kaolin mine has been approved
following a negotiated agreement with the native title claimants in December 1994.
Elsewhere, existing mining operations have also pursued new levels of accommodation with the
Indigenous peoples they affect.
Companies including Argyle Diamonds, BHP, Comalco,
Hammersley, Normandy Poseidon have all demonstrated willingness to listen and explore ways to
tackle long-standing grievances of local communities. In many ways, this movement reflects both
changing cultural attitudes and understandings within these companies, and the changed moral and
ethical landscape emerging in the wake of legal and legislative recognition of native title. There
continues to be a risk that progressive efforts to address local peoples grievances will be
undermined or counterbalanced by a persistent and often unreasonably influential adherence to
more conventional and confrontational rhetoric.
Many Indigenous peoples realise that recognition of native title cannot undo the effects of the
changes set in train where earlier exploration and mining has proceeded without consultation or
approval. In many parts of Australia resource-based development has proceeded in the last decade
in areas where native title may not have been extinguished, with no account of continued Aboriginal
interests. As with other areas of resource management there is an urgent need for Indigenous
peoples to have greater influence over management of cultural resources, greater recognition within
their regional communities, greater levels of local autonomy, and greater benefit for future
generations of local Indigenous people from the exploitation of local resources. In remote areas such
as:
Weipa, where Comalcos bauxite mine operates on leases issued under special legislation passed in
1957;
Gove, where the traditional landowners failed to gain judicial recognition in their 1968 challenge to
mining leases;
the Ngaanyatjarra lands in central Western Australia, where Aboriginal people have established a
new Shire, focused on Aboriginal lands in which very little mineral exploration has occurred;
and
northwest Queensland, where CRAs new Century base metals project affects a range of Aboriginal
interests,
It is clear that Indigenous expectations are for management regimes that provide more than token
recognition of their interests, concerns and aspirations.
Many possible directions for arrangements responsive to such expectations are emerging. One of
the most important issues, however, involves the urgent need for a shift in community expectations,
so that mining operations and exploration proposals indeed, all economic activity on Indigenous
estates should not only deliver state or national-scale benefits through contributions to
employment, taxation, royalties and exports, but should also contribute to locally desirable,

meaningful and sustainable outcomes.

I see movement towards such outcomes representing a substantial contribution to the nations ability
to guarantee protection of our human rights, as well as providing resources to addressing both the
grievances and aspirations of Indigenous Australians locally, regionally and nationally.
In the context of my broader responsibilities, continued confrontation between Indigenous Australians
and the mining industry has the potential to undermine wider community support for native title and
constitutes a volatile source of wider social antipathy to recognition of and respect for indigenous
rights. In Canada, federal and provincial governments have moved to accept the need for regional
agreements over native title, resources, self-determination and other matters. 127 In New Zealand,
the principles of the Treaty of Waitangi (and in particular the Maori version of that document) have
been incorporated into the wide-ranging Resource Management Act 1991. 128 In the USA, the
principles of Native American sovereignty, including sovereign ownership of natural resources
(including minerals), pre-dates the American constitution. 129 In comparison to these positions
Australias recognition and accommodation of native title has been modest and means that the
circumstances in which native title will be found to persist, where it will affect mining operations, or
will deliver a right to negotiate with resource developers will be severely restricted.
It is clear that the immediate future holds many challenges for both the mining industry and
Indigenous communities affected by mining. There is a need for continuing research on the issues
involved, both in terms of the effects of the NTA on mining, and the effects of mining on our
communities, whether or not they are able to sustain native title claims. I intend to maintain careful
monitoring of the issues involved in relations between Indigenous Peoples and the mining industry
and to report more fully on matters dealt with briefly here at a later time.

The pastoral industry and the Native Title Act

In the policy debates on native title issues, the pastoral industrys principal representative has been
the National Farmers' Federation (NFF). Most of the prominent industry groups, such as the
Cattlemen's Union and the Pastoralists and Graziers Associations are members of the NFF. 130
Since the recognition of native title by the High Court, the formal cohesiveness of the industrys peak
bodies belies some significant differences of opinion about policy issues which exist between them.
However, if there was one issue which all the various industry groups did agree about it was the
perceived need for the restoration of certainty of land tenure for farmers in the wake of Mabo [No:2].
Understandably, security of land tenure was a major concern for the farming industry. In response to
its members concerns, the NFF was instrumental in generating the political imperative to alleviate
the uncertainty.
The NFF took the approach that its participation in native title policy debates would be pragmatic and
it sought to influence policy and public opinion only on issues which affected the interests of its
members. The NFF concentrated its efforts in negotiations on achieving legislation that would
validate past grants rather than on the issue of future grants and they strongly supported a national
approach to validation. The NFF sought a commitment from the Commonwealth Government to
pass legislation permitting validation of past grants. According to Rick Farley, Executive Director of
the NFF, the Commonwealth Government gave this commitment and complied with it when it enacted
the NTA:
We believe the federal government has delivered on its central commitments to the farm
sector and that the Native Title Act meets our core concerns in relation to security of
existing pastoral and agricultural tenure. 131
As noted in chapter 1, the NTA directly validates past commonwealth acts that would be otherwise
invalid because of native title. 132 It also authorises States and Territories to validate their own past
grants through complimentary legislation. Because most land interests are created by State or
Territory grants, the enactment of complementary legislation was critical to the pastoral industry. At
the time of writing, only Western Australia had maintained resistance to enacting complementary
validating legislation, leaving some past grants in that State potentially invalid. Perhaps in sympathy
with the antagonistic and unique attitude of their State Government to native title, Western Australian
industry associations have also found themselves standing against the tide of national opinion
regarding the recognition of Indigenous land ownership. In stark contrast to the satisfaction with the
NTA expressed by Mr Rick Farley, Mr Anthony Boultbee, President of the Pastoralists and Graziers
Association of Western Australia, says:
We do not believe that [the NTA] can be made acceptable to our industry without
massive amendment, in fact so massive that probably there would not be much of the
law left if we really were to satisfy our requirements. 133
The views of the Western Australian pastoral industry representatives must now be reviewed in the

light of the High Courts striking down of the Land (Titles and Traditional Usage) Act 1993 (WA)
(LTTU Act) as invalid. 134 The pastoralists and graziers in Western Australia had believed that the
LTTU Act fulfilled the industrys requirements better than the NTA. The problems about validity of
pastoralists titles arose, as they saw it, from the operation of the NTA and not through the failure of
the Western Australian Government to participate in the national approach to validation.
The pastoralists view is that the state has passed validating legislation. There would be
nothing wrong with that legislation but for the Commonwealth legislation retrospectively
invalidating it. 135
The High Court has rejected the notion that the LTTU Act would be fully valid but for the operation of
the subsequently enacted NTA. The High Court held that the LTTU Act was inconsistent with the
RDA and it was unnecessary for the Court to determine whether the NTA operated retrospectively.
Compliance with a fundamental law like the RDA, which enshrines human rights, should not be
regarded as an unsustainable burden. Indeed, as a representative of the Western Australian industry
concedes:
The Racial Discrimination Act has been on the books for almost 20 years now, and once
again it is something which industry lives with everyday, it is just part of the legal frame
work, the same as the environmental protection act and the criminal code and any other
general laws. 136
It is clear that the Western Australian pastoralists faith in the LTTU Act was misplaced and the NFFs
support for a national approach to the validation of titles is now vindicated. It was on the basis of the
mistaken assumption that Western Australia could validate past grants without the authorisation of
commonwealth legislation, that the Western Australian pastoralists blamed the Commonwealth for
the remaining uncertainty about their titles. The Western Australian Government, in refusing to take
the opportunity extended by the Commonwealth to pass complementary validating legislation, is to
blame for the continuing uncertainty about Western Australian land grants.
Pastoral leases and native title
As argued in chapter 3, the common law is still unclear as to whether a pastoral lease is capable of
extinguishing native title, particularly when the terms of the lease contain reservations for the benefit
of Aboriginal and Torres Strait Islander peoples. Interest in the impact of pastoral leases on native
title is intense among Indigenous peoples and non-Indigenous individuals and corporations. On both
sides of the debate, pastoral land has special characteristics that contribute to the importance of this
issue. For Indigenous peoples, much land that has been, or is, used for pastoral purposes is also the
site of living tradition that continues to exist and develop. For non-Indigenous people, farming has
been a foundational industry. It has a prominent place in the history and cultural imagination of white
Australia and so the concerns of the industry are bound to be taken seriously in the wider community.
That pastoral leases cover about half of the total surface area of Australia 137 adds to the
importance of finding satisfactory resolutions to issues about the effect of pastoral leases on native
title.
Ironically, the issue of whether a pastoral lease extinguishes native title only arises with titles not
invalidated through the existence of native title. Where validation of a past grant of freehold or
certain leasehold titles (including agricultural and pastoral leases) 138 occurs under the provisions of
the NTA or complementary legislation, the grant extinguishes native title. 139 The NTA ties the act of
validation to the extinguishment of native title. In doing so it produces the anomalous result that,
although native title is extinguished on invalid (but validated) pastoral leases, it may subsist on valid
pastoral leases. The pastoral industry representatives find this result unsatisfactory:
There are now two categories of pastoral lease out there: there are those which are
invalid, but which can be validated, and which will extinguish native title; and there are
those out there which are valid and which may or may not co exist [with native title]. The
difficulty is that you do not know what sort of lease you have got. You just do not know
where you stand, and so the uncertainty that existed with the High Court decision has
been not only perpetuated and not addressed, but it also has been made worse in the
sense that, under the High Court decision, it was possible that the native title might
coexist or might not in relation to all pastoral leases. Under the native title act, we now
have two categories but we have no way of knowing which category your lease is in
without a court making a ruling on it. 140
The logical extension of this complaint seems to be that pastoralists would have been better off if
validation had occurred without affecting subsisting native title rights. In that case, all holders of
pastoral leases, whether or not those grants were invalidated by the RDA, could have turned their
attention to the possibilities of co-existence with native title holders.
I have argued in chapter 3 that for a grant to take effect does not require the destruction of native

