Native Title - The End of Property As We Know It - (2000) 8 APLJ 1

JOBNAME: No Job Name PAGE: 1 SESS: 1 OUTPUT: Thu Jul 17 13:37:58 2003
/journals/journal/aplj/vol08/08−00181
Articles
Native Title — The End of
Property As We Know It?*
Patricia Lane†
Introduction
The decision of the High Court in Mabo v Queensland (No 2)1 (Mabo)
requires a new analysis of the forces that shape land law in this country. In
order to understand the way in which the law now operates, we must look
beyond the influence of the common law and the statutory power of the States
to the new perspective which native title throws on the common law, and the
effect which the enactment of the Native Title Act 1993 (Cth) (the Act) has had
on State legislative powers relating to land management.
Until Mabo, the Australian law of real property was primarily concerned
with the development of the common law received on the establishment of the
colony, as modified by enactments of the colonial legislature and the imperial
parliament. The fiction of terra nullius precluded notions of indigenous
entitlement to land from playing any part in the land law,2 and on the
federation of the States to form the Commonwealth of Australia, land law and
land management were kept within State control.
Mabo brought about a new way of thinking about rights to land. Although
there were no treaties, no compacts, and no recognition of any continuing
sovereign rights, Australian common law recognised a new species of right as
an encumbrance3 on the Crown’s radical title. The decision, however, required
more than recognising a new right. The basis for recognition lay as much in
the standards and principles of international law as in the precedents of the
past.4 The possibility that some of Australia’s most impoverished and
disadvantaged citizens possessed substantial and valuable rights to land
created a social and political upheaval which has only partially been resolved
by the enactment of the Act.
Indeed, it was another piece of Commonwealth legislation, the Racial
Discrimination Act 1975 (Cth), which threatened the validity of titles granted
by the States without regard to the existence of Aboriginal interests since
1975. Only the Commonwealth could legislate to validate such interests, or
* The views expressed in this paper are those of the author, and do not represent any policy
or position of the National Native Title Tribunal. Versions of this paper have been presented
at the University of Sydney Committee for Postgraduate Studies Property Law CLE Series
1999, and as a seminar for the Australian Property Institute.
† BA LLM (Syd) Barrister-at-Law, Part-time Member, National Native Title Tribunal.
1 (1992) 175 CLR 1 (hereafter Mabo).
2 Aboriginal land rights legislation and heritage legislation have represented a comparatively
recent incursion into the field.
3 See Western Australia v Commonwealth (the Native Title case) (1995) 183 CLR 373.
4 See Mabo 175 CLR 1 at 41–2 (per Brennan J); 109 (per Gaudron and Deane JJ).
1
2 (2000) 8 Australian Property Law Journal
authorise the States to do so, and by making provision for validation, and
prescribing procedures for recognition and protection of native title, the
Commonwealth introduced another set of rules for land management.
So the recognition of native title unleashed at least two and probably three
new forces into Australian property law: the notion of traditional Aboriginal
rights to land; the legislative power of the Commonwealth; and the principles
of protection of the rights of indigenous peoples under international law.
In these circumstances, the reaction of State governments should hardly
have been surprising. Rightly, perhaps, they perceived a threat to the integrity
of land management regimes which had been developed without significant
interference over the past two centuries. The absence of any agreed approach
between the Commonwealth and the States in the enactment of the Act meant
that for many practitioners, especially those dealing in Crown tenures —
mining, pastoral, or other permit-based rights — it might well have appeared
to be the end of their property world.
But the recognition of native title is not nihilistic nor even destructive,
because even though it is protected where it exists it remains subject to all
other valid rights created in the land, and to the operation of State and
Commonwealth laws. Its recognition provides an opportunity to build a
complete picture of the interaction of all of the relevant influences on
Australian land law. The first task is to look at the way in which the common
law and State statute law interacted prior to the recognition of native title.
The influence of the common law

The importance of the common law to Australian property law cannot be
underestimated, because it influenced both the constitutional foundations of
the colony of New South Wales, and the content of the law that was applied
in that colony.
In the first place, the extent to which constitutional principles of the
common law applied were necessarily affected by the origins of the colony.
The question whether the colony was conquered, ceded, or settled
fundamentally affected the way in which the legal system treated the
Aboriginal inhabitants. Secondly, the application of the common law meant
that doctrines of the feudal system of tenures and estates dominated property
law in the colony and remained a pervasive influence despite vigorous
legislative activity ever since.
The acquisition of sovereignty
Although Mabo rejected terra nullius as a basis for denying any Aboriginal
entitlement to land at common law, this could not impair the basis upon which
sovereignty had been acquired, because that issue was not justiciable in
domestic courts.5 The important aspect of Mabo was that it broke the link
between acquisition of sovereignty and land ownership by denying that the
acquisition of sovereign power necessarily carried with it full beneficial title
to land.6 Even though the factual assumption of a territory ‘practically’
5 175 CLR at 31 (per Brennan J); 81 (per Deane and Gaudron JJ).
6 Ibid.
Native Title 3
uninhabited could be challenged to the extent necessary to allow for prior

occupation, and recognition of the rights of the occupants, it could only be
done in a way that did not ‘fracture a skeletal principle of our legal system’.7
Thus the decision in Mabo produced, even among the judges who decided
it, a sense of contradiction. The concept of terra nullius supported the
acquisition of sovereignty (which could not be challenged), but the same
concept could no longer provide a justification for any failure to recognise
Aboriginal rights to land.8 By an ‘adroit conceptual shift’9 the radical title
acquired by the Crown could authorise, but not itself effect, the displacement
of pre-existing Aboriginal rights.
This contradiction did not arise in countries such as the United States,
Canada, New Zealand and others where the prior occupation of indigenous
inhabitants was recognised formally through treaties or through concepts of
special protection culminating, in some cases, in the recognition that the state
owed fiduciary10 duties to the aboriginal inhabitants.
In Australia, these entitlements were never the subject of any bilateral
accord or compact. The Instructions to governors of successive colonies
exhorted benign treatment of aboriginal inhabitants11 but were unevenly
implemented as the continued economic progress of the colonies depended on
unrestricted access to land.
The question of sovereignty therefore remains a thorny one — issues
arising in the early decisions12 in R v Murrell and R v Bonijon concerning the
amenability of Aboriginal people to English law remain alive in cases such as
Coe v Commonwealth.13 However, the recognition of native title as an element
of the common law of real property did not require any fundamental
re-working of feudal doctrine.
Common law — land law

The reception of the common law in the colony carried with it the doctrines
of tenures and estates. A long line of cases, prior to Mabo, assumed that this
required that the Crown be treated as the full beneficial owner of all of the land
on the acquisition of sovereignty. The earliest case of Attorney-General v
Brown14 decided that the waste lands were the property of the Crown, and
subsequent decisions of the High Court and Privy Council confirmed this
7 175 CLR 1 at 43 (per Brennan J).

8 Toohey J noted (175 CLR at 180) that the distinction between sovereignty and title to or
rights in land had been blurred in the case of English law because of the feudal notion of
sovereignty was derived through the ultimate ownership theory of the sovereign. See also
Professor P H Lane, ‘Nationhood and Sovereignty in Australia’ (1999) 73 ALJ 120;
M Brabazon, ‘Mabo, The Constitution and The Republic’, (1994) 11 Aust Bar Rev 229.
9 See Re Thompson; Ex parte Nulyarimma (1998) 136 ACTR 9; affirmed (1999) 165 ALR
621.
10 Cf Coe v Commonwealth (1993) 118 ALR 193 at 201; Mabo (1992) 175 CLR 1 at 205 (per
Toohey J); Wik Peoples v Queensland (1996) 187 CLR 1 at 83, 95–7 (per Brennan J).
11 See, eg references cited in Alex Castles, Australian Legal History, Law Book Co, Sydney,
1982, Ch 3; Re Thompson; Ex parte Nulyarimma (1998) 136 ALR 9 at [13], [15], [21]–[25].
12 See Bruce Kercher, An Unruly Child — A History of Law in Australia, Allan & Unwin,
St Leonards, NSW, 1995, Ch 1.
13 (1982) 24 ALR 118; (1993) 118 ALR 193.
14 (1847) 1 Legge 312.
assumption.15 Therefore, the common law principles, and local rules derived
from them, continued to assert an influence on the development of colonial
land law. Although these principles were at times imperfectly transferred16
because of the adoption only of such elements of the common law as were
appropriate to the circumstances of a new colony, they continue to exert
substantial force in shaping the present law.
With the introduction of responsible government, representative
democracy, and the enactment of specific statutes to regulate ownership and
transfer of land, the feudal concepts regulating entitlement, conveyancing, and
the acquisition of interests continued to be important, as they provided the
background against which the statutes came to be interpreted. The common
law principles of priorities and conveyancing influenced the way in which the
emerging land transfer statutes developed. There are numerous examples of
the way in which common law concepts of property and tenure pervaded the
interpretation of statute law:
(1) the early controversy between immediate and deferred indefeasibility
in working out the statutory concepts behind the Torrens system,
particularly the notion that each successive registered proprietor took
as an original grantee from the Crown;17
(2) decisions concerning the extent to which equitable doctrines
regulating the exercise of rights in legal estates could be recognised
in the face of an apparent statutory prohibition on the enforcement of
unregistered interests in Torrens title land;18
(3) the practice of continuing to apply old system conveyancing
procedures to interests such as leases over Crown land;19
(4) the utility of using common law principles concerning the
characterisation of interests in land as ‘proprietary’ when construing
the effect of statutory expropriation or grants of rights over land;20
(5) persistence in recognising the influences of early statutes such as
Quia Emptores in approaches to the construction of restraints on
alienation.21
The decision in Mabo permitted the expansion of the common law to
include the recognition of Aboriginal rights to land based on traditional law
and custom, in so far as they had survived the exercise by the Crown of its
entitlement to extinguish or impair native title before the enactment of the
Racial Discrimination Act in 1975. This recognition came, however, after two
centuries of statutory innovation in property law.
15 Cooper v Stuart (1892) 14 App Cas 286; Williams v Attorney-General (NSW) (1913) 16
CLR 404; New South Wales v Commonwealth (Seas and Submerged Lands case) (1975) 135
CLR 337.
16 See Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283 at 307.
17 See Breskvar v Wall (1971) 126 CLR 376.
18 See Barry v Heider (1914) 19 CLR 197.
19 See Andrew Lang, Crown Land in New South Wales, Butterworths, Sydney, 1973, para
[1743]; Fallon v Moore (1872) 11 SCR (NSW) 314.
20 See Minister of State for the Army v Dalziel (1944) 68 CLR 261; R v Toohey; Ex parte
Meneling Station Pty Ltd (1982) 158 CLR 327; Wik Peoples v Queensland (1996)
187 CLR 1.
21 Hall v Busst (1960) 104 CLR 206; Nullagine Investments Pty Ltd v Western Australian Club
Inc (1993) 177 CLR 635.
Native Title 5
The rise and rise of statute law

In the early days of the struggling colony the administrators directed most of
their efforts to ensuring the inhabitants survived. Conditions were not easy. At
times the colony was on the brink of starvation. The Rum Rebellion in 1808
left the colony in the hands of the military until Governor Macquarie’s arrival
in 1811. The governors, although theoretically exercising only administrative
authority, often exercised legislative power through General Orders and
Proclamations.22
Formal legislative authority was established by The New South Wales
Act,23 but a statutory basis for the courts was not fully established until
1828.24 Grants of land were authorised by Instructions of the Colonial
Secretary. The governors were authorised to make grants of land according to
a formula. These grants were to be of at most 50 acres, at least according to
the Instructions, and were intended to create a group of small landholders who
could sustain the colony by producing food crops.
In practice, however, grants of much larger areas were made to officers of
the New South Wales Corps and others, and despite restrictions upon transfer
a thriving land market grew up.25 The economy of the colony was, for a time,
based on rum and promissory notes, and methods of transfer both of goods
and land were often haphazard.26 Those who were successful in exploring the
new territory, and had a taste for adventure, soon ventured out beyond the
areas of the initial settlement. Stephen Roberts27 records the push westward
following trails of the earliest explorers, and these early adventurers secured
by possession large parcels of land before any formal survey or claim could
be made.
Early small scale grants of land were freehold, but those made beyond the
immediate vicinity of townships were of conditional purchases. These
included obligations to maintain labour and to make capital improvements for
a period of time (usually five or 10 years) after which the land would be held
in fee after paying a quit rent to the Crown.28
By 1820, trade was established and a township had sprung up around
Sydney Cove. There was a further settlement at Parramatta. The exploration
of the inland country had found rich pastoral land, which was rapidly being
stocked with sheep and worked by convict labour. A land boom in the 1820s
caused Governor Darling to proclaim two districts in 1829 — the ‘settled’ and
the ‘unsettled’. The boundary of the settled area was fixed by reference to the
external boundaries of the Nineteen Counties, beyond which no lawful
occupation could occur.
22 Alex Castles, Australian Legal History, p 44.

