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Native Title Report 2002: Recognition of native title

Chapter
1: Recognition of native title

Introduction

Human Rights
Standards relevant to the Recognition of Native Title

The Legal Recognition
of Native Title

Conclusion


Introduction

Native title is an
intersection of two different legal systems and cultures. The way in which
Australia chooses to give recognition to the relationship that Indigenous
people have with their land, and the range of options it considers to
express that relationship, are matters that affect the human rights of
Indigenous people.

Over fourteen months,
from October 2001 to December 2002, the High Court delivered three judgments
clarifying the legal criteria for the recognition and extinguishment of
Indigenous relationships to land. The Yarmirr, [1]
Miriuwung Gajerrong, [2] and Yorta Yorta
[3] decisions bring to a close the developmental phase
of the law of native title in which alternative positions and interpretations
of crucial principles were canvassed and decided upon by lower courts.
Emerging from the High Court is a concept of recognition as not simply
the law providing a vehicle for Indigenous people to enjoy their cultural
and property rights, but rather one where the law becomes a barrier to
their enjoyment and protection. It is appropriate, now that the law has
been crystallised by the High Court, to consider whether the way in which
Australia has chosen to give recognition to Indigenous relationships to
land is consistent with the human rights standards Australia has undertaken
to uphold.

Human Rights
Standards relevant to the Recognition of Native Title

Native title reflects
a relationship to land which is the very foundation of Indigenous culture,
religion, and economic and governance structures. International human
rights standards provide considerable direction on a State’s obligations
with respect to the protection of the cultural, religious, property and
governance rights of Indigenous people. These standards derive from a
wide range of sources including the main human rights treaties, statements
from treaty bodies monitoring the implementation of these treaties, United
Nations General Assembly resolutions, and the principles emerging from
world conferences.

Cultural Rights

The preservation
and protection of Indigenous culture is addressed in the International
Covenant on Civil and Political Rights
[4] (‘ICCPR’)
and the Convention on the Rights of the Child. [5]
Both treaties have similar wording, providing that persons belonging to
ethnic, religious or linguistic minorities have the right, in community
with their group, to enjoy their own culture and to use their own language.
[6] The Human Rights Committee, the international body
that monitors the ICCPR’s implementation, has explained the importance
of these rights, noting:

[ICCPR] article
27 [protecting minority culture] relates to rights whose protection
imposes specific obligations on States parties. The protection of these
rights is directed towards ensuring the survival and continued development
of the cultural, religious and social identity of the minorities concerned,
thus enriching the fabric of society as a whole. [7]

ICCPR article 27
is the basis of a number of general principles in relation to the protection
of culture of Indigenous communities. Many of these can be understood
from the following comment of the Human Rights Committee:

[A]rticle 27...recognise[s]
the existence of a “right” and requires that it shall not
be denied. Consequently, a State party is under an obligation to ensure
that the existence and the exercise of this right are protected against
their denial or violation. Positive measures of protection are, therefore,
required not only against the acts of the State party itself, whether
through its legislative, judicial or administrative authorities, but
also against the acts of other persons within the State party. ...

[T]he rights protected
under article 27...depend in turn on the ability of the minority group
to maintain its culture, language or religion. Accordingly, positive
measures by States may also be necessary to protect the identity of
a minority and the rights of its members to enjoy and develop their
culture and language and to practise their religion, in community with
the other members of the group. [8]

These principles
have been referred to in various decisions of the Human Rights Committee
clarifying the operation of article 27. The Human Rights Committee explained
that Indigenous people have the right to engage in economic and social
activities which are part of the culture of the community to which they
belong; [9] that development that threatens the way
of life and culture of an Indigenous group breaches article 27; [10]
and that protecting the traditional rights of an Indigenous group may
weigh against a State enacting general laws permitting public rights (e.g.
general rights to hunt or fish). [11] Importantly,
the Human Rights Committee emphasised that the right to enjoy culture
not only protects traditional means of livelihood, but can also be applied
in the use of modern technology. [12]

Guidance on how Australia
should be protecting native title interests can be gleaned from the Concluding
Observation of the Human Rights Committee in which they express their
concerns about the inconsistency between the 1998 amendments to the Native
Title Act 1993
(Cwlth) (‘NTA’) and Australia’s obligations
under ICCPR article 27:

The Committee is
concerned...that the Native Title Amendments of 1998 in some respects
limit the rights of indigenous persons and communities, in particular
in the field of effective participation in all matters affecting land
ownership and use, and affects their interests in native title lands,
particularly pastoral lands. The Committee recommends that the State
party take further steps in order to secure the rights of its indigenous
population under article 27 of the Covenant. The high level of exclusion
and poverty facing indigenous persons is indicative of the urgent nature
of these concerns. In particular, the Committee recommends that the
necessary steps be taken to restore and protect the titles and interests
of indigenous persons in their native lands, including by considering
amending anew the Native Title Act, taking into account these concerns.

The Committee expresses
its concern that securing continuation and sustainability of traditional
forms of economy of indigenous minorities (hunting, fishing and gathering),
and protection of sites of religious or cultural significance for such
minorities, which must be protected under article 27, are not always
a major factor in determining land use. [13]

Equality and Non-Discrimination
[14]

The guarantees of
equality before the law and racial non-discrimination [15]
are contained in article 26 of the ICCPR and articles 2 and 5 of the International
Convention on the Elimination of All Forms of Racial Discrimination

[16] (‘ICERD’). In particular, States have
an obligation in article 5 of ICERD to prohibit and to eliminate racial
discrimination and to guarantee the right of everyone to equality before
the law, including in the enjoyment of the right to equal treatment before
the tribunals and all other organs administering justice, [17]
the right to freedom of religion [18], and the right
to own property alone as well as in association with others. [19]

In its recent decision
in Awas Tingni, [20] the Inter-American Court
of Human Rights held that the right of everyone to the use and enjoyment
of their property in article 21 of the American Convention on Human Rights:
‘[t]hrough an evolutionary interpretation of international instruments
for the protection of human rights … protects property in a sense
which includes, amongst other, the rights of the members of the indigenous
communities within the framework of communal property’. [21]
The Court continued: ‘[T]he close ties of indigenous people with
the land must be recognised and understood as the fundamental basis of
their cultures, their spiritual life, their integrity and their economic
survival. For indigenous communities, relations to the land are not merely
a matter of possession and production but a material and spiritual element
which they must fully enjoy, even to preserve their cultural legacy and
transmit it to future generations’. [22] The Court
ordered Nicaragua to carry out the delimitation, demarcation and corresponding
titling of the lands of the Awas Tigni community, within 15 months, with
full participation by the community, and taking into account its customary
law, values customs and mores. [23]

Under the principles
of equality, Australia is required to ensure that people have the ability
to enjoy the right to equal participation in cultural activities without
discrimination. [24] Often, to ensure equal enjoyment
of culture as specified in human rights standards, additional measures
are necessary for the members of minority and Indigenous groups. That
is, society needs to ensure ‘substantive equality’ (where all
groups have equal opportunity to enjoy human rights) rather than just
‘formal equality’ (where equal treatment of all can result in
some groups having less opportunity because of relevant differences).
Substantive equality is required by international human rights standards
[25] and agreed as an appropriate measure by the Commonwealth
Parliament [26] and current Australian Government.
[27] Previous High Court decisions also support a non-formalistic,
substantive understanding of equality. [28]

An important aspect
of Indigenous communities being able to exercise the rights in ICCPR and
ICERD is for the communities to have effective participation in, or give
prior consent to, decisions that affect them. The United Nations General
Assembly emphasises that persons belonging to minorities have the right
to participate effectively in cultural, religious, social, economic and
public life; [29] as does the Vienna Declaration
and Plan of Action
calling on states to ‘ensure the full and
free participation of indigenous people in all aspects of society, in
particular in matters of concern to them’. [30]
Critically, however, the concepts of effective participation and prior
informed consent apply not only at a broad level but to individual events
affecting individual communities:

States should ensure
that no decisions directly relating to the rights and interests of Indigenous
people are taken without their informed consent; [31]
and

Indigenous communities
must have effective participation in decisions that affect the community,
especially where culture manifests in a particular way of life assoc
with use of land resources (e.g. fishing or hunting and the right to
live in reserves protected by law). [32]

The principle of
effective participation is one that can apply to decisions made by governments
on the policy and legislative regimes they propose for Indigenous people.
The formulation of native title policy and legislation was directly referred
to in the 1999 decision, of the Committee on the Elimination of Racial
Discrimination (‘CERD’), on the amendments to the NTA:

[T]he amended Act
appears to wind back the protections of indigenous title offered in
the Mabo decision of the High Court of Australia and the 1993 Native
Title Act. ... The lack of effective participation by indigenous communities
in the formulation of the amendments also raises concerns with respect
to the State party’s compliance with its obligations under article
5(c) of the Convention [ICERD]. Calling upon States parties to “recognise
and protect the rights of indigenous peoples to own, develop, control
and use their common lands, territories and resources,” the Committee[CERD],
in its general recommendation XXIII, stressed the importance of ensuring
“that members of indigenous peoples have equal rights in respect
of effective participation in public life, and that no decisions directly
relating to their rights and interests are taken without their informed
consent”. [33]

Relationship
between equality and rights of minorities to protection of their culture

In international
jurisprudence, particular regimes for the preservation of the characteristics
and traditions of minorities are accepted as consistent with, and sometimes
required to achieve factual or substantive equality. According to the
Permanent Court of International Justice, ‘there would be no true
equality between a majority and a minority if the latter were deprived
of its institutions, and were consequently compelled to renounce that
which constitutes the very essence of its being as a minority’. [34]
The purpose of particular measures for the protection of minorities is
to maintain basic characteristics which distinguish minorities from the
majority of the population, and hence institute factual equality between
members of the minority group and other individuals.