title. If the principle of maximum co-existence had been observed in drafting the provisions that
facilitate the validation of pastoral leases, validation could have occurred without extinguishment of
residual native title. If, as I have argued above, native title can co-exist with some interests granted,
including pastoral leases, the act of validation unnecessarily increases the title held by the lease
holders by extinguishing any subsisting rights of native title holders.
Native title claims to pastoral leases
Although the NFF has taken the position that the grant of all pastoral leases including those
containing reservations extinguishes native title, it has attempted to co-operate with the
procedures laid down in the NTA and by the Tribunal. Such co-operation is demonstrated by the fact
that the NFF has requested that its legal advisors make themselves available to assist farmers to
participate in mediations convened by the Tribunal. The NFF has chosen to use a particular group of
lawyers because their approach to mediation is constructive and conciliatory rather than antagonistic.
However, despite the pastoralists apparent willingness to talk, the uncertainty surrounding the effect
of a pastoral lease on native title has created difficulties for some of them.
As the pastoralists see it, the principal problems arising out of native title claims over pastoral leases
can be summarised as follows:
they are compelled to attend mediation sessions about claims that, on their legal advice, are without
merit;
some pastoralists have expressed the view that they are disadvantaged in these mediation sessions
in comparison to the claimants; and
they believe that they suffer financial disadvantage as a result of the claims.
Tribunal procedures
Many farmers have expressed their objections to the acceptance by the Tribunal of claims to pastoral
leases. They feel that the mediation conferences convened by the Tribunal in relation to claims over
pastoral leases are a waste of time.
In response to these feelings amongst its constituency, the NFF lobbied the Tribunal to implement
guidelines about the acceptance of claims to pastoral leases. On 12 September 1994 the Tribunal
introduced revised guidelines designed to address the kinds of issues raised by pastoralists in
relation to pastoral leases. As mentioned in chapter 4, the guidelines have the effect that an
application for a determination of native title rights, made in respect of pastoral land, which extends
beyond any reservations for the beneift of Indigenous people in current or expired valid pastoral
leases, will not ordinarily be accepted by the Registrar. The effect of the test and these guidelines is
to predetermine a legal issue that is very much open. The assertion that Indigenous people should
refrain from, or be prevented from, bringing native title claims to land beyond reservations in pastoral
leases depends for its validity upon the assumption that the NFFs assessment of the legal position
will prevail. This is an assumption that I do not accept. An argument could just as easily be made
that pastoralists should stop wasting time and resources opposing native title claims over pastoral
leases and get on with the business of formulating creative proposals for co-existence.
Certain facts must be considered when weighing up the pastoralists objections to participating in
claims to pastoral leases. Firstly, it is important to remember that the Tribunal has no power to make
a binding determination except where such determinations are agreed by all the parties. The
Tribunal process can have no impact on the pastoralists rights unless they themselves agree to a
determination.
Mr Latham MHR posed a relevant question during the Parliamentary Joint Committee hearings:
How much of a hardship is negotiating around the table without any compulsion to agree
to something that is not in the interests of the parties concerned? It doesnt sound too
bad? 141
Secondly, some of the problems people have with the idea of mediation arise because the process is
unfamiliar and not because it is fundamentally unworkable. Some of the fears expressed by the
pastoralists will abate by actually participating in the process. As one Cape York farmer said to a
reporter after the Wik mediation :
I think it was a bit better than I thought. On the basis that people actually did get
together and talk about it in a good spirit of mediation. To achieve that alone was far
better than what we had before. 142

Power in mediations
A number of pastoralists and others who are affected by claims have also complained that they
perceive themselves as disadvantaged in the mediation process because of the supposed free
availability of funding for claimants. For instance, newspaper reports about the mediation conference
convened by the Tribunal in the Yorta Yorta Peoples native title claim highlighted this perception of
imbalance:
Some parties claimed that the Yorta Yorta were represented with [sic] a battery of senior
and junior lawyers and the State governments also had senior lawyers present, while
many local land owners and other people with an interest in the claim were representing
themselves.
...
Expressing disgust with the process, one grazier said, I thought the idea of a mediation
was that it would be informal and the parties equal. There is nothing equal about this.
143
The apprehension that the mediation process is unequal because the claimants have ample funds to
spend on legal costs seems to infect discussions of the process of negotiating over native title. This
idea is unfounded and it must be dispelled. Indigenous organisations, which are charged with the
responsibility of assisting native title claims, generally also have to provide numerous other services
to their constituents. They are invariably overburdened and underfunded and, as a consequence, the
assistance they can provide to native title claimants is limited by their resources. The problems this
causes for Indigenous peoples who are trying to protect their remaining property interests have been
discussed in chapters 1 and 2.
While I do not believe that Indigenous people have any advantage in mediation, I do support the
NFF's call 144 for adequate funding for legal and other costs incurred by farmers in responding to
native title claims. The process can only be enhanced when all people feel that they have the
information and the confidence to participate fully.
Banks and financial institutions
Financial institutions and banks have reportedly increased risk margins on pastoral properties that
are subject to native title claims. 145 If this is the case then it demonstrates that these institutions are
having difficulties coming to terms with the principles by which native title is recognised. Although I
have argued in this report that the grant of a pastoral lease does not extinguish native rights, even if
native title is found to exist on land subject to a pastoral lease, it is likely that the grant will still be
effective. Native title will only subsist to the extent of its consistency with the rights conferred in the
grant. In other words, the holder of the pastoral lease will not be deprived of any rights which were in
truth conferred in a valid pastoral lease because of the recognition of native title.
A clear understanding of the current legal position may help financial institutions to better assess the
effect of native title on their securities. I understand that the Tribunal and the Special Minister of
State in the Commonwealth Government have provided assistance with increasing the
understanding of financial institutions of the issues involved. 146
If clarification of the legal position is not enough to satisfy financial institutions, then the problem may
be able to be resolved by reaching satisfactory agreements with the native title claimants for coexistence on terms acceptable to everyone. Agreements are achievable and they should be
considered by the pastoral industry especially when native title claimants, such as the Wik, have
shown themselves to be reasonable and accommodating in their approach.
Aborigines in the pastoral industry
Ah yeah. Well they [Aboriginal stock workers] was good, you know. They made Wave
Hill rich. They made every station, whatever station there in the Territory now, we made
all them places rich. And [they] keep us fellows poor. 147
When Justice Brennan observes that Aborigines were disposessed of their land parcel by parcel to
make way for expanding colonial settlement, 148 it important to realise that this supposed
dispossession was experienced differently in different parts of the country. A critical fact for
Aboriginal people whose land was put to use by the pastoral industry is that the needs of the settlers
did not require that they be removed from their land. In many places Aboriginal people remained on
the land and provided a source of labour for the industry. As Henry Reynolds has put it:
Not only was European pastoral occupation not inconsistent with continued Aboriginal

occupation, it totally depended on it. Black labour outnumbered white labour in places
like north-western Queensland by five or six to one. Aboriginal bushcraft and knowledge
of country made open-range ranching possible; their largely unpaid labour edged it into
marginal profitability. 149
Because the industry needed Indigenous people does not mean that the experience of colonisation
was benign. The need for labour was secondary to the industrys immediate requirement for ready
access to land. In the early days of settlement, Aboriginal people were killed in large numbers in
order to quell their opposition to the use of their lands or to punish them for what settlers
characterised as cattle theft. 150 As the expansion of the industry continued, it became apparent
that settlers would need to expropriate Aboriginal peoples labour as well as our land in order to be
viable.
Conditions were poor for many Aboriginal people working for the pastoralists. But despite the
exploitation, Aboriginal participation in the pastoral industry insulated some Aboriginal communities
from the most destructive impact of colonisation: separation from their land. Aboriginal people
working on stations maintained their connection with their country and reproduced traditional
knowledge. The effect of participation in the industry in Western Australia is described as such:
In many ways, this involvement enabled the development of an acceptable post-contact
way of life; a way of life that was symbiotic with that of the pastoralist. In this system
Aboriginal social groups had the opportunity to maintain traditional skills, educate their
young in their own manner and keep up the law by gathering for important ceremonial
and social occasions. 151
Aboriginal people who remained in occupation of their land despite the presence of pastoralists
justifiably find the suggestion that a pastoral lease extinguishes native title strange and unacceptable.
For traditional owners, extinguishment of native title by inconsistent grant is a meaningless concept.
Whatever the position in non-Indigenous law, all the rights, obligations, reponsibilities and
relationships that constitute ownership in the Indigenous system continue to pertain.
Co-existence
Whether or not the courts ultimately find that native title survives the grant of a pastoral lease, the
most constructive approach to this issue is to start to explore ways that the interests of native title
claimants and pastoralists can co-exist. Whichever way the court determines the legal issue,
Indigenous peoples will not accept that our claims to country can be obliterated by technicalities
while their traditional connection survives. A court determination will not put an end to Indigenous
demands that our interests be accommodated.
I believe agreements about co-existance are readily achievable and will be beneficial for all parties.
The Wik mediation demonstrates the possibilities of co-existence on pastoral leases. The Wik
Peoples claim to be native title holders of about 30 000 square kilometres of land on the Cape York
Peninsula. The claim was originally lodged in the Federal Court prior to the commencement of the
NTA and subsequently another application was lodged with the Tribunal.
In the Federal Court proceedings before Justice Drummond, the lawyers for the Wik People made
arguments that native title had survived the grant of the pastoral leases. Justice Drummond reserved
his decision. Despite these proceedings, for the Wik, the true test of their ownership does not come
in the courts of the Australian legal system:
As the Wik see it they 'own' the land in the strongest possible sense, and they
confidently expect the High Court to ratify this ownership. Their clans, distributed across
the area, came into being with the land itself. The land was made meaningful as it was
peopled, in a network of interconnected places. Through these places the land owns
them as they own the land. Owning the land is owning and publicly articulating the
stories through which the land is meaningful.. 152
In pursuing their claim through western legal channels in the language of white constitutional and
contract law, the Wik Peoples patience and forbearance is manifest. It is easy to see why McNaught
Ngallametta, a senior Wik man, feels that We have respect for their law. But they have no respect
for our law. 153
The claim caused a great deal of controversy on the Cape and throughout the country. It was one of
the first claims to proceed under the Tribunal procedures and it presents the first opportunity to get a
courts clarification of the legal position with respect to pastoral leases. 154 Not surprisingly, some of
the pastoralists involved felt that they were the guinea pigs for the system and felt alarmed about the
uncertainty cast over the leaseholdings on account of the claim. They reported that the claim had a
number of deterimental consequences for them including (1) creating uncertainty about their security
of tenure; (2) making infrastructure planning and improvements more difficult and speculative; and (3)
reducing the value of their properties.