23 (1823) 4 Geo IV c 96.
24 The Australian Courts Act (1828) 9 Geo IV c 83.
25 R Crundwell, H Golder and R Wood, From Parchments to Passwords: A History of the Land
Titles Offıce of NSW, (hereafter Parchment to Passwords) Hale & Ironmonger, Sydney, 1995,
p 3. See, eg Walker v Webb (1845) Legge 253.
26 Ibid.
27 S Roberts, A History of Australian Land Settlement (1788–1920), Macmillan & Co,
Melbourne University Press, Melbourne, 1924.
28 C J King, An Outline of Closer Settlement in New South Wales, Department of Agriculture,
Sydney, 1957.
Although this was intended to deter settlers from reaching beyond the
boundaries of what was then regarded as civilisation, in practice it was
useless, as the push for land had outstripped the capacity of the administration
to control it. C J King described what was meant to happen, and why it could
not:29
The imaginary line of 1829 divided two different worlds. Within, land could be
alienated, settlement was officially encouraged, police protection was provided,
roads were made and provision existed for local justice and the like; but without, no
land could be granted or sold, occupation was positively prohibited, and any man
who dared to trespass had to rely entirely on himself. The government not only
refused to aid such transgression — they severely punished it, and the squatter who
went beyond had to view any official as an enemy. The theory was that settlement
was to take place only in the Nineteen Counties, but already by then there were
stockowners in the Liverpool Ranges to the north, and on the Murrumbidgee past
Jugiong to the south, and the continuing emphasis was wholly on expansion and not
the already outmoded ‘concentration of settlement’. The economy was essentially
pastoral and not agricultural, obviously destined to continue to be based on extensive
grazing and not intensive cultivation.
The forces which provoked this outward spread, and its consequences, were
described by Crispin J in Re Thompson; Ex parte Nulyarimma:
. . . the early settlers displayed a seemingly insatiable demand for vast tracts of land.
The chance to build up flocks of sheep unrestrained by the familiar confines of the
small farms of England held out the lure of real wealth. Few seemed to have been
deterred either by their own lack of title or by the rights of the traditional owners.
As settlers made steadily increasing incursions into the land around them the
Aboriginal occupants were driven from their homelands or murdered.
The system of recording grants and transfers of land also suffered from this
discrepancy between theory and reality. Although all grants of land were to be
enrolled, the history of the Land Titles Office records that in 1822 the backlog
of promised but unissued land grants amounted to approximately
340,000 acres.30 The first registrar committed suicide in 1828, apparently for
reasons unrelated to the duties of his office, and the second registrar was
removed in 1842 for insolvency and misappropriation of moneys.31 The work
of recording titles was carried on, along with the functions of enrolling the
colony’s laws, and registering the colony’s births, deaths and marriages, by the
few underpaid clerks of the office. The situation was complicated by the fact
that the received common law system of conveyancing was not then
centralised or formally regulated,32 and reliable administrative precedents
were not available.
A period of intense commerce in land took place after the Imperial Land Act
of 1831 which authorised the sale of Crown land at a ‘sufficient price’ to
encourage immigration under the Wakefield system.33 Land could be sold in
small parcels, or leased in 640 acre blocks, with various rebates and
29 Ibid, p 40.
30 Parchment to Passwords, p 7.
31 Id, p 8.
32 See Alain Pottage, ‘Evidencing Ownership’ in Susan Bright and John Dewar (eds) Land
Law: Themes and Perspectives, OUP, New York, 1998.
33 See Castles, Australian Legal History, p 164.
Native Title 7
allowances for keeping convicts. The 1830s saw a rapid increase in the
amount of land sold within the limits of settlement, but by far the greater
activity took place in the unsettled districts where an explosion of enterprise
was taking place. The export of wool quadrupled between 1830 and 1835.34
In 1836 Governor Bourke sought at least to require that squatters recognise
the title of the Crown by granting annual licences to depasture stock beyond
the limits of settlement. These forms of interest were created ad hoc in
response to a situation which was well beyond the control of the
administration. Governor Gipps made further attempts in the 1840s to collect
annual rents, and to control by Orders in Council some of the excesses of the
expansion, but in the face of continued active resistance from the squatters
these were largely ineffective.
This division of the colony into ‘settled’ and ‘unsettled’ areas seems to mark
a theoretical divide of government policy in relation to land. When the
Constitution of New South Wales was established in 1856, the agitation of the
squatters for greater control over the allocation of land, and the protection of
their runs from the introduction of a fair system for its distribution, meant that
land legislation was one of the early agenda items for the new Assembly. The
Crown Lands Occupation Act and the Crown Lands Alienation Act, both of
1861, were intended to regulate the occupation and sale of unalienated Crown
land.
In 1858, the first legislation implementing the Torrens system of title had
been enacted in South Australia, and in 1863 the New South Wales Real
Property Act came into force. The difficulties of adapting the formalities of old
system conveyancing to the colony meant that the innovation of the Real
Property Act was an attractive method of simplifying conveyancing practice,
even though it was not wholeheartedly adopted until the latter part of the
nineteenth century when large city estates were subdivided and sold as
suburban lots. The boom in immigration in that period, coupled with a cheap
and comparatively simple method of conveyancing, established Torrens title
as the tenure of choice for town and suburban subdivisions.
In the rural areas, however, the Crown Lands Alienation Act and Crown
Lands Occupation Act of 1861 dominated the real property landscape. This
legislation organised the State into various districts, set out tenures of varying
incidents and duration, and generally sought to impose some order. The result
was, however, less efficient than might have been expected.35 The
administration of the legislation was plagued by corrupt practices with
colourful names, such as ‘cockatooing’ or ‘peacocking’ by selectors, which
involved picking the choicest portions of land, usually near water, leaving the
surrounding portions practically unusable. Squatters retaliated by ‘dummying’
or purchasing through a nominee, to secure further areas on the boundaries of
their runs which otherwise would not have been available to them.
The Crown Lands Acts were continually amended to introduce new forms
of tenure, to organise and reclassify the types of grants and the obligations
attached to them, and to close loopholes wherever and whenever they
appeared. This legislative tinkering ultimately resulted in a seething trough of
34 Id, p 170.
35 See C J King, An Outline of Closer Settlement in NSW, p 82.
tenures of capricious incidents36 and impenetrable obscurity, which provoked

the most restrained of commentators into intemperate comments on its lack of
clarity, logic, and consistency.37
Perhaps the feeling with respect to these statutory tenures is best summed
up by Commissioners Morris and Ranken, who were charged in 1883 with the
responsibility of reporting on the state of public lands and land laws in New
South Wales. Their impression was that:38
It would be a wonder if a law so framed showed any fixed principle and consistency
in its administration. The history of its whole operation for years has been an
unintelligible chaos, in which the rights and interests of all mainly concerned have
been the sport of accident, political interest, and departmental disorder . . .
It has barred the advance of honest enterprise in all directions, and has at the same
time, opened a door for the entrance of every phase of abuse and fraud . . .
Nevertheless, tenures under the Crown Lands Acts represented for many
years the most important form of interest in rural and regional New South
Wales. As land within the old Nineteen Counties was gradually converted to
freehold, some Crown lands tenures remained, obscurely nestling in pockets
in the central and eastern divisions, but many of the old tenures, or their
progeny, remain alive in the western division.39
The twin systems of Torrens and Crown land tenures in New South Wales
represented the response of the government to the early pressure for expansion
and development. In more modern times the State has remained true to this
tradition of legislative creativity by introducing further varieties of statutory
tenure such as strata titles40 and community titles41 in response to changing
social needs. The incidents of these, as with any statutory tenures, are wholly
dependent on construction of the statute which gives rise to them, and are not
automatically to be regarded as equivalent to common law forms, even though
some of the terminology of the common law may be used to describe them.42
The grant of freehold or other statutory tenures is not the only way in which
the State has regulated the creation or disposition of interests in land. As New
South Wales was opened up to development, various statutes dealt with the
36 For a summary of some of the more common incidents, see Dr T P Fry, ‘Land Tenures in
Australian Law’ (1947) 3 Res Judicatae 158 at 165.
37 Andrew Lang noted optimistically in his work on the Crown Lands Act that: ‘Having
completed this huge project and suffering from fatigue, I still retain some zeal for reform.’
He suggested (in 1972) that the existing legislation could be reduced to a quarter of its
length. Dr B A Helmore contented himself with the observation that the legislation
(approximately 90 Acts between 1884 and 1966) presented to the reader a ‘bewildering
multiplicity of tenures’ before embarking on a ‘general description’ of some 70 pages: The
Law of Real Property, 2nd ed, Law Book Co, Sydney, 1966, p 519. Sir Frederick Jordan
described the legislation as ‘a jungle penetrable only by the initiate’ in Re Hawkins (1948)
49 SR (NSW) 114 at 118.
38 Noted in Lang, Crown Land in New South Wales, para 108.
39 Some indication of the complexity of the tenures can be gleaned by looking through the
Schedule to the Native Title Act listing those tenures where the Act confirms
extinguishement of native title.
40 Strata Titles Act 1973 (NSW). See also the Strata Titles (Leasehold) Act 1986 (NSW); Strata
Titles (Staged Development) Amendment Act 1993 (NSW).
41 Community Land Development Act 1989 (NSW); Community Land Management Act 1989
(NSW).
42 Yanner v Eaton (1999) 166 ALR 258 at 267, 283; Lansen v Olney [1999] FCA 1745 at [55].
Native Title 9
management of resources, whether directly through the specific enactment of

regimes for the mining industry, forestry or fishing,43 or through the creation
of dozens of different permits, licences and lesser grants of rights to use land
or exploit its resources.44
Some examples of the legislation which makes up the complex web of
intersecting regulatory regimes include:
(1) The enactment of the Local Government Act 1919 (NSW), replacing
and consolidating earlier legislation,45 which gave powers to councils and to
the relevant minister to regulate the zoning of land, impose building codes and
otherwise assume responsibility for enforcement of delegated legislation in
urban areas, and within a shire.
(2) The enactment of National Parks legislation,46 and the Environmental
Planning and Assessment Act 1979 (NSW), as a result of relatively recent
recognition of the need to control the effect of development on the natural
environment.47
(3) Specific statutes dealing with environmental or economic issues such as,
for example, the Noxious Weeds Act 1993 (NSW), the Wild Dog Destruction
Act 1921 (NSW), and other matters relating to the use and management of
rural land which apply equally to freehold and Crown land.48
It is possible to multiply examples, but the foregoing illustrates that in 1992,
land law in New South Wales was a complex interaction between the statutes
giving effect to various policies of the government on settlement of land or its
permissible uses, statutes regulating the exploitation of resources, and the
pervasive influence of the common law. The Mabo decision subjected Crown
title to a previously uncontemplated right, which struck at the basis on which
development had proceeded for the past two centuries.
Native title and the common law

Introduction
Because of the way in which Imperial law was received in the colony, there
was little room for the recognition of Aboriginal ways of thinking about or
relating to land. Certainly the official view was that Aboriginal people were
amenable to the received Imperial law as British subjects, and that this was too
clear to dispute.49 The practical circumstances of colonisation, however, made
43 Mining Act 1992 (NSW), Forestry Act 1916 (NSW); Fisheries Management Act 1994
(NSW).
44 eg, Apiarists Act 1985 (NSW); Commons Management Act 1989 (NSW); Rural Lands
Protection Act 1998 (NSW); Water Act 1912 (NSW).
45 The Australian Constitutions Act (Imp) 1842 was the first statute to make detailed provision
for local government.
46 National Parks and Wildlife Act 1974 (NSW).
47 Other relevant legislation includes the Heritage Act 1977 (NSW); Coastal Protection Act
1979 (NSW); Threatened Species Conservation Act 1995 (NSW); Native Vegetation
Conservation Act 1997 (NSW).
48 Irrigation Act 1902 (NSW); Soil Conservation Act 1938 (NSW); Rural Fires Act 1997
(NSW); Rural Lands Protection Act 1989 (NSW).
49 R v Bonton (or Bonijon) cited in Kercher, An Unruly Child as Gipps to Stanley 24 January
1842, IUP Parliamentary Papers, Colonies: Australia, Vol 8, p 149; R v Murrell (1836) 1
Legge 72.
a mockery of the Instructions to Phillip and successive governors to protect