The recognition and
protection of the distinct rights of Indigenous peoples is also implicit
in the concept of equality. CERD has recognised as aspects of the principle
of equality the obligations of States to protect Indigenous culture. CERD
explained that States must ensure that Indigenous communities can exercise
their rights to practise and revitalize their cultural traditions and
customs and to preserve and to practise their languages. [35]

[T]he provisions
of ... [ICERD] apply to indigenous peoples. The Committee [CERD] is
conscious of the fact that in many regions of the world indigenous peoples
have been, and are still being, discriminated against and deprived of
their human rights and fundamental freedoms and in particular that they
have lost their land and resources to colonists, commercial companies
and State enterprises. Consequently, the preservation of their culture
and their historical identity has been and still is jeopardized. The
Committee calls in particular upon States parties to... ensure that
indigenous communities can exercise their rights to practise and revitalize
their cultural traditions and customs and to preserve and to practise
their languages. [36]

Freedom
of Religion and Belief

The High Court, in
the Miriuwung Gajerrong decision, recognised the relationship
between Indigenous people and their land as a spiritual one. Native title,
as a recognition of Indigenous relationships to land encompass this spiritual
dimension.

[T]he connection
which Aboriginal peoples have with “country” is essentially
spiritual. ... The difficulty of expressing a relationship between a
community or group of Aboriginal people and the land in terms of rights
and interests is evident. Yet that is required by the NTA [Native Title
Act]. The spiritual or religious is translated into the legal. This
requires the fragmentation of an integrated view of the ordering of
affairs into rights and interests which are considered apart from the
duties and obligations which go with them. [37]

The right to freely
practice one’s religion and belief is protected at international
law. Article 18 ICCPR states:

Everyone shall
have the right to freedom of thought, conscience and religion. This
right shall include freedom to… manifest [t]his religion or belief
in worship, observance, practice and teaching. [38]

The Human Rights
Committee has clarified the requirements of this article, emphasising:

  • ‘belief’
    and ‘religion’ are to be broadly construed [39]
    – the protection of article 18 is not confined only to institutionalised
    religions; [40] and

  • ‘worship’
    includes ritual and ceremonial acts giving direct expression to beliefs,
    as well as the various practices integral to such acts. [41]

Article 18(2) of
the ICCPR provides an important protection to the freedom of belief, in
prohibiting coercion from impairing the freedoms to have the religion
or belief of one’s choice. There is commentary suggesting that the
human right to freedom of religion and belief provides support for protection
of sites that are sacred or significant to Indigenous people. [42]

Justice Kirby, in
the Miriuwung Gajerrong decision, emphasised the lack of attention,
in native title cases, that has thus far been given to the freedom of
religion, [43] which is protected not only in international
human rights standards, but under the Australian Constitution. [44]
His Honour indicated that freedom of religion could provide greater protection
of Indigenous interests than has, to date, been accorded:

There is one further
possibility that I should mention. It concerns the possible availability
of a constitutional argument for the protection of the right to cultural
knowledge, so far as it is based upon the spirituality of Australia’s
indigenous people. That involves the application of s 116 of the Constitution,
which provides a prohibition on laws affecting the free exercise of
religion. The operation of that section has not been argued in these
appeals. ... The full significance of s 116 of the Constitution regarding
freedom of religion has not yet been explored in relation to Aboriginal
spirituality and its significance for Aboriginal civil rights. ... One
thing is certain – the section speaks to all Australians and of
all religions. It is not restricted to settlers, their descendants and
successors, nor to the Christian or other organised institutional religions.
It may be necessary in the future to consider s 116 of the Constitution
in this context. [45]

Self Determination
[46]

Native title has
its origins in a system of law and custom in which the land plays a fundamental
role. A recognition of the relationship between Indigenous people and
their land must also include a recognition of the law-making and governance
structures in which land plays a fundamental role. These structures form
the basis to a right of self determination.

The right of self-determination
is enshrined in Article 1 of the ICCPR and the International Covenant
on Economic, Social and Cultural Rights
[47] (‘ICESCR’).
Australia is a party to both of these covenants and is bound to act in
compliance with their terms. Common Article 1 reads as follows: [48]

Article 1

1. All peoples
have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social
and cultural development.

2. All peoples
may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means
of subsistence.

3. The States Parties
to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust Territories, shall promote
the realisation of the right of self-determination, and shall respect
that right, in conformity with the provisions of the Charter of the
United Nations.

Recent practice by
the Human Rights Committee and the Committee on Economic, Social and Cultural
Rights (i.e., the two committees that operate under and interpret the
standards in the two international covenants) clearly identifies self-determination
as a right held by Indigenous peoples, including in Australia. This can
be seen from the following concluding observations and jurisprudence of
the committees.

Human
Rights Committee
  • Concluding
    observations on Australia
    , [49] which states
    that ‘The State party should take the necessary steps in order
    to secure for the Indigenous inhabitants a stronger role in decision
    making over their traditional lands and natural resources (article 1,
    para 2)’. [50] The List of Issues of the Committee
    had asked included ‘What is the policy of Australia in relation
    to the applicability to the Indigenous peoples in Australia of the right
    of self-determination of all peoples?’ [51]

  • Concluding
    observations on Canada
    . [52] In this observation,
    the Human Rights Committee emphasised the link between the control of
    land and resources and self-determination. The committee called for
    Canada’s decisive and urgent action toward land and resource allocation,
    and also recommended the country cease extinguishing inherent aboriginal
    rights as such a practise is incompatible with article 1 of ICCPR.

  • Concluding
    Observations on Norway
    , which provides that ‘the Committee
    expects Norway to report on the Sami people’s right to self-determination
    under Article 1 of the Covenant, including paragraph 2 of that article’.
    [53]

  • Concluding
    observations on Sweden
    . [54] The Human Rights
    Committee indicated its concern at the limited extent to which the Sami
    Parliament can have a significant role in the decision-making process
    on issues affecting the traditional lands and economic activities of
    the indigenous Sami people, such as projects in the fields of hydroelectricity,
    mining and forestry, as well as the privatization of land. The Committee
    recommended the State party take steps to involve the Sami by giving
    them greater influence in decision-making affecting their natural environment
    and their means of subsistence. [55]

  • Ominayak (Lubicon
    Lake Band) v Canada
    ; [56] and

  • Marshall &
    or’s on behalf of Mikmaq tribal society v Canada
    . [57]
Committee
on Economic, Social and Cultural Rights
  • List of Issues:
    Australia:
    ‘What are the issues relating to the rights of indigenous
    Australians to self-determination, and how have these issues impeded
    the full realisation of their economic, social and cultural rights?'
    [58]

  • Concluding
    observations on Canada
    (see also the List of issues: Canada [59]
    ). The comments of the Human Rights Committee, in its observations on
    Canada, are equally relevant to Australia: ‘The Committee views
    with concern the direct connection between Aboriginal economic marginalization
    and the ongoing dispossession of Aboriginal people from their lands...
    [P]olicies which violate Aboriginal treaty obligations and the extinguishment,
    conversion or giving up of Aboriginal rights and title should on no
    account be pursued by the State Party. [60]

  • Concluding
    observations on Columbia
    . The Committee on Economic, Social and
    Cultural Rights, in its comments on Colombia, emphasised how the principle
    of informed consent operates to protect indigenous culture. The committee’s
    directions to Colombia are equally important for Australia, in urging
    the country ‘...to ensure that indigenous peoples participate in
    decisions affecting their lives. The Committee particularly urges the
    State party to consult and seek the consent of the indigenous peoples
    concerned prior to the implementation of timber, soil or subsoil mining
    projects and on any public policy affecting them’. [61]

The Legal
Recognition of Native Title

The way in which
Indigenous people obtain recognition of their traditional rights to land
is through the legal system. Under the NTA, Indigenous people must apply
to the Federal Court to obtain a determination that native title exists,
that particular persons or a group of persons hold the title and that
the title gives rise to particular rights and interests in relation to
a particular area of land. [62] Where the claim coincides
with other non-Indigenous interests, the relationships between the two
sets of rights must be set out in the determination. A determination may
take place by consent, or it may be the conclusion to a lengthy hearing.

For instance, the
Yorta Yorta case commenced in February 1994, with the first
directions hearings being held in October 1995. The trial began in October
1996 with opening submissions and concluded one and a half years later
in May 1998. Altogether the trial Judge sat on 114 days and heard 201
witnesses – the transcript exceeded 11,500 pages. The decision was
delivered in December 1998. The Miriuwung Gajerrong case commenced
in April 1994, with the first directions hearings commencing in March
1995. The trial began in February 1997, occupied 83 days, and the Judge’s
decision was delivered in November 1998.

In order to get a
determination that native title exists, Indigenous people must prove all
the elements of the title contained in section 223(1) of the NTA. The
elements of the statutory definition of native title are as follows: [63]

  • Native title is
    comprised of the rights and interests of Indigenous people.

  • The rights and
    interests comprising native title may be communal, group or individual
    rights and interests.

  • The rights and
    interests must be in relation to land or waters.

  • The rights and
    interests must be possessed under the traditional laws acknowledged
    and the traditional customs observed by the peoples concerned: NTA s223(1)(a).

  • The rights and
    interests must have the characteristic that, by the traditional laws
    acknowledged and the traditional customs observed by the relevant peoples,
    those peoples have a connection with the land or waters claimed: NTA
    s223(1)(b).

  • The rights and
    interests in relation to the land or waters must be recognised by the
    common law of Australia: NTA s223(1)(c).

These elements and
their application to a particular claim are the subject of High Court
decisions in Yarmirr and, more recently, Miriuwung Gajerrong
and Yorta Yorta. The recent Federal Court decision in De Rose
[64] also provides direction on these issues. It is
now clear that the standard and burden of proof required to establish
the elements of the statutory definition of native title are so high that
many Indigenous groups are unable to obtain recognition of the traditional
relationship they continue to have with their land. In turn, their cultural,
religious, property and governance rights, recognised at international
law and embodied in this relationship, fail to be recognised and protected
under Australian law. The elements of the definition, and the court’s
interpretation of these elements, that cause me concern are as follows:

  • First, the process
    of recognising rights and interests arising from Indigenous laws and
    customs into native title rights and interests recognised under the
    NTA is not a neutral process but is based on a number of assumptions
    which transform and diminish the rights arising from Indigenous law
    and custom rather than providing a vehicle for their enjoyment.

  • Second, the requirement
    under s223(1)(a) of the NTA that rights and interests must be possessed
    under the traditional laws acknowledged and the traditional customs
    observed by the peoples concerned, has been interpreted by the courts
    to require proof of continuous observance and acknowledgement of those
    laws and customs since sovereignty. The standard and burden of proof
    in relation to s223(1)(a) is a significant barrier to Indigenous people
    gaining recognition and protection of their traditional rights and interests
    in land as they are observed and acknowledged in contemporary society.

