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Native Title Report 2002: Native title: the way forward

5: Native title: the way forward

Levels of Reform

Beyond Native

In the past 12 months
the High Court has handed down several significant decisions which clarified
the principles upon which the recognition and extinguishment of native
title are determined. These principles are set out and discussed in the
first three chapters of this report. In clarifying these principles, some
of the Judges of the High Court have been mindful of their effect on Indigenous

Justice Callinan
expressed the view in Miriuwung Gajerrong [1]
that the law of native title fails to resolve, and thus continues to be
flawed by, the incommensurability between Indigenous relationships to
land and the common law concepts of property to which it is compared and
subjected. The resolution of this paradox in the current law of native
title means native title gives way to non-Indigenous interests every time.

I do not disparage
the importance to the Aboriginal people of their native title rights,
including those that have symbolic significance. I fear, however, that
in many cases because of the chasm between the common law and native
title rights, the latter, when recognised, will amount to little more
than symbols. It might have been better to redress the wrongs of dispossession
by a true and unqualified settlement of lands or money than by an ultimately
futile or unsatisfactory, in my respectful opinion, attempt to fold
native title rights into the common law. [2]

Justice McHugh also
commented in that decision upon the injustice of a system in which the
comparison of competing legal rights inevitably results in the further
dispossession of Indigenous interests.

The dispossession
of the Aboriginal peoples from their lands was a great wrong. Many people
believe that those of us who are the beneficiaries of that wrong have
a moral responsibility to redress it to the extent that it can be redressed.
But it is becoming increasingly clear – to me, at all events –
that redress can not be achieved by a system that depends on evaluating
the competing legal rights of landholders and native title holders.
The deck is stacked against the native title holders whose fragile rights
must give way to the superior rights of the landholders whenever the
two classes of rights conflict. And it is a system that is costly and
time-consuming. At present the chief beneficiaries of the system are
the legal representatives of the parties. It may be that the time has
come to think of abandoning the present system, a system that seeks
to declare and enforce the legal rights of the parties, irrespective
of their merits. A better system may be an arbitral system that declares
what the rights of the parties ought to be according to the justice
and circumstances of the individual case. Implementing such a system
in the federal sphere may have constitutional difficulties but may not
be impossible. At all events, it is worth considering. [3]

These calls from
the bench for legal reform occur within a decision which marks the end
of the development phase of native title law. The way in which the legislation
and the common law apply to extinguish native title is clearly explained
and the consequences for Indigenous people are starkly apparent. It is
thus appropriate that in such a decision, and at such a juncture in the
development of the law, members of the bench express their considered
views on the system and evaluate it against a broader notion of justice.

It is also appropriate,
now that the law has been crystallised, that a similar process of evaluation
take place at the political level. This is particularly pressing in view
of the Court finding in Miriuwung Gajerrong that the Native
Title Act 1993
(Cwlth) (‘NTA’) rather than the common law
directs the native title processes of extinguishment and recognition,
confirming the primary role of the Commonwealth in the protection of native
title. Thus the decision brings to a close a period of ten years, in which
the responsibility for the protection of native title was conveniently
shifted between the legislature and the common law. [4]
The Commonwealth must now accept responsibility for the law as it stands
and, equally importantly, re-evaluate the means by which the law can be
changed to make it consistent with Australia’s international law

From a human rights
perspective there are two factors which must direct the reform of the
native title system. First, all decisions affecting native title must
be taken with the free and informed consent of Indigenous people. This
requires the establishment of a process for the effective participation
of Indigenous people as part of the broader reform process. Negotiation
with Indigenous people must occur at all levels. Where the capacity of
Indigenous people to participate is hampered, either through limited resources
or limited decision-making structures, provision must be made to address
these deficiencies to enable genuine negotiation to take place.

Second, the benchmarks
for reform must be the human rights of Indigenous people. A non-discriminatory
approach to protecting Indigenous people’s inherent right to land
is one guided by the principles set out on pages 74-78, above. General
Recommendation 23 of the Committee on the Elimination of Racial Discrimination
(discussed at pages 85-86, above) provides a useful guide for a human
rights approach to policy or legislative initiatives concerning Indigenous

A non-discriminatory
approach to the protection of native title measures the extent to which
the law permits Indigenous property rights to be enjoyed against the extent
to which the law permits the enjoyment of other property rights. Thus
the law must provide native title with the protection necessary to ensure
it can be enjoyed, according to its tenor, to the same extent as non-Indigenous
interests in land. Constructed in this way, native title law should be
a vehicle for the continued enjoyment and protection of Indigenous law
and culture.

