READING THE PORRIDGE

Introducing the native title system

From the Dreaming to the day

The Australian native title system has an often turbulent short history, but origins in the deep past. This chapter is an overview, first of the long genesis of native title, followed by an account of the Mabo case and then a précis of the legislative system in operation. The processes of native title are infamously labyrinthine and so a digest of their design is inevitably something of a catalogue of winding passages. The detail can be dreary but all the more devilish for the dullness, because the extent to which law and procedure constrain social and political choices can become obscured in the dry. The rules of the native title system restrict the options of the actors and condition the ways in which underlying interests can be expressed. On the other hand, merely understanding how the statute works provides only a partial and imperfect guide to explaining what happened. The functioning of the native title system then is more than the sum of the various instrumental parts and this chapter finishes with some specific 'complications' associated with the process. Some readers may prefer to start not with the evolution of the law but with the discussion of complexities at the end of this chapter, or indeed to skip to Chapter 2 and read this chapter only when the rest of the book has been completed.

The southern continent

Tens of thousands of years ago, human beings first arrived in Australia from the north and established societies that were largely isolated from the rest of humanity until well into the second half of the second millennia AD. In civilisational seclusion, the first inhabitants of Australia developed a distinctive culture, marked by the existence of hundreds of small entities with separate territories, languages and customs yet linked by systems of trade, cultural exchange and religious worship in networks that spanned the continent. Although these Aboriginal groups were nomadic to varying degrees, movement occurred inside broad boundaries and according to certain rules. It is thought that, in 1788, as many as 500 distinct indigenous societies covered the Australian mainland in a geopolitical patchwork. Other indigenous communities existed on the various islands off Australia's coast. There was of course fluidity, change and conflict and while customary boundaries and entitlements can be presumed to have shifted over time, it is clear that indigenous civilisation in Australia involved a clear sense of ownership of land and waters. Under the various systems of law and custom the numerous societies present in pre-contact Australia each owned their respective countries.

No recognition of native title in Australia between 1788 and 1992

The formal acquisition of sovereignty over Australia by the British Crown occurred incrementally, between 1788 (New South Wales) and 1829 (Western Australia). In the course of colonisation the pre-existing indigenous societies were not acknowledged as having any particular rights under the new sovereign and were regarded as subjects of crown authority. Australia has no history of treaty-making. The elaborate system of customary land title that existed prior to the arrival of Europeans received no acknowledgement. Indigenous societies were effectively treated as itinerant and stripped of their property at the convenience and to the advantage of the colonials. The idea of 'native title', meaning a form of real property arising out of traditional law and custom that is acknowledged under the common law of the colonisers, was not recognised in any of the six British colonies in Australia. When the colonies federated to form the Commonwealth of Australia on 1 January 1901, the remnant indigenous peoples played no part in the process and native title was not considered a live question to be addressed. Nevertheless, the Commonwealth Constitution was not silent on the more general 'native question', among other things expressly prohibiting the new federal government from making laws in relation to Aboriginal people, a situation not remedied until the passage of the referendum in 1967.

Although it had long gone without saying, the question of whether Indigenous customary land titles were capable of recognition under the common law of Australia was not tested in court until the late 1960s, in an action eventually decided by a single judge of the Northern Territory in Milirrpum v Nabalco in 1971. His Honour Justice Sir Richard Blackburn was faced with the difficulty that elsewhere in the common law world, including New Zealand, Canada and the United States, native title had indeed been recognised and there seemed to be no judicial precedent which explicitly explained why Australia was the exception. It was a legal and historical puzzle with no obvious solution. The judge attempted rather courageously (and as it turns out, wholly wrongly) to explain the anomaly by reference to different modes of acquisition of sovereignty and reached the conclusion that there was no doctrine of native title known to Australian law. Milirrpum was not appealed. Instead, the political momentum for some form of recognition of traditional rights over land was answered with a legislative land rights scheme in the Northern Territory. Statutory land rights, though, do not represent 'native title' in a technical sense: the former is created by parliament while the latter refers to an inherent common law right, the recognition of something already there, with origins not in the authority of the settler state but in pre-existing systems of law and custom. It is the difference between a right and a favour.

The native title question was not agitated again before the courts until 1982, when a group of Meriam people led by Eddie Koiki Mabo initiated proceedings in the original jurisdiction of the High Court of Australia seeking a declaration of exclusive use, possession and ownership of the island of Mer, in the Torres Strait off the coast of far northern Queensland. Critical to the success of the case was the enactment of the Commonwealth's Racial Discrimination Act 1975 (RDA). The Commonwealth Constitution contains no bill of rights or constitutional entrenchment of equality and the passage of the RDA marked the first time that discrimination on the basis of race had been proscribed in Australia. Under the Constitution, valid federal laws prevail over state laws to the extent of any inconsistency and so once the RDA had been enacted, it became impossible for a state government to act in a racially discriminatory fashion. The presence of the RDA meant that the State of Queensland could not, as it tried to do, simply pass a law to wipe out any...