Although the Wik stand by their assertion of their legal rights they have shown willingness to
negotiate an outcome acceptable to both pastoralists and native title holders on the Cape during
mediation sessions convened by the Tribunal. Their conciliatory attitude was amply expressed in
submissions made on their behalf to the Federal Court:
...it is not their intention to deprive the pastoralists of the benefit of their interests and
even if they were ultimately forced to [argue that the pastoral leases are invalid] the
Applicants would ask that declarations to that effect be withheld since the pastoralists
have lived and worked on the land for many years and have strong moral claims to
remain throughout the expected term of their leases. All that the Applicants seek are
declarations as to the concurrence of their own title and as to its nature and extent. 155
Face-to-face meetings between the pastoralists and the Wik People appeared to be constructive. At
a meeting in Coen on 4 July, 1994 a resolution was passed that the parties believed would
accommodate the interests of both the traditional owners of the Cape and the holders of pastoral
leases. The resolution proposed a legislative solution to the problem of uncertainty arising from coexistence. The resolution provided that pastoral leaseholders would be entitled to enjoy their rights
under their leases and would be secure from native title claims provided:
that Aboriginal people be entitled to access to their traditional lands for traditional
purposes, and that these rights extend to pastoral leases where that access does
not diminish the rights of pastoral lease holders;
the Government is obligated...to preserve and protect these rights through legislation;
that, wherever possible, pastoral lease holders and Aboriginal people with traditional
interests resolve issues and conflict through direct negotiations in good faith. 156
The attitude of the Wik People indicates that Aboriginal people may be prepared to consider
proposals to give more certainty to pastoral lease holders if the trade-off is that their rights are clearly
defined and protected by state and commonwealth legislation. Given my assessment of the
likelihood of legal co-existence of native title on pastoral leases and the integrity of their ownership in
Indigenous law, the Wik Peoples demands are modest indeed.
By the time of writing the prospects of negotiated co-existence on the Cape had declined. The Cape
York Land Council has identified a number of factors which they believe were instrumental in scuttling
the opportunity for a negotiated settlement. These include (1) pronouncements by politicians on the
effect of pastoral leases on native title which is an undetermined legal issue; (2) Justice Drummonds
declining to adjourn the Federal Court proceedings pending the outcome of the mediation and
consequent disinclination among the parties to mediate; and (3) the enactment of a recent
declaratory provision by the Queensland government that purports to declare that the common law
position is that pastoral leases extinguish native title. 157
I agree that declarations about the status of questions which are open at common law are unhelpful
for negotiations towards a workable co-existence. Particularly with the lack of positive suggestions
by government about what they propose to do to give justice to Indigenous people such as the Wik
whose traditional country is subject to leasehold grants. In light of the Governments apparent
intransigence on this issue, the Cape York Land Council has commented on other means to resolve
the problems on the Cape. Mr Noel Pearson, executive director of the Land Council, says:
We would be interested in federal legislation providing excisions from pastoral leases.
Cape York Peninsula is a region with which there is a living traditional connection held
by Aboriginal people who presently have no guaranteed rights to their homelands. The
rights which are lamented relate to hunting and fishing access, access to sacred sites
and birth places. All yearn to establish outstations on their homelands. 158
Adequate excisions legislation and provision for secure access to leaseholds for hunting, fishing and
ceremonial purposes is one possible structure for co-existence. There are many other possible
models. An examination of this suggestion and other related ideas is necessary in order to progress
the possibilities for co-existence. In working through the issues about co-existence, what we should
aspire to is a process and an outcome that respects both Indigenous and non-Indigenous laws. The
problems will not be solved by an outcome that privileges one group over another, or that hears only
one voice in the debate.
In the light of the historically appalling treatment of Aboriginal people in the pastoral industry, it might
be tempting to dismiss any disadvantage to pastoralists arising from the recognition of native title as
insignificant because it is incommensurable with the harm suffered by Indigenous people.
I do not dismiss the pastoralists grievances. And, while we insist upon the recognition of our legal
rights, we do not insist that recognition should come at the expense of pastoralists. The uncertainty

surrounding some aspects of native title can be resolved in a way that balances the interests of both
Indigenous claimants and pastoralists affected by claims. Proper development of the possibilities of
co-existence could result in a true symbiosis between pastoralists and native title holders that is not
dependent upon the caprice of the person who holds the land under the white system. Such a
symbiosis would be based upon mutual recognition of rights and not on the permission and whim of
one party. I believe sharing and respect for each others feelings for country are the ideas that will
take us to co-existence. These ideas are as familiar to pastoralists as they are to Indigenous peoples
and it is imperative that they form the basis of resolutions to issues about native title on pastoral
leases.

There is not enough information in the community on native title.

Mrs. Delma Barton, Cultural Heritage Co-ordinator, Kalkadoon Tribal Council
giving evidence to the Parliamentary Joint Committee on Native Title, Mount Isa, 4 August 1994

Community Awareness
1

Community Education and Human Rights

It is a time of rapid political and social change in Indigenous affairs. In the wake of Mabo [No:2], 1
the native title legislation and the subsequent consultation and negotiation on the Land Acquisition
Fund and the Social Justice Package it is now, perhaps more than ever, critical for Aboriginal
Peoples and Torres Strait Islanders to know our rights.
If our goal is the full exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander
peoples, we need to ask: what has to happen for this to be possible? Obviously, the rights need to
be there and there need to be laws and institutions which protect those rights. But, more than that,
people have to know about these laws and institutions, know how they work, how to access them
and know how they relate to their everyday lives. This is human rights community education. This is
what transforms rights into realities. It is the process of moving from rights as a concept to concrete
mechanisms and tools for action that gives the whole business of human rights any relevance for
Aboriginal and Torres Strait Islander peoples.
The role of community education in this situation is imperative. It must raise public awareness that
laws exist and then provide knowledge about the means of taking advantage of those laws.

Native Title

As I pointed out in my First Report, Mabo [No: 2] did not change the law it merely recognised and
reflected what had happened elsewhere. 2 But the hysterical reaction to the judgment in some
quarters continued to cloud native title discussion throughout 1994.
The Native Title Act 1993 (Cth) (NTA) attempts to strike a balance between the interests of native
title holders and others affected by the recognition of native title. Consequently there is an inbuilt
tension arising from the competing claims for the use of land and waters. In addition to Aboriginal
people and Torres Strait Islanders, governments, local authorities, pastoralists, farmers, fishermen,
miners, foresters, tourism operators and others can also be involved. The importance of native title
and the tension it creates makes it vitally important that resources are allocated for optimal education
programmes. Indeed, the success of the claim process depends on effective education. The
majority of non-Indigenous Australians need to understand that native title claims are not attempts to
rewrite past injustices but are assertions of property rights that have always existed but have been
ignored.
Competing claims will be dealt with by mediation through the National Native Title Tribunal (the
Tribunal). But where mediation fails the claims will be directed to the Federal Court for litigation. It is
very important than an education programme be developed so that claimants are fully conversant
with the NTA and the mediation process which the Tribunal will use to try and resolve disputes over

claims and avoid the need for court proceedings. It is critical that the education programmes inform
Aboriginal people and Torres Strait Islanders about the Native Title Act and the Tribunal. Equally
important, is the need to develop a positive understanding of native title among all Australians so as
to provide a positive community attitude towards native title, mediation and reconciliation. It is
essential that the process be well publicised so that community responses will not be based on fear,
uncertainty, ignorance and prejudice.

Consultation and Co-ordination

Educating the community about native title and the Native Title Act has involved a range of Australian
organisations, including the Federal and State Governments, the Aboriginal and Torres Strait Islander
Commission (ATSIC), various Indigenous organisations and representatives of non-Indigenous
stakeholders, including the mining industry.
One of the earliest attempts to supply information on the Native Title Act was provided by the
Coalition of Aboriginal and Torres Strait Islander Organisations and ATSIC with the distribution of the
Coalition of Aboriginal and Torres Strait Islander Organisations Working Partys The Native Title Bill
a plain English guide.
This 26-page document foreshadowed the NTA when it was distributed as a draft on 17 November
1993 a month prior to the passing of the Act itself. In the introduction the Coalition Working Party
provided the background to the proposed legislation. It also identified the three main ways in which
the Native Title Bill was expected to impact on present land dealing. This document was widely
referred to by community organisations early in 1994.
During 1994, my office consulted on community awareness issues in relation to native title with
organisations such as ATSIC, the Council for Aboriginal Reconciliation and the National Native Title
Tribunal.
These consultations have enabled potential duplication to be avoided but have not yet translated into
a co-ordinated educational programme to disseminate information about human rights and antidiscrimination law in general, and the implication of the native title legislation in particular. There will,
however, be limits to the degree of consultation that will be possible since individual agencies with
discrete responsibilities are engaged in delivering these programmes. Nevertheless, a level of coordination must be achieved to ensure appropriate community education programmes.
Direct consultation with Aboriginal and Torres Strait Islander communities in respect to the structure,
delivery and assessment of education and awareness programmes on human rights and native title
is essential. This in turn will ensure more successful endeavours to facilitate the co-ordination of
both the substance and delivery of national Aboriginal and Torres Strait Islander community
education programmes.
It is necessary that relevant agencies develop an integrated national package on native title which
will involve all relevant organisations, including the Council for Aboriginal Reconciliation, ATSIC, the
National Native Title Tribunal and my office. Such a programme could be developed to meet the
objectives set out in the Human Rights and Equal Opportunity Commission Act 1986 (Cth) as they
relate to native title issues. It could include materials for schools and other educational institutions,
community education programmes and general public awareness. The materials, therefore, would
be aimed at all Australians as well as Aboriginal peoples and Torres Strait Islanders.