  • Third, the requirement
    in NTA s223(1)(b), that by the traditional laws acknowledged and the
    traditional customs observed by the relevant peoples, those peoples
    have a connection with the land or waters claimed requires has been
    interpreted by the courts to require not only maintenance of cultural
    knowledge but a high level of connection to a specific area of land.

  • Fourth, the requirement
    of NTA s223(1)(c), that the rights and interests in relation to the
    land or waters must be recognised by the common law of Australia has
    been interpreted to exclude important rights to sea country where these
    rights could have been recognised albeit regulated or impaired to allow
    other non-Indigenous interests to be enjoyed.

The Process
of Recognition

The human rights
principles outlined above can provide the Court with important guidelines
in translating Indigenous laws and customs into rights and interests that
can be recognised by the non-Indigenous legal system. These principles
require that Indigenous relationships to land be provided with the protection
necessary to ensure they can be enjoyed, according to their tenor and
to the same extent as non-Indigenous interests in land. Constructed in
this way, native title should be a vehicle for the continued enjoyment
of Indigenous culture within the protection of the law.

There were positive
indications in early court decisions that, in recognising Indigenous relationships
to land, the law of native title would retain the essential identity of
these relationships as Indigenous. Characterising native title as an inherent
right deriving from Indigenous laws and customs, was an important aspect
of the Mabo decision [65] and represented a
breakthrough from other forms of statutory recognition given to Indigenous
land rights. Consistent with this decision the definition of native title
under the NTA does not simply replace the rights that arise from traditional
laws and customs with statutory rights. Rather it seeks to retain within
the definition the origins of native title in the traditional laws and
customs acknowledged and observed by Indigenous peoples.

These were signs
that the non-Indigenous law would not unnecessarily limit the recognition
of Indigenous relationships to land but would simply provide a vehicle
to transport these relationships into contemporary society. The relationship
between the Indigenous and non-Indigenous legal systems was conceived
in the Fejo decision [66] as ‘an intersection
of traditional laws and customs with the common law’. [67]
This indicated that native title would be a location or space for recognition
rather than a boundary confining recognition to particular rights and
interests falling within it.

While the majority
decision of the High Court maintained the analogy of ‘intersection’
in considering the claim of the Yorta Yorta people, [68]
it was clear by the time of this decision that the law was not simply
a recognition space and many claims would remain outside the protection
of native title law.

A critical factor
in understanding the way in which native title law confines the recognition
of the rights and interests arising from Indigenous laws and customs is
by uncovering the assumptions underlying the Court’s conception of
sovereignty and the consequences it attributes to the acquisition of sovereignty
by the British Crown. To do this it is necessary to examine the reasoning,
not only in the Miriuwung Gajerrong and Yorta Yorta
decisions but also in the decision where the relationship between British
sovereignty and the recognition of Indigenous rights to land is first
discussed, the Mabo decision.

Sovereignty
and the recognition of native title

The Mabo decision
is usually associated with overturning terra nullius as the basis of the
acquisition of British sovereignty which in turn allowed the courts to
recognise native title. Yet there is a troubling disjuncture in the reasoning
of the High Court in Mabo. On the one hand terra nullius was overturned
because it failed to recognise the social and political constitution of
Indigenous people. Yet the recognition of native title was premised on
the supreme power of the state to the exclusion of any other sovereign
people. Thus the characteristics of Indigenous sovereignty, the political,
social and economic systems that unite and distinguish Indigenous people
as a people were erased from the developing law of native title.

Confirming the principle
in the Seas and Submerged Lands case [69] that
the ‘acquisition of territory by a sovereign state for the first
time is an act of state which cannot be challenged, controlled or interfered
with by the Courts of that state’, [70] Justice
Brennan in Mabo identified the extent of the court’s power
as merely ‘determining the consequences of an acquisition [of sovereignty]
under municipal law’. [71]

The assertion in
Mabo of supreme and exclusive sovereign power residing in the State
has been confirmed in the Miriuwung Gajerrong and Yorta Yorta
decisions. In the Miriuwung Gajerrong decision, the Court
attributes the ‘inherent fragility’ of native title to the imposition
of a new sovereign order.

An important reason
to conclude that, before the NTA, native title was inherently fragile
is to be found in this core concept of a right to be asked permission
and to speak for country. The assertion of sovereignty marked the imposition
of a new source of authority over the land. Upon that authority being
exercised, by the creation or assertion of rights to control access
to land, the right to be asked for permission to use or have access
to the land was inevitably confined, if not excluded. But because native
title is more that the right to be asked for permission to use or have
access (important though that right inevitably is) there are other rights
and interests which must be considered, including rights and interests
in the use of the land. [72]

It can be seen in
the Miriuwung Gajerrong decision, as in the Mabo decision,
that the construction of native title at common law as an inherently fragile
and inferior interest in land, originates from an assumption that the
nature of the power asserted by the colonizing state is singular, total
and all-encompassing. The consequences of this for the extinguishment
of native title are discussed in chapter 2. The Yorta Yorta
decision illustrates the consequences of this for the recognition of native
title.

Upon the Crown
acquiring sovereignty the normative system which then existed [Indigenous
laws and customs] could not thereafter validly create new rights, duties
or interests. Rights or interests in land created after sovereignty
and which owed their origin and continued existence only to a normative
system other than that of the new sovereign power, would not and will
not be given effect by the legal order of the new sovereign. [73]

The implications
of the Mabo decision, that native title does not give recognition
to the economic political and legal systems of Indigenous people, as a
people, are fully realised in the Yorta Yorta decision.

[W]hat the assertion
of sovereignty by the British Crown necessarily entailed was that there
could thereafter be no parallel law-making system in the territory over
which it asserted sovereignty. [74]

The basis for limiting
native title to the recognition of rights and interests and not the laws
and customs from which these emanate can be found in this paragraph. The
monopoly on law-making held by the new sovereign renders the law-making
capacity of the Indigenous legal system defunct upon sovereignty being
acquired. For this reason the recognition of native title rights and interests
is limited to those created prior to the acquisition of sovereignty.

To hold otherwise
would be to deny the acquisition of sovereignty and as has been pointed
out earlier, that is not permissible. Because there could be no parallel
law-making after the assertion of sovereignty it also follows that the
only rights and interests in relation to land or waters, originating
otherwise than in the new sovereign order, which will be recognised
after the assertion of that new sovereign order are those that find
their origin in pre-sovereignty law and custom. [75]

In fastening the
recognition of native title to a pre-sovereign system of laws, every claimant
group must satisfy a court that the contemporary expression of their culture
and their religion, does not emanate from Indigenous laws or customs that
were created after sovereignty. Whenever present beliefs or practices
appear in any way to differ from past beliefs and practices, the issue
of whether these differences can be seen as evidence of a new set of laws
and customs or adaptations of the pre-sovereign set of laws is raised
and subject to proof. The difficulties of proving this distinction are
discussed below. What is important to note here is the concept of sovereignty
on which this distinction is based and how this concept limits the recognition
of contemporary expressions of Indigenous culture.

Yet the assumption
of exclusive sovereignty by a colonial power over Indigenous people is
not shared in the world view of Indigenous people nor at international
law. The evolution of the principle of self-determination at international
law challenges the notion that the non-Indigenous state has exclusive
jurisdiction over traditional land, not by replacing it with exclusive
Indigenous jurisdiction, but by challenging the foundations on which the
assertion of paramount control by one group to the exclusion of all others
rests. [76]

Any conception
of self-determination that does not take into account the multiple patterns
of human association and interdependency is at best incomplete and more
likely distorted. The values of freedom and equality implicit in the
concept of self-determination have meaning for the multiple and overlapping
spheres of human association and political ordering that characterize
humanity. Properly understood, the principle of self-determination,
commensurate in the values it incorporates, benefits groups – that
is, ‘peoples’ in the ordinary sense of the term – throughout
the spectrum of humanity’s complex web of interrelationships and
loyalties, and not just peoples defined by existing or perceived sovereign
boundaries. [77]

The right to self-determination
forms the basis on which Indigenous people may share power within the
existing state. It gives Indigenous people the right to choose how they
will be governed.

While, within Australian
jurisdiction, the notion that Indigenous peoples may continue to exercise
law-making power within a colonial state breaches what is referred to
by the High Court as a ‘cardinal fact’ [78]
a very different approach has been adopted in Canadian jurisprudence.
In Campbell v Attorneys-General & The Nisga’a Nation,
[79] the terms of a treaty which gave legislative (and
thus law-making) power to the Nisga’a people in relation to education,
the preservation of their culture and the use of their land and resource
were challenged as a breach of the Canadian Constitution. One basis of
the challenge was that any right to self-government or legislative power
was extinguished at the time of Confederation following the enactment
of the then British North America Act (now called the Constitution
Act 1867
).

Even though Aboriginal
laws did not emanate from a central print oriented law-making authority,
the Court confirmed, as it has in Australia, that the Aboriginal peoples
of Canada had legal systems prior to the arrival of Europeans. In the
case of the Nisga’a people these legal systems, although diminished,
were found to have continued after contact.

The next question
was whether these functioning legal systems can be recognised under Canada’s
common law. The British Columbia Court reviewed previous North American
authorities including Johnson v M’Intosh, [80]
Cherokee Nation v Georgia, [81]
and Worcester v Georgia [82] . In
these cases, the then Chief Justice Marshall had assessed historical relations
between British authorities and aboriginal peoples in North America prior
to the American Revolution. In Johnson v M’Intosh,
Chief Justice Marshall concluded that the Indigenous peoples’ right
to govern themselves had been “diminished” but not extinguished.
The Chief Justice’s statements on this matter were adopted 150 years
later in Van der Peet: [83]

In the establishment
of these relations, the rights of the original inhabitants were, in
no instance, entirely disregarded; but were necessarily, to a considerable
extent, impaired. They were admitted to be the rightful occupants of
the soil, with a legal as well as just claim to retain possession of
it, and to use it according to their own discretion; but their rights
to complete sovereignty, as independent nations, were necessarily diminished,
and their power to dispose of the soil at their own will, to whomsoever
they pleased, was denied by the original fundamental principle that
discovery gave exclusive title to those who made it. [84]

A review of the Canadian
authorities also demonstrated that there was judicial authority, since
Confederation, for the recognition of Indigenous customary law. Consequently
the Canadian court found that the right to self-government and the power
to make laws had survived Confederation, and were capable of recognition
as part of Aboriginal title.