The High Court decisions
that this Report considers squarely raise the effect on native title of
past legislative and executive acts that took place before the NTA. Clearly
these acts continue to have an effect on the present and future enjoyment
and protection of Indigenous rights. The effect of these past acts, and
the means by which law reform can redress this effect, is the focus of
this chapter. In addition, the enjoyment of native title rights are affected
by future dealings on traditional land. The NTA establishes the framework
by which native title is afforded protection from these dealings. While
the procedural rights of native title holders in respect of future dealings
on native title land was dealt with extensively in my 2001 report [5]
it is not the focus of the reform process posited in this section.

Levels of

There are various
levels at which reform of the native title system can take place. The
most obvious level is the legislative one, given that the NTA controls
the level of protection afforded native title. Clearly changes would have
to occur at this level although the recognition and protection of native
title may not ultimately depend on legislation. For instance, the recognition
and protection of Indigenous rights to land may be enshrined in a treaty
or agreement which supersedes statutory rights. [6]
Alternatively, rights might be protected on a number of levels with ultimate
protection residing in the constitution.

Whatever the final
outcome, a human rights approach to the reform process must consider whether,
and in what way, the present native title system could be changed to make
it consistent with Australia’s international human rights obligations.
In considering reform at this level I do not seek to map out every possible
or preferred legislative amendment to the NTA. Rather I seek to identify
the broad areas in which reform is required and the underlying mechanisms
by which injustices can be redressed. Against this approach of reforming
the present system must be weighed the benefits of enshrining Indigenous
rights to land in a completely different protective system to that which
presently exists, such as an arbitral system suggested by Justice McHugh.
[7] While consideration of such alternative systems
is beyond the scope of this Report, they must be seriously considered
in view of the legal tests established to gain recognition of native title
and the difficulty of changing the fundamental assumptions of these tests
within the current system as it is governed by the NTA.

of Change

The High Court has
made it clear that the NTA now directs the native title processes of extinguishment
and recognition through s10 and s11 of the NTA.

The chief mechanism
by which the NTA effects both the protection of native title and its extinguishment
is through prescribing what State and Territory laws are valid and the
conditions and effect of their validity. State and Territory Governments
are then authorised to enact legislation which extinguishes native title
in accordance with the NTA. Thus there are two tiers by which the extinguishment
of native title takes place: first at the level of Commonwealth legislation
and the nature of the authority that this legislation gives to State and
Territory governments; and second at the level of State and Territory
legislation and the enactment of legislation that extinguishes native
title. There is a third tier by which the extinguishment of native title
may take place; through agreements between stakeholders. These three tiers
need to be addressed in any reform process.

Tier one:
amending Commonwealth legislation

The process of amending
the NTA to make it consistent with human rights principles must utilise
the mechanisms of ‘validity’ and ‘invalidity’ to redress
the balance between protection and extinguishment controlled by the NTA.
These mechanisms determine the nature and extent of the laws that can
have an extinguishing effect on native title. As the High Court said in
Western Australia v The Commonwealth, [8] a law
protecting native title from extinguishment must either exclude the application
of State and Territory laws or prescribe the areas within which those
laws may operate.

The way in which
the NTA addresses legislative and executive acts that took place before
the NTA’s enactment, is to either confirm their validity and extinguishing
effect under the confirmation provisions, or validate their extinguishing
effect (for acts otherwise invalid because of the Racial Discrimination
Act 1975
(Cwlth) (‘RDA’)) under the validation provisions.
The common law continues to operate without legislative interference,
through the application of the inconsistency of incidents test, to extinguish,
either completely or partially, native title interests. NTA section 47B
then operates to exclude from this umbrella of validation and extinguishment
an exception where connection can be shown on vacant crown land currently
occupied by members of the claimant group.

The decisions in
Miriuwung Gajerrong and Wilson v Anderson
[9] have established the common law tests for extinguishment
and the ease with which native title rights and interests can be permanently
extinguished by the creation of other interests on traditional land. It
is now necessary that the mechanisms available under the NTA be utilised
to redress the wholesale extinguishment of native title. In chapter 2,
I set out my concerns with the limited extent to which the mechanisms
available for the protection of native title are utilised in the NTA.
These can be summarised as follows.

criteria for determining the relationship between Indigenous and non-Indigenous
interests on the same land at common law fail to provide for the co-existence
of these interests

The mechanism available
to provide for co-existence of native title and non-Indigenous interests,
and already utilised in relation to future acts in the NTA, is the non-extinguishment
principle. The elements of the definition of the principle of non-extinguishment
are identified in s238 of the NTA as: native title is not extinguished;
where other interests are inconsistent with the continued existence and
enjoyment of native title rights and interests, the native title rights
and interests have no effect in relation to the other interests, and;
where the other interest or its effects cease to operate, native title
rights and interests have full effect.