Aboriginal interests. The wholesale rush for land failed to recognise any form
of prior entitlement. The fiction of terra nullius, which was until Mabo
reinforced by decisions of the highest courts, continued to justify
administrative action not only to dispose of land, but also to avoid private
transactions by which settlers sought to obtain the consent of local Aboriginal
populations to development of land for farming or townships.50
The history of Aboriginal and non-Aboriginal conflict over land begins with
the earliest grants of land, and continues through the armed resistance of clans
at the limits of exploration and settlement, to the agitation for citizenship
rights and the enactment of State and Commonwealth land rights and
Aboriginal heritage legislation in the 1970s and 1980s.51 What was significant
about the Mabo decision was that it permitted, for the first time, the
recognition of indigenous rights to land based on traditional law and custom,
not as a form of granted tenure which perpetuated the fiction of original
Crown ownership.
The nature of native title rights and interests

From a viewpoint schooled in feudal doctrine, the nature of native title rights
and interests can be elusive. The most convenient starting point for
recognition by the common law is the decision of Brennan J in Mabo:52
Native title has its origin in and is given its content by the traditional laws
acknowledged by and the traditional customs observed by the indigenous inhabitants
of a territory. The nature and incidents of native title must be ascertained as a matter
of fact by reference to those laws and customs.
The fundamental elements identified by the High Court have been
expressed in the statutory definition of native title in s 223 of the Act:
Native title
Common law rights and interests
223(1) The expression ‘native title’ or ‘native title rights and interests’ means 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.
Other important features of native title were outlined in Mabo:
• it is inalienable, other than by surrender to the Crown;53
50 Batman’s ‘treaty’ with the Wurundjeri is the most notorious example. It was avoided in 1835
by Governor Bourke’s proclamation that only the Crown had any capacity to deal with lands
in the Colony, and that any such ‘treaty, bargain, or contract’ was void and ineffective against
the Crown.
51 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
52 (1992) 175 CLR at 58.
53 (1992) 175 CLR at 59 (per Brennan J); 88 (per Deane and Gaudron JJ); 194 (per Toohey J).
Native Title 11
• it is not to be compared with Western forms of tenure,54 so is sui

generis;
• it is capable of being extinguished by an inconsistent grant of the
land by the Crown, or by legislation which shows a ‘clear and plain’
intention to affect native title rights and interests.55
But these propositions don’t assist much in defining the nature of native title
for the practical purpose of working out how native title rights might co-exist
with other interests. The decision in Wik Peoples v Queensland56 illustrates
just how difficult it is to theorise about the interaction of native title with other
rights. In that case the High Court was only able to decide that the grant by
the Queensland government of certain pastoral leases did not necessarily
extinguish any native title that might exist in the Wik and Thayorre peoples of
Cape York.
Native title rights and interests are difficult to define for several reasons.
The first is the diversity among Aboriginal groups.57 The enormous variety in
geography and climate across the continent means that many different patterns
of existence can be properly described as traditional systems of law and
custom, each appropriate to the people and place. Although some
generalisations about Aboriginal law and custom can be made, in the same
way as it is possible to discern identifying features of civil law or common law
systems, these will necessarily gloss over important regional and local
differences.
Secondly, defining any type of property interest can activate a high level
conceptual debate about the nature of property itself.58 The jurisprudential
question whether property is to be considered in an holistic sense, as
expressed in the Roman concept of dominium, or in the Hohfeldian sense, as
a group of legal relationships, or ‘bundle of rights’,59 is mirrored in the way
in which Western lawyers approach native title. This conceptual issue is
relevant also to the way in which the courts might approach questions of
extinguishment.60 Its importance is already becoming apparent in the decision
of the Federal Court in Ward v Western Australia,61 and is also manifested in
the Canadian literature62 and case law63 dealing with Aboriginal title (the
fullest expression of Aboriginal connection to land) and Aboriginal rights
54 (1992) 175 CLR at 59 (per Brennan J); 89 (per Deane and Gaudron JJ); 194–5 (per
Toohey J).
55 (1992) 175 CLR at 64 (per Brennan J); 111 (per Deane and Gaudron JJ); 195 (per Toohey J).
56 (1996) 187 CLR 1.
57 See Wik Peoples v Queensland (1996) 187 CLR 1 at 169; Yanner v Eaton (1999) 166 ALR
251 at 278.
58 See, for example, Kevin Gray, ‘Equitable Property’, (1994) 47 Current Legal Problems 157.
Although the notion of communal property has been overshadowed in more recent times, it
is by no means moribund: see Justice B Beaumont, ‘Native (Traditional) Title in Australia
and the South Pacific’ (1999) 18 Aust Bar Rev 23.
59 Yanner v Eaton (1999) 166 ALR 251 at 264, 283.
60 Compare Lee J in Ward v Western Australia (1998) 159 ALR 483 at 614 with the decision
of the Queensland Court of Appeal in Re Yanner; Ex parte Eaton (27 February 1998,
unreported); reversed Yanner v Eaton (1999) 166 ALR 251.
61 (1998) 159 ALR 483.
62 See, eg Kent McNeil, ‘The Meaning of Aboriginal Title’, in M Asch (ed) Aboriginal and
Treaty Rights in Canada, UBC Press, Vancouver, 1997.
63 Delgamuukw v British Columbia (1997) 153 DLR (4th) 193.
(specific entitlements to carry out particular practices on land).

Thirdly, the traditional rights and interests which the common law
recognises are not frozen in time.64 Any society will change over time by
adopting new customs and laws, and abandoning others. The process of
deciding whether particular activities represent the continuation of law and
custom under a transformed tradition, or evidence the complete ‘washing
away’ of traditional custom by the tide of history65 will be difficult, because
it will involve decisions about the correct inferences to be drawn from
activities such as visiting places, or pursuing activities which might also be
engaged in by other members of the public such as fishing or camping.66 This
difficulty is exacerbated by the history of enforced relocation and separation
of Aboriginal families from their traditional country. Introduced diseases and
inadequate health care affect the ability of senior elders to transmit both law
and language in their classical (ie pre-colonisation) forms. Although the task
may be difficult, it is possible to define the skeletal elements of law and
custom which support traditional land tenure, even though the fine detail of
the rules which allocate rights and responsibilities to individuals may have
become blurred from the influences of colonisation.67
Fourthly, native title involves both rights and responsibilities to country.
The notion that land ownership involves responsibilities as well as rights is a
concept more suited to the system of feudal tenures than to modern Western
property rights. In modern times the obligations of a landowner are
understood more readily as restrictions on freedoms than as inherent
responsibilities attaching to ownership.68 However, a significant feature of
most traditional indigenous systems is the notion of reciprocity between the
land and the people. The President of the National Native Title Tribunal,
Graeme Neate, puts it this way:69
Traditional responsibilities for land can be exercised by physically maintaining or
protecting a site, visiting the land, performing ritual activity at or near a site, seeking
and imparting knowledge about a particular area, foraging or hunting in an area in
accordance with local rules about access and activity, cleaning and burning areas,
keeping some people away from certain sites (in order to protect the sites and the
people from danger consequent upon unauthorised entry to them) by ensuring that
knowledge about the sites is confined to a limited group of appropriate people and
64 Mabo (1992) 175 CLR 1 at 61, 70 (per Brennan J); 110 (per Deane and Gaudron JJ); 192
(per Toohey J); Yanner v Eaton (1999) 166 ALR 251 at 277.
65 (1992) 175 CLR 1 at 60 per Brennan J. See also Wik Peoples v Queensland (1996) 187 CLR
1 at 183.
66 See Mabo (1992) 175 CLR 1 at 188 (per Toohey J); Yorta Yorta Peoples v Victoria (Fed C
of A, Olney J, 18 December 1998, unreported) at para 123.
67 See Dr P Sutton, ‘The Robustness of Aboriginal Land Tenure Systems: Underlying and
Proximate Customary Titles’ (1996) 67 Oceania 7; Native Title and the Descent of Rights,
NNTT, 1998, particularly Part 2: ‘Families of Polity: Post-Classical Aboriginal Society and
Native Title’.
68 Some examples are planning statutes and environmental law. Kevin Gray, above, n 58,
pp 188–206.
69 Graeme Neate, ‘Indigenous Land Use Agreements — What Certainty for Pastoralists?’
Paper delivered at the 69th Annual Conference of the Pastoralists & Graziers Association of
WA, 24 February 1999, p 17.
Native Title 13
by ensuring that children are taught about the land. By continuing to look after or
care for country the people ensure that country cares for and sustains them.
Fifthly, there are fundamental social and cultural differences between
Western and Aboriginal societies which colour Western perceptions of
indigenous assertions of native title rights. To give one example, there is no
equivalent institution in Aboriginal society to the Sovereign, or head of state.
Indeed, anthropological literature records a debate about the nature of law and
government within classical Aboriginal society.70 In Milirrpum v Nabalco,71
Blackburn J discussed the submissions of the Solicitor-General for the
Commonwealth that the social organisation of the applicants could not be
described as law:72
At any rate, he contended, there must be the outward forms of machinery for
enforcement before a rule can be described as a law. He did not deny the deep
religious sanctions which underlay the customs and practices of the Aboriginals;
indeed, he stressed them, and contended that such sanctions as there were were
religious and not otherwise.
I do not find myself much impressed by this line of argument. The inadequacy of
the Austinian analysis of the nature of law is well known. I do not believe that there
is utility in attempting to provide a definition of law which will be valid for all
purposes and answer all questions. If a definition of law must be produced, I prefer
‘a system of rules of conduct which is felt as obligatory upon them by members of
a definable group of people’ to ‘the command of a sovereign’ but I do not think that
the solution to this problem is to be found by postulating a meaning for the word
‘law’.
Another example is the absence in classical Aboriginal societies of what
economists would describe as surplus value — goods are not produced for
trade, or amassed as capital, and although there are recognised trade routes,
the ‘commerce’ might involve the exchange of ritual knowledge as well as
bartering scarce goods such as ochres, shells, and implements. A conclusion
that an Aboriginal group does not practice cultivation or animal husbandry
may well be coloured by images of fields and fences. The unstated
assumptions of exclusivity in concepts such as ‘ownership’ or ‘possession’
may also require examination. There is obvious potential for mutual
misinterpretation in communicating concepts of rights and interests if the legal
and cultural structure within which those rights and interests are recognised is
not well understood.
The issues discussed above reveal that recognition of native title by the
common law requires an understanding of elements of Aboriginal society, and
70 L R Hiatt, Arguments About Aborigines, Cambridge University Press, Cambridge, UK, 1996,
and see also Anthony Dickey, ‘The Mythical Introduction of “Law” to the Worora
Aborigines’ (1976) 12 UWA Law Rev 350 at 480; M J Meggitt, ‘Indigenous Forms of
Government Among the Australian Aborigines’ (1964) in Bijdragen tot der Taal-Land-en
Volkenkinde p 163; L R Hiatt, ‘Aboriginal Political Life’ (Wentworth Lecture 1984)
Australian Institute of Aboriginal Studies, Canberra; R M Berndt, ‘Law and Order in
Aboriginal Australia’ in Aboriginal Man in Australia — Essays in honour of Emeritus
Professor A P Elkin, Sydney, Angus & Robertson, 1965, pp 167–206. Of course, this could
simply represent a cultural gulf between lawyers and anthropologists. I am indebted to
Dr Peter Sutton for these references.
71 (1971) 17 FLR 141.
72 (1971) 17 FLR at 270.
an appreciation of the way in which that society has been affected over two
centuries of colonisation and settlement. There is a further hurdle, however, to
be overcome in working out the points of intersection73 between the common
law and traditional law and custom, and that is the extent to which the
common law is able to accommodate the recognition of the fullest expression
of traditional rights.
The limits of the common law