Native title as a bundle of
rights and interests

The construction
of native title as a bundle of rights and interests, confirmed in the
Miriuwung Gajerrong decision, also reflects the failure of
the common law and the NTA to recognise Indigenous people as a people
with a system of laws based on a profound relationship to land. Native
title as a bundle of separate and unrelated rights with no uniting foundation
is a construction which epitomises the disintegration of a culture when
its law-making capacity, that is its sovereignty, is neatly extracted
from it.

In the Yorta Yorta
decision, the High Court considered the distinction made in the NTA between
the law-making system of Indigenous people and the rights and interests
that emanate from this system. It is only the latter which is recognised
as native title, even though, in order to obtain this recognition, Indigenous
people must prove they have acknowledged and observed their traditional
laws and customs continuously since sovereignty. This requirement is discussed
in the following section.

This separation of
rights and interests from the laws they originate in was recognised by
the High Court as fragmenting an otherwise integrated order. This construction
however was considered necessary by the legislation governing the recognition
process. In the Miriuwung Gajerrong case, the High Court could
see that:

[T]he connection
which Aboriginal peoples have with “country” is essentially
spiritual. ...It is a relationship which sometimes is spoken of as having
to care for, and being able to “speak for” country. “Speaking
for” country is bound up with the idea that, at least in some circumstances,
others should ask for permission to enter upon country or use it or
enjoy its resources, but to focus only on the requirement that others
seek permission for some activities would oversimplify the nature of
the connection that the phrase seeks to capture. The difficulty of expressing
a relationship between a community or group of Aboriginal people and
the land in terms of rights and interests is evident. Yet that is required
by the NTA. The spiritual or religious is translated into the legal.
This requires the fragmentation of an integrated view of the ordering
of affairs into rights and interests which are considered apart from
the duties and obligations which go with them. [85]

In this fragmented
form, every right and interest for which recognition is claimed needs
to be identified. An issue that arose in the Miriuwung Gajerrong
decision, in relation to identifying native title rights and interests,
was whether the translation from their context in Indigenous law to ones
recognisable by the common law was possible without diminishing their
original meaning. The Court’s difficulty in giving culturally appropriate
meaning to the core Indigenous concepts of ‘a right to be asked and
speak for country’ illustrates this point.

[I]t may be accepted
that the right to be asked for permission and to speak for country is
a core concept in traditional law and custom. As the primary judge’s
findings show, it is, however, not an exhaustive description of the
rights and interests in relation to land that exist under that law and
custom. It is wrong to see Aboriginal connection with land as reflected
only in concepts of control of access to it. To speak of Aboriginal
connection with ‘country’ in only those terms is to reduce
a very complex relationship to a single dimension. It is only to impose
common law concepts of property on peoples and systems which saw the
relationship between the community and the land very differently from
the common lawyer. [86]

Having recognised
that Aboriginal connection to country might be different to a property
right to control the land, reflecting a deeper spiritual relationship
with the land, the Court promptly explains how the core concepts of a
right to be asked permission and to speak for country are rightly expressed
in common law terms as rights to possess, occupy, use and enjoy the land
to the exclusion of all others.

The expression
of these rights and interests in these terms [the right to exclusive
possession occupation use and enjoyment of the land] reflects not only
the content of a right to be asked permission about how and by whom
country may be used, but also the common law’s concern to identify
property relationships between people or things as rights of control
over access to, and exploitation of, the place or thing. [87]

Having found the
common law equivalent for these core concepts of traditional law and custom
the Court is able to determine the extent to which the creation of rights
to control access to land under the non-Indigenous property system would
extinguish them.

An important reason
to conclude that, before the NTA, native title was inherently fragile
is to be found in this core concept of a right to be asked permission
and to speak for country. The assertion of sovereignty marked the imposition
of a new source of authority over the land. Upon that authority being
exercised, by the creation or assertion of rights to control access
to land, the right to be asked for permission to use or have access
to the land was inevitably confined, if not excluded. But because native
title is more that the right to be asked for permission to use or have
access (important though that right inevitably is) there are other rights
and interests which must be considered, including rights and interests
in the use of the land. [88]

Thus even though
Indigenous relationships to land, in their cultural context, may be unique
and incommensurable, through the native title process they are given a
meaning which renders them comparable to non-Indigenous property rights
and thus able to be extinguished.

The result of this
approach is that even though Aboriginal people continue to maintain a
spiritual connection with the land, the common law will consider their
native title rights to be extinguished where inconsistency occurs. This
disjuncture between Aboriginal law and culture and common law recognition
was acknowledged in the High Court decision.

[T]he recognition
may cease where, as a matter of law, native title rights have been extinguished
even though, but for that legal conclusion, on the facts native title
would still subsist. [89]

Between the fact
of the continuing connection of Indigenous people with their land and
the protection of this relationship in contemporary society are the legal
processes of recognition and extinguishment. Together these processes
impair the extent to which Indigenous people are able to enjoy their cultural
and property rights.

The Relationship
between the Recognition and Extinguishment of Native Title

A bundle of rights
approach to recognition creates an inherently weak title that is able
to be eroded, piece by piece. The relationship between the identification
of native title as a bundle of rights and interests and their extinguishment
through the inconsistency of incidents test is noted in chapter 2. In
identifying native title rights and interests, the Court was not content
to leave their identity indeterminate or ambiguous where an unresolved
question of extinguishment might exist.

[T]o find that,
according to traditional law and culture, there is a right to control
access to land, or to make decisions about its use, but that the right
is not an exclusive right, may mask the fact that there is an unresolved
question of extinguishment. At least it requires close attention to
the statement of “the relationship” between the native title
rights and interests and the “other interests” relating to
the determination area. [90]

In ensuring that
the identity of native title rights contained no unresolved questions
of extinguishment it was important to identify any exclusive rights that
might imply a measure of control by Indigenous groups over access to land.
Describing native title rights to ‘possession’ as distinct from
possession to the exclusion of all others was considered misleading in
that it ‘invites attention to the common law content of the concept
of possession and whatever notions of control over access might be thought
to be attached to it, rather than the relevant task, which is to identify
how rights and interests possessed under traditional law and custom can
properly find expression in common law terms’. [91]
Similarly, identifying a non-exclusive right to make decisions about the
use and enjoyment of land was considered ‘not easy’.[92]

As I explain in chapter
2 [93] the characterisation of native title rights
that best survive once all other interests are given full enjoyment are
ones which are expressed at a high level of specificity; [94]
are limited to the conduct of activities on the land rather than the control
of activities on the land; [95] and confine those activities
to traditional rather than contemporary ones.

Thus, for example,
a right to dig for ochre was better able to survive the grant of a mineral
lease on the same land than a right to utilise the resources of the land.
Similarly a right to hunt and gather was better able to survive the grant
of a pastoral lease than a right to control access to the land or make
decisions about the use of the land. To find its place in the gaps and
crevices of non-Indigenous interests, native title must be small, flexible
and harmless.

The Miriuwung Gajerrong
and the Yorta Yorta decisions together elucidate the fundamental
principles on which the Court decide not only the way in which native
title is recognised and extinguished, but the relationship between them.
The Miriuwung Gajerrong case in particular presented the Court
with a factual context in which the recognition and the extinguishment
of native title are interrelated issues. Prior to these decisions the
processes of recognition and extinguishment represented a troubling disjuncture
in the law of native title with recognition understood as overturning
terra nullius by giving it legal status and so protecting Indigenous rights
to land. Extinguishment, on the other hand, protected non-Indigenous interests
in land at the expense of Indigenous interests. This tension in native
title law, between the recognition of native title with its origins in
equality, and extinguishment with its origins in discrimination, has now
been resolved. The views of Justices Callinan and McHugh give an indication
of the course which the law of native title has taken.

Justice Callinan
expressed the view in the Miriuwung Gajerrong decision that
the way in which the law of native title resolves ‘the chasm between
the common law and native title rights’ has reduced native title
to ‘little more than symbols’:

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. [96]

The ‘attempt
to fold native title rights into the common law’ in the Miriuwung Gajerrong
case meant native title gave way to non-Indigenous interests every time.
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. [97]

Observing
and Acknowledging Traditional Laws and Customs under NTA s223(1)(a)

Section 223(1)(a)
of the NTA requires that the rights and interests that can be recognised
as native title must be possessed under the traditional laws acknowledged
and the traditional customs observed by the peoples concerned. This has
been interpreted by the Court in the Yorta Yorta decision
to require proof of continuous observance and acknowledgement of those
laws and customs since sovereignty. The Court’s interpretation of
s223(1)(a) establishes it as a significant barrier to Indigenous people
gaining recognition and protection of their traditional rights and interests
in land as they are observed and acknowledged in contemporary society.

In the previous sections
I commented on the fragmentation caused by the separation of the rights
and interests that the law of native title recognises from the laws and
customs in which they originate. [98] While the notion
of sovereignty relied on by the Court prevents the recognition of Indigenous
legal systems and their law-making capacity after the acquisition of sovereignty,
claimants nevertheless have to show in s223(1)(a) that the rights and
interests which are capable of recognition are possessed under traditional
laws acknowledged and traditional customs observed by them. The difficulty
of this task is due to the interpretation the Court gives to the meaning
of the term ‘traditional laws and customs’ in s223(1)(a).

A fundamental tenet
of the Court’s interpretation of s223(1)(a) in the Yorta Yorta
case is that the laws and customs of Indigenous people are a body of norms
or a normative system under which rights and interests are created. [99]
This, it says, follows from Mabo and the NTA itself. The effect
of the British Crown acquiring sovereignty is that the Indigenous normative
system that created rights and interests could not validly continue to
do so after this date. Upon sovereignty, it was replaced by the imposition
of a new normative order. Thus recognition of native title rights and
interests is restricted either to those created by the new normative system
or to those created by the Indigenous normative system of laws and customs
before sovereignty. [100] The Court confirmed that
the native title rights to which the NTA refers are rights and interests
created before sovereignty by Indigenous laws and customs. This is what
is to be understood as ‘traditional’ in the phrase ‘traditional
laws and customs’ in s223(1)(a). As pre-sovereign rights and interests
they are the relics of a legal system that no longer functions or at least
‘validly’ [101] functions in the contemporary
world.

