Recognising native title in Australian law

Mabo v Queensland [No. 2]

HIGH COURT OF AUSTRALIA, 1992

In May 1982, five Murray Islanders initiated an action against the government of Queensland seeking declarations of rights to the use and enjoyment of traditional land that had been continuously occupied by the Meriam people before and since the annexation by the defendant government. To the surprise of many, the High Court decided in favour of the plaintiffs. The order contained a declaration to the effect that, apart from any inconsistent grants, the Meriam people are entitled 'as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands', subject to the power of the state government to extinguish the title by valid exercise of legislative or executive powers. Without denying its importance to the Meriam people, the greatest impact lay not in the order itself but, rather, in the context of the judgment. Each judgment considered the action in wider terms than would normally be sufficient to determine the case at hand. The principles enunciated in the judgments provided the basis for development of the law applicable to native title.

The High Court reviewed the cases decided in this and other jurisdictions, prior to and since the decision by Justice Blackburn in Milirrpum v Nabalco Pty Ltd, on the effect of colonisation. In view of these decisions, and in spite of many of them, the Court was prepared to reject longstanding assumptions of colonial legal theory. The standards adopted at the time of acquiring sovereignty were seen to be no longer appropriate for a rule of common law. In the lead judgment, Justice Brennan said that there was a 'choice of legal principle to be made', noting that:

it is imperative in today's world that the common law should neither be or be seen to be frozen in an age of racial discrimination ... The fiction by which the rights and interests of indigenous inhabitants in land were treated as nonexistent was justified by a policy which has no place in the contemporary law of this country.

Before Justice Brennan was prepared to enter into a review of previous authority, he was concerned not to 'fracture the skeleton of legal principle which gives the body of our law its shape and internal consistency'. Justice Brennan concluded that no such fracturing of legal principle occurred in bringing the law of Australia into line with notions of justice and human rights. Although the theoretical basis of the law was not destroyed, the practical implications were yet to be understood. There was an inherent inconsistency between the new doctrine and the principles upon which Australia's land law had been based, which, no doubt, would give rise to complicated and intricate reconsideration of Australian property regimes.

THE CONSEQUENCES OF SETTLEMENT

The central question to be determined in Mabo v Queensland [No. 2] (Mabo) was whether, on acquiring sovereignty, the Crown became owner of all of the land or whether the Crown's title was burdened by any prior title. The Court was not prepared to question the status of Australia as a 'settled' country, but it was prepared to examine the consequences of settlement and the way in which the common law was received into the territory. The Court in Mabo accepted that the settlers brought the common law with them in accordance with the settlement doctrine, but 'only so much of it ... as was "reasonably applicable to the circumstances of the Colony"'. The Court, in determining the content of the body of law received in the colony, reconsidered some of the conclusions that had earlier been drawn from the settlement thesis, in particular, the idea that the acquisition of sovereignty over territory automatically gave absolute beneficial ownership of land to the Crown. On the principle that 'ownership could not be acquired by occupying land that was already occupied by another', the way was clear of 'fictional impediments' to the recognition of Indigenous rights and interests in colonial land. Thus, the Court rejected the assertion that sovereignty invariably carries with it the beneficial title to all the lands of the territory, and determined that the pre-existing rights of the Indigenous peoples survived the acquisition of sovereignty.

ESTABLISHING TITLE

In a joint judgment, Justices Deane and Gaudron described common law native title as a title derived from and conforming to traditional custom but recognised and protected by the common law. As such, Justice Brennan explained, legislative or executive recognition by the sovereign is not required, and thereby, '[n]ative title, though recognised by the common law is not an institution of the common law'. According to Justice Brennan (and much like his colleagues):

Native title has its origins in and is given its content by 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 Court in Mabo was concerned that native title be a heterogeneous concept that reflects the diversity of Indigenous peoples' law and custom. Justices Deane and Gaudron, commenting on the accommodation of the idea of native title within Australian law, suggested that:

Obviously, where the pre-existing native title interest was 'of a kind unknown to English law', its recognition and protection under the law of a newly settled British colony would require an adjustment either of the interests into a kind known to the common law or a modification of the common law to accommodate the new kind of interest.

They concluded that the common law was capable of this accommodation.

In order to assert title, Justice Brennan explained that a group of Indigenous inhabitants must show a connection with the relevant land that is maintained through continued acknowledgment of the laws and the customs of the group. Justices Deane and Gaudron referred to:

an established entitlement of an identified community, group or (rarely) an individual to the occupation or use of particular land and that that entitlement be of sufficient significance to establish a locally recognised special relationship between the particular community, group or individual and that land.

On this construction, the majority argued that it was not necessary to superimpose a...