As native title is dependent for recognition on the common law, it is limited
by the extent to which the common law itself comprehends certain rights or
interests. The statutory definition requires that rights be ‘recognised’ by the
common law. What does this mean? It may include those rights which are of
the general type that the common law will be able to recognise, such as rights
of access, or hunting. On the other hand, it may mean only those rights which
the common law actually does recognise, taking into account, for example,
issues of extinguishment or proof of connection.
Several cases illustrate that while rights under traditional law may go
beyond the limits of the common law, the recognition accorded those rights
will end at the boundary. This means that customary law on exclusive use of
the sea; traditional rights and responsibilities relating to animals; spiritual
affiliation with country, and the concept of ‘revival’ of entitlements may be
inadequately reflected in the common law concept of ‘native title’. It may
explain why native title is sometimes regarded as consisting primarily of
certain types of ‘use rights’ rather than expressing the entirety of Aboriginal
relationships with land. The process of working out what rights and interests
fall with s 223 reveals differing approaches to the reach of the common law
as well as the degree to which native title can be recognised.
Yarmirr and offshore rights

The case of Yarmirr v Northern Territory74 concerned an application for a
determination of native title over the sea and sea bed, and any reefs or other
land in an area surrounding Croker Island. The applicants asserted that they
held exclusive rights over the areas claimed, including the rights (among
others) to control the access of others to the waters, or prevent other people
from hunting or gathering material from the waters; to be recognised as the
exclusive owners of marine organisms within the waters, and to have the right
and responsibility to care for and protect the resources of the waters. Croker
Island itself had been granted in fee in 1980 to the Arnhem Land Aboriginal
Land Trust for the benefit of Aboriginal people.75
Justice Olney found that there was ample evidence that the applicants had
exercised traditional rights in relation to the waters, to catch fish, hunt for
turtle and dugong, and collect shellfish for sustenance and for ceremonial
purposes.
73 See Fejo v Northern Territory (1998) 156 ALR 721 at 737; Yanner v Eaton (1999) 166 ALR
251 at 279.
74 (1998) 156 ALR 370; affirmed [1999] FCA 1668.
75 Under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
Native Title 15
The respondents asserted several defences to the application:

• that the recognition of native title could not extend beyond the
territorial limits of the original acquisition of sovereignty over the
former colonies, that is, the low water mark;
• that if native title could be recognised beyond the limits of the
Northern Territory, those rights were not exclusive;
• the applicants did not have ownership of marine resources, nor of
mineral resources of the sea bed, and
• any native title rights that may exist must be subject to public rights
of navigation, and to the powers of the Northern Territory and the
Commonwealth to grant fishing and other rights in the waters
concerned.
Justice Olney held that even though sovereignty over the seas under the
Seas and Submerged Lands Act 1973 (Cth) had only been established in 1990,
native title could still be recognised. The Act left open the possibility that
applications for native title might be made in relation to offshore areas.
Section 223(1)(c), which required that the rights and interests be recognised
by the common law, did not impose a territorial limit measured by reference
to the area where the common law applies, but described the kinds of rights
which might be the subject of a determination of native title. In relation to
offshore claims, therefore, the possibility that native title might be recognised
sprang not from the original assertion of sovereignty, but the combined effect
of the Commonwealth extension of sovereignty and the provisions of
the Act.76
In relation to the claims of exclusive rights, and rights in respect of
resources, the applicants were less successful. Olney J found that although
exclusive rights may have been enjoyed because other Aboriginal groups
could be expected to respect the applicants’ laws and customs, ‘[T]he very
nature of the sea renders it inappropriate to attempt to strictly apply concepts
such as possession and occupation which are readily capable of being
understood in relation to land’.77 It appeared from the evidence of the
nominated applicant, Mary Yarmirr, that under traditional law permission
would be sought to enter areas of sea-country even if not closed or dangerous,
but Olney J found that these rules applied primarily to other Aboriginal
people, as Balanda (white people) who did not know the law would not be
prevented from passing through the area.78 The rights asserted in relation to
controlling resources were found to be, in essence, the practical consequence
of any right to control access to the area, and Olney J concluded that
traditional rules about sharing catches of fish were not rights in relation to
lands or waters79 within the terms of the Act.
76 (1998) 156 ALR at 387–8, 428. On appeal, the Full Federal Court by majority upheld this
decision. Justices Beaumont and von Doussa held that s 223(1)(a) already encompassed
notions of extinguishment: at [61].
77 (1998) 156 ALR at 418.
78 (1998) 156 ALR at 421–2.
79 (1998) 156 ALR at 423, emphasis from the judgment. In relation to sea rights generally, see
Customary Marine Tenure in Australia, Oceania Monograph 48 (Nicholas Peterson and
Bruce Rigsby (eds)).
The claims to exclusive control of sea country could not succeed for other
reasons. Olney J considered that Australia’s international obligations80 to
permit innocent passage of ships, and the existence of public rights at common
law to pass and repass over the water, and to fish,81 prevented the recognition
of exclusive rights. In addition, the rights to fish had been regulated by South
Australian, Northern Territory, and Commonwealth legislation, at least in so
far as they required the acquisition of permits or licences to engage in
commercial fishing.82
In relation to mineral resources, Olney J found nothing in the evidence to
justify an assertion of rights to acquire or trade in minerals, but went on to
consider submissions from the Commonwealth that title to minerals had been
vested by legislation in the Crown, and to conclude that statutory vesting of
minerals had extinguished any native title in any event.83
Yanner and hunting rights

The question of extinguishment by legislative vesting was also raised in
Yanner v Eaton.84 In that case, Murrandoo Yanner was charged with taking a
species of protected fauna (an estuarine crocodile) without a licence, in breach
of the Fauna Conservation Act 1974 (Qld). The magistrate dismissed the
charge on the basis that Mr Yanner was acting in the exercise of his native title
rights, which were preserved by s 211 of the Act. The Crown appealed to the
Queensland Court of Appeal on the ground that any native title right that
might have subsisted had been extinguished by s 7(1) of the Fauna
Conservation Act, which provided that ‘all fauna . . . is the property of the
Crown’, under the control of the Fauna Authority established by that Act. The
relevant Order-in-Council bringing estuarine crocodiles within the terms of
the statutory definition had been made in August 1974. There was no question
of the legislation or the Order-in-Council being invalid because of any
discriminatory effect on native title rights as the vesting had occurred before
the Racial Discrimination Act 1975 (Cth) was enacted.
The question for the Court of Appeal was whether any native title right to
hunt crocodiles had been preserved by s 211 of the Act. By majority, the court
held that native title rights to hunt fauna which were protected by the Fauna
Conservation Act had been extinguished by the statutory vesting, and thus
were not capable of being ‘rights and interests . . . recognised by the common
law of Australia’ within s 223 of the Act and not protected by s 211.
80 Under the Convention on the Territorial Sea and Contiguous Zone (Geneva, 1958), and
subsequently the United Nations Convention on the Law of the Sea (Montego Bay, 1982).
81 Minister for Primary Industries and Energy v Davey (1993) 119 ALR 108.
82 (1998) 156 ALR at 431–7. Justice Merkel dissented from the decision of the Full Federal
Court in this respect. He would have found, based on New Zealand, Canadian and United
States authority that an exclusive fishery, if proved, could be recognised on the Mabo
principles: at [630].
83 (1998) 156 ALR at 438. See also Fourmile v Selpam Pty Ltd (1998) 152 ALR 294.
84 (1999) 166 ALR 251; cf with respect to WA legislation Lee J in Ward v Western Australia
(1998) 159 ALR 483 at 615, and with respect to fish: Mason v Tritton (1994) 34 NSWLR
572 at 592–3 (per Kirby P); Derschaw v Sutton (1996) 17 WAR 419.
Native Title 17
The High Court allowed the appeal by a majority decision.85 The majority
considered that the use of the word ‘property’ in the Fauna Conservation Act
did not require, as the respondents contended, a construction that meant that
full beneficial ownership was vested in the Crown to the exclusion of all
others. Because the term ‘property’ has such a broad and comprehensive
meaning, and because it is capable of describing such a wide variety of legal
relationships of differing incidents, the use of the term ‘property’ really
provided a starting point for an analysis of the ‘various rights of control by the
Executive that the legislation created’.86 The majority’s conclusion was that
those rights (rights to limit the taking of fauna, to possession of fauna reduced
to possession, and rights to receive royalty in respect of fauna) amounted to
less than full beneficial ownership.
In the view of the majority, the Fauna Conservation Act operated to regulate
aspects of the relationship of Aboriginal people to the land, and so did not
operate to extinguish native title. Therefore, assuming Mr Yanner was able to
establish his connection with the land, s 211 of the Act and s 109 of the
Constitution operated to prevent the Fauna Conservation Act from prohibiting
or restricting the exercise of his native title rights.
The decision highlights the new analysis of rights and interests in land that
is required as a result of recognising rights derived from traditional indigenous
connection. In order to determine the nature and content of rights in real
property in Australia, it is now necessary to approach the question without
preconceptions about the intention with which certain words (particularly
words with broad and general meanings) are used.87 Justice McHugh,
dissenting, considered that the term ‘property’ was not so elusive in meaning
that it ought to be considered to have a more restricted, or limited,
construction than absolute ownership.88 However, the majority judgments
require a more detailed analysis of the purpose and function of statutory
language. The recognition of indigenous rights which are not derived from the
common law, and the growing awareness that rights conferred under statutory
authority may create relationships which differ substantially from the feudal
tenures, mean that interests in land have to be examined in a more detailed
way, and having regard to the variety of legal relations that could exist before
a decision about their essential character can be made.
Spiritual connection and native title rights

In Milirrpum v Nabalco,89 Blackburn J characterised the source of entitlement
to land of the Yolgnu people as fundamentally spiritual.90 It was this
characteristic that led him to conclude that the rights asserted by the plaintiffs
85 (1999) 166 ALR 251. The majority comprised Gleeson CJ, Gaudron, Kirby and Hayne JJ.
Gummow J delivered a separate judgment allowing the appeal. McHugh and Callinan JJ
dissented.
86 (1999) 166 ALR 251 at 267, 283.
87 Per Gummow J at 279.
88 At 272.
89 (1971) 17 FLR 141.
90 (1971) 17 FLR at 167.
were not proprietary in nature, and so incapable of recognition as interests in

land.91 He described the fundamental connection between the people and the
land in the following way:
In the Aboriginal belief, all things in the physical and spiritual universes (and the
difference between them seems not to be important) belong to one or the other of the
two classes called ‘moieties’ . . . It is the unchangeable natural order of things that
every human being, every clan, every animal and plant species, and every inanimate
thing, belongs to one or other of the moieties.
The people themselves believe that they are descendants of certain great spirit
ancestors whose names and deeds are well known; they arrived at identified places
and they moved about the land doing various things at various places. Whether or
not they were the creators of the physical world, they were certainly the ordainers
of the system of life which the Aboriginals accept.
...
As I understand it, the fundamental truth about the Aboriginals’ relationship to the
land is that whatever else it is, it is a religious relationship . . . There is an
unquestioned scheme of things in which the spirit ancestors, the people of the clan,
particular land and everything that exists on and in it, are organic parts of one
indissoluble whole.
It is the degree of interconnectedness between the law, the people, and all
things relating to the land, including places and animals, which represents a
fundamental difference between Aboriginal and Western concepts of
entitlement. In Hayes v Northern Territory92 Olney J found the right to
manage spiritual forces to be an incident of native title. It lies at the heart of
the principle that native title is inalienable, other than by surrender to the
Crown, and creates particular difficulties in determining the appropriate value
to place on compensation for loss or impairment of native title. It is true that
aspects of intangible value have their place in the common law, especially
reflected in the equitable entitlement to specific performance of contracts for
the sale of land, and in the notion of ‘special value’ and solatium in
compensation for resumption. However, the approach to real property in the
common law is essentially commercial.
The question of compensation also raises issues about just what constitutes
‘extinguishment’ or impairment.93 It may be that only those rights which are
capable of recognition by the common law (whether that be on a fee simple
equivalent basis, or as elements in a bundle of rights) can be the subject of
compensation if native title is surrendered or compulsorily acquired. Although
the Act contemplates that the compensation will be calculated in money or
money’s worth94 any negotiations concerning compensation are likely to
include, and possibly focus upon, the intangible elements of identity and
connection, and may not be confined to the group immediately affected, but
extend to neighbouring groups who may have ritual or other obligations to
91 (1971) 17 FLR at 261.