A further condition
placed by NTA s223(1)(a) on the recognition of native title rights and
interests stems from the relationship between the normative system of
laws and the society that creates it. A normative system of laws, it is
said, gets its identity from being observed and acknowledged by a society.
Moreover it is the observation and acknowledgement of laws and customs
that define a particular society. The two, laws and society, are thus
inextricably linked:

Laws and customs
arise out of, and in important respects, go to define a particular society.
In this context, “society” is to be understood as a body of
persons united in and by its acknowledgement and observance of a body
of law and customs… To speak of rights and interests possessed
under an identified body of laws and customs is, therefore, to speak
of rights and interests that are the creatures of the laws and customs
of a particular society that exist as a group which acknowledges and
observes those laws and customs. [102]

Based on this interdependent
relationship between laws and society, the recognition of rights and interests
possessed under traditional laws and customs, as required by s223(1)(a)
of the NTA, is said to be dependent on there being a society which observes
and acknowledges this body of laws and customs. Thus, in order to prove
rights and interests are possessed under traditional laws and customs,
a claimant group must also prove that the observance and acknowledgement
of the traditional laws and customs that create those rights and interests
is by a body of persons united as a society. Once the society no longer
exists then nor do the laws that are the foundation of the rights and
interests requiring recognition. To have native title rights and interests
recognised by a court the proof of the continuous existence of a society
which observes and acknowledges the tradition laws and customs is required.
Given the important role that the interdependent relationship between
law and society, posited by the High Court, plays in the recognition and
proof of native title, it requires a critical appraisal.

The relationship
proposed by the High Court between law and society can be understood in
two different ways. If the Court is proposing that law is an external
condition for the existence of society, the identity of a particular society
being the result of its members observing a particular set of laws, then
the law cannot at the same time be a product of that society or an internal
aspect of the identity of that society. Similarly, if society is proposed
as an external condition for the existence of a body of laws, any particular
body of laws being a product of the norms of that society, then the society
cannot at the same time be a product of that law, or an internal aspect
within the definition of that law. On this analysis the relationship that
the Court is positing between law and society is circular and difficult
to support.

Perhaps, however,
the Court is describing a more dynamic relationship between law and society
whereby each interacts with the other so that society affects laws which
in turn affect society and so on. On this understanding neither law nor
society is a primary determinant of the other but they interact over time
to produce changes in each other.

If the Court is affirming
this dynamic relationship between law and society then it must also affirm
that it is the open and incomplete nature of these two elements, law and
society, that allow each to redefine themselves through changes in the
other. Laws do not exist as a complete body of norms but are constantly
negotiated and interpreted within a social arena. Society also cannot
be finally determined through the laws it observes but exists in a plurality
of legal and political spaces, assuming different identities as the context,
including the legal context, changes.

While this dynamic
view of the relationship between law and society as unstable, incomplete
and dynamic accords with contemporary notions this is not the relationship
that Indigenous people must establish to obtain recognition of native
title. Indeed this type of relationship, which recognises a plurality
of identity is anathema to the Court’s understanding. The Court’s
view of society is one that is given complete identification through the
laws it observes. Moreover, in the same tautological way that society
and law are given existence, so too their existence ceases. Society ceases
being a society once it ceases observing the laws that define it and once
society ceases observing the laws they cease to be laws:

And if the society
out of which the body of laws and customs arises ceases to exist as
a group which acknowledges and observes those laws and customs, those
laws and customs cease to have continued existence and vitality. [103]

The consequence of
the Court’s view of the relationship between law and society for
Indigenous applicants is that, under NTA s223(1)(a), this closed circle
of identification between Indigenous laws and society must be maintained
from sovereignty to the present. The claimants must establish that there
has been continuous observance and acknowledgement of the laws and customs
of Indigenous people since sovereignty. In order to show this they must
also show that, since sovereignty, the society observing these Indigenous
laws and customs did not cease to exist.

However the real
difficulty that makes the task of proving s223(1)(a) of the NTA almost
impossible is the combination of requiring proof of a vital and ongoing
relationship between the Indigenous law and Indigenous society while at
the same time denying the law making function of the Indigenous legal
system. By definition the vitality necessary to sustain this mutually
identifying relationship from sovereignty to the present day has been
denied, or at least the normative system of laws and customs. Inevitably,
like Indigenous laws, Indigenous society must follow quickly behind to
become a relic of a once vital and functioning society. To then expect
that these entities, that have been relegated to a previous era can go
on interacting in a self sustaining fashion possessing rights and interests,
observing traditional laws and customs, defies credibility and more importantly,
proof.

In this context,
real evidentiary difficulties arise for Indigenous applicants seeking
recognition of native title. The questions that arise and which they must
satisfy include: What is the content of pre-sovereign laws and customs?
[104] ; Are the rights and interests presently possessed,
rights and interests possessed under pre-sovereign laws and customs?;
[105] Are differences between the rights and interests
presently possessed and those possessed before sovereignty differences
which result from developments of or alterations to the traditional laws
and customs or are they differences that result from new laws and customs
that are generated after sovereignty? [106] When does
an interruption to the observance of traditional laws and customs amount
to cessation of their observance?; [107] When can
it be said that the observance of laws and customs is by a new society
even though the laws and customs are similar to or even identical with
those of pre-sovereign society? [108]

The Court recognises
that these difficult evidentiary questions are made even more difficult
by the fact that the traditional laws and customs are transmitted orally
from generation to generation. In the cultural context in which proof
of these very difficult elements are required, the amendments to s82 of
the NTA can be seen as a further denial of the rights of Indigenous people
to cultural equality. Under the original NTA a court was ‘not bound
by technicalities, legal forms or rules of evidence’ [109]
and was bound to ‘pursue the objective of providing a mechanism of
determination that is fair, just, economical, and prompt’. [110]
Under the amendments, a new s82 provides that a court is bound by the
rules of evidence ‘except to the extent that the Court otherwise
orders’. [111] The difficulty of building a base
for the court to draw inferences on the content of traditional laws and
customs prior to sovereignty, their ongoing transmission from generation
to generation by oral form and their present possession is, under these
amendments, almost insurmountable.

Establishing
Connection to Country under s223(1)(b)

The second of the
criteria required by the NTA to satisfy the definition of native title
or native title rights and interests that are possessed under the traditional
laws and customs acknowledged and observed by the Aboriginal peoples or
Torres Strait Islanders is set out in s223(1)(b):

the Aboriginal
peoples of Torres Strait Islanders, by those laws and customs, have
a connection with the land or waters.

As the High Court
pointed out in Yorta Yorta, the NTA sets out that the source
of connection is traditional law and custom, not the common law. [112]
However, the NTA gives no further guidance as to what is required by ‘connection’
for native title to be recognised through a determination, either by consent
or through litigation. Some indication of the Parliament’s intention
may be given in the section setting out the conditions for registration
of a claim. Despite the status of the registration process as an administrative
test only, these conditions require the Native Title Registrar to make
an assessment of the factual basis for claimed native title [113]
and to be satisfied that at least one member of the native title claim
group ‘currently has or previously had a traditional physical connection
with any part of the land or waters covered by the application’.
[114] Justice Callinan referred to this provision
of the NTA in his reasons in Yorta Yorta, [115]
although the courts have explicitly rejected the need for ‘on-going
or continual physical occupation of the land’ by the claimants in
the decisions of De Rose [116] and Miriuwung Gajerrong.
[117]

Despite the clear
finding of the High Court in Yarmirr, [118]
Yorta Yorta, [119] and Miriuwung Gajerrong
[120] that the NTA, rather than the common law, is
the primary basis for deciding the scope of recognition of native title,
the development of the concept of connection, and the standard of proof
to be met by claimants, are not to be found in the NTA. In practice, the
courts, along with State governments, have played a key role in elaborating
the meaning of s223(1)(b) and therefore the standard of proof for connection
to be met by claimants. State governments have done this in the mediation
process by insisting, as a prerequisite to their effective entry into
mediation, on a connection report that meets their published requirements.
[121] The courts have taken the approach that the
ultimate burden of proof rests with the claimants. [122]

In taking this approach,
the Courts have themselves noted a number of problems arising from ‘the
intersection of traditional laws and customs with the common law’
[123] and with the NTA. In Miriuwung Gajerrong,
the High Court points out ‘the difficulty of expressing a relationship
between a community or group of Aboriginal people and the land in terms
of rights and interests’ but notes that this is required by the NTA.
The Court concludes that ’the spiritual or religious is translated
into the legal’. [124] In addition to the evidentiary
difficulties of proving the elements of native title [125]
Justice O’Loughlin in De Rose deals at some length with
the evidentiary problems that are seen as peculiar to native title claims,
particularly in what is normally regarded as hearsay evidence. [126]
Although bound by NTA s82(1), His Honour sets out his reasons for accepting
hearsay evidence – that is, what Aboriginal witnesses, with an oral
history, were told about traditional laws and customs, particularly by
older generations. A third problem identified in De Rose is
the deficiency of the adversarial process, in which the court’s decision
can only be made on the basis of the evidence presented, without being
able to assess whether the evidence is or is not complete or adequate.
[127] As O’Loughlin J observes ‘If that
evidence was inadequate to deal properly with the subject, it could mean
that the findings that I make on the subject are likewise inadequate’.
[128] This is a critical issue for the recognition
of native title, both because of the acknowledged difficulties of ‘expressing
a relationship between a community or group of Aboriginal people and the
land in terms of rights and interests’, but also because of the accessibility
and quality of legal representation for the claimants, a point to which
I shall return below.