National Aboriginal and Torres Strait Islander

Native Title Education Programme

ATSIC began a series of activities at the end of January 1994 to promote community awareness of
the NTA. This involved the production and distribution of information kits, print material and videos.
The information kits were completed by June and 20 000 were moved out to various organisations to
increase awareness and for public discussion. The information kits contained a set of publications
including:
The Native Title Act 1993: A Plain English Introduction;
Plain English Guide to Researching Native Title;
A Guide to The National Native Title Tribunal and The Federal Court Process

Regarding Native Title;

A Guide to Using The National Native Title Tribunal and The Federal Court for Native
Title and Compensation Claims and Right to Negotiate Applications;
The Mabo Judgement; and
Native title: International responses.
These publications contain accurate information on their respective topics. However, their lay-out,
language and conceptual presentation are not conducive to the dissemination of information about
native title to people who have not had a reasonable secondary education or who do not have
English as a first language. They are suitable for community workshop leaders as background
materials on native title issues. But they require supporting visual materials, such as posters, for
presentation purposes.
The video, Act of Justice, has been widely distributed by ATSIC. The first run of 5 000 copies was
distributed by June and a second run of 5 000 was distributed by October.
ATSIC has produced a flyer, Your Questions Answered, as part of the overall education strategy. A
video was also produced on native title issues by ATSIC for its own staff development requirements.
Officers from ATSIC have undertaken field trips to ascertain
the needs of Indigenous communities in regard to their understanding of native title issues and the
information and resources required to meet their needs. Native title information kits including videos
were distributed to communities with requests for feedback to the Commission on their usefulness.
The most striking outcome of the field trips by ATSIC staff to ascertain community understanding of
native title issues was the strong indication that few Indigenous people, at least in remote
communities, understand what the Native Title Act says. There was a strong view that little effort had
been made to explain it in those communities.
Such communities require face-to-face
representations rather than using printed materials and videos without the opportunity for discussion.
A problem-solving approach dealing with specific situations may be required.
My experience in Aboriginal and Torres Strait Islander communities suggests that information is best
disseminated using a seminar approach where information is provided and where there is time for
discussion.
It is during these discussions that the issues can be canvassed at length and
clarifications can be made. Those with greater knowledge of the topic can assist in educating those
who have less knowledge.
ATSIC has noted also that some its own elected ATSIC officials displayed little knowledge of the
native title legislation or any great familiarity with the material in the information kit. Given the volume
and diversity of information and materials that Indigenous communities have been exposed to in
recent times, it is not surprising to find people demonstrating the effects of information overload.
Indigenous communities also indicated a desire to have expert presentations rather than merely
relying on inert resource materials. It is apparent that despite the diversity of circumstances and
cultures of Aboriginal and Torres Strait Islander peoples there is a common desire to have
personalised presentations. This would enable community interaction, immediate responses to
questions and would meet the expectations flowing from strong cultural traditions of the oral
exchange of information.
Another approach which should be considered is the development of a series of short video triggers
to promote discussion on issues relating to the Native Title Act, applications, mediation, connection
with land and waters, and extinguishment of native title. These video triggers could be used to
stimulate discussion in communities. They would raise consciousness and provide a focus for
forums to debate the issues within communities.
In 1994 the Council for Aboriginal Reconciliation commenced a general survey of community
attitudes towards Indigenous issues in the Cowra area of New South Wales. The initial results
indicated a widespread lack of knowledge and/or a misunderstanding regarding the native title
legislation.
ATSIC's Native Title Information Unit suggested an information campaign to be
conducted in Cowra with flyer distribution and newspaper advertising. The flyer outlined details of
the decision in Mabo [No: 2], the Native Title Act, the Land Fund and the Social Justice Package.
The local paper, The Cowra Guardian, ran a half-page advertisement based on the text of the flyer. It
also included a section for people who wished to write away for additional information on native title.
A further Cowra survey was undertaken late in 1994 to assess the effectiveness of the campaign.
The general experience and community feedback gained by the ATSIC officers and the Council for
Aboriginal Reconciliation has substantiated my view that a range of techniques and materials must
be developed to effectively convey information to Aboriginal and Torres Strait Islander people. This
will require the production of high quality, innovative and relevant resource materials together with a

means of delivery of the information, so that it is effectively disseminated throughout Aboriginal and
Torres Strait Islander communities and to other Australians.

AIATSIS Native Titles Research Unit

The Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) Native Titles
Research Unit undertook two major functions in 1994: work on the implications of native title; and,
dissemination of materials. The Unit has transmitted essential information and advice to those
involved in the preparation and presentation of native title claims.
Unit staff have co-ordinated and participated in seminars, workshops, conferences and consultations
with community organisations. They have prepared submissions and background papers on native
title and assisted in preparing the AIATSIS library staff to handle native title claims requests from
native title claimants.
At the time of writing, the Unit had produced five issues papers under the banner of Land, Rights,
Law: Issues of Native Title and has commissioned more. A monthly newsletter contains a regular
update on developments and includes a summary of daily newspaper clippings on native title issues.

The National Native Title Tribunal

Late in 1994 the National Native Title Tribunal also produced a series of pamphlets and booklets
explaining the Native Title Act and how it will work. This series will assist discussion leaders in most
Indigenous communities but has the same weakness as some of the other material when it is
exposed to remote Indigenous communities.
The information is printed in English. The section describing how to gain more information is printed
in some Asian and European languages. Indigenous languages are not used in the publications,
which is a matter that must be redressed.

Information, Education and Training Needs

As indicated above, during 1994 considerable attention was given to the production of materials by
ATSIC and the Tribunal. The ATSIC materials were well produced and were widely distributed, but
they still have not been able to educate Indigenous community members in remote and urban
communities according to ATSIC's own research.
Indigenous organisations have been the focus for the distribution of the materials but, as has already
been stated, even their members and ATSIC officials have been shown to lack knowledge and
comprehension of the NTA. This shows the necessity for further development of education and
training strategies.
Non-Indigenous stakeholder organisations appear to be well aware of the Act and the materials
produced. But large sections of the membership of these bodies are not so well informed and, in
addition, are having difficulties overcoming their own negative view of native title. These negative
attitudes are counter-productive to the effort to build a society in which Aboriginal and Torres Strait
Islander peoples can genuinely experience social justice in harmony with other Australians.
The reactionary perspectives that are expressed by some influence the attitudes of the broader nonIndigenous community. Nonetheless, the majority of Australians now recognise that the rights flowing
from prior occupancy by Indigenous Australians have been justly recognised by the High Court. If
Australians are to gain real understanding of the NTA they must be exposed to information which
promotes an understanding of Indigenous Australians and an acceptance of a joint responsibility of
achieving a socially just society. As part of this process, it is necessary that the ATSIC materials are
also widely distributed in the general community.
I believe that all Australians must understand that the recognition of native title is not a new land
grant. Justice Brennan indicated this in Mabo [No.2] when he said:
It is sufficient to state that, in my opinion, the common law of Australia rejects the notion
that, when the Crown acquired sovereignty over territory which is now part of Australia it
thereby acquired the absolute beneficial ownership of the land therein, and accepts that
the antecedent rights and interests in land possessed by the indigenous inhabitants of the
territory survived the change in sovereignty. 3

In making this statement Justice Brennan was following precedent set by the Privy Council and North
American courts. The belated recognition of native title is merely acknowledging a fact. Native title
does not imply an actual land title or deed; it is a conceptual term indicating the rights and interests
of traditional title holders.
It is apparent that the Native Title Act requires an education programme which covers the entire
community. Firstly, it needs to be directed at Indigenous Australians individually, and in groups, in all
areas of Australia; and secondly, it must promote knowledge and empathy among non-Indigenous
Australians.

Cross-Cultural Communication

The promotion of an informal discourse between Indigenous and non-Indigenous Australians is one
of the objectives outlined in the National Native Title Tribunal Mission Statement. This discourse will
rely on communication throughout the claims process being unambiguous, and this may be very
difficult to achieve in cross-cultural situations
In many cases it is expected that mediation processes will be used to seek an outcome. Mediation
will involve bringing together all the parties involved in the dispute over the claim so that they can
discuss each of their interests and objectives and explore options for resolving differences.
Successful mediation will depend on successful communication. However, in many disputes it is
expected that the parties involved may well come from differing cultural backgrounds. Cross-cultural
communication in such instances may give rise to a great deal of misunderstanding because people
interpret the words and actions of others in terms of their own understanding and assume these are
shared. It would be highly desirable for a specific programme of cross-cultural awareness for
communities involved in native title claims to be undertaken before mediation occurs.
Improved communication and understanding between Aboriginal and Islander peoples and nonIndigneous professions must be accorded a priority in mediation and other native title processes.
Communication is a two-way process: transmitting and receiving. When two cultures are involved
further dimensions are added. The message transmitted from one culture may have a different
meaning after crossing the barrier of translation/interpretation and being received in another cultural
context.
Language in Indigenous culture is a social function. For most Aboriginal people and Torres Strait
Islanders the formation and maintenance of relationships is paramount and they will use English in
this context when relating with English-speakers. Professional English is largely depersonalised, but
an impersonal debate form does not exist in most of our languages. Aboriginal peoples and Torres
Strait Islanders often use words in English in the same way as they would express themselves in
their own languages.
Lawyers and other professionals have specialised languages which have no equivalent in Indigenous
languages: lease, register, body corporate, validation, compulsory, acquisition, prescribed, statutory
authority are some words used in the Native Title Act. Use of such specialist terminology can be
confusing. Therefore, professionals working in the native title field must also undertake cross-cultural
training.
Communication breakdowns will occur between Indigenous Australians and English-speaking
professionals because the conventions of language patterns vary between cultures.
These
conventions can be inadvertently broken when the two cultures interact through English.
Professional languages, and concepts, can be outside the understanding of the client while the
client's concepts can be quite foreign to the professional.
The tertiary education and training of lawyers is mainly concerned with technical competence.
Cross-cultural issues and communication have not been part of the educational diet of lawyers and
other professionals involved with native title issues. It is important that this situation be redressed by
cross-cultural awareness seminars being available for the professionals involved in native title issues
so that communication with Indigenous Australian can be more meaningful.

Specific Community Programmes

While outside experts and professionally developed educational materials are crucial aspects of the
education process, I believe it is important that communities be allowed to build their own educational
programmes to meet their own needs. Traditional education methods of story-telling, narration and
community involvement in a holistic approach should not be neglected in favour of a slick,
professional package.

In many communities a less formal approach may produce the best results. Formal meetings often
result in people losing interest because of the procedures adopted, whereas a community gathering,
such as a barbecue, could prove more useful. Instead of concentrating on the Native Title Act, in
many cases it would be better to start the discussion with the local community's relationship to the
land and then proceed to discuss native title issues as they affect the community.
Train-the-trainer programmes are another option which must be considered. One or two people from
a community could be brought to a central location for intensive workshops and development to train
as native title resource persons or facilitators.
They would then return to their communities and
develop specific community programmes.