92 [1999] FCA 1248 at [51].
93 See Graeme Neate, ‘Determining compensation for native title: legislative issues and
practical realities’, Paper delivered at AIC Conferences ‘Working with the Native Title
Amendment Act 1998’ Brisbane, 1 December 1998.
94 Native Title Act s 51. The negotiations may include matters such as transfer of property, or
provision of goods or services.
Native Title 19
assist in the maintenance of traditional law for the country.

The only determination of native title to date in which issues of
compensation have arisen, that of the Dhungutti people (Crescent Head, New
South Wales), was one in which the parties themselves fixed, according to
press reports, a value of 1.5 times the freehold value of the land. The order of
the Federal Court95 noted the agreement of the parties. Decisions of the
National Native Title Tribunal (NNTT) in its arbitral jurisdiction in relation to
future acts such as mining have commented on the essentially arbitrary or
artificial exercise involved in fixing compensation by reference to principles
established in valuing freehold land.96 The nature of ‘just terms’ compensation
under the Constitution will also be relevant, as the Act limits the amount of
compensation to the freehold value of the land, but subject to the requirement
of just terms.97
Fejo and revival
In Fejo (on behalf of the Larrakia People) v Northern Territory98 the High
Court was asked to consider the issue of extinguishment of native title by a
grant of freehold which had subsequently been compulsorily acquired by the
Commonwealth.99 The applicants had made a native title application over the
land, which had been accepted for mediation by the registrar of the NNTT.
They sought a declaration that native title subsisted over the area, and to
restrain the Northern Territory government from granting development leases
which carried a right to receive a conveyance of the freehold on performance
of the conditions of the grant, or from converting any lease to freehold without
first according the applicants the right to negotiate under the Act. The judge
at first instance had refused to grant the relief sought on the basis that the prior
freehold grant extinguished any subsisting native title, and subsequent
re-vesting of the land in the Crown could not ‘revive’ the native title.
The court dismissed the appeal. A grant of an estate in fee simple, being the
highest estate known to the law, must necessarily extinguish any native title
‘because the rights that are given by a grant of fee simple are rights that are
inconsistent with the native title holders continuing to hold any of the rights
and interests which together make up native title. An estate in fee simple . . .
simply does not permit of the enjoyment by anyone else of any right or interest
in respect of the land unless conferred by statute, by the owner of the fee
simple, or by a predecessor in title.’100 The grant of a fee simple had this effect
because the nature of the rights granted were not in themselves temporary or
conditional — the effect of the grant on native title did not depend on the
intention of the grantor, but the extent to which it would be possible to
exercise any rights derived from the native title that related to the use of
the land.
95 Buck v New South Wales (Fed C of A, Beaumont J, 7 April 1997, unreported).

96 Western Australia v Thomas (1996) 133 FLR 124; Re Koara People (1996) 132 FLR 73.
97 Native Title Act s 51A.
98 (1998) 156 ALR 721.
99 See now Native Title Act s 47B requiring that prior extinguishment be disregarded when the
land is vacant Crown land at the time of an application for native title, and is occupied at the
time by one or more members of the native title claim group.
100 (1998) 156 ALR at 736 (per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and
Callinan JJ); see also at 753 (per Kirby J).
The applicants had put forward other arguments to support their contention
that the grant in fee simple should nevertheless be read as impliedly subject
to native title rights. The first was that the powers of the Crown were limited
by Colonial Instructions requiring that the rights of the Aboriginal inhabitants
be respected. However, the statutory authority for making such grants,
whether of the Colony of New South Wales or the Colony of South Australia
(both of which in turn had once encompassed the area of the Northern
Territory) was not limited in any such way, and nor had any express rights
been reserved.101
The second was that the common law recognised rights of common or
customary rights, and that by analogy grants of freehold should be presumed
to be subject to such rights. Although the common law does recognise
communal or customary rights102 in land, the court was not prepared to extend
the principles that might apply where rights were derived from the same
source (in grant or presumed grant) to one where rights created by statutory
authority intersected with rights derived from a wholly different tradition.103
Finally, the applicants relied on authority from the United States and
Canada in which freehold had been held not to have extinguished native title
rights. The majority of the court noted that, while the question of
inconsistency, and thus extinguishment, would need to be examined in the
light of the particular grant, there were considerations which might explain the
conclusions that had been reached in those jurisdictions, such as, for example,
the existence of treaties or other similar obligations.104
Similarly, the applicants were unsuccessful in relation to their argument that
native title had been revived by the vesting of the land in the Commonwealth
consequent on resumption of the land in 1906. It was held that quite apart
from the terms under which the vesting took place, the nature of the rights that
had been granted originally had precluded the assertion of any other rights in
the land as the grant of fee simple was completely inconsistent with their
continued existence.105
Partial extinguishment or regulation

One final matter involves the concepts of extinguishment, impairment, or
regulation of native title. I have referred above to the dominium/bundle of
rights distinction. If native title is treated as a bundle of rights, it is
theoretically possible to extinguish elements of that title, leaving intact a
residual core of rights. If, on the other hand, native title is regarded as the
fullest expression of connection to the land that the common law will
recognise, native title will only be extinguished when the rights granted are
such as to eclipse fully any right to exercise traditional entitlements. Just what
101 (1998) 156 ALR at 738–9 (per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and
Callinan JJ); 751–2 (per Kirby J).
102 See, eg Wik Peoples v Queensland (1996) 187 CLR 1 at 178 (per Gummow J).
103 (1998) 156 ALR at 739 (per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and
Callinan JJ); 757 (per Kirby J); Yanner v Eaton (1999) 166 ALR 251 at 283.
104 Ibid.
105 (1998) 156 ALR 721 at 740 (per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne
and Callinan JJ); 758–9 (per Kirby J).
Native Title 21
the boundary is between impairment and extinguishment, and whether there is

any such thing as partial extinguishment under the common law, is very
difficult to tell.
In Ward v Western Australia106 Lee J adopted an holistic approach to native
title:107
Native title at common law is a communal ‘right to land’ arising from the significant
connection of an indigenous society with land under its customs and culture. It is not
a mere ‘bundle of rights’: see Delgamuuwk per Lamer CJ at 240–1. The right of
occupation that is native title is an interest in land: see Mabo (No 2) per Brennan J
at CLR 51. There is no concept at common law of ‘partial extinguishment’ of native
title by the several ‘extinguishment’ of one or more components of a bundle of
rights. It follows that there cannot be a determination under the Act that native title
exists but that some, or all ‘native title rights’ have been ‘extinguished’.
Strict regulation of the rights parasitic upon native title by suspension,
suppression, curtailment or control of those rights by legislation or by acts of the
Crown which may thereby involve a grant of rights of use of Crown land to third
parties may impair native title but strict regulation of the exercise of such rights of
itself, will not mean that native title has been extinguished.
Justice Lee went on to deal with the possibility that acts of the Crown may,
if plainly authorised by legislation and made with the intention to affect rights
permanently, bring about partial extinguishment if this was the necessary
result of the legislation. He considered, however, that at common law native
title and other interests in land could co-exist without requiring as a
conclusion of law that partial extinguishment had taken place, even though
there might be some inconsistency between the incidents of each set of
interests.108
The provisions of the Act appear to require, at least for some purposes, that
a ‘bundle of rights’ approach be adopted. Section 62(2)(d) provides that
applications claiming a determination of native title must contain:
(d) a description of the native title rights and interests claimed in relation to
particular land or waters (including any activities in exercise of those rights
and interests) but not merely consisting of a statement to the effect that the
native title rights and interests are all native title rights and interests that may
exist, or that have not been extinguished, at law; . . .
The registrar, in deciding whether to register an application on the Register
of Native Title Claims, is required by s 190B(4) to be satisfied that:
the description contained in the application as required by paragraph 62(2)(d) is
sufficient to allow the native title rights and interests claimed to be readily identified.
and that the factual basis on which it is asserted that the native title rights and
interests claimed exist is sufficient to support that assertion: s 190B(5). The
registrar must then decide whether prima facie, at least some of the native title
rights and interests claimed in the application can be established: s 190B(6).
The registrar may apparently decline to register details of some of the rights
claimed if he or she is not satisfied that all of the rights asserted can be made
106 (1998) 159 ALR 483. A decision by the Full Federal Court on appeal is imminent.
107 (1998) 159 ALR at 508.
108 (1998) 159 ALR at 510. This point was expressly left undecided in Yanner v Eaton (1999)
166 ALR 251.
out, but s 190(3A) contains a procedure under which an applicant may provide
further information in respect of the omitted rights, and details of those rights
may then be included in the register, provided that the registrar is satisfied that
they would have been included if the information had been provided at the
time of initial consideration of the application.109
The Act also makes express provision for the partial extinguishment of
native title rights and interests by ‘previous non-exclusive possession acts’110
of the Commonwealth111 only if the act would extinguish native title apart
from the Act (presumably, at common law or pursuant to other
Commonwealth legislation), and authorises State and Territory governments
to enact legislation in similar terms.112 The Act preserves beneficial
reservations and conditions in the relevant grants, and requires that native title
holders be given a right to comment if a grant is to be made in exercise of a
legally enforceable right created before 23 December 1996.113
The reach of these provisions must presently be regarded as somewhat
uncertain.114 If they have any impact at common law, and Lee J’s analysis is
correct, the greatest effect that a non-exclusive tenure can have is to regulate
the exercise of native title rights. If the rights are granted pursuant to some
other statute which115 authorises extinguishment, these grants should be
subject to the right to negotiate under the Act, or any equivalent State regime.
In any other case, the Act provides that the native title rights are merely
suspended, which would be consistent with the analysis in Ward.
The Native Title Act — enter the Commonwealth

I have identified in the previous section some of the problems that surround
the intersection of traditional rights with the common law. Resolving these
issues through litigation raises the prospect of long and complex cases, with
extensive evidence from applicants about their connection to country, the
preparation of lengthy expert reports from anthropologists, historians, and
others to support assertions of continuing law and custom, and production of
extensive tenure information by the relevant State. In many respects this is an
unsatisfactory process, not least because of the cost involved,116 but also in the
109 These provisions have particular relevance to the right to negotiate about future acts such as
compulsory acquisition and mining grants. The parties to a future act negotiation are only
subject to an obligation to negotiate in good faith about the effect of the proposed act on
registered native title rights and interests (s 31(2)), and under s 39, the ‘arbitral body’
(NNTT or recognised State or Territory body) must take into account the effect of the
proposed act on the enjoyment by the native title parties of their registered native title rights
and interests in determining whether the proposed act can proceed.
110 These are defined in s 23F as valid grants of non-exclusive agricultural leases (themselves
defined in s 247B) or non-exclusive pastoral leases: s 248B.
111 Native Title Act s 23G.
112 Native Title Act s 23I.
113 The date of the Wik decision.
114 The issue did not arise in Ward v Western Australia because the pastoral leases in that case
were not required to be validated — they had been granted prior to 1975 and so were not
affected by the operation of the Racial Discrimination Act.
115 See s 23G(1)(b)(i).
116 See Federal Court of Australia Annual Report 1997–98 which sets out at p 41 the time
involved in hearing Yarmirr (30 days hearing at Croker Island and Darwin); Yorta Yorta
Native Title 23
toll taken on communities in publicly taking sides on issues such as the