In order to achieve
recognition of their native title through a determination of native title
therefore, claimants must meet the requirement of NTA s223(1)(b) that
they have a connection with the land or waters claimed, by their traditional
laws and customs. This means that, for a consent determination, they must
satisfy other parties – but particularly State or Territory governments
and, increasingly, the Commonwealth [129] – that
they have this connection and, for a litigated determination, the courts.
The courts have mentioned the requirement for connection in a number of
the most recent cases, but it is dealt with at greatest length in De Rose,
where the judge saw it as the central issue in dispute. [130]

Interpretation
of connection to country in De Rose v South Australia

The claimants in
De Rose were ‘those Yankunytjatjara people who have historical,
spiritual and ancestral relationship to the claim area’. [131]
The area claimed was over three pastoral leases, known collectively as
De Rose Hill Station, in the far north-west of South Australia. The
Court heard evidence from twenty-six Aboriginal people, many of whom lived
and worked on the Station at some stage of their lives, at least up until
1978, when the last Aboriginal stockmen left the property. The judge found
that native title over the Station has not been extinguished by legislation
[132] and that therefore a determination of non-exclusive
native title was available to the claimants. His Honour accepted much
of the evidence of the Aboriginal witnesses. The Court took evidence on
country at thirteen sites on or near the Station. These sites were among
sixty-five possible sites identified by the claimants as significant,
forty-six of which are on De Rose Hill Station. [133]
The Judge accepted that ‘what I saw and observed satisfied me that
the witnesses and participants showed that they possessed knowledge of
the particular sites and knowledge of the activities in which they engaged
at those sites’. [134] Referring to the High
Court’s reasoning in Miriuwung Gajerrong, [135]
Justice O’Loughlin held that a physical connection to the land is
not a requirement for a grant of native title. [136]
His Honour also rejected the need for a strict test of biological descent
to be applied [137] and accepted that it would be
possible to make a finding of substantial maintenance of continuity of
connection from sovereignty, even where there may have been ‘significant
gaps’ in the chronology of the historical timeline. [138]

Despite all this,
the De Rose decision was that no native title exists in the
claim area. Justice O’Loughlin’s reason for that finding was
the failure of the claimants to satisfy him that ‘they now have any
connection with the land and waters within the claim area’. [139]

In reaching this
finding, Justice O’Loughlin focuses on the absence of the claimants
from De Rose Hill Station for the last twenty years and what he concludes
was not just a physical absence but their failure over that period to
attend to any ‘religious, cultural, or traditional ceremony or duty’
on the Station. [140] His Honour noted that, ‘although
a spiritual or cultural connection only may suffice for the purposes of
[NTA] s223(1)(b), the assessment of whether the requirement has been met
will always be a question of fact’.[141] He also
emphasised that connection to country must be current [142]
and that a ‘mere’ connection with land or waters is insufficient;
as set out in NTA 223(1)(b), the connection must be ‘by those laws
and customs’ – that is ‘because of’ or ‘as a
result of’ traditional laws acknowledged and traditional customs
observed. [143] His finding in relation to almost
all of the Aboriginal witnesses is that they had ‘abandoned’
their connection to the claim area. [144]

In accepting that
the Aboriginal witnesses still retain knowledge of their traditional laws
and customs – have indeed retained their culture [145]
– Justice O’Loughlin makes a distinction between ‘adherence
to’ and ‘knowledge of’ traditional laws and customs and
concludes that the claimants’ ‘adherence to’ has ‘eroded
away’. [146] This conclusion is to a significant
extent based on two factors. One of these is the Judge’s assessment
that twenty years – less than one generation – is an adequate
period on which to draw conclusions about loss of connection, despite
continuity of knowledge and the competence of witnesses to perform ‘two
very remarkable ceremonies’. [147] Secondly,
his conclusion is based on his analysis of the reasons for people having
left the Station as being principally associated not with ‘their
Aboriginal lifestyle, traditions or customs’, but by aspects of ‘European
social and work practices’. [148] He puts forward
that the two main reasons why the Aboriginal people left De Rose
Hill were the opening of the community centre at Indulkana in 1968 and
the loss of work after the Pastoral Award in 1968. Both of those reasons,
in His Honour’s view, ‘deny the presence of a continuing native
title connection with the area’. [149] This theme
of incompatibility between ‘non-Aboriginal factors such as work and
wages and his [a claimant’s] daughter’s education’ and
‘Aboriginal law or customs’, [150] and therefore
of loss of connection, recurs throughout the reasons for judgement. It
sits with the occasional observation such as finding ‘preposterous’
one of the women witness’s claims that the lack of a car has been
her reason for not visiting her land, [151] or that
a spiritual connection with the land would suffice ‘where Anangu
have been forcibly dispossessed of their land but that has not been suggested
here’. [152]

The inclusion of
such remarks in the reasons for judgement and the assumptions underlying
them about the exotic character of traditional laws and customs suggest
that the expansion of the concept of connection in De Rose
goes well beyond the requirements both of the NTA and of the common law.
They also raise concerns about the extent to which the Court in De Rose
has unnecessarily expanded the NTA’s requirement for connection and
interpreted it in a way that may infringe on the right enshrined in human
rights instruments to participate in the cultural life of the community.
[153]

The De Rose
judgement is now under appeal to the Full Federal Court. The grounds of
appeal include Justice O’Loughlin’s finding that the claimants
had no connection or had abandoned their connection to the claimed area.
In the light of the High Court’s clear indication that the principle
source of recognition of native title is the NTA rather than the common
law, the courts have the opportunity to revisit the interpretation of
connection in a way that better reflects both the traditional laws and
customs of Aboriginal peoples and Torres Strait Islanders on the one hand,
and human rights law on the other.

Interpretation
of connection to country in Kennedy v Queensland

Kennedy [154]
was a non-claimant application by the holder of a pastoral lease near
Winton in Queensland that native title does not exist over the property.
[155] Because the application was unopposed, the Federal
Court made the order, as permitted under certain conditions in the NTA,
that native title does not exist over the area. In his reasons for judgement,
however, Justice Sackville noted that the Koa People had initially lodged
a claimant application in response to the non-claimant application, that
they subsequently withdrew that application, and that they also withdrew
as parties to the non-claimant application. On that basis, and in the
absence of any evidence from the Koa People, he concluded that ‘there
are indeed no native title interests over Castle Hill’ and that ‘any
connection that may have existed between the Aboriginal peoples of the
area and Castle Hill, in accordance with traditional laws and customs,
has not been maintained’. [156]

One of the Judge’s
reasons for his finding was the evidence presented by Mr Kennedy that,
since commencing occupation on Castle Hill in December 1951, he had never
seen Aboriginal people carrying out any traditional activities on the
property and that no Aboriginal people had been present on the property
except for work, and that that ceased after 1962. The evidence was that
there had been no physical presence of Aboriginal people on Castle Hill
for over forty years. The Judge’s acceptance of physical absence
as a sufficient reason for loss of connection [157]
is at variance with the findings in other courts, including the Full Federal
Court in Miriuwung Gajerrong [158] current
at the time of the Kennedy decision and confirmed more recently
by the High Court, as discussed earlier.

Justice Sackville
identified a second reason for being satisfied that the withdrawal of
the claimant application by the Koa People demonstrated their loss of
connection to the area. This was that the Koa People had the benefit of
legal advice and representation arranged by the Gurang Land Council, a
Native Title Representative Body [159] (‘NTRB’).
Unfortunately, this assumption made by His Honour cannot be justified,
given the current situation of NTRBs. The inadequacy of resources and
resultant limits on the ability of NTRBs to perform their statutory functions
appropriately has been drawn to the attention both of the courts and of
the Commonwealth on a number of different occasions. [160]
Although there was an increase in this funding in the 2002 Federal budget,
it remains inadequate to meet the onerous demands placed on NTRBs. This
has serious implications for the recognition and protection of native
title under the NTA, and also for the protection under human rights law
of people’s right to enjoy culture. [161]

At one level, the
decision in Kennedy is of limited relevance to other native title
claims because of the particular circumstances of its being an unopposed
non-claimant application. On another level, the Judge’s finding of
loss of connection for the reasons he sets out raises some concerns about
the direction of the courts in limiting even further the scope of recognition
of native title.

Limitations
set by the Courts on the Protection of Cultural Knowledge

The judgement in
De Rose illustrates a further way in which recent court decisions
have dealt with the question of connection in the context of its relation
to cultural knowledge. In De Rose, the claimants sought a
limited right to protect their cultural knowledge by preventing ‘the
disclosure otherwise than in accordance with traditional laws and customs
of tenets of spiritual beliefs and practices (including songs, narratives,
rituals and ceremonies) which relate to areas of land or waters, or places
on the land or waters’. [162] Justice O’Loughlin
rejected this with reference to the Full Court and High Court decisions
in Miriuwung Gajerrong that ‘matters of spiritual beliefs
and practices are not rights in relation to land and do not give the connection
to the land that is required by s223 of the NTA’. [163]
This finding seems inconsistent with the High Court’s statements
that ‘the connection which Aboriginal peoples have with “country”
is essentially spiritual’, [164] a proposition
with which Justice O’Loughlin agreed. [165] It
is also at odds with traditional law and custom, and with the observation
of the High Court in Miriuwung Gajerrong that ‘to some degree,
for example respecting access to sites where artworks on rock are located,
or ceremonies are performed, the traditional laws and customs which are
manifested at these sites answer the requirement of connection with the
land’ as set out in s223(1)(b). [166] Nevertheless,
in Miriuwung Gajerrong, the High Court took the view that
recognition of the right as asserted in that case went beyond the recognition
available under the NTA [167] and indicated that protection
of cultural knowledge is to be sought not in the NTA but in other statutes
and cases relating, for example, to intellectual property or copyright.
Cultural heritage laws offer a further avenue for protection.

This approach by
the courts makes clear that it is unlikely that the NTA will be seen as
a vehicle for the protection of cultural knowledge, even though the High
Court in Miriuwung Gajerrong identified some of the conditions
under which this might be possible.

Recognition
by the Common Law under s223(1)(c)

The NTA, in its definition
of native title in s223(1)(c), requires that any rights or interests sought
to be recognised as ‘native title’ must ‘be recognised
by the common law’. This phrase was directly addressed in the High
Court’s decision in Yarmirr where the High Court explained
that the common law cannot recognise Indigenous rights where the two are
inconsistent. [168]

In Yarmirr
the High Court found that an exclusive right to control access to the
sea could not be recognised because it was inconsistent with the public
right of navigation and fishing and Australia’s international obligation
to permit innocent passage of ships through Australia’s territorial
sea. Exclusive rights to traditional sea country, constituted by an elaborate
system of laws and customs, were not given recognition. In relation to
the exploitation of their sea country, particularly commercial fishing
and petroleum exploration, native title holders are thus relegated to
bystanders in the major natural resource developments taking place in
their sea country.

An alternative approach
suggested by Justice Kirby, that the rights of control over the sea were
qualified or regulated by the rights of navigation and innocent passage
[169] but still able to be recognised, was not adopted
by the majority. [170] This approach seeks to maintain,
wherever possible, Indigenous culture while at the same time allowing
full expression to the rights recognised by the common law. It is also
consistent with a human rights approach to the recognition of native title
rights and interests. Instead the Court found that where there was any
element of inconsistency, native title would be extinguished.