10

Conclusion

It is apparent that community education programmes need to be enhanced to facilitate greater public
awareness of the Native Title Act and the procedures it establishes.
At present there is insufficient public awareness of the nature of the recognition of native title and
without an understanding of the subject matter of the NTA, the Acts aims and objectives are likely to
be misunderstood and taken out of perspective. Furthermore, the NTA emphasizes procedures
involving negotiation and mediation. The potential exists for this approach to be undermined if
constructive communication cannot be facilitated between the parties. Properly designed and funded
education programmes are necessary to ensure that these procedures operate in a positive manner.
This will involve improving public understanding of Indigenous issues and providing those involved in
mediation and negotiation with cross-cultural communication skills.
Importantly, there must be programmes available to assist Indigenous people to understand the NTA.
In particular, Indigenous peoples must have access to facilitators, speakers and culturally appropriate
materials explaining the Act and the procedures it introduces. This is necessary to give those people,
whom the NTA is largely designed to protect, an opportunity to understand their human and legal
rights and how to assert them.
The Native Title Act is a challenge to all Australians. It is also an opportunity for Australia to develop
a process which delivers some justice to Indigenous Australians who have suffered the
consequences of dispossession, conquest and inhuman treatment and neglect.
The education programmes about native title will be seriously jeopardised if the media is not
supportive. The Australian press, including radio and television, have a responsibility to be fully
aware of native title issues and to support a fair and just approach.
I see merit in the delivery of a series of public seminars on native title, reconciliation and social justice
to promote a greater awareness within the press and the broader community on native title rights and
issues as an overall segment of human rights. The message to be conveyed is that human rights
depends on an understanding and acceptance of the rights of all Australians.
Some universities and schools have introduced native title issues into their curricula. There are over
500 000 university students in Australia and many more primary and secondary school students, not
to forget the army of some 200 000 teachers. They can be an excellent medium for educating the
broader community on native title rights for Indigenous Australians. Discussions need to be held at
ministerial level to introduce suitable educational programmes on native title into the education
sector.
The process of reconciliation cannot be successful if the Native Title Act is not implemented to deliver
agreements about the use of traditional Aboriginal and Torres Strait Islander lands and waters, that
are fair, just and prompt.
Australia, as a nation, will be judged in the international arena by its reputation as a liberal, fairminded prosperous society, and its status will either be enhanced, or diminished, by its own actions,
including those in relation to native title.
Australia in the last decade before Federation enjoyed a period of great artistic and political activity,
as Australians white Australians laid the foundations of a new democracy to advance Australia
fair. The Australian Constitution of 1901 specifically excluded Aboriginal Australians from the race
power. It was almost the death knell for Indigenous Australians.
Australia has an opportunity rarely given twice native title and the reconciliation process present
Australia with another opportunity to redefine itself as a nation as it shows it truly respects the
Indigenous peoples of this ancient land that is home to all Australians. Community awareness
processes are a crucial element in realising these objectives and such processes must be fully and

effectively implemented.

The land is my mother. Like a human mother, the land gives us protection, enjoyment and
provides for our needs economic, social and religious. We have human relationships
with the land: mother daughter, son. When the land is taken from us or destroyed, we
feel hurt because we belong to the land and we are part of it.

Rev. Djiniyini Gandarra

Concluding Comments
The importance of land to Indigenous people is becoming increasingly understood by non-Indigenous
Australians. The complex relationship between Indigenous people and their lands means that
interference with that ownership sets in motion extensive social disruption as removal from land also
involves the removal from the source of social, religious and economic well-being. Many of the
problems faced by many Indigenous peoples today are either attributable to or exacerbated by
dispossession. As the Northern Territory Aboriginal Issues Unit submitted to the Royal Commission
into Aboriginal Deaths in Custody (RCIADIC):
The ability of Aboriginal people to practice traditional Law depends on them at least having
access to their land, at best having title and control over their land. The core of Aboriginal
Law has to do with the knowledge and ritual pertaining to sacred sites. These places which
underpin Aboriginal life are best cared for and preserved by the ceremony for them. All
other aspects of the welfare of Aboriginal society depend on this. 1
Likewise Sandra Bailey noted that the fundamental issue is that of dispossession. All other issues
stem from this in some way. 2 The connection between the dispossession of Indigenous peoples
and their current social conditions was acknowledged by the RCIADIC where Commissioner
Johnston, upon reflection of the 99 deaths that were investigated, noted:
The life histories of most of those who died and their families share a common theme
of dispossession from land and consequent impoverishment. ...this impoverishment
represents the continuing legacy of dispossession and exclusion from access to economic
power. 3
Barbara Flick and Brendan Nelson have made a similar observation with regard to Indigenous health:
In losing the land, Aboriginal people also lost the control over their environment that is the
basis of good health. And just as Aboriginal health standards deteriorated as a
consequence of colonisation, the solution will be directly affected by a reversal of the
historical trend a reversal set in train by the Mabo decision.
Far from the view which seeks to approach the Aboriginal health problem in isolation from
land rights ... a critical component to the answer is land. The dispossession of all the
Aboriginal and Torres Strait Islander peoples of Australia not only underwrote the
development of the nation, as Brennan J put it. It was also the root of indigenous
disempowerment. And it is the sense of powerlessness which underlies the problem. 4
The recognition of native title by the common law in Mabo [No:2] 5 was a starting point for preventing
future Indigenous dispossession and disempowerment. In saying this, it must not be forgotten that
for those who have lost their traditional land, Mabo [No:2] gives their dispossession the sanction of
the rule of law. The common law recognition of Indigenous title does not benefit them. However,
where Indigenous people have maintained their connection to land the recognition provides a basis
for the protection of that ownership. It is crucial in ensuring that those who still have their title are not
dispossessed in the future, in the same manner that others were dispossessed in the past.
The Native Title Act 1993 (Cth) (NTA), with the exception of the validation provisions, assists in that
process, as it purports to protect native title by establishing a regime which regulates the manner in
which native title can be dealt with in the future. In light of the conditions in many Indigenous
communities across Australia where traditional property rights have been ignored and where
Indigenous peoples have felt the full force of colonisation, any restriction on the interference with the
property rights of Indigenous people must be welcomed. It creates an opportunity for those

communities to establish a degree of economic independence on terms consistent with their own
beliefs and world-views. That Indigenous people aspire to regaining their economic independence
and see the recognition of their rights to land as an essential step in achieving this goal is apparent
from the comments of Ross Williams at the return of land in the Warumungu land claim:
So many people fought so long for the land. A lot of people have passed away, but theyre
still with us and theyre still with the land.
Now its up to us to go back and establish ourselves on those lands and develop
something so we dont have to rely on Government funding, but rely on building something
for ourselves. 6
It is unfortunate that the opportunity to create a degree of economic independence for some
Indigenous communities and to ensure justice to some Indigenous peoples has been received so
begrudgingly by some sections of the community and those intent upon continuing the exploitation of
Indigenous lands. It is also sadly ironic that many of those who complain of the extent to which some
Indigenous communities have become dependent on different forms of welfare have also been
critical of Mabo [No:2] and the NTA which will assist in reversing that dependency. The hypocrisy of
this view is best described by Justice Maurice when he observed in the Warumungu land claim that:
Australia should weigh in, recognising that the country as a whole has profited, and
continues to profit, from the dispossession of these people and the use to which we put
their lands. It is not simply a question of rectifying the wrongs of the past, as if the
consequences of those wrongs had long ago been worked through: the simple truth is that
they have not, yet as a nation we continue to enjoy the benefits from them. Nor is it any
answer to point to the moneys which may have been wasted on welfare, for the recipients
neither sought the conditions which occasioned this beneficence, nor designed the
programs which have been so disastrously inefficient. 7
Independent of the compelling social reasons for ensuring that the dispossession of Indigenous
peoples no longer continues is the fact that native title is a property right, the protection of which is a
fundamental human right.
The right to own property free from arbitrary and discriminatory
interference is a human right that all Australians are entitled to. Interference with Indigenous property
rights will additionally involve a breach of a range of human rights to the extent that we are prohibited
from enjoying the free exercise of our culture. The principle of non-discrimination and equality before
the law requires that native title holders be afforded the full protection of property that other title
holders enjoy. There would be few, if any, Australians who would consider their right to have their
property protected from arbitrary interference as a form of welfare or a privilege. That native title be
afforded full protection is no different.
The public debate following the common law recognition of native title involved a variety of proposals
as to how the recognition of native title should be dealt with. The number of those proposals which
genuinely sought to give native title holders any form of equality was alarmingly few. Upon reflection
on the hysteria generated by the recognition of native title it is disconcerting that discrimination
against Indigenous people appears so entrenched in the national consciousness that so many
responses to that recognition were merely aimed at maintaining the status quo which existed when
Indigenous property rights were ignored. A good example is the suggestion that access to native
title land should be on the same basis as access to Crown land.... 8
It is doubtful that the
proponents of this view ever considered how they would feel if their own land title, whether freehold,
leasehold or some other title, was given the same treatment. It was not suggested that all titles
should be dealt with in such a manner. It was a proposal which was uniquely reserved for
Indigenous peoples land and it is discriminatory.
The eagerness with which some would see Indigenous people dispossessed is based in part on a
continuing inability to accept Indigenous interests in land as legitimate property rights and Indigenous
human rights as worthy of full protection. It is this inability which underlies much of the opposition to
and misunderstanding of the NTA and the lack of desire to afford any meaningful protection to native
title holders. This failure is associated, on the part of some, with a greed and selfishness that is
expressed through a desire to continue to exploit Indigenous lands as if Indigenous interests in those
lands never existed.
The recognition of native title at common law left Australian governments with a choice. They could
either continue their land management practices, which were oblivious to the existence of native title,
and which operated in a discriminatory and racist manner, or they could adjust their systems of land
management to accommodate and respect native title in response to principles of non-discrimination,
equality before the law, and respect for Indigenous human rights. The NTA, with the exception of the
validation of past grants, is an attempt to entrench the latter in legislation. Whether it achieves this
goal is a matter for on-going assessment. In the meantime however, analysis of the NTA should not
be isolated from the important protection of Indigenous legal and human rights that it is attempting to
afford.