existence of connection, the very identity of the applicant group, questions of
credibility of witnesses, and the historical circumstances in which
appropriation or extinguishment may have occurred.
The cost of litigation was not the only factor that led the Commonwealth to
legislate. The recognition of native title carried with it the likelihood that
many grants made by governments were invalid because of their effect on
native title, at least since the enactment of the Racial Discrimination Act.
Because native title holders could not be subject to discriminatory treatment
either by the Commonwealth or the States and Territories, governments were
obliged to accord them the same procedural rights as other interest-holders.
Besides the influence of UN Covenant on Civil and Political Rights, the
Commonwealth is a participant in the United Nations Earth Summit,
Agenda 21, the UN Convention on the Conservation of Biological Diversity,
and the Rio Declaration on Environment and Development, all of which
provide to some degree for the recognition of indigenous knowledge about
environmental management. There is also the ILO Convention No 169
concerning Indigenous and Tribal People in Independent Countries (1989)
which Australia has not ratified, and the UN Draft Declaration on the Rights
of Indigenous Peoples, both of which deal with the rights of indigenous people
to participate in decisions about use and management of lands and
resources.117 These documents together provide evidence of a strong
international force for the recognition and protection of the rights of
indigenous peoples to which the Commonwealth is subject either as a
signatory, or under principles of international customary law.118
The Commonwealth was also best placed to legislate with respect to native
title because of the existence of Constitutional power to make laws with
respect to Aboriginal people, and the requirement to make just terms
compensation for any acquisition of property rights.
The Native Title Act sets out four main objects in s 3:
(a) to provide for the recognition and protection of native title
(b) to establish ways in which future dealings affecting native title may proceed
and set standards for those dealings
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts, and intermediate period
acts, invalidated because of the existence of native title.
Recognition and protection of native title
I have noted above that the statutory definition of native title reflects the
common law concept of native title. Sections 10 and 11 of the Act provide the
(147 days at various locations in the Murray-Goulburn River region, and in Melbourne), and
Ward (78 days at Kununurra and throughout the Kimberley Region, and in Perth).
Newspaper reports indicate that the Western Australian Government spent $3.5 million on
the Ward case, and ATSIC $1.2 million.
117 See Garth Nettheim, ‘The international implications of the Native Title Act amendments’,
vol 4, Indigenous Law Bulletin, February 1998, p 12, and also Sarah Pritchard (ed),
Indigenous Peoples, the United Nations and Human Rights, Zed Books/Federation Press,
Leichhardt, NSW, 1998.
118 Justice Robert French, ‘Wik, where do we go from here?’ Paper delivered to the Wik
Summit, Cairns, 22 January 1997.
basic concepts behind the scheme for recognition and protection of native
title. Section 10 simply provides that ‘Native title is recognised and protected
in accordance with this Act’ and s 11(1) states that ‘Native title is not able to
be extinguished contrary to this Act’. The intent behind these two sections is
to ensure that the States may not pass laws which affect native title in a
manner which is inconsistent with the procedures laid down in the Act.
The effect of these sections was considered by the High Court in the Native
Title Act case.119 The State of Western Australia had passed its own legislation
in July 1993120 which purported to extinguish all native title existing in the
State, replacing native title rights with ‘rights of traditional usage’. These
rights were liable to extinction by legislative or executive action inconsistent
with the continued exercise of those rights; grants of freehold or leasehold
titles (including pastoral leases); leases for the purpose of mining (except to
the extent that rights of traditional usage were expressly preserved), and
reservations or dedications of land for public works or other public purposes
to the extent of inconsistency with traditional usage rights.
The State took proceedings for a declaration that the Native Title Act was
beyond the legislative power of the Commonwealth and therefore invalid.
Three groups of Aboriginal people (the Worrora, Yawuru, and the Martu
people) in turn challenged the validity of the Western Australian legislation,
relying on inconsistency with the Racial Discrimination Act 1975 under s 109
of the Constitution.
The High Court held that native title at common law had not been
extinguished on the establishment of the colony of Western Australia,
consistently with the decision in Mabo.121 Assuming, therefore, that native
title continued to exist, the Western Australian legislation was inconsistent
with the Racial Discrimination Act because the rights conferred under it were
less secure than native title rights, and less secure than other rights held by the
community generally. This was primarily because the rights of traditional
usage were liable to extinguishment by executive or legislative action, without
the necessity to observe statutory procedures such as those for compulsory
acquisition and compensation which would apply to other property rights.122
The High Court also decided that the Native Title Act was a valid exercise
of the legislative power of the Commonwealth under s 51(xxvi) of the
Constitution: the power to make laws with respect to the people of any race
for whom it is deemed necessary to make special laws.123 The Native Title Act
answered that description because:124
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. Perhaps the Act
confers a benefit on all the people of those races. The special quality of the law thus
appears. Whether it was ‘necessary’ to enact that law was a matter for the parliament
to decide and, in the light of Mabo (No 2), there are no grounds on which this court
could review the parliament’s decision, assuming it had power to do so.
119 Western Australia v Commonwealth (1995) 183 CLR 373.

120 The Land (Titles and Traditional Usage) Act 1993 (WA).
121 (1995) 183 CLR at 433.
122 (1995) 183 CLR at 442, 446, 448–9.
123 See also Kartinyeri v Commonwealth (1998) 72 ALJR 722.
124 (1995) 183 CLR at 462.
Native Title 25
...
The relationship of the Native Title Act with the Racial Discrimination Act has
two aspects: first, the Native Title Act validates or permits the validation of past acts
that were not of full force and effect because of the operation of the Racial
Discrimination Act; secondly, the Native Title Act affords protection to the holders
of native title who hithertofore have been protected by (and who may continue to be
protected under) the Racial Discrimination Act, the regime established by the Native
Title Act being more specific, and more complex than the regime established by the
Racial Discrimination Act.
The Native Title Act did not offend any express or implied constitutional
limitation on the power of the parliament. The court held that there was no
impermissible limitation on the exercise by the States of their power to
administer land. Section 11 did not deprive the State legislatures of the power
to make laws with respect to native title rights, but prescribed the conditions
under which any laws which did purport to affect native title would have full
force and effect.125 Nor did the requirement that States pay compensation for
extinguishment constitute an arbitrary financial burden or impair their
legislative power.126
The State had argued that the enactment of the Native Title Act interfered
with its capacity to function as a government, given the extent of Crown land
within the State which might be subject to native title, the economic and social
significance to the State of the mining industry, and the degree to which the
functions of the State were taken up in the administration of Crown lands. The
court held that:127
such practical difficulty 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 realisation that land subject to native title
is not the unburdened property of the State to use or 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 Native Title Act may diminish the breadth of the discretions available to the
Executive Government but that is not sufficient to stamp it with invalidity.
There was, however, one provision of the Act that the court found to be
invalid. Section 12 provided that the common law of Australia in respect of
native title has, after 30 June 1993, the force of a law of the Commonwealth.
While this provision was plainly intended to activate the protection of s 109
of the Constitution against a State law dealing with native title, it was not
possible either to import ‘the common law’ as a text, or to confer legislative
power on the judicial branch of government.128
The result, then, of the Native Title Act case is that the Act contains the
parameters within which native title is recognised, and sets out the standards
which control the exercise by the States of their legislative and executive
powers to manage land over which native title might exist. As the court
125 (1995) 183 CLR at 469; see also at 474 (considering the effect of s 211).
126 (1995) 183 CLR at 475.
127 (1995) 183 CLR at 480–1.
128 (1995) 183 CLR at 485.
pointed out, this exerts a significant practical constraint on the ability of the
States to make decisions affecting land without regard to issues such as the
possible continued existence of native title, its incidents, and the requirement
to compensate native title holders whose rights may be impaired. In theory at
least, all land which has not been granted in freehold is subject to these
constraints. In practice, the issue is one of assessing the risk of invalid grants
having regard to the nature of the act proposed; the likelihood that native title
can be asserted over the land, and the extent of any liability for compensation
if native title exists.
The Act also provides for circumstances in which native title can be
recognised despite the existence of past grants which would otherwise have
the effect of extinguishing native title. These include pastoral leases held by
Aboriginal people, and land granted under laws passed for the benefit of
Aboriginal people,129 as well as land subject to former grants which is vacant
Crown land at the time of the application.130
Part of the Commonwealth’s response to the Wik decision was to take steps
to confirm that certain tenures on which it believed rights of exclusive
possession had been granted had the effect of extinguishing native title. The
Wik case had revealed that the mere use of statutory language consistent with
the creation of a common law leasehold was insufficient to compel a
conclusion that an exclusive tenure had been created. Therefore, the sea of
tenures was trawled to produce a list of the interests which the Commonwealth
and the States believed conferred exclusive rights.
The amendments also contained the new Div 2B, under which two species
of act were described — previous exclusive possession acts (PEPA) and
previous non-exclusive possession acts (PNEPA). Previous exclusive
possession acts are defined as validated acts (past acts or intermediate period
acts) which are grants of freehold, a Scheduled interest, or certain types of
leasehold interest such as residential, commercial or community purpose
leases, or any other lease which confers a right of exclusive possession over
land or waters.131 Construction of public works and vesting of land or waters
under legislation which confers a right of exclusive possession are also
previous exclusive possession acts, and extinguish native title.
Certain acts are excluded from the definition of a PEPA, for example, a
grant of land for the benefit of Aboriginal people or Torres Strait Islanders; the
establishment of a national park for preserving the natural environment. If the
legislation under which the grant was made specifically preserves native title
it is not a PEPA, and grants from the Crown to the Crown in any capacity, or
a statutory authority, are not PEPAs unless the grant would otherwise
extinguish native title, or until the lands are used in such a way that native title
129 Native Title Act s 47 (pastoral leases), s 47A (freehold grants, where at least one member of
the native title claim group is in occupation at the time of the application). See also
Pareroultja v Tickner (1993) 42 FCR 32. Some State legislation may make specific
provision that native title is not extinguished by beneficial grants, and restricts the ability to
deal with such land without taking account of native title rights and interests. Aboriginal
Land Rights Act 1984 (NSW) s 40AA.
130 Native Title Act s 47B. At least one member of the native title claim group must be in
occupation at the time the application is made.
131 Native Title Act s 23B.
Native Title 27
would otherwise be extinguished.132 PEPAs do not affect reservations and

conditions in grants that are inserted for the benefit of Aboriginal people and
Torres Strait Islanders.133 The States and Territories are authorised to effect
extinguishment in accordance with the provisions applicable to
Commonwealth grants.134 The significance of the statutory regime for
confirmation of extinguishment is that Commonwealth legislation controls the
extent to which States may legitimately act to affect native title rights and
interests.
Future dealings affecting native title
The Act sets out a range of ‘future acts’ which may validly be done. The scope
and variety of these provisions mean that they cannot be dealt with fully here.
However, some fundamental principles apply to any activity which may
impair the capacity of holders of native title to exercise their rights.
Future acts are acts135 which affect136 native title taking place after
1 January 1994.137 They are either valid or invalid. The Act defines classes of
valid future acts — all others are invalid to the extent that they affect native
title.138
The recent amendments to the Act introduce many of the specific classes of
valid future acts.139 Essentially, future acts will only be valid if the process by
which they are done conforms with procedural requirements contained in the
Act. These will vary depending on the class of future act which is proposed.
Some acts may be done without the need for any procedures (low impact
future acts) if they would involve very limited interference with the land.
Registration
If native title has not yet been determined for an area, applicants who wish to
have any rights to be notified for comment, consultation or negotiation in
relation to the future act must pass a statutory test, administered by the
Registrar of the National Native Title Tribunal.140 This test requires that the
application be properly described and comply with formal requirements; it
must be authorised by the group of applicants; it must properly identify the
native title rights and provide enough information to show that they can be
made out.141 This registration test was inserted in response to concerns that
some higher threshold was required to discourage unrepresentative and
divisive applications, and to give security to those negotiating with native title
claimants that there was some serious basis for the assertion of native title.
132 Native Title Act s 23B(9A)–(9C).