The recent High Court
decision in Yorta Yorta has also provided further direction
on the Court’s interpretation of s223(1)(c). There the Court made
clear that this subsection does not invite incorporation of the entire
body of the common law into the NTA. Instead there are two main purposes
that the section serves:

First, the requirement
for recognition by the common law may require refusal of recognition
to rights or interests which, in some way, are antithetical to fundamental
tenets of the common law. ... Secondly, however, recognition by the
common law is a requirement that emphasises the fact that there is an
intersection between legal systems and that the intersection occurred
at the time of sovereignty. The native title rights and interests which
are the subject of the Act [NTA] are those which existed at sovereignty,
survived that fundamental change in legal regime, and now, by resort
to the processes of the new legal order, can be enforced and protected.
It is those rights and interests which are “recognised” in
the common law. [171]

The second of these
features, and its effect on the recognition of contemporary Indigenous
culture, has been discussed above in relation to s223(1)(a). The first
feature, refusal of recognition to rights that are antithetical to fundamental
tenets of the common law, was not elaborated upon in the Yorta Yorta
decision but was briefly considered in the Miriuwung Gajerrong
decision where the Court referred to ‘the general objective of the
law of the preservation and protection of society as a whole’. [172]

It is difficult to
know from the case law so far, the extent to which the requirement by
the High Court, that the rights and interests recognised as native title
are consistent with the fundamental tenets of the common law, will provide
further bases for restricting the enjoyment by Indigenous people of their
human rights.

Conclusion

The standard of proof
and the burden it places on Indigenous applicants seeking recognition
of the contemporary expression of their culture and identity is very high.
They must prove a normative system of laws and the seamless transmission
of these laws from one society to the next to the present day. Yet what
do Indigenous people get from this recognition process once they have
overcome these legal hurdles? They don’t get recognition of the laws
and customs that generate rights and interests. They don’t get recognition
of the systems that keep their culture vital and developing. They don’t
get recognition of their spiritual connection with the land or their governance
structures.

These are the rights
that, at international law, Australia has agreed to protect and maintain.
Yet these are not the rights that are recognised by native title law.
From native title law, Indigenous people get recognition of a bundle of
rights and interests that is extinguished completely or partially whenever
their enjoyment is inconsistent with non-Indigenous people’s enjoyment
of their rights and interests.


1
Commonwealth v Yarmirr; Yarmirr v Northern Territory [2001] HCA
56 (11 October 2001) (‘Yarmirr’).

2
Western Australia & o’rs v Ward & o’rs [2002]
HCA 28 (8 August 2002) (‘Miriuwung Gajerrong’).

3
Members of the Yorta Yorta Aboriginal Community v Victoria &
o’rs
[2002] HCA 58 (12 December 2002) (‘Yorta Yorta’)

4
999 United Nations Treaty Series (‘UNTS’) 171 (Australia joined
1980) (‘ICCPR’).

5
1577 UNTS 3 (Australia joined 1990).

6
ICCPR, op.cit., art 27, see also Convention on the Rights of the Child,
op.cit., art 30.

7
Human Rights Committee, General Comment 23 – The rights of minorities,
(1994) para 9; in Compilation Of General Comments And General Recommendations
Adopted By Human Rights Treaty Bodies
, United Nations document number
(‘UN doc’) HRI/GEN/1/Rev.5, 26 April 2001, p147.

8
Human Rights Committee, General Comment 23 – The rights of minorities,
op.cit., para’s 6.1 & 6.2.

9
Human Rights Committee, Länsman -v- Finland, UN
document CCPR/C/52/D/511/1992, 8 November 1994, para 32.2; and Human Rights
Committee, Ominayak -v- Canada, UN document CCPR/C/38/D/167/1984,
10 May 1990, para 32.2

10
Human Rights Committee, Ominayak -v- Canada, op.cit.,
para 33.

11
Concluding observations of Human Rights Committee: Sweden, UN doc
CCPR/C/79/Add.58, 9 November 1995, para 18.

12
Human Rights Committee, Länsman -v- Finland, op.cit.,
para 9.3.

13
Human Rights Committee, Concluding observation of the Human Rights
Committee: Australia
, UN doc A/55/40 para’s 498-528, 24 July
2000.

14
See also discussion on discrimination in chapter 3 of this Report.

15
The international legal approach to equality is one of substantive rather
than formal equality: G Triggs, ‘Australia’s Indigenous Peoples
and International Law’ (1999) 23 Melbourne University Law Review
372 at 379-381; also Australian Law Reform Commission, Recognition
of Aboriginal Customary Laws
, Report No 31(1986) paras 150, 158. The
Committee on the Elimination of Racial Discrimination (‘CERD’)
has recognised as aspects of the principle of equality the obligations
of States parties to ICERD (inf.) to ensure that no decisions directly
relating to the rights and interests of indigenous peoples are taken without
their informed consent, as well as to recognise and protect the rights
of indigenous peoples to own, develop, control and use their communal
lands and territories and resources: General Recommendation XXIII –
Indigenous Peoples
, (1997) para’s 4-5, in Compilation Of General
Comments And General Recommendations Adopted By Human Rights Treaty Bodies
,
op.cit., p192.

16
660 UNTS 195 (Australia joined 1975) (‘ICERD’).

17
ibid., art 5(a).

18
ibid., art5(d)(vii).

19
ibid., art5(d)(v).

20
The Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua,
Inter-American Court of Human Rights, 31 August 2001, available at <www.corteidh.or.cr/seriecing/serie_c_79_ing.doc&gt;
(accessed 15 January 2003).

21
ibid., at [148].

22
ibid., at [149]

23
ibid., at [164].

24
ICERD, op.cit., art 5(e)(v).

25
W McKean, ‘The Meaning of Discrimination in International and Municipal
Law’ (1970) 44 British Yearbook of International Law 178 at
185–186; G Triggs, op.cit., at 379-381; Australian Law Reform Commission,
op.cit.,; see also Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2000, Human Rights and Equal
Opportunity Commission, Sydney, 2001, pp50-52.

26
Commonwealth Parliament, Sixteenth Report of the Parliamentary Joint
Committee on Native Title and the Aboriginal and Torres Strait Islander
Land Fund: CERD and the Native Title Amendment Act 1998
, Canberra,
June 2000, para 3.7.

27
Native Title Report 2000, op.cit., pp52-53.

28
Street v Queensland Bar Association (1989) 168 CLR 461 per Brennan
J at 513-514, and per Gaudron J at 570-71, 573; and Castlemaine Tooheys
Ltd v South Australia
(1990) 169 CLR 436 per Gaudron & McHugh
JJ at 478.

29
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities
, United Nations General Assembly
(‘UNGA’) resolution 47/135, UN doc A/47/49, 18 December 1992,
art 2(2).

30
Vienna Declaration and Programme of Action (UN doc A/CONF.157/23,
25 June 1993, endorsed by UNGA on 20 December 1993, UN doc A/RES/48/121,
para 2), part I para 20 (also part II para 31).

31
CERD, General Recommendation XXIII – Indigenous Peoples, op.cit.,
para 4(d).

32
Human Rights Committee, General Comment 23 – The rights of minorities,
op.cit., para 7.

33
CERD, Decision 2(54) on Australia, (UN document A/54/18, para 21(2))
18 March 1999, para’s 8 & 9.

34
Minority Schools in Albania (1935) PCIJ Ser A/B No 64, p 17; also
South West Africa Second Phase, Judgment [1966] ICJ Rep 6 at 303–4,
305 per Tanaka J; UN Sub-Commission on Prevention of Discrimination and
Protection of Minorities, The Main Types and Causes of Discrimination,
UN Sales No 49.XIV.3 (1949), paras 6–7; F Capotorti, Study on
the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities

UN Sales No E.91.XIV.2 (1977), reprinted United Nations Human Rights Study
Series No 5 (1991), para 239; also UN doc E/CN.4/52 (1947), Section V;
A Bayefsky, ‘The Principle of Equality or Non-Discrimination in International
Law’ (1990) 11 Human Rights Law Journal 1 at 27; Triggs, op.cit.,
at 379-381.

35
CERD, General Recommendation XXIII – Indigenous Peoples, op.cit.,
para 4(e).36 ibid., para ‘s 2-4(e).

36
ibid., para ‘s 2-4(e).

37
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [14].

38
ICCPR, op.cit., art 18.

39
On the characterisation of Aboriginal belief-systems as religions, see
M Charlesworth, ‘Introduction’ in M Charlesworth (Ed) Religious
Business: Essays on Australian Aboriginal Spirituality
, Cambridge
University Press 1998 xiii at xv; W Stanner, ‘Some Aspects of Aboriginal
Religion’ written 1976, reproduced in Charlesworth, ibid, at 1.

40
Human Rights Committee, General Comment 22: Right to freedom of thought,
conscience and religion
, (1993) para 2; in Compilation Of General
Comments And General Recommendations Adopted By Human Rights Treaty Bodies
,
op.cit., p144.

41
ibid., para 4.

42
‘Article 18 [freedom of religion]...might well assist in securing
access to and control of sacred sites, skeletal remains, burial artefacts
and other items of religious or cultural significance to Indigenous Australians’,
S Pritchard (ed), Indigenous Peoples, the United Nations and Human
Rights
, The Federation Press, Sydney, 1998, p192.
Another commentary indicates that proposing article 18 as supporting the
right to exclude people from a place would be ‘new ground’ for
this article: ‘It is unfortunate that the HRC [Human Rights Committee]
has issued so few consensus comments on the limits to the freedom to manifest
religion or belief. It would be instructive, for example, for the HRC
to issues opinions on the permissibility of restrictions of such religious
activities as polygamy, animal sacrifice, or the exclusion of women from
the church hierarchy’: S Joseph, J Schultz & M Castan, The
International Covenant on Civil and Political Rights
, Oxford University
Press, Oxford, 2000, at [17.13].

43
Miriuwung Gajerrong, op.cit., at [586].

44
Section 116.

45
Miriuwung Gajerrong, op.cit., per Kirby J at [586].

46
See also Aboriginal and Torres Strait Islander Social Justice Commissioner,
Social Justice Report 2002, chapter 2.47 993 UNTS 3 (Australia
joined 1975) (‘ICESCR’).

47
993 UNTS 3 (Australia joined 1975) (‘ICESCR’).

48
For a commentary on these provisions see Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 1999,
Human Rights and Equal Opportunity Commission, Sydney, 2000, pp89- 97.