It is very easy to attempt to avoid the task of restructuring entrenched practices and procedures by
clinging to complaints of cost, uncertainty, workability and practicality. In the end such phrases
are often little more than euphemisms for a desire to return to procedures which while
undoubtedly convenient to governments and industry were discriminatory, racist and premised on
the denial of fundamental human rights of Indigenous people. A useful and recent example is the
Land (Titles and Traditional Usage) Act 1993 (WA) (the LTTU Act) which was enacted amid cries of
uncertainty, inconvenience and impracticality over the impending national legislation.
Not
surprisingly the LTTU Act received extensive support from industry groups on the basis that it
provided a practical and workable system of land management, 9 despite the fact that it clearly
breached fundamental human rights standards.
Far from serving any so-called national interest, it is my opinion that to date the rhetoric of certainty,
practicality and the need for workable legislation has too often been aimed at pushing the preferred
outcomes of the greedy and selfish. It has not been aimed at achieving any practical compromise
that would fully respect the legal and human rights of Indigenous peoples. The reality of this view
was exemplified by Western Australian pastoral organisations whose representatives were reported
as complaining that the recognition of native title, the enactment of the NTA and the invalidity of the
racially discriminatory Western Australian legislation has meant that it potentially restricts the
conversion of pastoral leases into greater property interests. 10 This exposes the heart of many of
the complaints against the recognition of native titles and the protection afforded to it by the NTA.
The complaint is not the lack of security that their interests receive, it is the restrictions placed on the
extent to which Indigenous lands can be exploited in the future.
History is full of examples of governments ignoring the rights of their own citizens in order to satisfy
the desires of the avaricious and the selfish. It is important that governments avoid succumbing to
the rhetoric of greed. Convenience for industries and governments is no justification for impairing our
human rights. Efficient practices are not always humane or equitable practices. Striving for
international competitiveness does not remove the necessity to respect the human and legal rights of
the community. To suggest that some industries can only operate on the premise that Indigenous
human rights are infringed is offensive. There are always means of reducing uncertainty and
conducting profitable business activities without infringing the rights of Indigenous people.
Nor is it convincing for various state governments to cling to platitudinal statements of states rights,
or hollow claims that certain States are different, in order to justify the overriding of Indigenous
human and legal rights. There is a clear need for commonwealth legislation that protects Indigenous
peoples human and legal rights. The value of Commonwealth legislation is illustrated through the
invalidating of the discriminatory Western Australian LTTU Act (see appendix 4).
While that
legislation was defeated by the Racial Discrimination Act 1975 (Cth), it highlights the need for specific
commonwealth regulation, in the form of legislation such as the NTA, to prevent similar state
legislation being enacted in the future.
Under the Australian Constitution, the Commonwealth has power to legislate to provide protection to
traditional Indigenous land ownership by virtue of the power conferred in s.51(xxvi) the race
power. In the 1967 referendum 91 per cent of the voting public the largest ever majority in the
history of Australian Constitutional referendums 11 supported an amendment to the race power
which entrusted the Commonwealth with the power to make special laws for Indigenous peoples.
Although it has been pointed out that the approval of the law to amend the Constitution in 1967
amounted to an affirmation of the will of the Australian people that the odious policies of oppression
and neglect of Aboriginal citizens were to be at an end..., 12 the Commonwealth has been reluctant
to use its overriding power to assume primary control of Indigenous affairs. That reluctance has
been put aside with the NTA and the power of the Commonwealth to enact this historic legislation
has been confirmed by the High Court.
The Commonwealth Government also has responsibility for implementing international agreements in
the domestic arena by virtue of s. 51(xxix) of the Australian Constitution the external affairs power.
These international instruments, and their relevance to native title and the NTA, were discussed at
length in chapter 2. The Commonwealth has an obligation to enforce human rights instruments in the
domestic arenas. It is the Commonwealth who is party to the international instruments. For the
States to be left with a discretion as to whether we are afforded any protection would be a gross
failure on the part of the Commonwealth to fulfil its functions. Human rights protection is not a
domestic issue that can be left to the States. It is an international issue which needs to be
approached on a national level. As Peter Jull argues:
Today no country can claim that the treatment of its minorities is a purely domestic issue.
However remote the internationalisation of environment and Indigenous peoples' needs
may have seemed to the authors of Australian, Canadian, or Norwegian constitutions,
today such internationalisation is a fact of global life. Agreements on mutual scrutiny and
common standards, especially among "first world" countries, are tightening all the time. 13
That the Commonwealth has responsibility to act to protect the interests of Indigenous people in
accordance with international human rights standards, as empowered by the race power and the

external affairs power, should be uncontroversial. In 1992, all Australian governments acknowledged
that the Commonwealth had accepted a special responsibility for Indigenous people as a result of the
1967 referendum and recognised that the Commonwealth had a special responsibility arising from
Australia's international obligation to Indigenous people. 14
That the Government take full
responsibility for native title issues and honour its obligations under various international instruments
was strongly supported by Aboriginal and Torres Strait Islander Peoples in the Eva Valley Statement
of 5 August 1993. 15
I believe that the NTA represents an important step forward for the Commonwealth in acting upon the
responsibility entrusted to it by the 1967 referendum and assumed by the Commonwealth through
the signing and ratification of various international instruments.
In arguing for the NTA to be kept in perspective and the human rights of Indigenous peoples
respected, I am not saying that the NTA is perfect. Indeed, in this report I have highlighted a number
of areas which I believe are of concern. In particular, there are problems with specific provisions in
the legislation and some of the procedures of the National Native Title Tribunals are of concern. The
potential for a broad interpretation of extinguishment which allows native title to be extinguished as a
matter of legal theory rather than as a matter of fact disturbs me deeply. The problems and concerns
that I have raised have the potential to undermine the extent to which our legal and human rights are
protected. Such an outcome is unnecessary and will not only be unjust but it will add to the social
problems of Indigenous people and will not assist in reversing the understandable mistrust of
Indigenous people for the Australian legal and land management systems.
Some of the concerns of the community should have been alleviated now that any doubt over the
validity of the NTA has been removed by the High Court in The State of Western Australia v The
Commonwealth. 16
The validity of the NTA removes the uncertainty that was raised by the existence of inconsistent state
legislation. The NTA should now be viewed as a guide by which governments and industries can
proceed without infringing the rights of Indigenous peoples. I hope it will also act as a catalyst for the
promotion of a greater level of understanding and tolerance between Indigenous and non-Indigenous
Australians.

Appendix 1: Submissions Received by the Aboriginal and Torres

Strait Islander Social Justice Commissioner
Aboriginal and Torres Strait Islander Land Interests Program, 9 January 1995.
Aboriginal Legal Rights Movement Inc, 1 August 1994.
Aboriginal Legal Service of Western Australia, 28 August 1994.
Australian Education Union, July 1994.
Australian Mining Industry Council, 22 June 1994.
Chamber of Mines and Energy of Western Australia, 28 July 1994.
Department of the Premier and Cabinet, South Australia, 22 December 1994.
Department of Conservation and Land Management, New South Wales, Undated, Received 27
January 1995.
Department of Conservation and Natural Resources, Victoria, 12 December 1994.
Department of Mineral Resources, New South Wales, Impact of the Commonwealth Native Title Act
on Administration of Exploration and Mining in New South Wales, December 1994.
Fisheries Department of Western Australia, 7 February 1995.
Flood, S., 16 June 1994.
Kanak, D., Public Partner, Cane Factor Holdings, March, 1995.
Office of Indigenous Affairs, Department of Prime Minister and Cabinet, 28 July 1994.
National Aboriginal Community Controlled Health Organisation, Native Title - Who's Justice, 15
August 1994.
Nettheim, G., 17 June 1994.
Newton Vincent, Barristers and Solicitors, Perth, 20 June 1994.
Northern Territory Fishing Industry Council, The Native Title Act and the Commercial Fishing Industry,

7 February 1995.
Public Works Department, New South Wales, 28 November 1994.
Reyburn, B., Brief Submission: Annual Review - The Commonwealth of Australia's Native Title Act
1993, 16 September 1994; Native Title and Pastoral Leases, 4 January 1995.
Tharpuntoo Legal Service, 4 October 1994.
Tourism Council of Australia, 27 January 1995.
Western Australian Fishing Industry Council, 19 January 1995.
Yaluritja, 3 August 1994.

Appendix 2: Contributors

Colin Bourke

Dean, Faculty of Aboriginal and Islander

Studies,
University of South Australia.

Eleanor Bourke

Director, Aboriginal Research Institute,

Faculty of Aboriginal and Islander Studies,
University of South Australia.

Andrew Chalk

Solicitor, Sydney.

Jean Cooney

Editor, Sydney.

Dr Richard Howitt

Senior Lecturer in Human Geography,

School of Earth Sciences,
Macquarie University, NSW.

Bryan Keon-Cohen

Barrister, Melbourne.

Greg McIntyre

Barrister, Perth.

Professor Kent McNeil

University of Saskatchewan, Canada.

Professor Garth Nettheim

Director, Aboriginal Law Centre,

University of New South Wales.