133 Native Title Act s 23D.
134 Native Title Act s 23I.
135 Acts are broadly defined by s 226 to include legislation, the exercise of executive power,
creation or variation of rights, or act otherwise having effect at common law or in equity.
136 An act affects native title if it extinguishes native title or is otherwise wholly or partly
inconsistent with their continued existence, enjoyment or exercise: s 227 of the Native Title
Act.
137 Native Title Act s 233. In the case of legislation, the relevant date is 1 July 1993.
138 Native Title Act s 24OA.
139 Native Title Act Pt 2, Div 3, Subdiv A, Subdivs F to N inclusive.
140 Native Title Act Pt 7 (Register of Native Title Claims), ss 190, 190A, 190B, 190C and 190D.
141 See Patricia Lane, ‘Native Title Litigation’ (1999) 18 Aust Bar Rev 142.
Notification
An essential element of any valid future act process is that registered native
title holders,142 registered native title claimants, and native title representative
bodies143 must be notified of the proposal to do the act. If the act falls within
some specific categories,144 the native title parties only have a right to
comment about the act, but may get compensation for impairment of native
title.
Non-discrimination
One of the principles underlying the future act regime is that native title
holders must not be worse off than holders of ordinary (ie freehold) title would
be if their proprietary interests were being affected by government action. This
means that where a State compulsory acquisition act prescribes a particular
procedure for acquiring interests in land, that process can be followed for
native title holders.145 If what is proposed is compulsory acquisition of native
title, or creating mining infrastructure, the process must include rights such as
an entitlement to consultation about minimising the effect of the act, a right to
object to the proposal, a right to seek compensation for loss or impairment of
native title, and a right to an independent hearing in respect of the decision.146
Rights to negotiate
The right to negotiate applies in relation to mining and compulsory acquisition
which is not for public purposes.147 Where that right applies, the government
is required to give public notice, and notify native title holders, claimants, and
representative bodies in the area of the proposed grant. Once the notification
period expires, all registered claimants and native title holders have the right
to negotiate about the conditions on which mining or compulsory acquisition
can proceed. The parties must negotiate in good faith, and if they cannot reach
agreement after negotiating for six months, any of them may request the
arbitral body (either the NNTT or an approved State body) to make a decision
about whether the act can go ahead or not, and if it can go ahead, whether any
conditions will be imposed as a condition of authorisation.
The arbitral body must take into account factors such as the effect on the
native title rights and interests; the wishes or concerns of the native title
parties about land use or management; the economic significance of the act;
and the existing use of the land by non-indigenous interests. The parties can
ask the arbitral body to mediate to help them reach agreement, and the arbitral
142 That is, who hold native title under a determination of the Federal Court, and are registered
on the Native Title Register. see Harris v Greater Barrier Reef Marine Park Authority
[1999] FCA 1070 (5 August 1999).
143 Organisations established to represent the interests of applicants for native title, and to assist
in the preparation of native title claims.
144 Native Title Act Pt 2, Div 3, Subdivs G (primary production activities), H (management of
water and airspace), I (Renewals and extensions of valid grants), J (acts done pursuant to a
reservation for a particular purpose, eg, forestry, parks, hospitals, etc).
145 Native Title Act Pt 2, Div 3, Subdiv M (acts passing the freehold test).
146 Native Title Act s 24MD.
147 Native Title Act Pt 2, Div 3, Subdiv P.
Native Title 29
body can call a conference in the course of an inquiry148 to help resolve issues
between the parties. If the parties reach agreement, they may give a copy of
their agreement to the arbitral body. Even if the arbitral body makes a
determination which imposes conditions for authorisation, these conditions
have no greater force than a contract between the parties.149
No evidence of native title — the non-claimant process

If a person with an interest in the land believes that there is no native title
which would be affected by any future act, it is possible to bring a
non-claimant application in the Federal Court asserting that native title does
not exist.150 The non-claimant application is advertised, and if no native title
application is lodged in response within the notification period, it is assumed
that no native title exists. This means that the act can proceed,151 but if native
title is subsequently found to exist, the native title holders are entitled to
compensation for the act.
Indigenous land use agreements (ILUAs)

The parties can negotiate independently about whether an act can proceed or
not under new provisions which permit private agreements authorising a
future act.152 These agreements can be registered through the tribunal, and
while it is registered will bind all native title holders.153 An area agreement
(which may deal with extinguishment or surrender of native title) can be
registered if the native title group has authorised the agreement, or the native
title representative body for the area has certified that proper processes were
used to find all the relevant native title holders. The tribunal can permit the
parties to register an alternative procedure agreement (which does not effect
the extinguishment or surrender of native title) if it decides, having regard to
the contents of the agreement, the effect of the agreement on native title rights
and interests, and any benefits under the agreement (including the way in
which those benefits are to be distributed) that it would be fair and reasonable
to register the agreement.154
ILUAs are one way in which the parties, including State governments, may
deal with the existence of native title rights and interests apart from the
procedures required by the Act. Their scope may vary from broad framework
agreements covering many different aspects of land management, to localised
and specific bilateral agreements. Their potential will only fully be realised
with further experience, but it is worth noting that existing State legislation
recognises the use of ILUAs as a mechanism for settling future act issues in
148 For procedures in relation to inquiries, see Native Title Act Pt 6 Div 5. Conferences may be
called under s 150.
149 Native Title Act s 41(1).
150 Native Title Act s 61. The application is described as a native title determination application,
but is not subject to the requirements in ss 61, 61A and 62 that apply to claimant
applications, such as authorisation.
151 Native Title Act Pt 2, Div 3, Subdiv F.
152 Native Title Act Pt 2, Div 3, Subdivs B (body corporate agreements), C (area agreements),
D (alternative procedure agreements).
153 Native Title Act Pt 2, Div 3, Subdiv E (effect of registration).
154 Native Title Act s 24DL.
land management.155 One important difficulty with ILUAs, however, is that

they only bind the parties, who do not have any greater protection than the
general law of contract allows if a party transfers their interest in the land over
which the grant is authorised.
Mechanism for determining claims to native title

The preamble to the Act states that ‘a special procedure needs to be available
for the just and proper ascertainment of native title rights and interests which
will ensure that, if possible, this is done by conciliation and, if not, in a manner
that has due regard to their unique character’. The Act originally provided that
applications were to be lodged in the NNTT, which would have the power, if
the parties agreed, to make a consent determination of native title. This would
ultimately have been registered as a judgment of the Federal Court. The recent
amendments provide greater constitutional security for determinations by
requiring that applications first be lodged in the Federal Court, and removes
any power of the NNTT to make determinations of native title.
The process for applications
The application now commences with only the applicant as a party to the
proceedings.156 The Federal Court gives a copy of the application to the
Native Title Registrar, who then provides copies to the relevant State or
Territory government, and the relevant Native Title Representative Body for
the area. The Native Title Registrar must apply the registration test to the
application, and must notify the public and any person whose interests will be
affected by the making of a determination, but notification is not to take place
until after the registration test has been applied, and a period of 28 days has
elapsed from the date the relevant State or Territory government is given a
copy of the application. During the 28-day period, an application may be made
to strike out the native title application.157
Applications may cover extensive areas, particularly those close to regional
centres, and it is not unusual for the number of persons directly notified to
extend into the thousands. If it appears to the Native Title Registrar that it
would be unreasonable to notify any person with an interest registered in a
public register of interests, the registrar is not required to give notice to that
person. The registrar may also ask the Federal Court to give directions on the
manner of notification. As well as notifying private interest holders, the
registrar must notify any registered native title claimants, native title bodies
corporate, any native title representative body, the Commonwealth minister,
and any local government body for the area covered by the application.158
After notification is complete, and the parties have been identified, the
Federal Court may reduce the number of parties by dismissing those whose
interests are adequately represented, and who are asserting public rights of
155 See, eg Native Title (Queensland) State Provisions Amendment Act No 2 1998 (Qld) s 437;
Mining Act 1992 (NSW) s 138; Local Government (General) Regulation 1993 (NSW) cl 9.
156 Native Title Act Pt 3 Div 1. See Patricia Lane, above, n 141 for a fuller description of the
new native title application process.
157 Native Title Act ss 66, 84C.
158 Native Title Act s 66.
Native Title 31
access or use in relation to the area.159 The court may also dismiss parties who
have no interest or no longer have any interest in the land the subject of the
proceedings. Parties may withdraw before the first hearing, or cease to be a
party with the leave of the court.
The court refers the proceedings to mediation with the tribunal,160 but may
order that there be no mediation if it is satisfied that mediation is unlikely to
produce any agreement on the matters, or on facts relating to the matters
which are required to be the subject of mediation under s 86A of the Act.
These matters are:
Purpose of mediation
Proceeding not involving compensation
86A(1) the purpose of mediation in a proceeding that does not involve a
compensation application is to assist the parties to reach agreement on some or all
of the following matters:
(a) whether native title exists or existed in relation to the area of land or waters
covered by the application;
(b) if native title exists or existed in relation to the area of land or waters covered
by the application:
(i) who holds or held the native title;
(ii) the nature, extent and manner of exercise of the native title rights and
interests in relation to the area;
(iii) the nature and extent of any other interests in relation to the area;
(iv) the relationship between the rights and interests in subparagraphs (ii)
and (iii) (taking into account the effects of this Act);
(v) to the extent that the area is not covered by a non-exclusive
agricultural lease or a non-exclusive pastoral lease — whether the
native title rights and interests confer or conferred possession,
occupation, use and enjoyment of the land or waters on its holders to
the exclusion of all others.
After three months of mediation, the Federal Court may order that
mediation cease in relation to all or part of a proceeding if the parties are
unlikely to reach agreement, or further mediation will be unnecessary. The
court may request reports from the NNTT in relation to mediation, and may
adjourn the proceedings for the parties to negotiate about matters relating to
the application, including its withdrawal.
If the parties reach an agreement concerning native title, the Federal Court
may make a consent determination that native title exists. If not, the matter
proceeds to a trial. Once a determination is made, it is registered in the Native
Title Register.
Advantages and disadvantages of mediation
One of the greatest advantages of mediation, or direct negotiation between
that parties, is that it reduces costs to participants, both financially, and in
saving the stress of litigation. Parties may meet with the mediator separately,
or in bilateral meetings, or larger groups, depending on the issues to be
resolved. Another is the ability of parties to control the process and timetable.
Mediation provides opportunities for parties to become informed about the

160 Native Title Act Pt 4, Div 1B.
legal framework, and with the assistance of a member of the tribunal, to

isolate the issues which have most relevance to the practical working
relationship of a community. In Ward v Western Australia Lee J declined to
make detailed findings about the matters required by s 225, particularly about
the relationship between the native title rights and other rights, in order that
the parties might have the opportunity to reach agreement about the
interaction of the rights which had been found to exist.
Mediation has some disadvantages, however. One of these is the possibility
that the elderly members of the community may not survive for long enough
to give their evidence. Representatives of applicants, particularly, need to be
alive to the possibility that evidence may be taken or experts reports prepared
at a very early stage in the negotiations to guard against the possibility that the
important elements of the evidence of traditional connection be lost. The Act
contains a provision for evidence to be taken by assessors, or members of the
tribunal, which may be used in proceedings.161 Another disadvantage in
mediation which is well documented in the general literature on alternative
dispute resolution is the possibility that the existence of entrenched power
imbalances between the parties may lead to inequitable settlements. On the
applicants’ side, the possibility of this may be minimised by well resourced
and knowledgeable native title representative bodies, while respondents to
applications may take advantage of group representation162 through industry
groups or legal assistance by the Commonwealth Attorney-General’s
Department.163
Mediation presents novel issues to governments at all levels because of the
negotiation process will introduce issues such as the way in which land
management policies are implemented in areas where native title exists.
Matters such as environmental and resource management will be high on the
agenda for applicants who seek to have a say about the way in which their
traditional country may be used. Both the State and local government parties
will have interests in future development of the land. Native title will be most
likely to persist in areas where the Crown, in any capacity, continues to retain
an interest, such as in unallocated Crown land, national parks, and reserves.
This means that the States will be presented, subject to being satisfied of
continuing connection with country, with the prospect of negotiating land
management regimes which are consistent with enjoyment of native title
rights and interests. For States where Aboriginal interests in Crown land have
not been fully acknowledged, this will require administrative refocusing, and
require the coordination of many different departments and agencies with
responsibilities for land management.
Validation of invalid acts
I have noted above the way in which the Racial Discrimination Act operates
to remedy the fragility of native title rights under the common law. Essentially,
the issue of invalidity only arises where grants were made between October
1975 and 1 January 1994. The Fejo case showed that grants made prior to the
161 Native Title Act ss 93, 86.