Thus the non-extinguishment
principle may be seen to represent a compromise between two competing
interests, allowing non-Indigenous interests to be given full enjoyment
and Indigenous interests to be suspended where their enjoyment is inconsistent
with the creation or enjoyment of non-Indigenous interests and then to
resume on their cessation. While the non-extinguishment principle still
prioritises non-Indigenous interests over Indigenous ones, it is nevertheless
far preferable to the permanent extinguishment of native title. It is
a principle that, in my view, should replace the finality and permanency
of extinguishment for the majority of tenures. [10]

The High Court in
Miriuwung Gajerrong said that the non-extinguishment principle
had no place in the common law of extinguishment. [11]
Thus the possibility, extant in the NTA, that the grant of a non-exclusive
pastoral lease would not extinguish native title but that ‘the native
title rights and interests are suspended while the lease … is in
force’ [12] was given limited application. The
Court thought it might apply to ‘a post-1975 grant which, by operation
of the RDA, was ineffective to extinguish native title rights and interests’
[13] but did not see the non-extinguishment principle
in the NTA as mandating a similar approach in the common law.

The effect of the
finding that the non-extinguishment principle has no operation in the
common law is that many tenures, in addition to those specified in the
NTA, extinguish native title rights and interests permanently, and that
this extinguishment has a cumulative effect as new tenures are created
over the same land. Thus, as discussed in chapter 2, [14]
the enjoyment of native title is impaired by layers of extinguishment
over the entire history of colonisation, each tenure permanently affecting
the title and diminishing its content progressively.

The non-extinguishment
principle, on the other hand, allows the enjoyment of native title rights
to be completely restored once a non-Indigenous tenure ceases to exist.
It is within the power of the Commonwealth to inscribe this more equitable
principle into native title law.

In order to do this
the NTA would need to stipulate that the extinguishment principle, as
applied by the common law to past tenures, no longer applies and is replaced
by the non-extinguishment principle. This could be done through stipulation
in the NTA that the non-extinguishment principle applies, either by a
general provision to this effect with particular exceptions identified,
or by identifying tenures the creation of which would have a non-extinguishing
effect. In relation to non-exclusive leases for instance, the NTA would
need to stipulate that the non-extinguishment principle applied rather
than leaving this to the common law. Another tenure that would require
identification in this way is a mining lease, which in the Miriuwung Gajerrong
decision was found to extinguish some native title rights and interests,
even though, in the validation provisions of the NTA, the non-extinguishment
principle applies. This disjuncture could be resolved through legislative
amendment in the way suggested.

The example of nature
reserves in Western Australia, which, at common law, are found to extinguish
native title completely raises the concern that for some tenures, stipulating
the non-extinguishment principle would not be sufficient to allow the
full potential of co-existence to be realised. As discussed in chapters
2 and 4 both these interests can be fully enjoyed without impairment of
the Indigenous interest. Consequently the non-extinguishment principle,
which allows non-Indigenous interests to prevail over native title, may
not be appropriate to promote the full enjoyment of native title rights.
Interests that complement each other in this way must be identified and
specifically addressed to ensure full enjoyment of the traditional connection
that Indigenous people have with the land. In chapter 4, I suggest a particular
way in which this might be achieved, [15] although
other options could also be consistent with human rights principles and
negotiated with the traditional owners concerned.

NTA prescribes the extinguishment of native title in respect of an extensive
range of tenures

In addition to the
extinguishment principle applying through the common law, it is also given
operation in the confirmation and validation provisions of the NTA, which
stipulate this as the effect of creating specified tenures and classes
of tenures. [16] Again, the non-extinguishment principle
should replace the extinguishment principle for the majority of these
tenures. [17]

NTA fails to adequately provide for compensation for the extinguishment
of native title in the majority of cases