Appendix 3: Applications Received by the National Native Title

Tribunal as at 30 June 1994
Claimant Applications
Applicant

Area

Doomadgee

Doomadgee
QLD

7.1.94

Wellington
NSW
180 ha

27.1.94

Accepted
23.2.94

14.5.94

Ngunnawal
Land
Council

Queanbeyean
NSW
7 km

31.1.94

Accepted
11.5.94

2021.9.94

Yawuru

BroomeWA
1 300km

2.2.94

Accepted
24.5.94

3.11.94

Barmah
Forest VIC
1 130 km
NSW

21.2.94

Accepted
26.5.94

2728,
30.9.94

Mt. Isa

North West
QLD

9.3.94

Withdrawn
5.7.94

Wik Peoples

Cape York
Peninsula
28 000 km

24.3.94

Accepted
26.5.94

Wiradjuri

Yorta Yorta

Lodged

Status

Mediation

Not accepted

31.10.94
4.11.94

Conclusion

BroomeWA
1 300km

Yawuru
Yorta Yorta

Mt. Isa
Wik Peoples

Kununurra
No. 1

2.2.94

Accepted
24.5.94

3.11.94

Barmah
Forest VIC
1 130 km
NSW

21.2.94

Accepted
26.5.94

2728,
30.9.94

North West
QLD

9.3.94

Withdrawn
5.7.94

Cape York
Peninsula
28 000 km
QLD

24.3.94

Accepted
26.5.94

31.10.94
4.11.94

Kununurra
WA
NE Kimberley

6.4.94

Accepted
26.5.94

2427.10.94

Maduwongga

Kalgoorlie
WA

David
Twomey

Peak Hill
NSW
60 ha

9.5.94

Accepted
10.5.94

Barron Falls
QLD
National Park
28 km

13.5.94

Accepted
26.5.94

Port Kembla
NSW

1.6.94

Not yet
Accepted

27.6.94

Not yet
Accepted

27.6.94

Referred to
the
President12.8
.94

Djabugay

Wadi Wadi
Goolaraboolo

BroomeWA
Carpentaria
QLD

Waanyi

19.4.94

Referred to
the President
2324.8.94

Compensation Applications
Applicant

Area

Lodged

Status

Yorta Yorta

Yorta Yorta
VIC
CountryNSW

21.2.94

Not yet
Accepted

Wik Peoples

Cape York
Peninsula
QLD

24.3.94

Accepted
26.5.94

8.2.94

Withdrawn
22.7.94

Gympie QLD
500 m

25.2.94

Accepted
11.5.94

Selpam Pty
Ltd

Cairns QLD
66 ha

21.3.94

Accepted
10.5.94

CSR Ltd

Cairns QLD
5 ha

21.3.94

Accepted
14.4.94

Yass NSW
1 760m

28.3.94

Accepted
10.5.94

Palmerston
NT

13.4.94

Mediation

Conclusion

Non-Claimant Applications
Cabonne
Council

Clarkson

Yass Council

M B Perron

Town of
Molong

NSW

Determined
4.10.94

Determined
5.10.94

Accepted
10.5.94
Dismissed

CSR Ltd

Yass Council

M B Perron

M B Perron

Cairns QLD
5 ha

21.3.94

Accepted
14.4.94

Yass NSW
1 760m

28.3.94

Accepted
10.5.94

Palmerston
NT

13.4.94

Palmerston
NT

13.4.94

Determined
5.10.94

Accepted
10.5.94
Accepted
10.5.94

Dismissed
s. 67(2)(c)
1.8.94

Singleton
Council

Singleton
NSW

24.5.94

Euobodalla
NSW
600 m

9.6.94

Accepted
17.8.94

Pipeline
Authority

76 km NSW

21.6.94

Withdrawn
12.8.94

Pipeline
Authority

South East
NSW

21.6.94

Accepted
5.7.94

Eurobodalla

M B Perron

Palmerston
NT

22.6.94

Accepted
26.5.94

Accepted
5.7.94

Dismissed
13.10.94

Dismissed
s. 67(2)(c)
10.10.94

Coonamble
Shire

Coonamble
NSW
6 ha

30.6.94

Accepted
19.9.94

Determined
5.12.94

Appendix 4: Summary of The State of Western Australia v The

Commonwealth
Background
The Land (Titles and Traditional Usage) Act 1993 (W.A.) (the WA Act) came into operation on 2
December 1993. It purported to extinguish and replace native title with statutory rights of traditional
usage. The Native Title Act 1993 Cth (NTA) commenced shortly after on 1 January 1994. It is
relevant to note that the NTA has retrospective operation. It states that from 1 July 1993, native title
could not be extinguished except by an enactment that satisfies the requirements of the NTA.
Within 24 hours of the enactment of the WA Act and its proclamation into law, two Aboriginal
communities from the Kimberley region of Western Australia the Wororra and the Yawuru Peoples
filed an action in the original jurisdiction of the High Court, challenging the constitutional validity of
the WA Act. Later in December 1993, a third Aboriginal community, the Martu Peoples of the eastern
Pilbara region of Western Australia issued a further action in the High Court which challenged the WA
Act on similar grounds to those alleged by the Wororra and Yawuru Peoples. Following the
enactment of the NTA, the State of Western Australia issued its own challenge in the High Court in
which it alleged, in short, that the NTA was beyond the powers of the Commonwealth Parliament and
therefore invalid; or that it had no operation in Western Australia since all native title had been
extinguished in that State on the establishment of the colony or by operation of the WA Act. All three
actions were heard together in September 1994.
In summary the issues in the case were:

1.
2.
3.

Did native title survive the establishment of the colony of Western Australia?
Was the WA Act contrary to the Racial Discrimination Act 1975 (Cth) (RDA)?
Was the NTA beyond the power of the Commonwealth?

Although Justice Dawson delivered a short separate judgment, he agreed with the majority about
their proposed answers to the questions reserved. In this summary the reasoning of the majority is
referred to as the reasoning of the Court.

The Issues
Is native title extinguished by the establishment of the colony of Western Australia?
The first question the Court had to determine was whether native title survived the establishment of
the colony of Western Australia. While the State of Western Australia accepted that after Mabo [No:
2] 1 the act of acquiring sovereignty does not automatically extinguish native title, it argued that in
acquiring territory the sovereign may manifest an intention to extinguish native title generally and the
acquisition will be effective in municipal law to achieve that result.
The States submission acknowledged the existence of the common law presumption against
extinguishment and attempted to displace it by showing that the Crown intended to assume absolute
ownership of all the land within the colony of Western Australia. The Court said that to displace the
presumption against extinguishment it is necessary at least to show that the Crown manifested its
intention to extinguish native title clearly and plainly. The Court left open the question of whether a
stricter standard should be applied when ascertaining the Crown's intention when it exercises the
power to acquire new territory.
The State of Western Australia produced evidence about the establishment of the colony at Swan
River, which it said showed the existence of the requisite intention to extinguish native title. The
Court carefully reviewed the evidence but rejected Western Australia's conclusions about what it
showed:
So far as these vignettes of history reveal, those involved in establishing the British Colony
of Western Australia knew that there were Aborigines who, by their laws and customs, were
entitled to possession of the land within the territory to be acquired by the Crown and settled
as a Colony. But the acquisition of the territory of Western Australia was effected for the
purpose of creating a colony to be populated by British settlers to whom land would be
granted. The policy of the British Government was that Western Australia should be fully
surveyed and, subject to reserves which might be created for specific purposes, the whole
of the land within the territory should be available for sale. This policy was to be (and was)
implemented by the exercise of sovereign power backed, if need be, by force. 2
The Court found that, although the historical evidence revealed that the Crown intended to exercise
the sovereign power to grant land to immigrant settlers, this intention did not displace the
presumption against extinguishment. In fact, in order to achieve the Crowns purposes it was
unnecessary to bring about the general extinguishment of native title.
The Court found that the circumstances of the establishment of the colony in Western Australia were
not materially different from those that pertained in New South Wales and that there was no general
extinguishment of native title. The Court observed that in Western Australia native title was
extinguished only parcel by parcel by the valid exercise of power to grant interests in some of those
parcels and to appropriate others of them for the use of the Crown inconsistently with the continuing
right of Aborigines to enjoy native title 3 (See chapter 3 where I question legal status of this power
of the Crown to extinguish native title by inconsistent grant.)
No other events were claimed to extinguish native title prior to the commencement of the WA Act, so
the Court concluded that native title potentially survived in respect of land in the State of Western
Australia until that time.

The WA Act and the Racial Discrimination Act

The effect of the WA Act on native title depended upon the operation of the RDA. By s. 7, the WA
Act purported to extinguish native title and to replace the rights and entitlements that were incidents
of native title with equivalent rights of traditional usage. (Rights of traditional usage are referred to
in the judgment and in this summary as s. 7 rights.) However, the WA Act placed limitations on the
equivalence between pre-existing native title rights and the s. 7 rights which replaced them. The
limitation on which the Court focused is contained in the words of s. 7 which provide that the statutory

rights are equivalent to native title rights unless this Act provides otherwise.
The WA Act was challenged on the basis that it discriminated against Indigenous peoples who, but
for the effect of the Act, would be the holders of native title. It was argued that the WA Act denied
them the right to equal enjoyment of their human rights, in particular the right to own property, the
right to inherit and the right to equal treatment before tribunals.
The Court explained the relevant operation of the RDA as follows:
Where, under the general law, the indigenous "persons of a particular race" uniquely have a
right to own or to inherit property within Australia arising from indigenous law and custom but
the security of enjoyment of that property is more limited than the security enjoyed by others
who have a right to own or to inherit other property, the persons of the particular race are
given, by s.10(1), security in the enjoyment of their property "to the same extent" as persons
generally have security in the enjoyment of their property. 4
The RDA provides this security for the right to own property in two ways:
1.

it provides immunity from arbitrary deprivation of property where that property is

characteristically held by persons of a particular race; and

2.

it prevents the operation of a law that purports to authorise the expropriation of property
characteristically held by persons of a particular race for reasons or on conditions that would not
apply to property held by other members of the community.

If a state law purports to do either of these things it is inconsistent with the RDA and s. 109 of the
Constitution makes the state law invalid.
If the WA Act attempted a bare extinguishment of native title in circumstances where the Act did not
extinguish the property rights of other title holders it would clearly be inconsistent with the RDA.
Although the WA Act purported to extinguish native title, it also attempted to replace native title rights
with statutory rights. Consequently, in order to determine whether the WA Act was inconsistent with
the RDA, it was necessary to review its effect in some detail. The Court used the standards of
security of enjoyment provided to other forms of title as benchmarks to assess whether, under the
regime set up in the WA Act, the Indigenous holders of s. 7 rights enjoyed their human rights in
relation to land to the same extent as persons of other races.
The Court compared the rights of the holders of s. 7 rights and the rights of the holders of other forms
of title under Western Australian legislation. The observations made by the Court in the course of
this comparison are set out in the following table:

Holders of section 7 rights

Holders of other forms of title

Land subject to s.7 rights could be reserved for

a public purpose or disposed of under the Land
Act 1933 and the protection for native title
holders against such reservation or disposition
was effectively at the discretion of the Minister
for Lands.

The holders of other titles were given more

substantial protection against the compulsory
taking of their land and such land can be taken
for more limited purposes.

For the purposes of the Mining Act 1978 and

Petroleum Act 1967, land is divided into Crown
land and private land. Land that was subject
to s. 7 rights fell into the category of Crown
land. Prospecting licences could be granted
and the holders of s. 7 rights were not entitled
to notice of the entry of a prospector. There
were no protected classes of land subject to s.
7 rights
A different regime applied where a grant of a
mining tenement was proposed over land
subject to s. 7 rights. The categories of
objection were more limited and the discretions
of the Minister more broad under this regime
than under the process applicable to private
land.
The Public Works Act 1902 confers power on
the executive to set apart, take or resume land
for a public purpose. The service of notice of
intention to exercise this power was left to the
discretion of the Minister for Works. The holders
of s. 7 rights could object to the taking of land
but the grounds for objection were limited.

Some land that is held by other forms of title is

also classified as Crown land. The
occupiers (and s. 7 holders did not fall into
this category) are entitled to notice and
compensation for damage done by a
prospector and certain classes of occupied land
are protected from the grant of a tenement
except by consent of the occupier. Prospecting
licences cannot be granted over private land.
Where an application for a mining lease or
tenement is made in relation to private land, the
title holder is entitled to notice and can object to
the grant.

The service of notice of intention to take land is

compulsory in the case of other titles and the
grounds upon which the holders of such title
can object are not limited.

than under the process applicable to private

land.
The Public Works Act 1902 confers power on
the executive to set apart, take or resume land
for a public purpose. The service of notice of
intention to exercise this power was left to the
discretion of the Minister for Works. The holders
of s. 7 rights could object to the taking of land
but the grounds for objection were limited.

the grant.

The service of notice of intention to take land is

compulsory in the case of other titles and the
grounds upon which the holders of such title
can object are not limited.