162 Native Title Act ss 84B, 85.
Native Title 33
enactment of the Racial Discrimination Act could not be challenged on the

basis of any implied limitation on the power of the States to make grants of
land, whether under the Instructions issued to colonial governors, or through
any theory of implied constitutional limitation. The jurisprudence of Crown
fiduciary obligations to indigenous peoples, which has gained some support in
Canadian jurisdictions, has not found ready acceptance here.164
The Native Title Act validates two types of grants. The first are ‘past acts’165
— grants made prior to 1 July 1993 which may have been invalid because of
the operation of the Racial Discrimination Act. The second are ‘intermediate
period acts’166 — grants made between 1 January 1994 and 23 December
1996 which may have been invalid because they were made without reference
to native title on the assumption that pastoral leases were ‘true’ leases and thus
extinguished native title.
The effect of this validation on native title is to impair or extinguish it.
Sections 14 to 18 deal with the position where past acts are attributable to the
Commonwealth, and the degree of impairment depends, as might be expected,
on the nature of the act. Category A past acts (freehold and certain leaseholds)
extinguish native title, category B past acts (certain leases) extinguish native
title to the extent of the inconsistency; category C past acts (mining leases) do
not extinguish native title — the ‘non-extinguishment principle’ provides that
native title rights may not be exercised while the interest is on foot, but spring
back once the interest has expired. Category D past acts (all other classes of
past act not falling into the other categories) are also subject to the
non-extinguishment principle. Section 19 is a special provision relating to acts
by the Commonwealth which may have contravened the Constitutional
prohibition against acquisition of property other than on just terms, and so
must be regarded as a separate class, because the relevant prohibition does not
stem from the operation of the Racial Discrimination Act. With respect to
category A and B past acts, compensation is payable, as also with respect to
‘just terms’ compensation under s 19, with the difference that category C and
D past acts only attract a right to compensation if ordinary titleholders would
have had a right to compensation if their interests were affected. Similar
provisions apply in relation to ‘intermediate period past acts’. State and
Territory governments are also authorised to pass legislation in similar terms
to validate past acts and intermediate period acts.
Under the new ILUA provisions, native title parties may agree with
governments to alter the effect of some intermediate period acts. Governments
who have granted interests which are validated as intermediate period acts
must also give notice167 to native title representative bodies advising them of
the grants which have been made. It is a fair inference that these provisions
have been inserted to encourage negotiation about those acts.
164 See Mabo (1993) 182 CLR 1 at 205 (per Toohey J); Wik (1996) 187 CLR 1 at 260 (per
Kirby J); Coe v Commonwealth (1993) 118 ALR 193 at 203; Thorpe v Commonwealth
(No 3) (1997) 144 ALR 677 at 687–8.
165 Native Title Act Pt 2 Div 2.
166 Native Title Act Pt 2 Div 2A.
167 Native Title Act ss 22EA, 22H.
The future — where to from here?

The discussion above demonstrates that fitting the standards expressed in the
Act into the existing framework of land management is not an easy process.
There are signs that in the future, however, the approach to negotiation of
native title issues will become less adversarial and politicised, and more
cooperative. Possibly, this is because the nation could not sustain the
emotional frenzy generated by the high-level politicking that characterised
much of the debate on the amendments to the Act. Now it is time to get on
with business: the provisions supporting indigenous land use agreements; the
recognition of the States’ land management responsibilities more explicitly in
the legislation will contribute to a more settled atmosphere in the future.
Indigenous land use agreements
The predecessor to the ILUA provisions in the original Act was s 21. This
section provided a bare skeleton for a concept rather grandly titled ‘regional
agreements’. While it appeared to open the door to comprehensive regional
agreements along the Canadian model, in practice it permitted only surrender
of native title or authorisation of future acts. It was generally regarded with
some suspicion by industry parties who were concerned that the section
referred to ‘native title holders’ (ie at common law) rather than, specifically,
registered claimants or persons with a determination of native title. One
concern was that if an agreement was not entered into with all the right people
for the country, at some stage a further holder of native title could render the
agreement illusory, and the grant invalid, as the agreement would not have
been made by all those entitled under traditional law.
One of the most significant amendments to the Act has been the provisions
permitting parties to enter into indigenous land use agreements. These
agreements provide an opportunity for indigenous parties to negotiate the
conditions of co-existence without being required to follow prescriptive
procedures for notice and prescribed periods of consultation. The parties to
ILUA are able to regulate their own relationships, and within their own
negotiating parameters.
There are three types of indigenous land use agreements: body corporate
agreements; area agreements; and alternative procedure agreements. The Act
provides a range of matters that can be covered by an ILUA. They may be
used by local government to formulate ways in which local Aboriginal people
can participate in environmental or planning decisions, they may declare
procedures to be followed in consultations between developers and a local
Aboriginal community in relation to land subdivision, and in many other
ways. Their scope is constrained only by the permissible matters in the Act,
which are:168
• doing anything that affects native title;
• compensation for past, intermediate or future acts;
• the relationship between native title rights and interests and other
interests in the area;
• how native title rights and interest may be exercised in the area;
168 Native Title Act ss 24BB, 24CB, 24DB.

Native Title 35
• any other matter connected with native title rights and interests;
• doing anything that could not otherwise be done under the amended
Act (for example some grants over vacant Crown land);
• the surrender of native title to a government (only body corporate and
area agreements);
• matters concerning registered claimants’ access to non-exclusive
agricultural and pastoral leases (only area and alternative procedure
agreements).
The type of agreement to select will rest on such factors as whether native
title has been determined; whether the agreement is to provide for the
surrender of native title; whether the indigenous parties form a single cultural
group, or whether the agreement is to be made with a number of clans;
whether it is to set up a negotiating framework under which further
agreements might be made, or whether it is intended to support an agreed
determination of native title.
The Native Title Act contains procedures for registering ILUAs. As the
effect of registration is to bind all persons who claim to hold native title
(whether they are parties to the agreement or not) the provisions deal with the
issue which affected parties’ willingness to enter into agreements under the old
s 21. The one disadvantage, at least from the point of view of native title
parties, is that ILUAs are no more secure than any other contract in relation
to the land, in that they will not bind persons who are not parties, and so will
not run with the land. Although it might be possible, with a little ingenuity, to
manufacture a scenario which will bring the agreement within one of the
recognised exceptions to the privity rule,169 it would arguably give the parties
more confidence if a form of interest which was registrable under State
systems could be devised, or the agreements could be afforded some greater
protection under federal law.
If the parties wish, they may seek the assistance of the NNTT in negotiating
ILUAs.170 The capacity of ILUAs to accommodate a wide range of interests
and circumstances may mean that single-issue mediation becomes much more
common than under the original Act. Previously the non-indigenous parties
were constrained by a boundary definition and native title negotiation group
which was not of their choosing. It appears now that negotiation is becoming
more popular, as it loses some of the compulsory character of mediation about
the existence of native title, and turns more towards voluntary process about
how different interests can co-exist.
Recognising the role of the States
One of the abiding images from 1993 is that of the State Premiers walking
away from the table in negotiations with the Keating government over the
original Act. The failure to reach any sort of agreement with the States over
the procedures for negotiation about future acts, and in relation to the scope
of native title rights in general, meant that the Act suffered from two major
defects.
169 For example, Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR
107.
170 Native Title Act ss 24BF, 24CF, 24DG.
The first was that the procedures that were eventually enacted, particularly
in relation to future acts, bore no relationship to long-established land
management practices in each of the States. This discontinuity meant that
where the provisions of the right to negotiate were followed, their operation
in practice was cumbersome and inefficient.
Secondly, States had little or no incentive to participate meaningfully in
mediation about how native title would be recognised. They held the tenure
information required to support notification of applications, and such
information is expensive to obtain. The course of mediation was slow, as the
States and Territories were reluctant to ‘concede’ the existence of native title.
They had to come to grips with the implications of recognising native title
within their land management systems.
The final ‘Harradine compromise’ which enabled the passage of the
amendments provided the opportunity to factor the States back into their
accustomed role as land managers. This was done by inserting provisions
authorising States to set up their own mediation regimes as ‘equivalent bodies’
to the NNTT, and by permitting the States to enact legislation providing
alternate procedures to the expanded range of negotiation, consultation, and
comment rights for valid future acts.
Rather than prescribing exact procedures for States to follow, the Native
Title Amendment Act enacted benchmark standards for State regimes to
meet.171 It authorised the establishment of bodies equivalent to the NNTT,
which would have exclusive jurisdiction over native title matters, subject to
determination by the Commonwealth minister and Senate approval. These
bodies are required to have adequate resources, access to sufficient expertise
(including the requirement that a member of the NNTT be a member of the
equivalent body) and similar objects and means of operating to that binding
the tribunal. By permitting the States to take back some of the autonomy they
perceived had been removed under the original Act, the amendments
apparently seek to promote State procedural compliance. The issue of
compensation for extinguishment must eventually be determined, and this
remains a live and thorny matter for negotiation between the Commonwealth
and State governments in the years ahead.
The end and the beginning
Native title, because it derives from Aboriginal relationships with land, is
relevant to every land-based activity — water conservation; mining; fishing;
forestry; management of other resources; environmental rehabilitation;
heritage protection; town planning; conservation of biodiversity; protection of
threatened species; infrastructure development; tourism, and exploitation of
indigenous plant and animal species. The list could go on. The theme of this
paper is that recognition of native title has highlighted two important elements
in Australian land law. The first, and most important in practice, is the
development of principles that assist in determining whether, and to what
extent, indigenous interests in land will be recognised, and the consequential
importance of the Act in regulating the management and use of land. The
171 Native Title Act s 43A (right to negotiate), s 207A (recognised State or Territory bodies),
s 207B (equivalent State or Territory bodies).
Native Title 37
second, less obvious but no less important, is the focus that the intersection
between native title and other interests brings to the construction of statutory
interests in land. It is now no longer sufficient to rely on ‘ingrained, but
misleading, habits of thought’172 about the operation of such statutory rights.
In many ways, this is a work in progress. Over the past six years,
fundamental changes have occurred in the way indigenous and
non-indigenous Australians have related to each other. Arguably, these
changes are almost as significant as those that occurred a little more than two
centuries ago. In erecting the framework of a new nation on the scaffolding of
the common law and domestic legislation, the colonists developed a law of the
land to fit their own perceptions. The land law of indigenous people, however,
was suppressed, diminished, and until Mabo, all but ignored. The challenge
for governments, and their lawyers, will be to negotiate the interaction of the
new law and the old, to develop a land law that is truly Australian. The
challenge for communities engaged in working out their own relationships
with the land and each other will be to use this new law to shape a stronger
and a better structure for the generations to come.
172 Yanner v Eaton (1999) 166 ALR 251 at 279.

Native Title - The End of Property As We Know It - (2000) 8 APLJ 1

Uploaded by

Copyright:

Available Formats

You might also like

Native Title - The End of Property As We Know It - (2000) 8 APLJ 1

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Native Title - The End of Property As We Know It - (2000) 8 APLJ 1

Uploaded by

Copyright:

Available Formats

JOBNAME: No Job Name PAGE: 1 SESS: 1 OUTPUT: Thu Jul 17 13:37:58 2003

2 (2000) 8 Australian Property Law Journal

The influence of the common law

uninhabited could be challenged to the extent necessary to allow for prior

Common law — land law

7 175 CLR 1 at 43 (per Brennan J).

4 (2000) 8 Australian Property Law Journal

The rise and rise of statute law

22 Alex Castles, Australian Legal History, p 44.

6 (2000) 8 Australian Property Law Journal

8 (2000) 8 Australian Property Law Journal

tenures of capricious incidents36 and impenetrable obscurity, which provoked

management of resources, whether directly through the specific enactment of

Native title and the common law

10 (2000) 8 Australian Property Law Journal

a mockery of the Instructions to Phillip and successive governors to protect

The nature of native title rights and interests

• it is not to be compared with Western forms of tenure,54 so is sui

12 (2000) 8 Australian Property Law Journal

(specific entitlements to carry out particular practices on land).

14 (2000) 8 Australian Property Law Journal

The limits of the common law

Yarmirr and offshore rights

The respondents asserted several defences to the application:

16 (2000) 8 Australian Property Law Journal

Yanner and hunting rights

Spiritual connection and native title rights

18 (2000) 8 Australian Property Law Journal

were not proprietary in nature, and so incapable of recognition as interests in

91 (1971) 17 FLR at 261.

assist in the maintenance of traditional law for the country.

95 Buck v New South Wales (Fed C of A, Beaumont J, 7 April 1997, unreported).

20 (2000) 8 Australian Property Law Journal

Partial extinguishment or regulation

the boundary is between impairment and extinguishment, and whether there is

22 (2000) 8 Australian Property Law Journal

The Native Title Act — enter the Commonwealth

toll taken on communities in publicly taking sides on issues such as the

24 (2000) 8 Australian Property Law Journal

119 Western Australia v Commonwealth (1995) 183 CLR 373.

26 (2000) 8 Australian Property Law Journal

would otherwise be extinguished.132 PEPAs do not affect reservations and

132 Native Title Act s 23B(9A)–(9C).

28 (2000) 8 Australian Property Law Journal

No evidence of native title — the non-claimant process

Indigenous land use agreements (ILUAs)

30 (2000) 8 Australian Property Law Journal

land management.155 One important difficulty with ILUAs, however, is that

Mechanism for determining claims to native title

159 Native Title Act s 84.

32 (2000) 8 Australian Property Law Journal

legal framework, and with the assistance of a member of the tribunal, to

161 Native Title Act ss 93, 86.

enactment of the Racial Discrimination Act could not be challenged on the

34 (2000) 8 Australian Property Law Journal

The future — where to from here?

168 Native Title Act ss 24BB, 24CB, 24DB.