Even on the basis
that the non-extinguishment principle applies to ensure recognition of
the ongoing relationship between Indigenous people and the land, impairment
of native title rights will occur where a non-Indigenous interest is created
on traditional land. As discussed in chapter 2, the present provisions
of the NTA limit compensation for the extinguishment and impairment of
native title rights to those situations where statutory extinguishment
or impairment exceeds that which would have occurred either at common
law or where compensation would have been available by virtue of the RDA.
It makes no provisions for compensation for extinguishment or impairment
by the common law or under the confirmation provisions. The Commonwealth
Government has the legislative capacity to redress this injustice. Protection
against the arbitrary deprivation of property is a fundamental tenet of
our legal system and should be available to Indigenous as well as non-Indigenous

Before leaving the
sphere of Commonwealth legislation, and the possibilities for change within
it, it is necessary to include one specific amendment to the NTA that
requires immediate attention. In Chapter 1, I note the comments of the
High Court in relation to section 82 of the NTA and the effect of the
amendment to this section which gave greater emphasis to the rules of
evidence in native title cases. [18] The Court noted:

It may be accepted
that demonstrating the content of that traditional law and custom may
very well present difficult problems of proof. But the difficulty of
the forensic task which may confront claimants does not alter the requirements
of the statutory provision. In many cases, perhaps most, claimants will
invite the Court to infer, from evidence led at trial, the content of
traditional law and custom at times earlier than those described in
the evidence. Much will, therefore, turn on what evidence is led to
found the drawing of such an inference and that is affected by the provisions
of the Native Title Act. ... It may be that, under [the original NTA]...
a rather broader base could be built for drawing inferences about past
practices than can be built since the 1998 [NTA] Amendment Act came
into operation. By that Act a new s 82 was enacted [stating]...that
the Court is bound by the rules of evidence “except to the extent
that the Court otherwise orders”. [19]

In view of the almost
insurmountable barrier that this provision erects to Indigenous claimants
seeking to prove the content of laws and customs based on an oral tradition,
section 82 should be amended and the original provision reinstated.

Tier two:
amending State and Territory legislation

The NTA, through
the validation and confirmation provisions, stipulates that the effect
of creating specified tenures or classes of tenures is to extinguish native
title either completely or partially. Under this authority, State and
Territory Governments are left to enact legislation which extinguishes
native title in respect of these tenures. Without this authority, State
and territory legislation extinguishing only native title interests would
be discriminatory and invalid under the RDA.

While States and
Territories are given immunity from the operation of the RDA by the NTA,
they are not required by the NTA to enact discriminatory legislation extinguishing
native title in respect of the tenures specified therein. Thus they have
capacity to control whether, or the extent to which, native title is extinguished
or impaired by the creation of these specified tenures. For example, the
complementary Western Australian legislation authorized by the confirmation
provisions of the NTA, the Titles (Validation) and Native Title (Effect
of Past Acts) Act 1995
, rather than fully implementing the regime
permitted by the NTA, limited the extinguishing effect of creating leases
and scheduled interests identified in the confirmation provisions (excluding
freehold) to those tenures still in force on 23 December 1996.

There is an enormous
capacity for State and Territory Governments to redirect native title
law towards a non-discriminatory goal. A framework for negotiations between
the Western Australian Government and Aboriginal stakeholders in relation
to conservation estates, including nature reserves, is proposed in chapter
4. Importantly any such negotiation process, whether it involves amending
State and Territory legislation or reaching an agreement, requires the
effective participation of Indigenous stakeholders and, through this process,
their informed consent.

Tier three:

A concept which appears
to be given general support from government, industry and Indigenous parties
alike, is the benefit of negotiating native title, its recognition and
its relationship to other interests on the land, through agreement rather
than litigation. This process can include the making of a native title
determination by the Federal Court with the consent of the parties. My
Native Title Report 2001 discusses the need to ensure agreements
are framed by human rights principles rather than discriminatory principles
contained in the NTA. [20] Thus framed, regional agreements
are seen as an important tool for providing a stable and enduring basis
for a dynamic and long term relationship between Indigenous and non-Indigenous
people over land.

In chapter 4, I discuss
the utility of a regional agreement in the Western Division of NSW where
traditional interests in land have been found, by the High Court in Wilson v Anderson,
to be extinguished.