In addition to the provisions of the Public Works

Act, the WA Act provided that the executive
No equivalent 'extra' power to extinguish or
could extinguish or suspend s. 7 rights in
suspend exists with respect to land held by
certain circumstances by giving or publishing
other forms of title.
notice.
The Court concluded that: [t]he rights of traditional usage which are created by s.7 and are
qualified by the subsequent provisions of the WA Act fall short of the rights and entitlements
conferred by native title the enjoyment of which is protected by s.10(1) of the Racial Discrimination
Act. The shortfall is substantial. 5
Under the regime established in the WA Act, native title holders (whose rights were converted into s.7
rights) did not receive the same security of enjoyment of their property rights as people of other races
who hold property. The rights conferred by s. 7 in substitution for native title rights were not
equivalent to native title rights as they are protected by the RDA. As a result, the WA Act was
inconsistent with the RDA and by operation of s. 109 it is invalid. Native title was not extinguished by
the operation of the WA Act.
Apart from the future treatment of native title, the WA Act also retrospectively attempted to validate
acts which purported to extinguish or impair native title after the commencement of the RDA. The
WA Act provided a right to compensation for the effect of such acts and the criteria for compensation
did not appear to the Court to discriminate overtly against the holders of native title. 6 However, the
Court held that the conferral of a present right to compensation would not enable a state legislature
to authorise acts which are inconsistent with the RDA.
If, consistently with s.10(1) of the Racial Discrimination Act, a State law could not have
authorised the extinguishment or impairment of
native title because there was no
corresponding authority to extinguish or impair other forms of title, a State law which
purports to confirm retrospectively the validity of the act which extinguished or impaired
native title cannot restore effect to the act in question. 7
The Court said that the effect of the RDA on the validity of state laws that authorise acts purporting to
extinguish or impair native title is yet to be determined. The Court did not decide this question, but it
did find that the provisions in the WA Act that purported to validate the past extinguishment of native
title had no legal effect.
The consequence of the Courts analysis of the relationship between the WA Act and the RDA is that
the attempt to extinguish and convert native title into statutory rights failed, as did the attempt to
validate past acts. Because these provisions were central to the operation of the WA Act the Court
concluded that it had no legal operation.

Is the Native Title Act constitutional?

As a result of the Courts finding that native title had survived the establishment of the colony of
Western Australia and its ruling that the WA Act was invalid, native title continued to be in existence
in Western Australia at the date the NTA came into effect. It was therefore necessary for the Court to
consider whether the NTA is constitutionally valid. The Court identified three aspects of the operation
of the NTA which are central to its constitutional character.
Protection of native title Native title is protected by the statutory declaration contained in the NTA that
it cannot be extinguished contrary to the Act. According to the Court:
... s.11 (1) ensures that the exceptions prescribed by other provisions of the Act which
permit the extinguishment or impairment of native title constitute an exclusive code.
Conformity with the code is essential to the effective extinguishment or impairment of native
title. 8
Validation
Subsection 7(2) the NTA removes the protection of the RDA in order to permit subsequent state
legislation to give effect to past acts which purported to impair or extinguish native title. The NTA
authorises future legislation to validate past acts attributable to a state but it does not attempt to

retrospectively undo the effect of s. 109 of the Constitution. The NTA also overrides the RDA in order
to validate commonwealth acts which were invalid because of the existence of native title.
Future Acts
The NTA sets up a regime for classifying future acts proposed to be done on land subject to native
title. The future act regime also determines the impact on native title of proposed acts and the
procedural requirements that apply. The NTA provides criteria for entitlement to compensation for
native title holders for validation of past acts and for the effect of future acts.

Race power
Having identified the important features of the NTA, the Court turned to the issue of the
Commonwealths constitutional power to enact it. The Commonwealth argued that the NTA is an
enactment supported by the race power, s. 51(xxvi) and the external affairs power, s. 51(xxix). The
Court found it necessary to examine only the scope of the race power. Section 51(xxvi) gives the
Commonwealth Parliament the power to make laws with respect to the people of any race for whom
it is deemed necessary to make special laws.
According to the Court, the NTA is a special law within the meaning of this constitutional provision
because it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title (the
people of any race) a benefit protective of their native title. 9 Whether or not the law is necessary
within the terms of the Constitution is a question for the Commonwealth Parliament. The Court
dismissed an argument by the State of Western Australia that, because of the protection afforded to
native title by the RDA and the WA Act, the NTA was unnecessary as a means of protecting native
title and that it therefore could not be properly characterised as a law with respect to the race power.
The Court came to the view that the NTA is prima facie supported by the race power.

Limitations on specific powers

The powers granted to the Commonwealth in s. 51 of the Constitution are subject to certain implied
limitations derived from the text and structure of the Constitution. The State of Western Australia
claimed that the NTA offends certain of the implied limitations.
Control of the legislative powers of the State
The State of Western Australia argued that certain provisions of the NTA (most significantly, s. 11
which prevents extinguishment of native title except in accordance with the NTA and s. 19 which
allows validation of state acts) are unconstitutional because these provisions are an impermissible
attempt to control the legislative functions of the States. Western Australia relied on s. 107 of the
Constitution which:
1.
2.

prevents the Commonwealth from directly controlling the content of any state law; and
stops the Commonwealth from taking from a State any legislative power that the State had at
the time of the establishment of the Commonwealth.

The Court accepted the argument that s. 107 is a constraint on the legislative power of the
Commonwealth. However the Court explained that by operation of s. 109 of the Constitution, if the
Commonwealth has the power to make a law with respect to a given subject, the Commonwealth
can, by manifesting its intention to do so, make the law exclusive and exhaustive. Where the
Commonwealth enacts such a law, any state law which encroaches on the field covered by the
commonwealth law will be made invalid because of the effect of s. 109. Just as the Commonwealth
can cover the field of any subject matter within its power, it can also leave areas of that subject
matter for regulation by the States. 10 According to the Court, the Commonwealth has the power to
enact a law that protects native title from extinguishment or impairment. In order to exercise this
power it must, and it is entitled to, control the exercise of the power to extinguish native title where
that power is held by other bodies such as the States and their instrumentalities. 11 (See chapter 1
where the validation provisions are analysed in more detail.)
The effect of the NTA in relation to:
1.

the future extinguishment of native title;

2.

the validation of invalid past acts attributable to a state; and

3.

the protection of usufructuary rights from state regulation; 12

is that it prescribes areas in which state laws can operate to affect the protection afforded to native
title in s. 11 of the NTA. Outside those prescribed areas, the NTA covers the field by sterilizing the
means by which native title can be extinguished or impaired and a state law can have no valid
operation in respect of this field. This does not amount to an invalid attempt by the Commonwealth
to control the legislative powers of a State.
The Court separately considered an argument by the State of Western Australia that the obligation
imposed on the States by the NTA to pay compensation to native title holders for the extinguishment
or impairment of their rights is beyond Commonwealth power. The Court found that this obligation is
within the race power. Additionally, the obligation which applies equally to the States, the
Commonwealth and the Territories does not impose an impermissible burden on the States.
Impermissible discrimination against Western Australia
and impairment of the States capacity to function as a State
The constitutional implication that forms the basis of this line of argument consists of two parts:
1.

it prohibits discrimination by the Commonwealth against a State whether by the imposition on

a state of special burdens or disabilities or by excluding a State from the general law applicable
to others; and

2.

it inhibits the Commonwealths power to enact laws of general application which would
operate to impair a States capacity to function as a separate entity. 13

The Court disposed of the argument that the NTA discriminates against Western Australia briefly.
According to the Court, the NTA may produce a different effect in Western Australia because there is
a larger proportion of land in that State which may be subject to native title. However, this potential
difference in effect is attributable to history and geography and not to any impermissible
discrimination in the application of the NTA.
The second part of the implied limitation is imprecise but its application in case law has helped to
define its parameters. The Court quoted with approval from the judgment of Justices Mason,
Brennan and Deane in Re Lee; Ex parte Harper: 14
On the view which we are presently inclined to take of the implied limitations, they do not
protect the States from the consequences of the exercise by the Commonwealth of the
powers granted to it by the Constitution which contemplate their application to the States.
Nor do they protect the States from an erosion in their status occasioned by the increasing
regulation of community affairs by the Commonwealth in accordance with its powers. 15
The Court reviewed the material put forward by the State of Western Australia to indicate that its
administrative capacity is impaired by the NTA but came to the conclusion that:
[T]he Native Title Act may diminish the breadth of discretions available to the Executive
Government but that is not sufficient to stamp it with invalidity. 16

The relationship between the NTA and the RDA

The NTA expressly preserves the operation of the RDA, except in relation to the validation of past
acts. 17 The Court was somewhat puzzled about the intended legal purpose of this expressed
preservation of the RDA. According to the Court's analysis of the substantive provisions of the NTA,
it is unnecessary because the NTA does not expressly repeal the RDA, on the contrary, it assumes
its operation in relation to validation and the future act regime. One possible purpose for the
provision preserving the RDA identified by the Court is to ensure that the NTA is not construed as
impliedly repealing the RDA, which continues to operate on subjects outside the Native Title Act in
precisely the same way as it operated before the Native Title Act came into operation. 18
The State of Western Australia put an argument based upon the words of s. 7(1) that, apart from the
validation provisions, the NTA should be read as subject to the RDA. It argued that parts of the NTA
(particularly those which deal with the right to negotiate) discriminate in favour of Indigenous people
and are inoperative because of the effect of the RDA.
The Court did not find this argument attractive for several reasons:
1.

there is no obvious inconsistency between the future act provisions of the NTA and
effect of the RDA;

the

2.

if there were differences between the effect of the RDA and the future act provisions, the
NTA could be regarded as a special measure or a law that makes racial distinctions but is not
racially discriminatory; and

3.

legislation that emanates from the same legislature is interpreted to give each Act scope to
operate and, if necessary, the general provisions of the RDA would yield to the specific
provisions of the NTA.

The preservation of the RDA in s. 7 of the NTA cannot be interpreted as an indication that the NTA is
to be read as subject to the RDA. Nevertheless the Court also noted that to construe the Native
Title Act and thereby to determine its operation, ambiguous terms should be construed consistently
with the Racial Discrimination Act if that construction would remove the ambiguity. 19

Common Law and Legislative Power

The only provision of the NTA that the Court found to be invalid was s. 12. Section 12 provides as
follows:
Subject to this Act, the common law of Australia in respect of native title has, after 30 June
1993, the force of law of the Commonwealth.
The Court noted that, by its terms, it is clear that [s]ection 12 simply attempts to engage s. 109 of the
Constitution in order to make the common law immune from affection by a valid State law. 20
Without finally specifying the fatal defect in s. 12, the Court found it to be invalid because:
1.

if the common law is understood as a body of law created by the courts, then s. 12 is a
breach of the separation of powers doctrine because it attempts to confer legislative power on
the courts;

2.

if the common law is regarded as an unwritten and changing body of law, then the section
fails because it is not supported by the race power (or the external affairs power). In order for
the Commonwealth validly to make legislation based upon the race power the Parliament must
have deemed the law to be necessary" for the people of a race. If the common law is subject
to change and reconsideration by judges, then the Parliament will not have considered whether
a revised common law rule, which would become a commonwealth law by incorporation under s.
12, was necessary;

3.

the Commonwealth cannot, by such a declaratory provision, withdraw from state parliaments
the power to override the common law because such a withdrawal would offend against s. 107 of
the Constitution.

The Court declared that s. 12 is wholly severable from the other provisions of the NTA and therefore
its invalidity does not affect the operation of the Act.