49
UN doc A55/44, para’s 498-528, 24 July 2000.

50
ibid., tenth para.

51
UN doc CCPR/C/69/L/AUS, 25 April 2000, issue 4.

52
UN doc CCPR/C/79/Add.105, 7 April 1999, paras 7 & 8.

53
UN doc CCPR/C/79/Add.112, 5 November 1999, para 17; see also para 10.

54
UN doc CCPR/CO/74/SWE, 24 April 2002.

55
op.cit., para 15.

56
op.cit.,

57
Decision of the Human Rights Committee, UN doc CCPR/C/43/D/205/1986, 3
December 1991.

58
UN doc E/C.12/Q/AUSTRAL/1, 23 May 2000, Issue 3.

59
UN doc E/C.12/Q/CAN/1, 10 June 1998, issue 23.

60
Committee on Economic, Social and Cultural Rights, Concluding observations:
Canada
, UN doc E/C.12/1/Add.31, 10 December 1998, para 18.

61
Committee on Economic, Social and Cultural Rights, Concluding observations:
Colombia
, UN doc E/C.12/1/Add.74, 30 November 2001, para 33.62 Sections
61 and 225.

62
Sections 61 and 225.

63
From Yorta Yorta, op.cit., per Gleeson CJ, Gummow & Hayne
JJ at [33]-[35].

64
De Rose v State of South Australia [2002] FCA 1342 (1 November
2002) (‘De Rose’).

65
Mabo & o’rs v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo’).

66
Fejo v Northern Territory of Australia (1998) 195 CLR 96.

67
ibid., per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ
at 128.

68
Yorta Yorta, per Gleeson CJ, Gummow & Hayne JJ at [31]
& [38].

69
New South Wales v Commonwealth (1975) 135 CLR 337.

70
ibid., per Gibbs J at 388.

71
Mabo, op.cit., per Brennan J (with whom Mason CJ and McHugh J agreed)
at para 32 of His Honour’s judgement.

72
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [91].

73
Yorta Yorta, op.cit., per Gleeson CJ, Gummow & Hayne JJ
at [43].

74
ibid., at [44].75 ibid.

75
ibid.

76
See Social Justice Report 2002, op.cit., chap 2.

77
SJ Anaya, Indigenous Peoples in International Law, Oxford University
Press, New York, 1996, p79.

78
Yorta Yorta, op.cit., per Gleeson CJ, Gummow & Hayne JJ
at [55].

79
Campbell & o’rs v Attorney General (British Columbia) &
o’rs
(2000) BCSC 1123 (Supreme Court of British Columbia, 24
July 2000).

80
21 U.S. (8 Wheat) 543 (1823).

81
30 U.S. (5 Pet.) 1 (1831).

82
31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832).

83
R v Van der Peet [1996] 2 SCR 507 at 542.

84
Johnson v M’Intosh, op.cit., at 572-3.85 Miriuwung Gajerrong,
op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [14].

85
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [14].

86
ibid., at [90].

87
ibid., at [88].

88
ibid., at [91].

89
ibid., at [21].

90
ibid., at [53].

91
ibid., at [52] & [89].

92
ibid., at [49].

93
See Comparing Rights section, pages 51-53, below.

94
See, e.g. Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron,
Gummow & Hayne JJ at [29].

95
ibid., at [52].

96
Miriuwung Gajerrong, op.cit., per Callinan J at [970].

97
Miriuwung Gajerrong, op.cit., per McHugh J at [561].

98
See pages 27-29, above.

99
Yorta Yorta, op.cit., per Gleeson CJ, Gummow & Hayne JJ
at [39] & [40].

100
ibid., at [43] & [44].

101
ibid., at [43].

102
ibid., at [49] & [50].

103
ibid., at [50].

104 ‘The native title rights and interests which
are the subject of the Act [NTA] are those which existed at sovereignty,
survived that fundamental change in legal regime, and now, by resort to
the processes of the new legal order, can be enforced and protected. It
is those rights and interests which are “recognised” in the
common law. ... 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’, ibid.,
at [77] & [80].

105
ibid., at [86].

106
‘Upon the Crown acquiring sovereignty, the normative or law-making
system which then existed could not thereafter validly create new rights,
duties or interests. Rights or interests in land created after sovereignty
and which owed their origin and continued existence only to a normative
system other than that of the new sovereign power, would not and will
not be given effect by the legal order of the new sovereign. ... [A]ccount...[can]
be taken of any alteration to, or development of, that traditional law
and custom that occurred after sovereignty. Account may have to be taken
of developments at least of a kind contemplated by that traditional law
and custom. ... But what the assertion of sovereignty by the British Crown
necessarily entailed was that there could thereafter be no parallel law-making
system in the territory over which it asserted sovereignty. ... Because
there could be no parallel law-making system after the assertion of sovereignty
it also follows that the only rights or interests in relation to land
or waters, originating otherwise than in the new sovereign order, which
will be recognised after the assertion of that new sovereignty are those
that find their origin in pre-sovereignty law and custom’, ibid.,
at [43] & [44].

107
‘[D]emonstrating ... some interruption of enjoyment or exercise of
native title rights or interests in the period between the Crown asserting
sovereignty and the present will not necessarily be fatal to a
native title claim. ... [A]cknowledgment and observance of those laws
and customs must have continued substantially uninterrupted since sovereignty.
Were that not so, the laws and customs acknowledged and observed now
could not properly be described as the traditional laws and customs
of the peoples concerned... [I]t must be shown that the society, under
whose laws and customs the native title rights and interests are said
to be possessed, has continued to exist throughout that period as a body
united by its acknowledgment and observance of the laws and customs’,
ibid., at [83], [87] & [89].

108
ibid., at [87].

109
NTA, prior to 1998 amendments, s82(3).

110
ibid., s82(1).

111
NTA, s82(1).

112
Yorta Yorta, op.cit., per Gleeson CJ, Gummow & Hayne JJ
at [34].

113
NTA, s190B(5).

114
NTA, s190B(7)(a).

115
Yorta Yorta, op.cit., per Callinan J at [184].

116
op.cit., at [567].

117
op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [63]; also
Full Federal Court decision in Western Australia v Ward & o’rs
[2000] FCA 191 (3 March 2000) per Beaumont & Von Doussa JJ at [245]
(with whom North J agreed at [682]).

118
op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [7] & [15].

119
op.cit., per Gleeson CJ, Gummow & Hayne JJ at [75].

120
op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [25].

121
Department of the Premier and Cabinet, Guidelines for the Provision
of Evidentiary Material In Support of Applications for a Determination
of Native Title
, Government of Western Australia, October 2002.
The Queensland Government document Compiling a Connection Report
is currently being revised and will be posted back to this site when complete:
<www.premiers.qld.gov.au/about/nativetitle/newweb/pages/brochures.htm&gt;,
accessed 15 January 2003.

122
Coe v Commonwealth (1993) 118 ALR 193 per Mason CJ at 206; De Rose
at [265] & [913].

123
Fejo, op.cit., per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne
& Callinan JJ at [46].

124
Miriuwung Gajerrong, per Gleeson CJ, Gaudron, Gummow &
Hayne JJ at [14].

125
See pages 33-34, above.

126
De Rose, op.cit, at [264]-[271].

127
ibid., at [89] & [144].

128
ibid., at [89].

129
The Hon. D Williams, Attorney-General, ‘Native title: the next
10 years’, Address to Native Title Conference 2002: Outcomes and
Possibilities
, Geraldton, 4 September 2002, para 38-40.

130
De Rose, op.cit., at [49].

131
ibid., at [31].

132
ibid., at [246]-[247].

133
ibid., at [205].

134
ibid., at [381.

135
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [64].

136
De Rose, op.cit., at [377].

137
ibid., at [559].

138
ibid., at [570].

139
ibid., at [915].

140
ibid., at [107].

141
ibid., at [569].

142
ibid.

143
ibid., at [891].

144
The reference in [599] of Justice O’Loughlin’s reasons is in
relation to the claimant Peter De Rose. The same observation is made
by the Judge for each of the following Aboriginal witnesses. The High
Court in Yorta Yorta subsequently rejected the use of ‘abandonment’
as a way to describe the consequences of interruption in acknowledgement
and observance of traditional laws and customs: Yorta Yorta,
op.cit., per Gleeson CJ, Gummow & Hayne JJ at [90].

145
De Rose, op.cit., at [903].

146
ibid., at [907].

147
ibid., at [903].

148
ibid., at [896].

149
ibid.

150
ibid., at [681].

151
ibid., at [816].

152
ibid., at [892].

153
ICESCR, op.cit., art15; Universal Declaration of Human Rights (UNGA
resolution 217A (III), UN doc A/810 at 71, 10 December 1948), art27(1).

154
Kennedy v State of Queensland [2002] FCA 747 (13 June 2002) (‘Kennedy’).

155
cf NTA s61(1)(2).

156
Kennedy, op.cit., at [34].

157
ibid.

158
Western Australia v Ward & o’rs [2000], op.cit.,

159
Kennedy, op.cit., at [32].

160
This issue was addressed in some detail in Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 2001,
Human Rights and Equal Opportunity Commission, Sydney, 2002, pp67-72.
NTRB under-funding has most recently been discussed in Ministerial
Inquiry into Greenfields Exploration in Western Australia
, Department
of Mineral and Petroleum Resources (WA), 2002, p88.

161
Native Title Report 2001, op.cit., p85.

162
De Rose, op.cit., at [50].

163
ibid., at [51].

164
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [14].

165
De Rose, op.cit., at [568].

166
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [59].

167
ibid., at [58]-[60].

168
Yarmirr, op.cit., per Gleeson CJ, Gaudron, Gummow & Hayne JJ
at [42].

169
ibid., per Kirby J at [272]-[282].

170
‘[T]here is a fundamental inconsistency between the asserted native
title rights and interests and the common law public rights of navigation
and fishing, as well as the right of innocent passage. The two sets of
rights cannot stand together and it is not sufficient to attempt to reconcile
them by providing that exercise of the native title rights and interests
is to be subject to the other public and international rights’, Yarmirr,
ibid., per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [98].

171
Yorta Yorta, op.cit., per Gleeson CJ, Gummow & Hayne JJ
at [77].

172
Miriuwung Gajerrong, op.cit., per Gleeson CJ, Gaudron, Gummow
& Hayne JJ at [21].

19
March 2003.