Agreements are also
a useful tool, either at a regional level or between specific claimant
groups and other stakeholders, in overcoming the almost insurmountable
difficulties of proving the elements of a native title claim to a court.
Agreements can proceed from a less technical and onerous test than that
established by the courts in the Yorta Yorta [21]
and De Rose [22] decisions as discussed
in chapter 1. A looming difficulty with this alternative approach to recognition
is the monitoring role that the Commonwealth Government is increasingly
assuming in consent determination proceedings with a view to ensuring
that the orders made by a court are not inconsistent with the legal standards
proposed in the NTA as interpreted by the High Court. [23]
It would be unfortunate if, through such interference, technical and discriminatory
standards were injected into a process aimed at avoiding lengthy and costly

Beyond Native

The recognition of
native title came from an acknowledgement of important truths about our
past and the need to reconcile these truths with contemporary notions
of justice. But it also brought to the fore a fundamental conflict arising
at the time of the establishment of Australia as a colony; that is the
conflict between the assertion on the one hand that the settlement of
Australia gave rise to exclusive territorial jurisdiction by the colonial
power and, on the other hand, the illegality and immorality of asserting
this right without an agreement from those who previously occupied that
land and who continue to maintain their deep spiritual economic and social
connection to the land. Miriuwung Gajerrong confirms that native
title, while valuable in first giving recognition to inherent rights,
is not able to resolve this conflict.

The Yorta Yorta
decision demonstrates how the High Court’s construction of sovereignty
continues to limit the recognition that native title is able to give to
the profound relationships between Indigenous people and their land. This
is not a just resolution of our nation’s fundamental conflict. Rather,
it must be resolved through a process which emphasises co-existence and
mutual benefit. Negotiation based on consent and equality can transform
what was a contradiction at the foundation of our nation between the conflicting
claims of Indigenous and non-Indigenous people to the jurisdiction of
traditional lands, into an agreement as to the basis of our coexisting
sovereignty. Within the framework of such an agreement native title can
break out of the shackles that continue to restrain its evolution.

Western Australia & o’rs v Ward & o’rs [2002]
HCA 28 (8 August 2002) (‘Miriuwung Gajerrong’).

ibid., per Callinan J at [970].

ibid., per McHugh J at [561].

See, e.g. Commonwealth of Australia, Additional Information pursuant
to Committee Decision: Australia
, UN doc CERD/C/347, 22 January 1999;
and Commonwealth Attorney-General’s Department, Submission to
the Parliamentary Joint Committee on Native Title and the Aboriginal and
Torres Strait Islander Land Fund Inquiry: Consistency of the Native Title
Amendment Act 1998 with Australia’s obligations under [ICERD]
29 February 2000.

Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2001
, Human Rights and Equal Opportunity Commission,
Sydney, 2002.
The Native Title Report 2001 commented on procedures adopted by
the National Native Title Tribunal (‘Tribunal’) (pp16-24). During
2001, the Aboriginal and Torres Strait Islander Social Justice Commissioner
had written to the Tribunal regarding its procedures. The Tribunal responded
to the Commissioner but the Tribunal’s letter was not received in
time to be incorporated in the Native Title Report 2001. The Tribunal’s
letter, together with other relevant material, is available on the website
of the Human Rights and Equal Opportunity Commission <>.

For discussion of a treaty, see various documents produced by the Aboriginal
and Torres Strait Islander Social Justice Commissioner:
- Native Title Report 2000, Human Rights and Equal Opportunity
Commission, Sydney, 2001, pp29-46;
- Native Title Report 2001, op.cit., pp1-10; and
- Recognising Aboriginal sovereignty – implications for the treaty
, speech at presented at ATSIC National Treaty Conference,
Tuesday 27 August 2002.

In Miriuwung Gajerrong, op.cit., at [561].

(1995) 183 CLR 373.

Wilson v Anderson and or’s [2002] HCA 29 (8 August

Tenures would need to be considered on a case by case basis. An example
of a tenure where extinguishment rather than non-extinguishment might
apply is the grant of freehold title.

Per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [82].


Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow &
Hayne JJ at [82].

See particularly pages 67-69.

See particularly pages 108-112.

Also see Summary of the Validation and Confirmation of Extinguishment
Provisions in the Native Title Act 1993
, annexure 3.

A grant of freehold is an obvious exception.

Pages 30-31.

Members of the Yorta Yorta Aboriginal Community v Victoria &
[2002] HCA 58 (12 December 2002) (‘Yorta Yorta’),
per Gleeson CJ, Gummow & Hayne JJ at [80]-[81]

Native Title Report 2001, op.cit., pp87-105.


De Rose v State of South Australia [2002] FCA 1342 (1 November

The Hon. D Williams, Attorney-General, ‘Native title: the next 10
years’, Address to Native Title Conference 2002: Outcomes and
, Geraldton, 4 September 2002, para’s 38-40.

March 2003.